BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.158/2020

DATED ON THIS THE 22^nd November 2022

Present:      1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT  

                     2) Smt.Lalitha.M.K.,

M.A., B.A.L., LL.B., - MEMBER  

                        3) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri MARUTHI VADDAR,

MEMBER

1.         This is a complaint filed under Section 12 of the erstwhile Consumer Protection Act 1986 by the complainant Sri Udaya Shetty Nonal resident of Mysuru against the opposite party alleging deficiency of service directing the opposite party to pay the total sum of Rs.91,307/- in favour of the complainant and compensation for showing deficiency in service, under going severe mental trauma as well as physical sufferings, hardship, inconvenience, harassment etc., and the cost of proceedings and such other efficacious remedies at the hands of this Commission.     
2. The brief facts of the complaint in a nutshell is as here under:-

It is alleged in the complaint that the complainant was a Branch Manager of Vijaya Bank and had been superannuated in the year 2011 after putting 38 years service.He had availed the education loan for Rs.7,59,000/- for his daughter Kum.Thirtha from opposite party bank.The terms of the loan have been complied with by the complainant without any default.The complainant has authorized the opposite party to deduct the loan installments from his S.B. account No.131401021000015 (pension amount) and also not given any undertaking before the opposite party to deduct the loan installments either directly or individually from the above S.B. account.Without any reasons by making use of the unilateral decision and without giving any information, the opposite party has illegally deducted a sum of Rs.6,520/- and Rs.11,730/- towards installments of the loan account Nos.141307111000008 and 141307111000044 on 22.01.2020 on the fact that the complainant was/is a defaulter in making the repayment towards the loan installments.The act of the opposite party amounts to negligence of duty and further deficiency of service, the complainant was shocked by going through the statements of account of his S.B. account No.131401021000015 on 22.01.2020 two installments towards the loan account.Immediately the complainant had contacted the opposite party and apprised the fact and requested them to set right the matter immediately.The opposite party has assured that by over sight the said mistake might have happened and within two days that will be rectified and credit the said Rs.6,520/- and Rs.11,730/- into SB account and opposite party promised the complainant that the said mistakes will not be repeated in future.Despite the repeated requests of the complainant, opposite party has not made any positive endeavors to comply with their assurance.

It is further alleged that there was a credit balance in his above mentioned S.B. account of Rs.22,305/- on 04.02.2020.Believing assurance of opposite party, the complainant had tendered a cheque for Rs.12,000/- in favour of his landlord on 07.02.2020 towards the rent. But, the cheque has been returned for insufficient funds on 10.02.2020 and again on 10.02.2020 the opposite party has deducted a sum of Rs.18,600/- from the S.B. account.Immediately the complainant contacted the opposite party and enquired but opposite party adamantly did not evince any courtesy towards the complainant and finally opposite party said that they will not do anything let the complainant do whatever he wants to do.Due to the intentional act of the opposite party, the complainant has suffered a lot both mentally and physically and severe mental tension has been caused.Hence, after issuing the legal notice, this complaint has been initiated.

3. After the registration of the complaint, notice was ordered to be issued to the opposite party and in pursuance of the notice, opposite party appeared through its counsel and has filed written version contending that the complaint is not maintainable either in law or on facts.  Further, the opposite party has denied all the allegations carved out in all paras of the complaint and submitted that complainant availed the education loan of Rs.5,80,000/- on 30.06.2010 and Rs.1,89,000/- on 26.09.2006 loan account bearing No.14130711000044 and 1413071100008 respectively.  The complainant did not repay the overdue and account was about to be classified as NPA on 31.01.2020 and on 22.01.2020 the opposite party recovered one EMI out of 3 pending EMI;s as per the right to set off from the complainant S.B. account 131401021000015.

Further the opposite party contended that the complainant being the ex-employee of the OP bank and he was not regular in re-payment of loan and was overdue more frequently.There was a overdue of 2 installments of both education loan amounts as on December 2019.The opposite party issued a notice on 19.01.2020 to regularize the over due, the complainant did not regularize the over due and amount was about to be classified as NPA on 31.01.2020 and on 22.01.2020.The opposite party bank had recovered one EMI out of three EMI’s as per RIGHT TO SET OFF from the S.B. account No.13140102000015 of the complainant.Even after the issuance of the notice by this opposite party, the complainant never came forward to repay the overdue amount as per Right to set off.“The Right to set off the account of the customer when required arises from the fact that banker and the customer enjoys the purely contractual relationship and this relationship actually involve the implied Right to set-off. There need to be any express or written contractual term that is authorizing the bank to exercise the right to set off”.Further the right to set off automatically arises from the banker-client relationship.As a result of this creation or the exercise of this particular right is free from any kind of legal proceedings.

