State Consumer Disputes Redressal Commission
State Transport Co-Operative Bank ... vs Shri.Rahul Madhavrao Wagh, on 1 December, 2014
1 F.A.No.:165/2010
Date of filing :10.03.2010
Date of order :01.12.2014
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :165 OF 2010
IN COMPLAINT CASE NO.: 306 OF 2009
DISTRICT CONSUMER FORUM :AURANGABAD.
1. Manager,
State Transport Co-operative Bank Ltd.,
Branch Aurangabad.
2. Divisional Controller,
MSRTC, Aurangabad. ...APPELLANTS.
VERSUS
Shri.Rahul Madhavrao Wagh,
S.T.Driver No.24390,
Vaijapur Depot,
Vaijapur, Tq.Vaijapur,
Dist.Aurangabad. ...RESPONDENT.
CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Smt.Ranjana Reddy for appellants, Adv.G.S.Gadiwan for respondent.
O R A L JUDGMENT (Delivered on 1st December 2014) Per Mr.S.M.Shembole, Hon`ble Presiding Judical Member.
1. Challenge in this appeal is the judgment and order dated 21.1.2010 passed by Dist.Consumer Forum Aurangabad allowing 2 F.A.No.:165/2010 consumer complaint No.306/09 directing appellants/opponents to repay the amount to the complainant which is recovered from his monthly salary towards outstanding loan amount of borrower late Sanjay Pawar.
(For the sake of brevity appellants are herein after referred as opponents and respondent as complainant)
2. Brief facts giving rise to this appeal are that:-
Complainant Shri.Rahul Wagh is serving as driver in MSRTC at Vaijapur. Opponent No.2 is Divisional Controller of MSRTC at Aurangabad and opponent No.1 is a co-operative bank. One late Sanjay Gulabrao Pawar was also serving in the MSRTC who had borrowed the loan from opponent No.1 bank. Complainant Shri.Rahul Wagh and one Shri.Kumodkar had stood guarantee for the loan of Rs.50,000/- borrowed by late Sanjay Pawar.
3. On 30.09.2007 borrower Sanjay Pawar expired. After his death opponents started recovering the outstanding dues of loan amount from monthly salary of complainant without his consent instead of recovering due amount from L.R.s of borrower late Sanjay Pawar. Therefore in the month of December 2008 complainant issued notice asking opponents, as to why amount is recovered from his monthly salary. But opponents did not give any response to his notice. Even then opponents recovered amount of Rs.350/- from his monthly salary for the month of February 2009. Therefore alleging deficiency in service on the part of opponents, complainant filed consumer complaint claiming refund of recovered amount from his salary.
4. Opponents by their written version resisted the complaint contending inter alia that they have legally and rightly recovered the amount of dues from monthly salary of complainant, as the 3 F.A.No.:165/2010 complainant is a guarantor for the loan amount which was borrowed by late Sanjay Pawar. Further they have challenged the maintainability of the complaint on the ground that complainant is being not consumer of opponent bank, consumer complaint is not maintainable. They have denied all other adverse averments made by the complainant and submitted to dismiss the complaint.
5. On hearing both side and considering evidence on record Dist.Consumer Forum held that opponent bank should have recovered the amount of dues from the L.R.s of borrower late Sanjay Pawar as the opponent bank had obtained consent letter from L.R.s of Sanjay Pawar for payment of dues from the amount of G.P.F. saving account, gratuity etc. which they have received after death of borrower late Sanjay Pawar etc. In keeping with this finding Dist.Consumer Forum allowed the complaint directing opponents to repay the amount to the complainant which is recovered from his monthly salary etc.
6. Feeling aggrieved by that judgment and order opponents came to this Commission in appeal.
7. We heard learned counsel for both side and perused the written notes of arguments submitted by them. We have also perused the impugned judgment and order, copies of complaint, copies of statement pertaining to the amount recovered from monthly salary of complainant and also the copies of loan agreement including guarantee deed executed by the complainant and Shri.Kumodkar etc.
8. Almost all the facts except maintainability of complaint and further legality of the recovery of outstanding loan amount of borrower from monthly salary of guarantor complainant Shri.Rahul Wagh are not disputed.
4 F.A.No.:165/20109. It is submitted by Smt.Ranjana Reddy learned counsel appearing for opponents that complainant Rahul Wagh being a guarantor for the loan amount which was borrowed by late Sanjay Pawar is being not consumer of opponent bank, consumer complaint itself is not maintainable. According to her, guarantor is not required to pay or deposit any amount towards process charges etc. Therefore no service from the bank is expected by the guarantor. It is submitted that borrower only comes under the purview of the definition of consumer as defined U/s 2(1)(d) of Consumer Protection Act 1986 and not any guarantor. But District Consumer Forum without considering this legal objection raised by opponents wrongly held that complainant is entitled to recover amount which was recovered from his monthly salary towards dues outstanding against loan amount of borrower late Shri.Sanjay Pawar.
10. Per contra, Mr.Gadiwan learned counsel for the complainant submitted that when borrower is a consumer of opponent bank his guarantors are also consumer. Therefore District Consumer Forum has rightly without considering this legal objection allowed consumer complaint. But we find no merit in the submission of Adv.Gadiwan because it is not the contention of complainant that while executing deed of guarantee opponent bank recovered any amount towards processing charges etc. from him and another guarantor. If it is so then as submitted by Smt.Ranjana Reddy learned counsel for the opponents that no service is expected to be rendered by opponent bank for the guarantors. Therefore the guarantors cannot fall within the purview of definition of consumer as defined under provision of Sec.2(1)(d) of Consumer Protection Act. But it appears from the copy of impugned judgment and order that District Consumer Forum giving goby to the preliminary objection raised by opponents about maintainability of the complaint in their written version jumped to the wrong conclusion that opponents have illegally recovered amount of dues from monthly salary of the complainant etc. , though L.R.s of 5 F.A.No.:165/2010 borrower had given consent for payment of dues from the amount of G.P.F., gratuity etc. received by them after the death of borrower Late Sanjay Pawar. When complainant guarantor is not a consumer of opponent and consumer complaint is not maintainable, such erroneous finding can be sustained.
11. Even otherwise as per settled law when the guarantors and borrower are jointly and severally liable to pay amount of loan in the event of default committed by borrower it cannot be disputed that opponents have illegally recovered amount of dues from monthly salary of guarantor/complainant Shri.Rahul Wagh. When undisputedly borrower Late Sanjay Pawar or his L.R. committed default in payment of dues outstanding against the loan account of borrower, it is a choice of bank/creditor to recover amount of dues either from L.R.s of borrower or from guarantors. Therefore on any count it cannot be accepted that opponents committed any illegality in recovering the amount of dues from monthly salary of guarantor/ complainant Shri.Rahul Wagh. Even question of deficiency in service on the part of opponents does arise when complainant/guarantor is not their consumer. But it appears from the copy of impugned judgment and order that District Consumer Forum without considering all these legal aspects committed serious error in allowing the complaint. Therefore impugned judgment and order is being erroneous cannot be sustained.
12. In the result appellants/opponents succeed and appeal deserves to be allowed. Hence the following order.
O R D E R
1. Appeal is allowed.
6 F.A.No.:165/2010
2. The impugned judgment and order is hereby quashed and set aside.
3. Complaint stands dismissed.
4. Complainant shall pay to the opponents Rs.1000/- each towards cost of the appeal.
5. Copies of the judgment be supplied to both the parties.
Sd/- Sd/- K.B.Gawali S.M.Shembole, Member Presiding Judicial Member Mane