Date of Filing: 03/03/2016
Date of Order: 19/12/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed U/S 12 of the Consumer Protection Act 1986 alleging the deficiency in service on the part of the O.P and prays for orders to direct the O.P Bank to return all the original document which were pledged with the O.P. Bank at the time of mortgage and to pay a sum of Rs.50,000/- as damages to the complainant as compensation towards deficiency in service, mental agony, harassment etc., given by the O.P Bank to the complainant and for other reliefs as sought in the complaint.
2. The brief facts of the complaint are that the complainant No.1 had applied for a loan sum of Rs.5,00,000/- with the O.P bank during year 1996 for the purpose of piggery form and on the application of the complainant No.1 the O.P bank has sanctioned Rs.4,48,000/- vide sanction letter date 9.10.1996 but a sum of Rs.2,00,000/- was released in favour of the complainant No.1, the said complainant built a large size of asbestos sheet roofed shed for piggery and thereafter the complainant No.1 once again made request to the O.P. Bank to release the amount for Rs.2,48,000/- for the purchase of breed, but the O.P bank instead of releasing the said amount came to the spot and inspected the building and thereafter postponed for the release of the remaining amount for the period of two years. Inspite of repeated requests made by the complainant No.1 after the lapse of two years from the date of release of amount of Rs.2,00,000/- the bank officials came to the spot and again they advised to convert this loan from piggery raring to poultry form and assured that they will sanctioned the entire loan amount with a condition that the complainant No.1 should repay the earlier loan amount with interest to the tune of Rs.3,00,000/- and on the advise of the O.P officials the complainant No.1 discharged his loan liability by paying Rs.3,00,000/- to the O.P bank. It is stated that complainant has obtained the necessary estimate and plan and submitted to the bank authorities for fresh loan along with her wife i.e. complainant No.2 herein and the O.P bank sanctioned the loan of Rs.19,82,000/- vide sanction ticket dated 16.10.1999. The O.P bank released the entire loan amount step by step and the complainant No.1 utilized the entire loan and modified the structures for raring of the poultry and when the amount became shortage for the purchase of chicks and again he made a request with the bank to sanction the additional sum of Rs.5,00,000/- but the O.P bank sanctioned a loan of Rs.4,80,000/- vide a fresh sanction ticket dated 29.5.2000 including the amount which was released earlier in all total a sum of Rs.22,64,000/- as per revised sanction ticket. Thereafter complainant starting raring chicks in the said premises because of natural calamity i.e. spreading of disease complainant suffered a huge loss continuously for the period of 1 and half year during that period the complainant was not able to pay the installments as per the terms of the agreements with the O.P bank. Thereafter bank authorities demanded for repayment of the loan amount by way of installments. At that time the complainant made a request to the O.P. bank vide letter dated 31.12.2002 seeking permission to sell the six acres of land which were mortgaged to the O.P bank but the O.P bank has not issued a permission letter to sell said land. Thereafter O.P bank ceased the tractor bearing Reg. No. KA-02-T-1193 and trailer No.1194 and they put into action and recovered a sum of Rs.1,69,522/- and adjusted the said sum towards the installments and intimated the same to the complainant by O.P bank vide its letter dated 28.4.2003. Further the Government of India announced agricultural debt relief scheme in 2008 wherein which the agriculturist who having less than 5 acres of land were exempted from repaying the amount and the persons who were having less than 5 acres of land have to undergo one time settlement scheme (OTS scheme) and they have to pay 75% of the borrowed amount by way of three installments and 25% was waived off by the Government in view of the said scheme, the complainant had given an acceptance letter to the O.P bank accepting to pay 75% of the loan in three installments on or before 30.9.2008, 31.3.2009 and 30.6.2009 totaling Rs.21,02,231/- at the rate of Rs.7,00,744/- per installment and bank has also accepted the same and thereafter the complainant paid Rs.7,01,000/- on 1.10.2008. Again on 23.6.2009 a sum of Rs.5,00,000/- was paid and a sum of Rs.2,01,000/- was also paid on 3.4.2009. The complainant could not able to pay the third installment on or before 30.06.2009 due to some financial difficulty and on 3.11.2009 the O.P bank issued a letter to the complainant No.1 calling upon him to avail the payment of third installment on or before 31.12.2009 as the Government of India has extended the time. The Reserve Bank of India vides its letter dated 26.6.2009 issued a circular to all the bank wherein, in the said letter its states as follows:- The Government of India has also advised that the banks/ lending institutions are allowed to receive even less than 75% of the eligible amount under the O.T.S scheme provided by the bank/lending institution bear the differences themselves and do not claim the same either from the Government or from the farmer, the Government will pay only 25% of the actual eligible amount under the debt relief.
