BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.
Complaint Case No.180 of 2019.
Date of institution: 26.06.2019.
Date of decision:20.08.2021.
Kaptan Singh son of Sh. Bharat Singh, R/o H.No.328, Ward No.27, Ram Nagar, Kaithal District Kaithal.
…Complainant.
Versus
- LIC HOUSING FINANCE LTD. KARNAL through its Branch Manager.
- LIC HOUSING FINANCE LTD. KAITHAL through its agent Mukesh and Kamal Mehta
Office at Kaithal, Ambala Road, near OBC Bank, Ist Floor, Ambala Road, Kaithal, Mob.No.94161-94540.
….Respondents.
Complaint under Section 12 of the Consumer Protection Act
CORAM: SMT. NEENA SANDHU, PRESIDENT.
SMT. SUMAN RANA, MEMBER.
SH. SUNIL MOHAN TRIKHA, MEMBER.
Present: Sh. Anil Chawla, Advocate for the complainant.
Sh. Manoj Ichhpilani, Advocate for the OP No.1.
Op No.2 exparte.
ORDER
NEENA SANDHU, PRESIDENT
Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-
- To refund the amount of Rs.5472/- alongwith interest @ 24% per annum or adjust the amount of Rs.5472/- paid to the Ops through cheque No.933001 dt. 29.06.2013 in the loan account of complainant.
- To decrease the rate of interest from 11.4% p.a. to 8.5% p.a.
- To pay Rs.20,000/- as compensation for the mental agony and harassment suffered by him.
- To pay Rs.5,000/- as litigation expenses.
v) Any other relief to which this Hon’ble commission deems fit and proper may also be awarded to the complainant.
In nutshell, the facts of present case are that the complainant has availed loan facility from the Op company and has loan account No.14015011200 for housing loan. It is alleged that the complainant has been depositing the installments of loan regularly. The Ops have shown overdue against the account of complainant. The complainant has issued two cheques i.e. cheuqe No.933001 dt. 13.06.2013 of Rs.5472/- and second cheque No.933002 dt. 29.06.2013 of Rs.9154/-. The amount of cheque No.933002 dt. 29.06.2013 has been deposited against the loan account but the Ops have not deposited the amount of Rs.5472/- of cheque No.933001 dt. 13.06.2013 against the loan account of complainant rather the said cheque has been deposited by the Ops in the account of another loanee Ramesh Singh/Usha Rani, r/o H.No.1077-B, Housing Board Colony, Jind. It is further alleged that the Ops are charging excess rate interest @ 11.5% p.a. while the rate of interest has been decreased from 11.5% to 8.5% p.a. So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint.
2. Upon notice, the OP No.1 appeared before this Commission, whereas Op No.2 did not bother to appear and was proceeded against exparte vide order dt. 12.09.2019 of this commission. Op No.1 contested the complaint by filing their reply raising preliminary objections with regard to locus-standi; maintainability; cause of action. On merits, it is stated that the complainant is bound to deposit the installments on the date fixed as mentioned in the loan agreement but the complainant did not adhere to the terms and conditions of the loan agreement and has deposited many installments with some delay and many cheques deposited by him towards the installments were bounced due to insufficient of funds. There is no deficiency in service on the part of answering Op. Therefore, the complaint against the answering Op may kindly be dismissed with costs.
3. To prove his case, learned counsel for the complainant tendered into evidence affidavit of complainant Ex.CW1/A alongwith documents Anneuxre-C1 to Annexure-C7 and thereafter, closed the evidence on behalf of complainant.
4. On the other hand, learned counsel for the Op No.1 tendered into evidence affidavit of Sh. Ajay Aggarwal, Area Manaager, LIC Ex.RW1/A alongwith documents Annexure-R1 & Annexure-R2 and thereafter, closed the evidence on behalf of Op No.1
5. We have heard the learned Counsel for the contested parties and perused the record carefully.
6. From the pleadings and evidence of the case, the foremost question arises in the present complaint is whether the present complaint is time-barred or not? Ld. Counsel for the Op No.1 contended that the cause of action arose in the year 2013 as the amount of Rs.5472/- was debited from the loan account of complainant. He further contended that if the statement of account dt. 09.08.2017 as per Annexure-C4 is taken into consideration, then also the cause of action arose in the year 2017 and so, the present complaint is barred by limitation. In support of his contention, ld. Counsel for the Op No.1 has placed reliance upon the case law cited in 2009(2) CPC titled as State Bank of India Vs. M/s. B.S.Agricultural Industries (I) decided by Hon’ble Supreme Court.
