BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE URBAN

    7^th DAY OF JUNE 2021

ORDER

Smt.P.K.Shantha, Member

The Complainant has filed this complaint U/s.12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1 & 2 (herein after called as OPs) to direct the OP No.2 to waive off the interest if any outstanding Rs.4,49,310/- + interest as alleged under loan account bearing No.30438129967, to close the loan account and issue clearance certificate or else issue direction to OP No.2 to recover the amount/interest if any outstanding under the loan account of the complainant from OP No.1 in case if it fails to waive off the interest, in the alternative to direct the OP no.1 to pay if any outstanding of Rs.4,49,310/- as alleged under the loan bearing No.30438129967 to the OP No.2 and to obtain clearance certificate, to direct the OP Nos.1 and 2 to pay compensation of Rs.50,000/- each to the complainant towards mental agony etc., and to pass such other reliefs.                                            

2. The brief facts of the complaint are as under:

The Complainant submits that, OP No.1 is a housing society, engaged in the business of development of lands and formation of sites and allotted the same to it members registered under the society.  In the year 2005, the OP No.1 started the project by name SLN City layout at Paddanapalya and Doddaaladamara, Near Tavarakere in Bangalore by acquiring 50 acres of land.  The complainant approached the OP No.1 and became the member under membership No.1887 by paying Rs.1,250/- towards the membership and share fees on 09.05.2008 and on the same day he paid sum of Rs.1,13,750/- to OP No.1 as part payment towards site measuring 30 x 40 ft. in 2^nd Stage/Phase, SLN City Layout, Near Tavarakere, Bangalore.  Due to financial problem, complainant was unable to pay remaining balance amount of Rs.3,36,250/- towards site to OP No.1.  Therefore, complainant applied for loan of Rs.3,81,250/- with OP No.2 through OP No.1 under SBI Reality Home Loan Scheme which was held in the premises of OP No.1 on 28.05.2008.  At the time, they had obtained signatures from him on printed unfilled forms.  The complainant has produced membership application, share certificate and receipt dated 09.05.2008.

Further complainant submits that he approached the OPs several times to enquire regarding his loan application for which they have informed him that his application for loan is under process and also assured that they will inform him immediately after the loan is sanctioned.  All of a sudden in 2009, the OP No.1 insisted the complainant orally and also in writing to pay the balance amount of Rs.3,36,250/- for which complainant arranged the amount from other sources and paid a sum of Rs.1,50,000/- on 22.03.2010 and Rs.1,86,250/- on 15.05.2010 to OP No.1.  The OP No.1 has issued the receipts for the same.  Thus the complainant has paid the entire amount of Rs.4,50,000/- towards site and also submitted the affidavit with regard to address proof in the month of May, 2010.  After receiving the entire amount, the OP No.1 assured the complainant that the process of allotment of site will be commenced shortly on seniority basis and site will be allotted to him at the earliest.

The complainant further submits that he approached the SBI, Shimoga Branch for availing loan in the month of January, 2012 for which the Manager of the said Branch informed him that already loan is existing in his name with OP No.2 and the same is not yet cleared, hence request for availing loan from him was refused by the said SBI. Thereafter, in the 2^nd week of January, 2012 he came to OP No.2 and enquired regarding the loan sanctioned to him, then he came to know that loan was sanctioned to him on 27.07.2008 by OP No.2 and the said loan amount of Rs.3,36,250/- was disbursed directly to the account of OP No.1. Further complainant submits that he requested the OP No.1 to repay the entire loan amount to OP No.2 immediately for which OP No.1 repaid/remitted the loan amount of Rs.3,36,250/- vide cheque No.199797 dated 27.01.2012 to OP No.1 towards the loan account bearing No.30438129967 pertaining to the complainant.

