Before the District Consumer Disputes Redressal Forum, Mandi, H.P.
Complaint Case No.256/2007
Date of Institution 11-10-2007
Date of Decision 31-12-2009
Bhup Singh son of Sh. Kanhiya Lal resident of village Joli, Post Office Baggi, Tehsil Sadar, District Mandi, H.P.
Complainant .
V/S
1. Managing Director , The H.P. State Co-operative Agriculture and Rural Development Bank Ltd Kasumpti Shimla 171009.
2. Branch Manger, The H.P. State Co-operative Agriculture and Rural Development Bank Ltd Near Vishwakarme Temple, College Road, Mandi, H.P.
3. Sales Officer- cum Assistant Registrar Co-operative Societies Mandi, District Mandi, H.P.
…. Opposite parties
For the complainant Sh. Noor Ahmad, Advocate
For the opposite parties
No.1 to 3 Sh. Lokesh Kapoor, Advocate
Complaint under section 12 of the Consumer Protection Act,1986.
ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties . The case of the complainant is that he had purchased a truck in the year 1997 to earn his livelihood by means of self employment . The complainant averred that he had raised loan for the purchase of the truck from the opposite party No.2 and got 10% margin money for the purchase of the truck from the opposite party No.4 in the month of July 1997 vide letter No. HMR-3-C-12( MID)9/97 and he was assured by the opposite party No.4 to give subsidy on the loan amount. After availing the loan facility, the complainant purchased the truck and continued to pay the loan instalments up to the year 2003 and in between the said truck met with an accident on 12-9-2001 and the driver died on the spot . The complainant suffered huge loss .The truck again met with an accident on
31-12-2001 and he became irregular and could not deposit the instalments of the loan . The complainant alleged that he had had paid entire loan amount alongwith interest on 20-5-2005 to the opposite party No.2 which was entered in his pass book. That at the time of availing of loan the complainant also requested the opposite party No.2 for issuance of NOC regarding the clearance of loan amount as the NOC was required for entry in the revenue record but despite several requests the NOC was refused by the opposite party No.2 on the ground that amount of Rs.30,638/- was still due which was protested by him on the ground that Rs.50,282/- had been paid on 20-5-2003 in full and final settlement and the opposite party No.2 showed Nil amount in the account of the complainant as well as in the loan pass book but the opposite party refused to issue the No Objection certificate without paying the balance amount of Rs.30,638/- which amount was paid by him in two instalments but No Objection certificate was again refused and the opposite party No.2 demanded more amount which act on the part of the opposite party No.2 was illegal and unlawful and amounts to deficiency in service as well as unfair trade practice . The complainant further alleged that the opposite parties No.1 and 2 had added compound interest which was not at all agreed upon inter-se the complainant and the opposite party No.2. The complainant further alleged that he had made several representation to the opposite party No.1 and 2 for adjustment of money of opposite party No.4 and waiving the excess interest and compound interest added in the principal amount but the matter was not favourably considered and lastly the complainant received a letter dated 6-9-2004 from the opposite party No.2 whereby the request of the complainant for waiving of amount had been turned down . Now the opposite party No.2 had issued proclamation dated 31-5-2006 for auctioning the mortgaged land of the complainant publicly on 21-6-2006 at 11.00 AM and directed the opposite party No.3 to conduct the auction which is wrong as the opposite parties No.1 and 2 are not entitled to add exorbitant and interest and compound interest . With these allegations the complainant had sought direction to the opposite parties to adjust the amount which was given by the opposite parties No.1and 4 i.e. Rs.50,000/- alongwith interest in the loan amount of the complainant , that the opposite parties be directed to issue NOC of clearance of loan amount to him that the opposite party No.2 be directed to avail subsidy from opposite party No.4 and that the opposite party No.2 be directed not to charge the exorbitant and compoundable interest and to charge simple interest . Apart
from this, costs of litigation in the sum of Rs.10,000/- has also been claimed.
