(Passed on 22.01.2014)
Per Mr B A Shaikh, Hon’ble Presiding Member
1. This appeal is preferred against order dtd.21.12.2006 passed by District Forum, Bhandara in CC/05/77 by which the complaint has been partly allowed.
2. The case of the complainant as set out in the complaint in brief is that the complainant obtained home loan of Rs.3.00 Lacs for construction of his house, from the opposite party (for short “O.P.”) No.1 – Finance Co. The O.P.No.2 is the main branch of O.P.No.1 and O.P.No.3 is the collecting agent of O.P.No.1. Due to personal difficulties, the complainant sold his house to Shri Lakhendra Gajbhiye, who was also in need of loan for purchasing of that house. Therefore, through the mediation of O.P.No.1 & 3 the aforesaid loan of the complainant was transferred in the name of Shri Likhendra Gajbhiye and for that purpose all the necessary formalities were completed by the complainant as well as by Shri Gajbhiye. The O.Ps. had shown due of Rs.3,04,741/- including penalty against the complainant. An amount of Rs.3.00 Lacs out Rs.3,03,741 was debited to the account of Shri Likhendra Gajbhiye due to said transfer of loan and remaining amount of Rs.3,741/- was paid in cash by the complainant to the O.P.No.1 for closing of his loan account on 03.03.2004 vide receipt No.158423 issued by O.P.No.3. Even though the said loan account was foreclosed on 03.03.2004, the O.Ps. had shown Rs.2,181/- outstanding against the complainant in the month of March 2004. The complainant wanted “No Objection Certificate” (NOC) from the O.P.No.1 and hence, he paid deposited Rs.2,181/- on 31.03.2004 vide receipt No.158428 with the O.P.No.1 and at that time again his loan account was foreclosed. But the O.Ps did not issue NOC in favour of the complainant. Again an amount of Rs.15,374/- was shown outstanding against the complainant in his account in the month of Oct.2004. Therefore, the complainant deposited under pressure the said amount on 28.10.2004 vide cheque No.274538 with O.P.No.1, as he wanted NOC from it. Thus, the O.Ps. recovered total amount of Rs.17,555/- without any right after foreclosure of the account from the complainant. The complainant, therefore, claimed the said amount with interest @ 18%p.a. and compensation of Rs.50,000/- towards harassment.
3. The O.P.Nos. 1, 2 & 3 filed their common Written Version and thereby resisted the claim. They admitted that complainant had taken home loan of Rs.3.00 Lacs on 12.01.2003 from O.P.No.1 and that the complainant subsequently sold his said house to Shri L Gajbhiye who also needed a loan to purchase that house. On the request of the complainant, loan of Rs.3.00 Lacs was granted to Shri Likhendra Gajbhiye on completion of necessary formalities and the loan of Rs.3.00 Lacs of the complainant was transferred to the account of Shri Likhendra Gajbhiye. But the liability of the complainant was to pay overdue amount till Rs.3.00 Lacs were transferred to account of Shri Gajbhiye. His account was foreclosed inadvertently. He paid overdue instalments but inadvertently while issuing receipts to him, it is inadvertently mentioned on those receipts that it is towards foreclosure of account. No dues certificate was inadvertently issued to the complainant. The amount of Rs.17,555/- paid by the complainant was legally due from him and therefore, it is submitted that the complaint may be dismissed.
4. The Forum below after considering evidence brought on record came to the conclusion that despite of foreclosure of the account of the complainant on 03.03.2004 on deposit of Rs.3,741/- as last due, the O.Ps have recovered Rs.2,181/- on 31.03.2004 and Rs.15,374 on 28.10.2004 excessively. It also found that the O.Ps have not filed account statement of Shri Likhendra Gajbhiye. It also found that as Rs.15,374/- were recovered excessively from the complainant, he was put to mental harassment. It also found that the account statement produced by the O.Ps. cannot be said to be correct as it is not verified by competent authority or a society. It, therefore, directed the O.P.Nos. 1, 2 & 3 to pay to the complainant Rs.17,555/- with interest @ 9% p.a. from March 2004 till realization of the said amount by him. It also directed them to pay Rs.10,000/- to the complainant towards mental harassment.