The complainant further submits that he was not able to pay the installment amount due under the loan account to the OP No.2 due to non-intimation of loan sanctioned and also non-intimation regarding the installments due under the loan account from August 2008 to January 2012.  Further complainant states that he has not received any notices from the OP No.2 calling upon him to pay the installment due under the loan account from 2008 to 2012 and also after 2012 to 2017.  It is the duty and obligation on the part of OP No.2 to inform the complainant regarding the status of the loan application either it is sanctioned nor rejected.  But, the OP No.2 did not send any letter for having sanctioned the loan to the complainant.  The OP No.2 has stated in the reply that it has informed to the complainant vide letter dated 01.12.2008 regarding loan sanctioned is totally false.  Thereafter, the complainant had obtained some documents from the OP No.2 under RTI Act.  Copies of the application dated 24.11.2012 under RTI Act, letter from OP No.2 dated 19.12.2012, letter dated 27.07.2008 and letter dated 27.01.2012 are produced herewith.

The complainant further submits that he wrote many letters from 2012 to 2018 to OP No.2 and also to the Head Office at Bangalore requesting them to waive off the interest outstanding in his loan account and also written letters to OP No.1 requesting to rectify the mistake committed by it with respect to the loan sanctioned pertaining to his loan account.  The OP No.1 has not replied to the said letters and OP No.2 by its letter dated 11.12.2012 and 01.07.2016 informed him that the matter has been referred to the higher authority for consideration of his request/claim seeking waiver of interest arisen out of superfluous transactions.  Further complainant submits that he was shocked to receive the letters dated 04.01.2018, 08.05.2018 and 23.08.2018 from OP No.2 calling for one time settlement of interest amount and also a demand notice for Rs.1,55,030/-. 

The complainant further submits that he had knowledge about the loan sanctioned in his name in 2008 itself, he would have paid the installments regularly to the OP No.2.  Thereafter, it is the complainant who is pursuing the matter continuously with OP No.2 and it’s higher authorities through letters for waiver of interest though there was no fault on his side suffered unlawful loss apart from mental agony for being indebted for no reasons, solely on the lapses on the OP Nos.1 and 2.  The complainant was also assured by the SBI, Head Office, Shivajinagar, Bengaluru for considering his request.  The complainant further submits that without having knowledge about loan sanctioned, he has paid the entire balance amount towards the site to OP No.1 in the month of May, 2010.  Even then the OP No.1 has received the amount from him without informing anything about the loan sanctioned to him.  The loan amount was with the OP No.1 since from 27.07.2008 till 27.01.2012.  Therefore, OP No.1 is liable to pay the outstanding amount interest if any to OP No.2 under the loan account of the complainant.  The complainant further states that OP No.1 has not even allotted the site till today in spite of receiving the entire amount towards the site from the complainant in the year 2010. 

The complainant submits that he is neither benefitted from the loan sanctioned by OP No.2 nor site is allotted to him by OP No.2. (OP No.1).  Further complainant has sent letter dated 02.08.2018 to OP No.1 requesting to rectify the mistake committed for which OP No.1 sent reply by making false allegations against him.  Thus due to negligent act on the part of OP Nos.1 and 2, the complainant victimized and OP No.2 has damaged the image of complainant in the society by classifying him as defaulter of loan and the loan account as NPA even though there was no fault on the side of him.  Further complainant submits that he issued a legal notice to OP Nos.1 and 2 on 11.01.2019 calling upon them to waive off the interest outstanding if any and also to rectify the mistake committed by OP No.1 for which OP No.1 has not replied but OP No.2 has sent false reply to the said notice and calling upon the complainant to pay alleged amount of Rs.4,49,310/-+ interest. 

The complainant submits that the OP Nos.1 and 2 failed to intimate regarding loan sanctioned to him amounts to deficiency of service on the part of both OPs.  Therefore, he is not liable to pay any interest outstanding to the OP No.2 under the loan account.  Hence, this complaint.  The cause of action arose on 20.07.2008 when the OP No.2 sanctioned the loan to the complainant and again on 04.01.2018, 08.05.2018, 02.08.2018 when OP No.2 issued letters to complainant calling upon him to pay the alleged claim and in November, 2018 when OP No.1 denied to rectify the mistake committed by it also on 11.01.2019 when the complainant issued legal notice to both parties and dated 23.01.2019 a reply by OP No.2.

