OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI        

C.C.81/2009

Present:-

                             1)Md.Sahadat Hussain, A.J.S.     - President

                             2)Sri U.N.Deka                            -Member

         Dr.Ajit Kr.Sarma                                       -     Complainant

          Guwahati -24

          -vs-

1)      State Bank of India, Represented               -    Opp.parties

          by the Chief General Manager,

         N.E.Circle,Dispur, Ghty-6

2)      The Branch Manager,State Bank of India

         Geetanagar Branch,Ghty-21

3)      The Housing Development Finance

         Corporation (HDFC) Bank,

          Represented by-The Branch Manager,

          Guwahati Branch, PIBCO Building,

           Rukminigaon, Guwahati

                        Appearance-        

Learned advocate for the complainant-    Mr.Roman Sarma        

Learned advocate for the Opp.Party No.1 & 2-  Mr.K.K.Nandy  ,Ms.Pallabi Borgohain

Learned  advocate for the Opp.Party No.3-     None appeared

Date of argument-          14.10.2015

Date of judgement-        29.10.15                                             

Judgement

1)       The complainant, Dr. Ajit  Kr. Sarma by filing a petition u/s 11 &   12 of Consumer Protection Act,1986, prays for directing State Bank of India(Opp.Party No.1 & 2) to pay him compensation of Rs.3,00,000/- for causing harassment, mental agony to him and also the cost of the proceeding.

The complaint was admited on 20.8.09. Opp.Party No.1 & 2 filed written statement and Opp.Party No.3 (proforma Opp.Party) namely HDFC Bank filed their written statement; but they declined to file evidence while complainant filed evidence through an affidavit and he was also cross examined by Opp.Party No.1 & 2 side and thereafter Opp.Party No.1 & 2 side filed evidence of Sri Kriti Kanta Kutumb through an affidavit and he was also cross examined by complainant side, and then after the complainant as well as Opp.Party No.1 & 2 side filed  their respective written argument.

We have also heard oral argument of Learned advocate  Mr.Roman Sarma for the complainant and  Learned advocate  Mr.K.K.Nandy and Ms.Pallabi Borgohain for the Opp.Party No.1 & 2 and today we deliver our judgement which is  as belong.

1.          The gist of the pleading of the complainant is that he had taken a personel loan from HDFC Bank under loan account No. 3098639, the EMI of which is to be deducted from his SBI Account No. 10142258524 of Geetanagar branch through an Electronic Clearing System (ECS) and payment of EMI through ECS was made up to August 2008 and in the month of September 2008 the Opp.Party No.3 asked him to pay the EMI by fresh cheque which he obliged and he was also asked by Opp.Party No. 3 to pay the subsequent EMI in cash and accordingly he issued a cheque to cover EMI of the month of October 2008 and Opp.Party No.3 is bank statement dtd. 5.12.2008  which was issued to him which indicated that the total of Rs.6,011/- as outstanding against him which included cheque bouncing fee, and before that he was not aware of such outstanding amount as he was in belief that the EMI were cleared through ECS based of post dated cheques issued by him; and the collection team  of HDFC Bank often visited him demanding payment of EMI s in cash even though  there was no written instruction or any agreement to that effect. The HDFC bank issued lawyer’s notice dtd. 11.11.08 and on receipt of that notice he wrote a letter dtd. 21.1.2009 to the HDFC bank asked them for details of ECS through which EMI were cleared and the reason for abandoning the arrangement without any notice and as to why amount of Rs.6,011 has remained outstanding and in reply they supplied a bank statement dtd. 5.12.08 for the period with effect from 5.12.2000 to 5.12.08 which indicated that numbers of cheques of the complainant were  bounced  and for every such bounce an additional amount of Rs. 450 was charged as penalty, and then he wrote a letter to the manager, SBI, Geetanagar Branch about the factum of non-clearing of EMI through ECS and when cheques were returned on every such occasions on the reason of in-sufficiency of funds though he has maintained sufficient  fund to clear of EMIs. Opp.Party No.3 on 23.3.09 issued a letter showing return of his cheque of March,09 for the reason of in-sufficiency of fund in his account in SBI Geetanagar, and they also issued a statement dtd. 24.3.09 only period from 24.3.2000 to 24.3.09 showing levy of penalty for bouncing of cheque. He, vide letter dtd. 3.4.09, asked SBI to look into the matter and do away that the anamolies regarding  bouncing of cheque presented date on his behalf by the HDFC Bank; and then HDFC Bank, vide letter dtd. 4.4.09, sent details of bouncing of cheques to him and then he  wrote another letter to the Senior Manager on 11.4.09 about details of those bounces and reasons thereof, and then SBI vide letter dtd. 18.4.09, asked him to provide the date of presentation of the cheque  by HDFC Bank for clearing through ECS, and  then HDFC Bank supplied a bank statement dtd. 24.4.09 showing the position for the period from 24.4.2000 to 24.4.2009 and he communicated about that bank statement to SBI vide his letter dtd. 6.5.09, and thereafter HDFC Bank vide letter dtd. 15.5.09 threaten him of inclusion of his name in the defaulter list. The SBI, vide letter dtd. 8.7.09, intimated him that the ECS could not be sent in his account from June /08 to Dec,08 because there was a “hold” in the said account  and reason of “hold” was non-payment of car loan instalment in the month of Feb/2008  (Rs.2800/-) and that account was regularized in the month of Feb/09, and thereafter “hold” was also withdrawn. But there before, SBI never notified him about such “hold”. As the “hold” which was also for Rs.2,800/- only it could not be a ground for dishonouring cheque on the ground of in-sufficiency of fund partly while he  has maintained adequate  balance in his account for clearance of cheque issued by him. On receipt of said notice he, vide letter dtd. 13.7.09, demanded a compensation on the ground that there was no notice served on him about so called “hold” which could have otherwise saved himself  from all the embarrassment and humilation etc. as he could have instructed the HDFC Bank not to present the postdated cheques to face the dis-honour and face panel  charges. SBI never informed him about the so called “hold” in his account and in a result the HDFC Bank presented the post dated cheques for clearance through ECS without even the slightest knowledge that cheques would be bounced or returned due to so called “hold” put by SBI. Secondly without   any prior information or notice HDFC Bank levid penalty charges for every bounced cheque. HDFC bank kept on sending offices to his residence   with  a  demand  for  payment  of   instalment   in  cash.

