State Consumer Disputes Redressal Commission
State Bank Of India vs Bhajan on 28 May, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.772/2009
Instituted on : 30/12/2009
State Bank of India,
Through : Branch Manager,
Kurasiya, "B" Type, Chirmiri,
Tehsil : Manendragarh, District Koria (C.G) ... Appellant
Vs.
1. Bhajan, S/o Panchram,
R/o : Godripara, Chirmiri,
Tehsil : Manendragarh, District Koria (C.G)
2. Bhopal, S/o Rudraprasad,
R/o : Patna, Thana : Patna,
Tehsil Baikunthpur, District Koria (C.G.) ... Respondents
PRESENT :
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Sanjay Gupta, for appellant.
Shri Mukesh Kumar Singh, for respondent No.1. None for respondent No.2.
ORAL ORDER DATED : 28/05/2011 PER :- HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT This appeal is directed against order dated 03.12.09, passed by District Consumer Disputes Redressal Forum, Korea-Baikunthpur (hereinafter called "District Forum" for short) in complaint case No.28/09, whereby the complaint of respondent No.1 has been allowed and the appellant herein has been directed to refund the // 2 // amount which has been recovered from the bank account of the respondent / complainant from time to time along with interest @ 12% p.a. from the dates of deductions. Cost of litigation Rs.2,000/- has also been directed to be paid to the complainant.
2. The facts of the case briefly stated, are that one Mr. Bhopal Prasad, who was working at Kurasia Colliery was having a bank account with the appellant Bank and on his assurance, respondent No.1 / complainant also opened his bank account with the appellant Bank. Bhopal Prasad / respondent No.2 was in need of some personal loan and so had applied for grant of loan to the appellant Bank. On that date the complainant / respondent No.1 also went to the Bank for withdrawing amount from his salary account. At that time the Officers of the appellant Bank, asked the complainant to sign some documents printed in English as token of identification of Bhopal Prasad / respondent No.2 and without explaining the real nature of documents on false assurance, signature of the complainant / respondent No.1 was obtained on some documents printed in English. Later on Bhopal Prasad was transferred from Kurasia Colliery to Pandopara Colliery. Thereafter, the appellant Bank out of the salary account in the Bank of the complainant / respondent No.1 deducted Rs.1,400/- on 12/04/2004 and thereafter without any information to him and when inquiry was made by him from the Bank, then it was informed that he // 3 // was made guarantor of the loan account of Bhopal Prasad and that is why the loan amount has been deducted from his bank account. It has also been assured that notices have been issued to Bhopal Prasad and when he will come to clear the loan account, then the amount will be refunded to the complainant and he was asked to come after sometime. The appellant / Bank, in all, deducted amount of Rs.1,15,200/- in this way from the bank account of the respondent No.1 /complainant from 12.04.04 to 29.12.08. Then the complainant / respondent No.1 filed consumer complaint before the District Forum.
3. The appellant Bank in the written version has averred that the complainant was the guarantor of the loan account of Bhopal Prasad and as the borrower failed to repay the amount of loan in time along with interest and other charges, therefore as per the terms of the deed of guarantee, loan installments were deducted from the salary account of the complainant / respondent No.1 and in doing so, no deficiency in service has been committed by the Bank. As the bank account of the respondent No.1 / complainant was with the appellant Bank and the respondent No.1 / complainant was guarantor of loan account, so the bank was having lien over the bank account of the complainant.
4. Learned District Forum agreed with the contentions raised by the complainant and allowed the complaint.
// 4 //
5. We have heard arguments of both parties and perused the record of the District Forum.
6. In the complaint, it has been stated that on 12.04.04, an amount of Rs.1,400/- was deducted from the bank account of the complainant / respondent No.1, then for the first time he came to know that his signatures were obtained fraudulently as Guarantor of loan account Bhopal Prasad and thereafter the appellant was continuously deducting amount from his salary account. Consumer complaint was filed before District Forum on 25.03.09. As per provisions of Section 24A of the Consumer Protection Act 1986, the period of limitation for filing complaint before District Forum is of two years from the date of cause of action and because the bank was deducting amount every month from the salary account of the respondent No.1 / complainant, so for each and every deductions made by the Bank, the complainant was having separate cause of action and separate complaint could be filed for each and every deductions. Considering this aspect of the matter, we find that so far as the amount which was deducted prior to 25.03.07 are concerned, the complaint filed by respondent No.1 / complainant was barred by limitation, as no application has been filed by the complainant before District Forum under clause (2) of Section 24A of the Act, for explaining the Forum that he had sufficient cause // 5 // for not filing the complaint within prescribed period nor the delay has been condoned by the District Forum. In these circumstances, so far as the deductions made prior to 25.03.07 are concerned, the complaint was not maintainable.
7. Counsel for the appellant has drawn our attention towards copy of deed of guarantee and submitted that the complainant / respondent No.1 had given authority to the Bank to recover the loan amount from him in the event of borrower's failure in payment of loan amount. We have gone through the deed of guarantee, which at page No.45 of the record of the District Forum. We find that in clause No.1 of this deed, it has been mentioned that "if at any time default shall be made by the Borrower in payment of the principal sum together with interest, costs, charges, expenses and/or other monies for the time being due to the Bank in respect of or under the said loan in terms of the said agreement and the arrangement letter dated 20.08.03 issued by the Bank to the Borrower, the guarantors shall forthwith on demand pay to the Bank the whole of such principal sum, together with interest, costs, charges, expenses and/or any other monies as may be then due to the Bank in respect of the said loan and shall indemnify and keep indemnified the Bank against all losses of the said principal sum etc." From this clause it is clear that the liability of the guarantor starts when demand is made by the Bank in respect of principal sum, interest etc. // 6 // of the loan account in the event of default committed by the borrower in payment. Learned counsel for the appellant has admitted that no demand was made by the Bank from respondent No.1 / complainant Guarantor. Thus, when no demand was made, then under the agreement, it was not permissible to recover any amount from the Guarantor under the deed of guarantee.
8. Similarly in clause No.14 also, it has been mentioned that "notice would be served by the Bank to the Guarantor requiring payment of the loan amount and such notice shall be deemed to have been served on the Guarantors either by actual delivery thereof to the Guarantors or by despatch thereof by Registered Post or Certificate of Posting to the Guarantors address herein given or any other address in India to which, the Guarantors may by written intimation give to the Bank or request that communication addressed to the Guarantors be despatched". It is clear that no such notice was given by the Bank to the complainant / respondent No.1 and without any notice and without any prior intimation, the amount was deducted from the bank account of guarantor / respondent No.1 / complainant. This arbitrary action of the Bank is contrary to the deed of guarantee as well as contrary to the provisions of Law also and it is immense hardship on the Guarantor, who was maintaining his salary account with the Bank // 7 // and his salary, which was the only source of his day to day expenses, was being deposited in that account.
9. Considering the aforesaid, we are of the view that so far as the period from 25.03.07 onwards, is concerned, the deductions made by the appellant / Bank from the salary account of the complainant / respondent No.1 are required to be refunded to the complainant along with interest, as directed by the District Forum and cost awarded by the District Forum is also payable. But, so far as the deductions made prior to 25.03.07 are concerned, the complaint regarding them, being barred by limitation, is not maintainable and was liable to be dismissed.
10. Therefore, this appeal is allowed. The impugned order is modified to the extent that the directions of the District Forum will be applicable in respect of deductions made by the appellant / Bank from 25.03.07 onwards. With this modification in the impugned order, the appeal is disposed of. No order as to cost of this appeal.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/05/2011 /05/2011