National Consumer Disputes Redressal
Manik Chandra Ghatak vs Branch Manager, United Bank Of India on 1 February, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1609 OF 2016 (Against the Order dated 16/03/2016 in Appeal No. 05/2015 of the State Commission Andaman Nicobar) 1. MANIK CHANDRA GHATAK S/O. LATE GOBERDHAN GHATAK,R/O. DOLLYGUNJ, PORT BLAIR TEHSIL SOUTH ANDAMAN DISTRICT ...........Petitioner(s) Versus 1. BRANCH MANAGER, UNITED BANK OF INDIA JUNGLIGHAT BRANCH, PORTBLAIR ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER
For the Petitioner : Mr. R. K. Pandey, Advocate For the Respondent :
Dated : 01 Feb 2019 ORDER
ORAL
1. This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") has been filed by the Petitioner against the order dated 16.03.2016 of the State Consumer Disputes Redressal Forum, Andaman & Nicobar Islands, Port Blair (for short "the State Commission") in Appeal No.5 of 2015 filed against the order of the District Consumer Disputes Redressal Forum, Port Blair (for short "the District Forum") dated 29.04.2015 in Complaint No.3 of 2013.
-2-2. The brief facts of the case are that the Complainant took two loans (Account No.1400300002288 and 1400300001618) for ₹60,000/- each from the Respondent. Against the said loan amounts, he had mortgaged his two LIC policies being No.465241406 and 465241407. As per the terms of the loan agreement, he was required to deposit the EMIs regularly which he failed to deposit since 2009.
3. The contention of the Complainant/Petitioner was that on 24.11.2012 at the time when he tried to deposit the premium of the LIC policies, he learnt that those policies were surrendered by the Respondent and the value was remitted to UBI. He challenged the said act of the Respondent since it had been done by the Respondent without giving any prior notice or intimation to him. He also contended that the Respondent had, without any intimation to him, after surrendering the policies, credited the excess amount of ₹38,652/- to his saving bank account after a long period. He had further contended that since his loan account had not been declared non-performing asset with intimation to him, the realization of the amount of dues by the Respondent by surrendering the LIC policies had caused huge financial loss to him. He had given in his Complaint the loss which had occurred to him on account of such surrender of his LIC policies and claimed a compensation of ₹15,74,786/- on different counts with interest.
-3-4. The claim of the Petitioner was further contested by the Respondent and they had filed their Written Version. It was their stand that the Complainant was very well aware that he had to regularly pay the EMIs but he defaulted since 2009 and that since the policies were mortgaged with the Respondent, they were within their rights to recover the loan amount by forfeiting the policies. It is submitted that the dues were recovered and the balance amount was deposited in the saving account of the Complainant on 24.11.2012.
5. Parties had led their evidences.
6. Opposite Party was cross examined by the Petitioner.
7. After hearing the arguments, the District Forum gave the following findings:
"It has been admitted by the complainant that he did not pay any amount of E.M.I. since 2009. It is expected that the Complainant being an educated and prudent person had the knowledge as to what steps the bank might have taken in case the payment of the amount of the E.M.I.s of his loan account remaining unpaid for long. There is no evidence at all to show that the Complainant had approached the bank when he could not pay the amount of installment for a substantial period.
It must have been very well within his knowledge that the bank would have surrendered his two LIC policies kept mortgaged against his loan if the payment of E.M.I.s of the loan is not made for long, and this would bring immense financial loss for him, the anxiety of which is found to have been largely expressed by him in the petition of complaint.
As the complainant did not pay the said loan or the amount of the E.M.I. of said loan and kept it pending over the years. In such circumstances, we don't find anything against the act of the bank in realizing the amount of loan by way of surrendering the two LIC -4- policies which had been kept mortgaged against the said loan. And the said act of the bank cannot be said to have amounted to deficiency in service on the part of the O.P."
"But one thing that seems to be very surprising to us is the fact that the balance amount of the surrendered value of the LIC policies after the claim of the bank was satisfied, is found to have been deposited by the bank to the savings account of the Complainant only on 24/11/2012 when the amount was realized on 19/10/2011.
No reasonable explanation is forthcoming from the O.P. as to why O.P. had kept the said excess amount of Rs.38,652/- in the loan account instead of transferring/crediting the same in the savings account of the Complainant immediately after the entire claim of the bank was realized and satisfied. This has definitely caused some monetary loss to the Complainant in the form of losing interest thereon. So, the O.P. bank is required to compensate this loss by way of paying interest @ 18% per annum on the said amount for the period for which it had been kept idle in the loan account i.e. from 19/10/2011 to 24/11/2012."