2. The opposite party No.1 to 3 had resisted the complaint and raised preliminary objections that the complaint is bad for non joinder and mis-joinder of the parties , that the complainant is not a consumer under the Act and that no cause of action has arisen to the complainant to file the present complaint. On merits , it has been admitted that the vehicle was purchased by the complainant but pleaded that the vehicle was purchased for earning profit as the complainant is an Ex-serviceman. It has further been admitted that a sum of Rs.50,000/- was received through cheque from the opposite party No.4 on account of the complainant and Rs.50,000/- has been duly reflected in the books in different heads as per copy of statement of Debit and credit of Rs.50,000/-. It has been contended that at the time of application for loan by the complainant , he was not able to pay the share amount ( refundable ) to the opposite party No.2 as every borrower is supposed to purchase share @ 5% which was calculated for the complainants account at Rs.25,000/- and out of which he has only paid a token amount of Rs.100/- to become a Member of the Bank, since the opposite parties No.1 and 2 are the officers of the Bank and as per the norms every borrower before raising loan should have been the Member of the Bank by making the payment of Rs.100/-. The opposite party No.2 while receiving a cheque of Rs.50,000/- from the opposite party No.4 and after collection of the cheque Rs.49835/- were received and out of which Rs.24,900/- credited on account of share capital as Rs.100/- were earlier paid by the complainant by way of registration . Rs.10,000/- were deducted against excess payment for body building of the vehicle as the complainant has paid only Rs.1,06,774/- whereas a cheque of Rs.1,20,000/- was paid by the opposite party No.2 ( Rs.1,06,774.00+ 3226.00 ) left out amount from the principle amount of loan i.e. Rs.5 Lakhs ) which comes to Rs.1,10,000,00+ 10,000.00 = Rs,1,20,000/- were certificated by the Bank and remaining amount out of Rs.49,835/- was deposited in the principal amount which was calculated as Rs.14935/-. It has further been contended that the calculation is very much clear as per Annexure O-1 . The opposite parties pleaded that the complainant is a chronic defaulter and after receiving the payments from the insurance company the vehicle became roadworthy and was plied by the complainant but the loan instalments were not paid and he was served with notices of recovery. It has been averred that the Bank is financed by ARDB and the said Bank is charging interest upon the financed amount hence the opposite parties No.1 and 2 as per the norms of the Bank is charging penal interest on the defaulted amount which is in accordance with law . It had been admitted that the proclamatuion of land was kept on 31-5-2006 by the opposite party No.3 which was in accordance with law . Rest of the allegations have been denied being wrong. The opposite parties No.1 to 3 had prayed for dismissal of the complaint .
3. The complainant had filed rejoinder reiterating the contents of the complaint and denied those contrary to the complaint.
4. Be it stated that on the application under order 1 rule 10 CPC filed on behalf of the complainant, the name of the opposite party No.4 was deleted from the array of the opposite parties vide order dated 12-11-2009.
5. We have heard the ld. counsel for the parties and have also gone through the entire record. The case of the complainant is that he purchased a truck in the year 1997 by raising a loan from the opposite party No.2 and mortgaged his agricultural land for securing the repayment of the loan. Further case of the complainant is that he had got 10% margin money for the purchase of the truck from the opposite party No.4 but the opposite party No.2 has not adjusted the margin money . According to the complainant, he had repaid the entire loan amount alongwith interest but the opposite party No.2 refused to issue the no objection certificate to the complainant and demanded more amount .Conversely, the case of the opposite parties No.1 to 3 is that the complainant is a chronic defaulter and he had failed to repay the entire loan amount and, therefore ,he was served with notice of recovery. Further case of the opposite parties No.1 to 3 is that the Bank is charging interest upon the financed amount as per its norms in accordance with law and the process of proclamation for the auction of land is proper and in accordance with law and the amount has been calculated as per the norms. The complainant has failed to mention in the complaint as to what had happened to the auction proceedings of the mortgaged land initiated by the opposite parties No. 1 and 2 by issuing proclamation on 31-5-2006 for the auction of mortgaged land of the complainant. which according to the complainant was postponed to 15-7-2006.The complainant has made a prayer in the complaint that amount of Rs.50,000/- given by the opposite party No.4 be adjusted in the loan account of the complainant and the opposite party No.2 be directed to avail subsidy from the opposite party No.4. As per the reply filed by the opposite party No.4 it gave margin money of 10% to the extent of Rs.50,000/- .As per reply filed by the opposite parties No.1 to 3 the amount of Rs.50,000/- received from the opposite party No.4 has been duly reflected in the books of accounts. As per the statement of accounts filed by the opposite parties No.1 to 3 as Annexure A and B dated 9-12-2009 an amount of Rs.6,77,579/- was due from the complainant. However according to the complainant he has repaid the entire loan amount . But the complainant has failed to rebut the statement of accounts filed by the opposite party by leading satisfactory evidence on record .In our considered opinion , if the complainant is disputing the correctness of the calculations given by the opposite party in statement of accounts , then it was incumbent upon him to file his own statement of accounts prepared by some chartered accountant / expert. However no such statement of account has been placed on record by the complainant . In our opinion , at least the complainant should have placed on record original counter foils / deposit slips regarding the deposit of the various amounts by him from time to time with the opposite parties in order to prove that he had paid entire loan amount but no such original counter foils /deposit slips have been filed by the complainant on the basis of which it can be inferred that he