3. The ministry of finance vide its letter dated 26.3.2010 issued to the Deputy Governor RBI and other executives intimating that the Government has decided to extend period of payment of 75% over due portion by the other farmer under the OTS scheme under ADWDRS 2008 for another six month from 1.1.2010 to 30.6.2010. The contents of the letter issued by the Government of India Ministry of Finance was not intimated by the bank to the farmers in view of the guidelines of the Reserve Bank.
4. It is stated that, though the complainants are not entitled to pay any amounts in view of the acceptance letter given by the complainants they have paid a sum of Rs.6,00,000/- on 31.7.2010 and a sum of Rs.3,00,000/- on 13.8.2010. The complainants have paid in total a sum of Rs.23,02,000/- even prior to the last payment, the complainant No.1 wrote a letter to the O.P bank to adjust the balance amount in view of the letter issued by the RBI. In spite of the receipt of the said letter the O.P bank has failed to informed the complainants and also they have not informed whether the complainants were liable to pay the third installments to the O.P bank waiving of the amount as per the directions of the RBI. The complainants have not received any information from the bank and to care and cautious the complainants have paid Rs.9,00,000/- as a last installment as per the acceptance letter. The complainants are liable to pay a sum of Rs.21,02,231/- but they have paid Rs.23,02,000/- and they have paid a sum of Rs.2,00,000/- as an excess payment instead of repaying the amount of Rs.2,00,000/- to the O.P bank issued a letter dated 17.2.2011 calling upon the complainants to clear the dues on or before 28.02.2011 and total outstanding in the complainant account as on 31.12.2010 is Rs.47,25,772/- together with interest at the rate of 6% p.a. Aggrieved by the said notice the complainant preferred a Writ Petition before the Hon’ble High Court of Karnataka by seeking in the nature to writ of certiorari by quashing the letter dated 17.2.2011 issued by the O.P Bank and also seeking direction to the O.P bank to waive of the 25% of the balance amount as per the guidelines of the RBI and thereafter the Hon’ble Court on perusal of the papers and arguments of the both the parties came to the conclusion that the manner in which the communication dated 17.02.2011 has been issued cannot be sustained and the same is accordingly quashed and further O.P bank is directed to take into consideration the above noticed aspect of the matter in the light of the documents produced along with the writ petition. After passing of the above said orders the O.P Bank did not follow the instructions of the Hon’ble High Court and also not bent upon it give all documents which were pledged with the O.P bank at the time of mortgage and in view of the same the complainants have issued two notice on dated 7.2.2012 and 5.7.2013 to return the original documents which were pledged at the time of mortgage but the O.P bank did not inclined to the grievances of the complainant and in view of the non-procuring the original document from the custody of the O.P bank and finally on 7.1.2016 complainant themselves wrote a letter /notice on the same issue demanding the O.P bank to return the original documents. But the O.P bank did not heed to the complainants words and aggrieved by the above said act of the O.P the complainant has filed this above complaint.