3. After issuance of notice, OPs did appear through their counsels and prays time to file version.  OP No.2 has filed version with documents.  On three hearing dates i.e. 26.06.2019, 02.07.2019 OP No.1 has not filed version but on 12.07.2019 OP No.1 has filed I.A.1/2019 to extend time for filing version U/s 12 of C.P.Act, 1986 R/w Section 151 CPC.  The same is allowed and time granted to file version. Sufficient opportunity has been given to OP No.1 to file version but it did not file the version hence, version of OP No.1 taken as not filed.  Thereafter, OP No.1 has filed I.A.2/2020 U/s 151 CPC R/w Section 12 C.P.Act to recall the order dated 19.07.2019 and to permit it to file version. The complainant has filed objections to the said I.A.2/2020.  Heard on the said application and the same was rejected by order dated 05.11.2020.  Then OP No.1 filed I.A.1/2021 on 11.01.2021 U/s XVIII Rule 17 R/w Section 151 CPC to recall the order dated 06.08.2019 for which complainant also filed objections.  Heard on the application and the same is dismissed by order dated 25.03.2021. Then again OP No.1 on 11.01.2021 filed I.A.2/2021 U/s XI Rule 1 of CPC R/w Section 151 Section 38(9) C.P.Act, 2019 to direct the complainant to answer the interrogatories filed by him.  The same has been dismissed by order dated 25.03.2021.

4. In the version, OP No.2 has submits that the material facts and traverse the allegations made in the complaint, for exposing the untenability of the claim the complainant against the OP Bank.  The OP No.2 submits that complainant had applied for housing loan for purchase of site and construction thereon on 22.04.2008. Accordingly, the application was approved and the Bank sanctioned a sum of Rs.3,81,250/- on 28.05.2008 to the complainant.  The same was also informed to the complainant by letter dated 01.12.2008.  The complainant executed all the loan documents like arrangement letter, memorandum of loan agreement, guarantee agreement, agreeing to repay the housing loan in 120 equated monthly installments of Rs.5,040/-. 

It is further submits that the OP Bank had issued DD No.07918 dated 26.07.2008 for Rs.21,60,250/- to the society towards installments payable.  The amount pertains to seven borrowers of which Rs.3,36,250/- pertains to complainant.  The letter dated 27.07.2008 conveying the same along with DD was given to society.  It is the case of complainant that even after receiving the amount from the Bank during July 2008, the society demanded the installment from the complainant/borrower in 2009, which he claims to have paid during March and May, 2010.  Thereafter at the request of complainant, the society made a payment of Rs.3,36,250/- to the loan account No.30438129967 of the borrower on 03.02.2012 which is considered as repayment of principal amount.  After credit of the said amount, the outstanding balance in the loan account of complainant as on 24.06.2019 is Rs.1,55,930.19 (plus interest from 01.09.2015). 

The averments made in first part of para No.2 of the complaint regarding the formation of sites etc., by the OP No.1 is not within the knowledge of this OP and the complainant is put to strict proof thereof.  In the same para at second part of complaint regarding the application submitted by the complainant for housing loan and the sanction of the same by Bank is correct.  However, the allegation of the complainant that the bank had obtained signatures of the complainant on printed/unfilled forms is hereby denied as false, baseless and made with a malicious intent to cover up the negligence and lapses on the part of complainant and OP No.1 society.  The complainant is a well educated person and a professor by profession and no explanation is offered in the complaint is support of his claim that he executed blank/unfilled forms.