On the other hand, ld. Counsel for the complainant contended that the cheque bearing No.933001 dt. 13.06.2013 amounting to Rs.5472/- as EMI was debited from the pass-book of complainant as per Annexure-C6 but the Ops instead of adjusting the said amount into the loan account of complainant had deposited in the loan account of other loanee namely Ramesh Singh and Usha Rani. Ld. Counsel for the complainant further contended that the said fact came into the knowledge of complainant on 09.08.2017 as per statement of loan account bearing No.14015010200 relating to Ramesh Singh and Usha Rani (Annexure-C4) and thereafter, he made representation to the Ops on 20.07.2017 as per Annexure-C5 but the Ops did not redress the grievances of complainant. Since the amount of Rs.5472/- is still lying with the Ops, therefore, there is continuous cause of action and the complaint filed by the complainant is maintainable.
7. We have perused the statement of loan account dt. 09.08.2017 (Annexure-C4) which was issued by the Ops, from which it is clear that that the cheque bearing No.933001 dt. 13.06.2013 amounting to Rs.5472/-, issued by the complainant was adjusted in the loan account bearing No.14015010200 relating to Ramesh Singh & Usha Rani, H.No.1077-B, Housing Board Colony, Jind. We have also perused the statement of loan account (Annexure-C2) bearing No.14015011200 dt.15.09.2015 of the complainant issued by the Ops and found that the amount of Rs.5472/- which was paid by the complainant vide cheque No.933001 dt.13.06.2013 has not been credited in his loan account. No other document whatsoever has been placed on the file by the Ops to show that the said amount has ever been given to the complainant or adjusted in the loan account of complainant. As such, we are of the view that the said amount of Rs.5472/- is still lying with the Ops. Thus, it is settled principle of law that if any amount is lying with the Ops, then there is continuous cause of action. In this regard, we rely upon the authority titled as Allahabad Bank Vs. Paper Product Machines Volume-IV 2012 CPJ 495 (NC), wherein Hon’ble National Commission has held that Cheques deposited, neither credited in account nor were received back. Petitioner has failed to explain where cheques have vanished. Bank is terribly remiss in this charge of its duty. Cause of action is continuing unless and until complainant gets that amount. Complaint not barred by time. So, in view of the matter, the complaint filed by the complainant is within limitation. Thus, the objection taken by ld. Counsel for the Op No.1 that the present complaint filed by the complainant is barred by limitation is not sustainable in the eyes of law. The authority submitted by ld. Counsel for the Op no.1 is not disputed but the same is not applicable to the facts of instant case.
8. The another grievance of the complainant is that the Ops are charging excess rate of interest @ 11.5% p.a. while the rate of interest had been decreased from 11.5% to 8.5% p.a. but no document has been placed on file by the complainant in support of his contention. Therefore, the complainant is not entitled for the relief as sought by him in sub para No.ii of relief clause.
From the record, it is borne out that the amount of Rs.5472/- is still lying with the Ops, as they failed to prove either they have refunded the amount or adjusted the same in the loan account of complainant. As such, we are of the opinion that the Ops have committed deficiency in service on their part. Thus, in view of above-said discussion, the present complaint is partly allowed and Ops are directed in the following manner-
(i) To refund the amount of Rs.5472/- (Five thousand four hundred and seventy two) alongwith interest @ 4% p.a. w.e.f. 11.03.2013 till its realization.
(ii) To pay Rs.6,000/- (Six thousand) as compensation on account of mental agony and physical harassment including the litigation expenses.
The Ops are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of certified copy of this order. Certified copies of the order be sent to parties free of costs, as permissible under the rules. File be consigned to the record room, after due compliance.
Announced in open court:
Dt.:20.08.2021.
(Neena Sandhu)
President.
(Sunil Mohan Trikha), (Suman Rana),
Member. Member.
Typed by: Sanjay Kumar, S.G.