8. The District Forum issued the following directions:
"That the instant case is allowed in part on contest. The Complainant is entitled to get interest on Rs.38,652/- being the excess amount after realization of O.P.'s claim which had been kept idle in the loan account.
The O.P. bank is directed to pay interest @ 18% per annum on the said amount for the period from 19/10/2011 to 24/11/2012 within 30 days, from this day, in default, the Complainant can realize the said amount in accordance with law."
9. This order was impugned by the Petitioner by way of Appeal. His only contention was that since the forfeiture was done without any notice to him, the act amounted to deficiency in service. It was also -5- argued that there was no evidence against him to the effect that he had defaulted in payment of EMIs. After considering the evidences on record, the State Commission reached to the following conclusion:
"There is specific evidence of record to show that he appellant has not repaid the loan not even a single furthing of the loan. The bank proceeded for the recovery of the loan and gave a demand notice to the appellant vide its reference no.UBI/JGT/ADV/03/11 dated 04/08/2011. There is evidence on record which is also not disputed that the appellant is a Lecturer of Dr. B.R. Ambedkar, Govt. Polytechnic, Port Blair. The notice was addressed to the appellant in that address. Much has been argued by the 14. Counsel of the appellant that there was no notice of demand from the bank before taking step for surrendering the policies of the appellant. It has been argued that natural justice demands issuance of notice before the recovery of the loan. The evidence is Oath Vs Oath. The evidence of the respondent has a supporting document viz; the demand notice. It is Exhibit-t'. It was marked as such with objection. We have discussed about the activities of the bank. The bank/respondent have no scope to create a document on a subsequent date giving the earlier date as the banking operation is a day to day affair. We repeat that a bank cannot by pass its activity keeping something blank for future redress. It is improbable to create such a document like that of demand notice on a subsequent date giving the earlier date. If it is to be done, the entire subsequent day to day transactions of the bank will have a telling effect regarding its documentation part. There is no evidence on record that the respondent and the appellant were not in a good terms. There is no evidence on record that there was an enmity between them. The respondent being a public organisation is always accountable for its activity. If we have to accept the argument advances by the Ld. Counsel of the appellant then we have to express that the demand notice is a fake document. The Commission cannot express like that without any substantive evidence specially, when the banking business/financial transaction is a daily affair wherein the bank cannot avoid documentation of its each day's -6- action in black and white. Taking the aforesaid reasoning in our mind, we find reason to express that the respondent issued notice of demand to the appellant before surrendering the LIC policies. There is no document in the record to show that the respondent/O.P bank was under mandatory obligation to declare the concerned account as Non Performing Asset (NPA). The appellant/complainant did not produce any papers regarding rules and regulations to be followed by the bank to declare an account NPA. We are, therefore, not in a position to agree with the argument advances by the IA. Counsel of the appellant touching the above said point.
The Cardinal principle of law is that the complainant is to sail his boat by the help of his own fuel meaning thereby the complainant is to prove his case with the help of his evidence. He cannot bank upon the lacunae of his adversary to prove his case. We repeat that the complainant gave an undertaking that he will repay the loan amount within one year but has not honoured his undertaking by his own action. He being responsible person holding a high office in its personal life earning a sizeable pay packet month by month, enjoyed the public money and has ultimately has approached the arena of justice with tainted hand. He has not approached for justice with a clean hand. He cannot cry for natural justice."
10. This order is impugned before me by way of this Revision Petition. Jurisdiction of this Commission under Section 21(b) of the Consumer Protection Act, 1986 is very limited. It is not permissible for this Commission to re-assess or re-appreciate the evidences and thus to reach to a different conclusion than what has been arrived at by the Foras below on appreciation of the evidences. This Commission is not permitted to substitute its opinion with the findings of the Fora below which are based on the facts proved on record. The impugned order can be disturbed only when the Petitioner succeeds in showing that -7- there is jurisdictional error or miscarriage of justice has occurred. The Hon'ble Supreme Court in the "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. - (2011) 11 SCC 269" has held as under:
"23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".
11. As regards the jurisdictional error is concerned, no fact has been brought to my notice to show any jurisdictional error in the impugned order. As regards the miscarriage of justice is concerned, it is the admitted fact that the Petitioner/Complainant had defaulted in making the payment of EMIs since 2009 and policies were forfeited only on 28.09.2011. Since the Complainant is a defaulter and the policies were mortgaged by him, the forfeiture of the same for recovery of the loan amount cannot be said to have caused any miscarriage of justice to the -8- Complainant/Petitioner. The District Forum has also noted that the Complainant is an educated man and very well aware that he had to regularly pay the EMIs and he himself was a defaulter. I found no illegality or irregularity in the impugned order. The Revision Petition has no merits and the same is dismissed in limine.
......................J DEEPA SHARMA PRESIDING MEMBER