Court Judgments

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