5. Upon issuance of notice O.P. entered its appearance through their advocate and filed version. In the version of O.P it is contended that complaint is not maintainable either in law or on facts. It is contended that complainant No.1 had applied for a loan for a sum of Rs.5,00,000/- in the O.P bank during the year 1986 for the purpose of piggery form and on the application of the complainant No.1 the O.P. bank has sanctioned a sum of Rs.4,48,000/- on 9.10.1996 and the said loan was released as stage by stage. Accordingly a sum of Rs.2,00,000/- was released in favour of the complainant No.1 for construction of the building and the complainant has not utilized the loan amount for the said purpose for which it was sanction. So the bank has not released the remaining loan amount for not adhering to the terms and conditions of the above said loan. Further the complainant himself has repaid the said loan borrowed from the bank and has repaid the previous loan on their own. Again on 16.10.1999 the complainants again filed a loan application under three loan facilities. Based on the fresh loan application filed by the complainants and on the execution of the loan documents the O.P bank has sanctioned and released three loan facilities namely AGMTL (OFD) for a sum of Rs.6,00,000/- AGMTL (Poultry) Phase-I of Rs.7,68,000/- and AGMTL (Poultry Phase-II) of the 6,14,000/- in total a sum of Rs. 19,82,000/- and further the entire loan has been disbursed and utilized by the complainants further on request an additional sum of Rs.4,40,000/- has been sanctioned and released on 29.5.2000, the complainant himself has submitted that he has availed a total sum of Rs.22,64,000/- from the O.P bank. On after availing the said loan a mortgaged and created charge on the various properties situated at Gopalapura Village, Dasanapura Hobli, Nelamangala Taluk bearing Sy.No.14 measuring 29 guntas Sy.No.19 measuring 3 acres 39 guntas, Sy.No.18/2 measuring 1 acre 35 guntas, Sy.No.5/3 measuring 2 acres 10 guntas and Sy.No.15/1 measuring 4 acres 4 guntas thereby the complainants have created the charge in favour of the bank in respect above mentioned properties by executing equitable mortgage and deposited all original title deeds of the above said properties. Further O.P contended that it is false that the complainants have not paid the loan installments due to natural calamities and on the other hand the borrowers being the willful defaulter with the mala-fide intention and sought permission for sell 6 acres of land which is mortgaged to the bank. Since the said land has been mortgaged in favour of the bank has rightly not given any permission to sell the said land. Further contended that it is true that the O.P for recovery of huge debt has auctioned the hypothecated tractor and adjusted to the loan account and conveyed the same to the complainants. Since the complainants have failed to pay the entire loan amount and hence O.P bank has approached the DRT for recovery of money in O.A. No.284/2003 for an amount of Rs.41,26,366/- on 31.5.2003 the DRT has allowed the O.A. No.284/2003 and issued recovery certificate on 20.12.2007 for a sum of Rs.64,63,127/- with future interest. After passing of the final order by the DRT and issuance of the recovery certificate and the said fact is suppressed by the complainant before this Hon’ble Forum and the order passed in O.A. No.284/2003 has reached finality and debt waiver scheme (ADW & DR scheme 2008) announced by the Government of India to some eligible agriculture borrowers and as per the said scheme farmer covered under the scheme shall pay 75% of the overdue portions by 30.6.2009 within three installments after which the said formers is eligible for 25% of the relief under the said scheme. The O.P bank considered the case of the complainants for the one time settlement (OTS) under the said scheme with a condition that the complainants have to pay a sum of Rs.21,02,000/- on or before 30.6.2009. Further the complainant accepted the offer and agreed to pay the said OTS amount on or before 30.6.2009. Even after agreeing to pay the amount the complainant failed to pay the entire amount in time. Therefore the complainant was not entitled for the benefit of the said scheme and was made liable to pay the amount as per the order of the DRT. Further the Government has extended the time for the payment of 75% of the overdue amount till 30.12.2009. Therefore as a sum of Rs.21,02,231/- being a 75% of a overdue portion a sum of Rs.14,02,000/- being already paid by the complainant. The O.P bank requested the complainant to pay the balance amount of Rs.7,00,231/- to become eligible for 25% relief from the Government. But the complainants failed to pay the said amount and could not get the benefit of the scheme. Furthermore the Government further extended the time to pay the 75% of the overdue amount till 30.6.2010. The complainants have not utilized the said benefit and have not paid the balance amount of 75% of the overdue amount i.e. Rs.7,00,231/- to the O.P. bank within 30.6.2010. Accordingly the O.P bank gave reminder and pursue the complainants to pay the entire dues as per the DRT order and the complainants have paid a sum of Rs.6,00,000/- vide cheque dated 31.7.2010 and paid a sum of Rs.3,00,000/- by way of cash on 13.8.2010 to the bank as