The averments made in first part of paragraph No.3 of complaint regarding the non-intimation of the sanction of house loan by OP No.2 bank is hereby denied as false and baseless.  It is submitted that the arrangement letter conveying the sanction of loan was issued on 28.05.2008 and the same is signed by the borrower and the complainant is stopped from denying the same.  The averments made in first part of paragraph No.4 of the complaint regarding non-intimation of sanction of the housing loan by OP No.2 Bank is hereby denied as false and baseless.  The averments in the second part of paragraph No.4 of the complaint regarding the payment made by the society to the loan account of the complainant is correct.  It is denied that no notice copies or communication was sent from 2009 to 2012 by the Bank.  Letters sent in 2013 and 2014 returned with postal note insufficient/wrong address.  It is submitted that the complainant/borrower was residing at Bangalore at the time of sanction of loan and he has changed his address subsequently and the same has not been provided to the Bank for updating the record.  The averments made in para No.6 and 7 of complaint are partly correct. The averments made in para Nos.8 to 12 of the complaint are hereby denied as false and baseless and unsustainable.  It is submitted that it is evident that the funds were with the society from 2008 to 2012 i.e. till they repaid the amount to the loan account of the borrower, by executing the loan documents, the borrower is in all means liable to pay the interest and charges if any to the Bank.  However, as the complainant paid the installment amount to the society for allocating site in 2008-09 itself, the complainant should take up the matter with the society and seek interest repayment from them, for having collected the amounts twice from the complainant.

It is further submits that it is purely negligent act on the part of borrower and the society not the OP No.2-Bank.  The borrower/complainant account has been classified as NPA based on RBI norms strictly and stands as defaulter, as such the question of payment of compensation does not arise.  It is further submits that there is no deficiency of service made out against the OP No.2 – Bank.  Hence, pray for dismiss the complaint against OP No.2-Bank.

5. The complainant has filed an I.A.1/2020 on 11.03.2020 U/s 151 CPC to direct the OP No.2 to de-freeze/unblock the bank account of complainant. As per order of this Commission dated 05.11.2020 it is disclosed that the same is to be taken into consideration at the time of final disposal.  

6. Complainant has tendered his evidence by way of affidavit.  He has also produced documents in support of his case and marked Ex.A.1 to A.26. The OP No.2 also filed affidavit evidence along with documents which are marked as Ex.B.1 to B.4.  Both complainant and OP No.2 have filed their written arguments. Heard.

7. The points that arise for our consideration are:

1.  Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?
2. What order?

8. Our answers to the above points are as under:

       Point No.1:  Partly in the affirmative.