5. Feeling aggrieved by that order, the original O.P.Nos. 1, 2 & 3 have preferred this appeal. Advocates of the appellant filed Written Notes of Arguments. We have also heard advocate of the appellant. The respondent / original complainant neither filed Written Notes of Argument nor his advocate remained present for final hearing.
6. The learned advocate of the appellant submitted that the account of the complainant / respondent herein was foreclosed on 30.10.2004 by transferring loan amount of Rs.2,99,506/- in the loan account of Shri L Gajbhiye on 29.10.2004. He further submitted that the instalments from April 2004 to Oct. 2004 @ Rs.2,181/- p.m. i.e. total Rs.19,922/- was due from the complainant / respondent herein, but he paid only Rs.17,555/- towards said instalments and therefore, the appellant is not liable to refund Rs.17,555/- to the complainant / respondent herein. He relied upon the account extract of the complainant / respondent herein and that of Shri L Gajbhiye which are filed by him in appeal. He further submitted that the NOC showing the date as 11.03.2004 issued to the complainant / respondent herein actually shows the said date in American format as Month / Date / Year which means 03rd of Nov. 2004 and thus it was actually issued to the complainant after three days of foreclosure of the account, which was foreclosed on 30.10.2004. He, thus, argued that the Forum below has not properly considered these material aspects of the case and committed error in partly allowing the complaint and therefore, he submitted that the impugned order may be set aside.
7. The copies of two receipts issued by appellant No.3 are produced on record, which were produced before the Forum below. The said two receipts are dtd.03.03.2004 & 31.03.2004. They show that complainant deposited Rs.3,741/- on 03.03.2004 and Rs.2,181/- on 31.03.2004 with the appellant as foreclosure charges. The account extract of original complainant produced by the appellants also shows that the said account was foreclosed on 04.03.2004 by receiving Rs.3,741/- from the complainant. It also shows that it was again foreclosed on 06.04.2004 by receiving Rs.2,181/- from the complainant. It further shows that after recording the said foreclosure entry in the account statement on 06.04.2004, again Rs.15,375/- were recovered from the complainant on 30.10.2004 vide cheque No. 274538.
8. In our view, it cannot be said that inadvertently in the aforesaid two receipts and account statements, it is recorded that the account has been foreclosed. We find that initially Rs.3,741/- were recovered from the complainant by the appellants under the pretext of foreclosure of his account due to transfer of his loan account in the name of Shri L Gajbhiye, who availed loan of Rs.3.00 Lacs from the same bank for purchasing house of the complainant. Then again for second & third time i.e. on 06.04.2004 and 30.10.2004, the appellants recovered Rs.2,181/- and Rs.15,274/- from the complainant under the pretext of foreclosure of the account. We find that no such amounts on second & third time could be recovered from the complainant after foreclosure of his account on 04.03.2004.
9. It is also pertinent to note that the appellant issued a letter dtd.11.03.2004 to the complainant / respondent herein, certifying that his home loan has been repaid in full and there are no further dues payable under the said loan. The learned advocate of the appellant as noted above tried to show that the date 11.03.2004 is written in American format i.e. as Month / Date / Year and not as Date / Month & Year. Thus, according to him, the said date must be read as 03.11.2004 and not as 11.03.2004. We find that his said submission cannot be accepted since in none of the document issued by the appellant the dates are shown in American format as Month / Date / Year. The said letter, thus, can be said to have been issued on 11th of March 2004, admitting that on that date there was no due against the complainant.
10. We thus, hold that the Forum below has rightly held that the appellant excessively recovered Rs.17,555/- from the complainant. It, therefore, rightly directed the appellants / original O.Ps to refund the said amount with interest @ 9% p.a. to the complainant.
11. However, we find that the compensation of Rs.10,000/- awarded by the Forum below is excessive as compared to the mental harassment suffered by the complainant. In our view, the said compensation should have been of Rs.2,000/-. Therefore, the appeal deserves to be partly allowed.
ORDER
i. The appeal is partly allowed.
ii. The direction given under Cl.No.3 of the impugned order is modified to the effect that the original O.P.Nos.1, 2 & 3 / appellants shall pay to the original complainant / respondent herein.Rs.2,000/- instead of Rs.10000/- towards compensation.
iii. Rest of the impugned order is maintained.
iv. No order as to cost in appeal.
v. Copy of this order be furnished to both the parties free of cost.