had repaid the entire loan amount . He has only filed photostat copies of some of the deposit slips and pass book which are not admissible in evidence being the photocopies . In the absence of any satisfactory evidence on the part of the complainant with respect to the deposit of the entire loan amount , this Forum cannot come to the conclusion as to whether he had repaid the entire loan amount or not . Moreover these are the matters which can be decided only by competent court of civil jurisdiction by reconciling the accounts. The forum constituted under the Act is not a proper forum for reconciling the accounts and for deciding the amount due to any of the parties which is to be done only by competent court of civil jurisdiction .To take this view we are fortified by the order of Hon’ble Tamil Nadu State Consumer Disputes Redressal Commission , Madras in the case titled R. Sethuraman vs The Manager , Indian Overseas Bank and another III(1993)CPJ-1614 wherein it was held that the Forum constituted under the Consumer Protection Act is not the proper forum for taking accounts and deciding the amount due to any of the parties and which is to be done only by the regular Civil Court of competent jurisdiction.
6. Similarly the Hon’ble National Consumer Disputes Redressal Commission in the case titled Bihar State
Housing Board vs Chairman-cum-Managing Director and others I(1996)CPJ-228(NC) has held as under:-
“…………………………………………………….
…………………………………………………….
The dispute in respect of the amount deposited can be settled only by reconciliation of accounts as well as by proof of such deposits by producing counter foils or deposit slips or other evidence. It will also be necessary to go into the Reserve Bank of India’s instructions from time to time laying down the rate of interest payable on such deposits or whether any Bank could deviate from the guidelines issued by the Reserve Bank of India. In our view, it is a fit case to leave the parties to their remedies by way of a civil suit or other remedies as the disputes relates to accounting between the parties.
7 In an another case titled Vishal Roadways vs Economic Traders ( Gujarat ) Ltd ( 1998)NCJ( NC)-539 the Hon’ble National Consumer Disputes Redressal Commission had taken a similar view by holding that if the dispute between the parties relates to the settlement of the accounts and for balance due on the basis of the accounts , the same does not fall within the ambit of Section 2(1)( c) and (e) of the Act. The relevant extract of the aforesaid order is reproduced as under:-
As observed by the District Forum, the relation between the complainant and the opponent was of a customer and businessman. In the dealings, the complainant had paid more than the required amount to the opposite party and the complainant was entitled to recover the said amount from them. The allegations made in the complaint did not spell out a case of hiring of services and suffering from deficiency. Rather it disclosed a case relating to the settlement of accounts and for the balance due on the basis of accounts. The complainant did not fall within the ambit of section 2(1)_(c) and (e) of the Consumer Protection Act,1986. Civil suit was the proper remedy to recover the amount paid in excess. The District Forum and the State Commission had no jurisdiction to entertain the complaint which was beyond the scope of Consumer Protection Act. We hold that the order of the District Forum as well as the State Commission suffer from legal infirmity and are unsustainable in law. In the result the revision petition is allowed, the orders passed by the State Commission and the District Forum are set aside resulting in dismissal of the complaint, However, we leave the parties to bear their own costs”
8 In the present case also, as discussed earlier , the dispute between the parties relates to the settlement of the accounts and for balance due on the basis of the accounts which obviously do not fall within the ambit of section 2(1)( c) and (e) of the Act and the complaint under the Consumer Protection Act is not a proper remedy .The allegations made in the complaint do not spell out a case of hiring of service and suffering from deficiency .
9. In view of what has been discussed hereinabove, the complaint fails and the same is hereby dismissed with no order as to costs. However, the complainant is at liberty to exhaust his remedy before the competent court of jurisdiction in accordance with law and the dismissal of the present complaint shall not in any way affect his right in any manner as we have not expressed any opinion on the merits of the case.
10 Copy of this order be supplied to the parties free of cost as per Rules.
11 File, after due completion be consigned to the Record Room.
Announced
31-12-2009 (Sushil Kukreja ) President
DKM ( Lal Singh ) ( Alkananda) Members