against the entire dues. Hence the complainants have failed to repay the loan amount as per the OTS scheme and O.P bank as per the letter from under secretary to the Government of India the bank need not withdraw its notice and further it was clarified that the bank has no power to condone the delay in paying the OTS amount. Further the complainant has approached the Hon’ble High Court of Karnataka in W.P. No.1933/2011 and 10011/2011 and Hon’ble High Court has directed to consider the case of the complainant by examine the question whether the marginal delay can be condoned by the bank or not. Earlier the bank has stated earlier the bank has no power to condone the delay and the bank has permitted the same to the complainant vide letter dated 22.12.2011. And further OTS scheme has been extended from 1.7.2009 to 31.12.2009 and further extended to 30.6.2010 but the complainants have not paid the entire OTS amount by utilizing the OTS scheme. And the bank being a trustee of public money cannot float the law of regulations and the bank do not have power to condone the delay in payment of the overdue amount and extend the benefit to the complainants. And present complaint is filed with a intention to harass the bank and present outstanding due payable by the complainants to the bank is Rs.65,97,122/- calculated as per the decree obtained by the O.P bank in O.A.284/2003 since both the orders on the OA NO.284/2003 passed by DRT dated 20.12.2007 and W.P. No.9033/2011 and 10011/2011 dated 7.9.2011 has reached the finality and contended that this Forum cannot go in to the details of the matter. And hence the complainant has not approached this Forum with clean hands and the complainants have created the charge over the properties have been once again mortgaged to Canara Bank Nelamangala Branch by suppressing the fact of creating mortgage in favour of the O.P. Bank availing huge amount from the said bank. And further the complainant has sold the one of the properties mortgaged to the bank belonging to the guarantor Smt.Jayamma on 1.9.2005 without the consent of the bank. Therefore the O.P bank has not committed any deficiency in service and the O.P bank is even today ready and willing to return all the original documents only after complainants pay the entire due amounts with interest to the O.P Bank and Therefore O.P contended that the question of committing deficiency and unfair trade practice does not arise and by denying all other allegations made in the complaint prays for dismissal of the complaint.
6. In order to substantiate the case of the parties and both parties have filed his affidavit evidence and also heard the arguments.
7. On the basis of the pleading of the parties, the following points will arise for our consideration is:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.P?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
8. Our answers to the above points are:-
POINT (A) & (B): In the Negative.
POINT (C): As per the final order
for the following:
REASONS
POINT No. (A) & (B):-
9. On perusing the pleadings of the rival parties and the evidence placed on record, it discloses that, it is not in dispute that the complainants have obtained the three loan facilities namely AGMTL (OFD) for a sum of Rs.6,00,000/- AGMTL (Poultry) Phase-I of Rs.7,68,000/- and AGMTL (Poultry Phase-II) of the 6,14,000/- in total a sum of Rs. 19,82,000/- and further the entire loan has been disbursed and utilized by the complainants further on request an additional sum of Rs.4,40,000/- has been sanctioned and released on 29.5.2000, the complainant himself has submitted that he has availed a total sum of Rs.22,64,000/- from the O.P bank by pledging all original title deeds of the properties which were mortgaged in favour of the O.P bank. It is also not in dispute the complainants failed to repay the loan amount and consequence of the non-paying of the said loan the O.Ps auctioned the hypothecated tractor and trailer and adjusted the auction sale proceeds to the loan account. Further it is not in dispute the complainant failed to clear the complete loan account and thereon O.Ps bank initiated proceedings before the Debt Recovery Tribunal and get the orders in their favour. Further it is not in dispute being aggrieved by the above said order complainant approached to the Hon’ble High Court of Karnataka and filed the Writ Petition bearing No. W.P. 9033/2011 and 10011/2011 and the Hon’ble High Court of Karnataka directed the O.P bank to consider the case of the complainant by examining the documents in order to condone the delay. Further it is not in dispute as per the Government policy under the benefit scheme complainant entered into the one time settlement and agreed to pay the outstanding amount of Rs.21,02,000/- on or before 30.6.2009. It is not in dispute that the complainants were accepted the said offer but did not clear the loan amount within three installments. Further it is not in dispute the Government had extended the time for the payment 75% of overdue amount till 31.12.2009 and the complainant only paid the overdue portion a sum of Rs.14,02,000/- and the O.P bank requested the complainant to pay the balance amount of Rs.7,00,231/- to become eligible for 25% from the Government vide letter dated 3.1.2009, but the complainant did not pay the same.
