National Consumer Disputes Redressal
Bank Of India vs Harendra Kumar & Anr. on 16 December, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 542 OF 2013 (Against the order dated 20.11.2012 in Appeal No. 659/2011 and 752/2011 of State Commission, U.P., Lucknow ) Bank of India through its Branch Manager, Bank of India S.S.B.I. Branch L.I.C. Building Sanjay Place, Agra. Petitioner Versus 1.Harendra Kumar 2. Kishore Kumar Both sons of Tarachand Aggarwal R/o 7/209, Tulsi Chabutra Tajganj, Agra. Respondents BEFORE : HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER For the Petitioner :Ms. Madhumita Bhhattacharjee, Advocate. For the Respondent :Shri Anshu Bhanot, Advocate. Pronounced on 16th December, 2014 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This Revision Petition has been filed by the petitioner against order dated 20.11.2012 passed by State Commission in Appeal No. 659 of 2011- -2- Bank of India VS. Harender Kumar & Others and Appeal No. 752 of 2011- Harender Kumar & Others Vs. Bank of India; by which while dismissing appeal of opposite party/complainant, appeal was partly allowed and rate of interest awarded by District Forum was enhanced.
Brief facts of the case are that owner of Mittal Flour Mill availed loan from opposite party/petitioner. On account of failure in re-payment, opposite party filed proceedings before DRT, Lucknow, in which order for recovering loan was passed. On 28.3.2003, complainant/ respondent offered for purchase of Mittal Flour Mill for a sum of Rs. 12,00,000/- and deposited Rs. 4.00 lakhs and submitted that remaining Rs. 8.00 lakhs will be deposited on accepting offer. It was further mentioned that in case proposal is not accepted, the amount deposited will be refunded back to the complainant. Later on, complainant came to know that Mittal Flour Mill obtained the No Dues Certificate on the basis of compromise, complainant asked opposite party/petitioner for refund of deposited amount of Rs. 4.00 lakhs alongwith interest but it was not refunded. Alleging deficiency on the part of opposite party, complainant filed complaint before District Forum. Opposite party resisted complaint and admitted deposit of Rs. 4.00 lakhs by complainant but submitted that this amount was deposited for adjustment in the account of Mittal Flour Mill and complainant is not entitled for refund. It was, further, submitted that intimation was given to the complainant regarding compromise with Mittal Flour Mill and complaint being barred by limitation may be dismissed. Learned District Forum after hearing both the parties allowed complaint and directed opposite party to refund Rs. 4.00 lakhs with 6% p.a. interest and further allowed Rs. 2,000/- as cost of litigation. Both the parties preferred -3- appeal before State Commission and Learned State Commission vide impugned order dismissed appeal of opposite party but allowed appeal of complainant and rate of interest was enhanced from 6% p.a. to 12% p.a. against which this revision petition has been filed.
Heard Learned Counsel for the parties finally at admission stage and perused record.
Learned Counsel for Petitioner submitted that as complainant was not consumer viz-a-viz petitioner and claim was barred by limitation, Learned District Forum committed error in allowing complaint and Learned State Commission further committed error in dismissing appeal and enhancing rate of interest, hence, revision petition be allowed and impugned order be set aside. On the other hand, Learned Counsel for Respondent submitted that order passed by Learned State Commission is in accordance with law, hence, revision petition be dismissed.
Perusal of record clearly reveals that complainant submitted offer for purchase of property belonging to Mittal Flour Mill which runs as under:-
Sub: Regarding purchase of property pertaining to the loan account of M/s. Mittal Flour Mill.
Sir,
1.
That the owners of the Mittal Flour Mill mortgaged their flour mill to secure a loan for running the mill, but due to certain circumstances the flour mill could not function properly. Thereafter, the bank had to initiate D.R.T. proceedings against Mittal Flour Mill for recovery of the loan, the said proceedings were decreed. Even though the state of the property, machinery,etc. is very bad yet we are ready to buy the mortgaged property from the firm bank for Rs. 12,00,000/-.