Opposite party further contended that the complainant has given a complaint before the Ombudsman.The suitable reply has been given on 10.06.2020.There is no deficiency of service on the part of opposite party.The opposite party acted as per law.But, the act of the complainant is willful, ill-motivated and with the intention to make wrongful gain against the opposite party by making false allegations. Hence, prays to dismiss the complaint.

4. The complainant has filed his chief affidavit towards his chief examination and the same was taken as P.W.1 and got marked certain documents as Ex.P.1 to Ex.P.6.  On the other hand, opposite party has also filed its affidavit towards the chief examination and the same was taken as R.W.1 and did not choose to mark any documents.   
5. We have heard the arguments of both sides and both sides have filed their respective written arguments.
6. The points that would arise for our consideration are as here under:-  

1. Whether the complainant proves the alleged deficiency in service on the part of the opposite party and thereby he is entitled to the reliefs as sought for?
2.  What order?

7. Our findings on the aforesaid points are as follows:

      Point No.1 :- In the negative

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.       Point No.1:- To explain the truth of his case, the complainant has been examined himself as P.W.1 and got marked certain documents as Ex.P.1 to Ex.P.6.  The complainant has reiterated the averments of the complaint in his chief affidavit.  Ex.P.1 is the original cheque dated 07.02.2020 issued by the complainant to his landlord.  Ex.P.2 is the memo issued by the bank.  Ex.P.3 is the statement of account of the complainant pertaining to account No.131401021000015.  Ex.P.4 is the legal notice dated 02.07.2020.  Ex.P.5 is the postal receipt. Ex.P.6 is the postal acknowledgement.  After the affidavit of the complainant, the opposite party has also filed its affidavit through its senior branch manager and same was taken as R.W.1 and did not choose to mark any documents in support of its case.  The opposite party has reiterated the averments of the version in its affidavit. After the evidence of both parties, both parties have submitted their written arguments.  After going through the complaint averments and the version it is not in dispute that the complainant and his daughter Miss Thirtha obtained education loan from opposite party bank to the tune of Rs.7,59,000/- dated 26.09.2006 for Rs.1,89,000/- vide account No.14130711100006 and Rs.5,80,000/- dated 30.06.2020 vide account No.141307111000044.  The complainant has authorized the opposite party to deduct the loan installments from his S.B. account No.131401021000015 and in this connection the complainant has also not given any undertaken before the opposite party to deduct the loan installments either directly or indirectly from the above said S.B. account.  But, it is further allegation of the complainant without any intimation, the opposite party has illegally deducted a sum of Rs.6,520/- and Rs.11,730/- towards the installment of the loan account No.141307111000008 and 141307111000044 on 22.01.2020, on the fact that the complainant was a defaulter in making the payments towards the loan installments and opposite party has not been properly authorized by the complainant to deduct the loan installments from above mentioned S.B. account. Hence, it is alleged deficiency in service on the part of opposite party.  But, the opposite party contended that the complainant and his daughter Miss Thirtha borrowed education loan from opposite party on 26.09.2006 for Rs.1,89,000/- vide account No.14130711000006 and Rs.5,80,000/- on 30.06.2010 vide account No.14130711100044 and he was not regular in re-payment of loan and was having overdue more frequently. There was a overdue of two installments of both education loan accounts as on December, 2019, the opposite party has issued a notice on 19.08.2020 to the complainant to regularize the overdue the complainant did not regularize the overdue and account was classified as NPA on 31.01.2020 and on 22.01.2020.  The opposite party bank had recovered one EMI out of three EMI’s as per RIGHT TO SET-OFF from S.B. account No.13140102000015 of the complainant. Hence, there was no deficiency in service on the part of opposite party.
9. After looking into the rival contention of the both parties, it is crystal clear that the complainant and his daughter obtained education loan from opposite party bank for Rs.1,89,000/- vide account No.14130711000006 dated 26.09.2006 and Rs.5,80,000/- on 30.06.2010 vide account No.14130711100044 but the complainant has not stated clearly about the starting date of the loan payment installment, whether the loan amount payable after the education of his daughter is over and is payable from the date of the loan.  Complainant further submitted in para No.4 of the complaint that opposite party has not been properly authorized by the complainant to deduct the loan installments from the above mentioned S.B. account. Neither the complainant nor the opposite party has produced the loan account extract. It is also not clear on what ground, opposite party would recover the loan taken by the complainant and his daughter.  The complaint filed by the complainant is not clear and he has suppressed some of the facts before this Commission.  He has approached this Commission without clean hands. Hence, he is not entitled for any of the reliefs as prayed in his complaint.  Moreover the complainant has failed to prove the case against the opposite party.  Hence, the complaint of the complainant is devoid of merits and it is sans merit.  Hence, we are of the considered opinion that complaint of the complainant is liable to be dismissed. Hence, we answer this point No.1 is negative.    
10. Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint of the complainant is hereby dismissed.
2. No order as to costs.
3. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 22^nd November, 2022)