Notwith standing the fact that he had also issued post dated cheques to them to realise of EMI’s through ECS. Such “hold” put by SBI amounts to gross deficiency of service to him, and they also caused harassment to him, and hence SBI (Opp.Party No.1 & 2) are  liable to pay compensation.

2.          The gist of written statement of Opp.Party No.1 & 2 is that the complainant besides availing a personel loan from HDFC Bank Ltd. had  also availed a car loan of Rs.1,70,000/- from SBI Geetanagar branch being account No. 10142375804 which is to be repaid in 84 EMI to be debited from his savings bank account No. 10142258524 and credited in his car loan account on 28^th day of each month and they made payment of EMI’s to HDFC Bank Ltd. through ECS on presentation by HDFC Bank , which is as below.

But the instalment of the month of October/2008 was not paid as the available balance in his savings bank account was not sufficient for honouring the ECS after netting of  bank’s own due . It is not fact that after honouring  ECS there was sufficient balance available in the account of the complainant to pay the EMI of car loan. ECS from the month of Jan/08 to Sep/09 were honoured except the month of Oct/2008 due to in-sufficient balance. The complainant was in obligation to maintain sufficient balance in his account for car loan as well as ECS at all relevant time. EMI of loan in HDFC Bank were taken through ECS and therefore bouncing of cheques does not arise at all. They, vide letter dtd. 18.4.2008, asked the complainant to provide date of presentation of ECS for payment by HDFC Bank which he did not submit. The account of complainant was under”hold” for in-sufficient  balance  for payment of instalment of month of Feb/2008. As the balance was Rs.1,887.19/- and that “hold” was continued due to non-payment of said instalment, but the car-loan account was regularized in the month of Feb/09 after the “hold” was returned. It is not true that the complainant was not aware of the “hold” in his account as because his pass book was up-to-date as and when demanded by him. He was also supplied the statement  of car loan account and hence it was his duty to regularize his loan account in the month of Feb/09 the “hold” was withdrawn. The “hold” was made as per  terms and conditions of the loan availed  by him from Opp.Party No.2 and there is nothing illegally in the same. He is also duty bound to show whether loan instalment are credited in his loan account of the loan taken from HDFC Bank. After receipt of notice of Opp.Party No.2 dtd 18.4.2008 about dishonour of ECS, it was his duty to regularise his car loan account and also to see whether  ECS, are honoured. It is also his duty to regularised his loan account for withdrawing “hold” in his savings bank account, but he had not taken that steps  willfully and intentionally. They are no way guilty of deficiency in service towards the complainant, and hence the complaint is liable to be dismissed.

4)             The gist of pleadings of Opp.Party No.3 is that the complainant had      taken a loan under Loan Account No.3098639, the EMI of which shall be paid through ECS from his savings bank account under SBI and for that purpose the complainant was asked to issue a good number of postdated cheques to them to pay the loan instalment through ECS from his savings bank account in SBI. They also provided statement of bank dtd. 5.12.08,23.4.09,4.4.09 showing details of bouncing of cheque which is admitted by him. The letter dtd. 15.5.09 issued by them was not a threatening letter, but was a process that comes after bouncing cheque which is a violation of agreement. The complaint is liable to be dismissed having they are not guilty of deficiency of service towards the complainant.