The twelve lakhs will be straight away deposited in the bank out of which Rs. 4,00,000/- we are depositing -4- today i.e. 28.03.2003 and the balance Rs. 8,00,000/- will be deposited by 20.05.2003 while preparing the ownership agreement/ document in the bank pertaining to Mittal Flour Mill.
2. That the four lakhs rupees as deposited today by the applicant shall be deposited in a No Lien Account and in case of acceptance of the proposal of the borrower the Rupees Four Lakhs should be adjusted towards the Mittal Flour Mill Loan Account and we should be intimated about the same.
So that we can arrange the balance amount of Rupees Eight Lakhs within time. If at all the Bank does not accept the proposal of Mittal Flour Mill then the Rupees Four Lakhs deposited by us on 28.03.2003 shall be refunded back to us.
Perusal of aforesaid offer clearly reveals that complainant intended to purchase property of Mittal Flour Mill which was mortgaged by Mittal Flour Mill with opposite party for a sum of Rs. 12.00 lakhs and deposited Rs. 4.00 lakhs alongwith the application. It was, further, mentioned that in case proposal is not accepted, this amount will be refunded back to the complainant. Admittedly, complainants proposal was not accepted by opposite party. It appears that after this letter, opposite party entered into compromise with Mittal Flour Mill and settled outstanding loan for Rs. 24.00 lakhs and in this letter, it was mentioned that Rs. 4.00 lakhs already deposited with SSI Agra branch be appropriated in the account immediately. Admittedly, amount of Rs. 4.00 lakhs was not deposited by Mittal Flour Mill but was deposited by complainant for purchase of Mittal Flour Mill. Complainant never agreed for adjusting aforesaid Rs. 4.00 lakhs in the loan account of Mittal Flour Mill but this amount was deposited for purchase of Mittal Flour mill which was mortgaged to opposite party. It is not clear on what basis by letter dated 7.7.2003 this amount was adjusted towards loan outstanding against Mittal Flour Mill.
-5-On the contrary, once opposite party settled the matter with Mittal Flour Mill and decided not to sell property to complainant, it was obligatory on the part of opposite party to refund amount of Rs. 4.00 lakhs to the complainant.
Learned Counsel for the Petitioner submitted that Complainant does not fall within the purview of consumer as he has not hired any services. This arguments is devoid of any force because Complainant hired services of opposite party for purchase of mortgaged property and for this purpose Complainant deposited Rs. 4.00 lakhs and agreed to deposit Rs. 8.00 lakhs on acceptance of proposal.
Learned Counsel for Respondent has placed reliance on judgment of Apex Court in Civil Appeal No. 6237 of 1990- Lucknow Development Authority VS. M.K. Gupta; in which it was observed that when banks advance loan or accept deposit or provide facility of locker they undoubtedly render service. Thus, it becomes clear that by depositing Rs. 4.00 lakhs, complainant took services of opposite party for release of property of Mittal Flour Mill to the complainant on depositing balance of Rs. 8.00 lakhs. In such circumstances, complainant falls within the purview of consumer.
Learned Counsel for Petitioner further submitted that complaint is time barred as money was deposited on 28.3.2003 and complaint was filed on 12.10.2006. Learned Counsel for Petitioner has placed reliance on letter dated 7.7.2003 sent by Zonal Office of Petitioner to M/s. Mittal Flour Mill and as per endorsement, copy has been sent to the complainant. Learned Counsel for petitioner submitted that as per reply to the legal notice given by petitioner, copy of letter dated 7.7.2003 was sent through courier/RWN Courier, Agra. Learned Counsel for Petitioner has not placed any evidence to substantiate this fact that letter dated 7.7.2003 was ever delivered to complainant through courier or any -6- other mode. In such circumstance, it cannot be presumed that complainant came to know about the fact that his amount of Rs. 4.00 lakhs has been adjusted towards settlement entered between the Mittal Flour Mill and opposite party. Complainant sent notice dated 3.5.2006 to the opposite party and when amount was not refunded, he filed complaint on 12.10.2006 i.e. within period of limitation of two years and in such circumstances, complaint cannot be termed as barred by limitation.
I do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.
Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.
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( K.S. CHAUDHARI, J. ) PRESIDING MEMBER Mk/court4/