      Point No.2:  As per final orders

REASONS

9. Point No.1:  In the instant case, the reliefs of the complainant as sought for in the complaint is to direct the OP No.2 to waive off the interest if any outstanding Rs.4,49,310/- + interest as alleged under loan account bearing No.30438129967, to close the loan account and issue clearance certificate or else issue direction to OP No.2 to recover the amount/interest if any outstanding under the loan account of the complainant from OP No.1 in case if it fails to waive off the interest, in the alternative to direct the OP no.1 to pay if any outstanding of Rs.4,49,310/- as alleged under the loan bearing No.30438129967 to the OP No.2 and to obtain clearance certificate, to direct the OP Nos.1 and 2 to pay compensation of Rs.50,000/- each to the complainant towards mental agony etc., and to pass such other reliefs.
10. The undisputed facts which reveals from the pleadings of the parties goes to show that contents of part of para No.2 of complaint is admitted in part by OP No.2.  Hence, need not be proved under Section 58 of the Evidence Act.   With regard to obtaining the signature of the complainant by the OP No.2 on the printed and unfilled form is not acceptable as the complainant is not an ordinary layman. 
11. During the pendency of the complaint, that on 12.12.2019 OP No.1 filed memo stating that “The OP herewith produces allotment letter allotting site No.54 to the complainant by the OP society.  The same may kindly be taken on record and matter be disposed as being infructuous.  Wherefore, it is most humbly submitted that this Hon’ble Forum be pleased to dispose the above matter as having become infructuous in the interest of justice and equity.” According to us, registration of the said site is not an issue before this Commission.  The main reliefs i.e. sought by the complainant is stated in para 9 of this order.
12. The complainant has paid an amount of Rs.3,36,250/- to the OP No.1.  The said amount has been taken by OP No.1 suppressing the loan sanctioned by the OP No.2.  The said amount of Rs.3,36,250/- retained by the OP No.1 till 27.01.2012 and remitted the said amount to the complainant’s loan account by OP No.1 vide cheque No.199797 dated 27.01.2012.  According to us, this amount has been utilized by OP No.1 for other developmental activities.  The accrued interest thereon from the date of sanction i.e. 25.08.2008 till 27.01.2012 is payable by the OP No.1 to OP No.2 along with outstanding dues.  Now, what is the outstanding due of the complainant loan amount to be payable to OP No.2, for which we place reliance on the contents of Ex.B.4 which is the statement of loan account of the complainant wherein it shows as on 24.06.2019 the outstanding loan amount is Rs.1,55,930.19 with interest.  This fact is also specifically stated by the OP No.2 in para 5 of its written arguments, where in it is stated that “It is submitted that it is the case of the complainant that even after receiving the amount from bank during July 2008, the society demanded the installment from the complainant/borrower in 2009, which he claims to have paid during March and May 2010.  Thereafter at the request of the complainant the society made a payment of Rs.3,36,250/- to the loan account No.30438129967 of the borrower on 03.02.2012 (as per the statement of account), which is considered as repayment of the principal amount.  After credit of the said amount, the outstanding balance in the loan account of the complainant as on 24.06.2019 is Rs.1,55,930.19 plus interest from 01.09.2015.  The statement of account pertaining to the housing loan account of the complainant has been produced and marked as Document No.B.4.”
13. On going through the above contention taken by OP No.2 it is clear that there is no deficiency of service on the part of OP No.2.  Hence, we are of the opinion that the said outstanding balance amount of Rs.1,55,930.19 with agreed interest from 01.09.2015 till closure of the said loan account, it is the OP No.1 liable to be made it clear by depositing the said amount and obtained the NOC with a view to urnish the same to the complainant and to close the loan account.  As the OP No.1 not only found deficiency in service but committed the act of unfair trade practice retaining the said amount from 2008 to 2012, without furnishing the better particulars to the complainant in respect of his loan.  Having no other go he has availed the better particulars by way of filing an application under RTI.  The complainant is a Assistant Professor in Physics it is the OP No.1 made him to knock the door of its office to get redress his remedy, but his efforts went in vain.  In this context, we propose to fix the compensation of Rs.10,000/- with litigation cost of Rs.5,000/-. 
14. Now, we place reliance of pending I.A.1/2020. Complainant filed this I.A.1/2020 on 11.03.2020 U/s 151 CPC to direct the OP No.2 to defreeze/unblock the bank account of complainant.  Order has been deferred to consider the same at the time of final hearing.   We have perused the contents of the affidavit filed in support of the said I.A.1/2020. The bank account of the coomoplainant has been freezed by OP No.2.  We have fix the liability on the part of OP No.1, directing to discharge the entire loan amount with interest.  Hence, the order of freezing the complainant’s bank account with OP No.2 is not just and proper.  In this context, we direct to OP No.2 to defreeze the complainant’s bank account with it as prayed for in I.A.1/2020 dated 11.03.2020.  Accordingly, we answer the point No.1 partly in the affirmative. 
15. Point No.2:  In the result, we pass the following:

  O R D E R

1. The complaint filed by the complainant U/s 12 of the Consumer Protection Act, 1986 is allowed in part. 
2. The OP No.1 is directed to credit the outstanding balance loan amount as on 24.06.2019 for Rs.1,55,930.19 (Rupees one lakh fifty five thousand nine thirty and nineteen paise only) with interest from 01.09.2015 till the realization in the housing loan account No. 30438129967 belongs to the complainant.  Further directed to OP No.1 to pay compensation of Rs.10,000/- (Rupees ten thousand only) with litigation cost of Rs.5,000/- (Rupees five thousand only) to the complainant.
3. No liability is fastened on OP No.2. But any how OP No.2 is directed to defreeze the bank account of the complainant lying with it as prayed for in I.A.1/2020 dated 11.03.2020. Accordingly, the said I.A.1/2020 is allowed.
4. OP No.1 is directed to comply the order para No.2 within three months from the date of receipt of this order.
5. The OP No.2 is directed to comply the order para No.3 forthwith.
6.  If the above order is not complied within the stipulated period, Complainant is at liberty to have the redress as per law.
7. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 7^th day of June, 2021)

Copies of Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.26:-

Copies of Documents produced by OP No.2 which are marked as Ex.B.1 to B.4:-