5)              We have perused the pleadings of the parties as well as their evidence . We have also perused the arguments of both sides learned counsels. We have found that the complainant, Dr.Ajit Kr.Sarma is a client of S.B.I.Geetanagar Branch holding a savings bank account vide Account No. -10142258524 and he had availed a car-loan of S.B.I. Geetanagar branch to the tune of Rs.1,70,000/- and his  loan account is  No. 10142375804 and the loan is repayable in 84 equal monthly instalments at the rate of Rs.2800/- per month which shall be debited from his savings bank account No.10142258524 on 28^th day of each and every month. Secondly , it is also admitted fact that the complainant had taken a personal loan from H.D.F.C.Bank Ltd.,Guwahati branch which shall be repayable in equal monthly instalment at the rate of Rs.3565/-to be collected from his Savings Bank Account No.10142258524 through Electronic Clearing System (E.C.S.) but H.D.F.C.Bank had collected some post-dated cheques from him and the said loan Account is A/C No. 30986391.

6)           The main allegation against Opp.Party No. 1 & 2 (S.B.I,) is that they put  “hold” on the account of the complainant in the month of Oct,2008 and bounched the cheque of EMI of the month of Oct/2008 of the personal loan taken from H.D.F.C. Ltd. illegally . The complainant side learned advocate Mr.Roman Sarma submits that in the month of Sep/2008 the complainant had sufficient fund in his account to clear the ECS requisition issued by HDFC Bank for EMI of Sep 15, but S.B.I (Opp.Party No.1 & 2) most illegally rejected that requisition and bounched the cheque, but learned advocte Mr.K.K.Nandy, who is standing for Opp.Party No. 1 & 2, Submits that   Opp.Party No.2 rejected the ECS Requisition of HDFC Bank on that month as they found that if the EMI of HDFC Bank loan is cleared there would remain no sufficient balance to clear the EMI of car loan of that month and on that ground they put “hold” on the savings account  of the complainant and rejected ECS requisition of HDFC Bank and therefore that step of  Opp.Party No.2 is quite lawful.

We have perused the statement of payment of EMI with effect 05.12.2000 to 05.12.2008 issued by HDFC Bank and found that the  complainant deposited vide cheque No. E3098639/14-1 amounting to Rs.3565/- as EMI of Oct/2008 and HDFC Bank on 14.10.2008 placed the cheque to Opp.Party No.2 for clearance, but  on the same day, the cheque was bounced which means that ECS requisition dated 14.10.2008 was dishonoured by Opp.Party No.2. Hence, we are to see now whether there was sufficient balance in the account of the complainant on that day. We have scrutinized the balance sheet of the complainant of his Saving Bank Account and found that he has balance of Rs.8412/- on 3.10.2008, Rs.6212’19 on 4.10.2008, Rs.5776’19 on 6.10.2008, Rs.5393’19 on 24.10.2008.Thus it is found that on 14.10.2008 i.e.the date of sending ECS requisition by H.D.F.C.,the complainant had only Rs.5776.19 in his account. His car loan EMI is Rs.2800/- and personal loan (HDFC) EMI is Rs.3565/-, thus it is cleared that to pay both the EMIs he must had Rs.6365/- in his account, but on that day he had only Rs.5776’19 only which is not sufficient to pay both the EMIs . The Opp.Party No.2 debits the EMI of car loan on 28^th of each month and  Opp.Party No.2 bounced the ECS dated 14.10.08 issued by HDFC to protect the balance of the complainant so as to debit the EMI of Car loan taken from them and accordingly the Opp.Party No.2 put “hold” on the account of the complainant. It is the rule of banking law that the Banker of a client always gets first preference to clear their loan taken by the client from them and when their loan (EMI) is cleared, then only they clear the request of payment of the loan taken by the same client from other financial Institutions. Thus, we are of opinion that the act of bouncing the ECS requisition issued by HDFC on 14.10.2008 and putting “hold” on the account of the complainant by the Opp.Party No.2 is not an illegal act, and hence such act does not amounts to deficiency of service towards the complainant. Hence, the complainant is not entitled to get any relief from  Opp.Party No.1 &2 . The creditor Bank is not always responsible to inform the client about the balance or “hold” on his account, because there is a procedure to update the account of deposits and drawals from his/her account on the request of the said client and his/her pass book is properly printed by the computer of the bank on the date of request. So, it is the duty of the client to update his/her pass book account and procure the information of deposit and drawal. Therefore we hold that Opp.Party No.1 & 2 are not duty bound to inform the complainant about bouncing of ECS requision of EMI of the month of October dated 14.10.2008 as well as about putting “hold” on his account. So the act of not informing the complainant by the Opp.Party No.1 & 2 about the said matters does not amount to deficiency of service. Secondly, we are not discussing here as to whether Opp.Party No.3 is guilty of deficiency of service towards the complainant, as because, the complainant is not seeking any relief from Opp.Party No.3(HDFC Bank).

7)           Because of what has been discussed as above, we are of opinion that the complaint has no merit. Hence the complaint is dismissed on contest.

                                                                 (Md.S.Hussain)

                                                                                 President

                  (Mr.U.N.Deka)

                                                                             Member