10. The allegations of the complainants are that, as per the Annexure-L the Circular issued by the Reserve Bank of India complainants are not entitled to pay any amounts in view of the acceptance letter i.e. Annexure-F also contended that they have not received any information from the bank and to care and cautiously they have paid Rs.9,00,000/- as last installment as per acceptance letter. Per –contra, O.ps contended that, despite extending the dates as per the Government scheme complainant failed to clear the loan amount and hence he is not entitle for the benefit of such Government scheme.
11. On perusing the acceptance letter Annexure-F, it is evident that, complainant himself undertaken that if he failed to repay the loan amount within 30.6.2009 and the bank is entitle to recover the complete interest from him. On perusal of the Annexure-K the bank notice it is evident that the bank has intimated regarding the extension of time by the Govt. of India for payment of 75% over due portion from 1.7.2009 to 31.12.2009, but for the reasons known to the complainants did not repaid to the Government though given opportunity but failed to repay the loan amount to avail the benefit. On the basis of available evidence on record we are of the opinion that, the complainants himself slept over their rights and after the proceedings of the Debt Recovery Tribunal and before the Hon’ble High Court and after conclusion of the proceedings approached this Forum. The law will not extend its helping hand whoever slept over their rights.
12. On perusing the Annexure-T the copy of the orders passed in Writ Petition No.9033/2011 and 10011/2011 by the Hon’ble High Court of Karnataka, wherein which the Hon’ble High Court of Karnataka directed the O.P bank to take into consideration in the light of documents produced and in the light of communication dated 26.3.2010 extending the period thereafter apply its mind of the facts of the present case as to whether the marginal delay would take away the entire benefit and in such circumstances. Whether the due should be treated as N.P.A from the original date and pass appropriate orders in accordance with law.
13. It is worth to note that, if the O.P bank did not follow the directions given by the Hon’ble High Court of Karnataka the complainant has every right to approach this court for non-compliance of the directions. Whereas the complainant without questioning the Recovery certificate issued by the Debts Recovery Tribunal Karnataka Bengaluru and after attaining the finality of proceedings approached to this Forum.
14. It is pertinent to note that the Government given the scheme during the year 2009 and asked the complainant to pay 75% of the loan due amount within three installments and the date is also extended till 30.6.2010, but the complainant did not repaid the loan amount as per the Government scheme but the present complaint is filed on 03.03.2016 i.e. after lapse of six (6) years, but the complainant did not satisfactorily explained regarding delay also. Viewing from any angle complainants failed to prove deficiency in service on the part of the O.P and hence they are not entitled for any relief as sought in the complaint. However, O.P bank is at liberty to consider the case of the complainants with a sympathetic manner in order to waive the interest and to return the documents after clearance of the loan. Accordingly, we answered the Points No. (A) & (B) in the Negative.
POINT No. (C):
15. On the basis of answering the Points (A) and (B), in the result, we proceed to pass the following:-
ORDER
- The complaint is hereby dismissed. No order as to cost.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 19th Day of December 2017)
MEMBER MEMBER PRESIDENT
*Rak
