State Consumer Disputes Redressal Commission
State Bank Of Patiala. & Ors. vs Smt. Neelam Pathania. on 28 February, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 74/2017
Date of Presentation: 31.03.2017
Order Reserved on : 06.11.2017
Date of Order : 28.02.2018
......
1. State Bank of Patiala Baroti (Parwanoo) District Solan H.P
through its Manager Varun Sachann.
2. Assistant General Manager State Bank of Patiala Regional
Office H.P. Rajgarh Road Opposite Thodo Ground Solan
H.P.
3. Managing Director State Bank of Patiala Head Office The
Mall Road Patiala Punjab.
...... Appellants/Opposite Parties
Versus
Mrs. Neelam Pathania wife of Shri Dharamvir Pathania resident
of House No.67/HIG Housing Board Colony Kalka Tehsil
Kalka District Panchkula Haryana.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant s : Mr. Ranvir Chauhan Advocate.
For Respondent : Mr. Virender Thakur Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes.
State Bank of Patiala & Ors. Versus Neelam Pathania (F.A. No.74/2017) 22.02.2017 passed by Learned District Forum in consumer complaint No.115/2015 title Neelam Pathania Versus State Bank of Patiala & Ors.
Brief facts of consumer complaint:
2. Mrs. Neelam filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant applied for a bank loan of Rs.10.00 lac (Ten lac) for purchase of plot measuring 5 biswas khewat No.28 khatauni No.29 khasra No.144/2 situated in village Dharampur Pinjore within the municipal limits of Pinjore Tehsil Kalka District Panchkula. It is pleaded that loan was sanctioned vide letter dated 19.09.2011. It is further pleaded that complainant purchased the plot and also executed agreement of mortgage on 19.09.2011. It is pleaded that after execution of sale deed in favour of complainant title deeds of plot was duly deposited with the bank and an equitable mortgage was created. It is further pleaded that complainant paid the monthly installment of Rs.10000/-(Ten thousand) per month w.e.f. October 2011 without default. It is pleaded that opposite party No.1 has illegally debited a sum of Rs.79696.56 (Seventy nine thousand six hundred ninety six & fifty six paise) from the account of complainant without any advance notice. It is further pleaded that complainant approached Manager of opposite party No.1 and complaint about illegal deduction but opposite party No.1 did not credit 2 State Bank of Patiala & Ors. Versus Neelam Pathania (F.A. No.74/2017) amount of interest in loan amount. It is further pleaded that opposite parties committed deficiency in service.
Complainant sought relief of refund of Rs.79696.56 (Seventy nine thousand six hundred ninety six & fifty six paise). In addition complainant also sought relief of Rs.50000/-(Fifty thousand) for causing mental agony, harassment and humiliation. In addition complainant also sought a relief of payment of Rs.11000/-(Eleven thousand) as litigation expenses. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties No.1 to 3 pleaded therein that complainant is not a consumer. It is pleaded that present dispute does not relate to consumer dispute as defined under Consumer Protection Act 1986. It is further pleaded that complainant has no cause of action to file the consumer complaint. It is pleaded that opposite party No.1 sanctioned the loan of Rs.10.00 lac (Ten lac) to complainant on 19.09.2011. It is pleaded that complainant executed house loan agreement and mortgage the property in favour of bank. It is further pleaded that complainant did not comply terms and conditions of loan agreement. It is pleaded that complainant failed to construct the house over vacant plot purchased by her after availing loan from opposite party No.1 within two years. It is further pleaded that opposite party No.1 is legally entitled to charge 3 State Bank of Patiala & Ors. Versus Neelam Pathania (F.A. No.74/2017) interest @ 15.10% which is 5.25% above BR applicable to personal loan against vacant plot. It is further pleaded that terms and conditions of loan agreement were explained to complainant. It is pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder pleaded therein that opposite parties have interpolated three lines with a pen at the back of complainant in loan agreement to penalize the complainant with higher rate of interest.
5. Learned District Forum partly allowed the complaint and ordered opposite party to stop imposition of penal interest amounting to 5.25% over and above the agreed rate of interest which is 0.75% per annum over the BPLR rate of interest as per arrangement letter dated 19.09.2011. Learned District Forum further ordered opposite parties to refund the amount which was debited from the account of complainant on account of penal interest from October 2011 onwards within a period of 30 days from the date of receipt of copy of the order. In addition learned District Forum also ordered opposite parties to pay Rs.10000/-(Ten thousand) towards mental harassment to complainant. In addition learned District Forum further ordered opposite parties to pay Rs.3000/-(Three thousand) towards litigation costs. Learned District Forum held that opposite parties have interpolated 4 State Bank of Patiala & Ors. Versus Neelam Pathania (F.A. No.74/2017) three lines with a pen at the back of complainant in the loan agreement. Feeling aggrieved against order passed by Learned District Forum opposite parties filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether matter of interpolation in written loan agreement by opposite parties could be decided by Consumer Fora in summary manner under Consumer Protection Act 1986 in the ends of justice and on the principles of natural justice?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit Ext.CW-1 in evidence.
There is recital in affidavit that deponent applied for a bank loan vide application dated 02.09.2011 for loan amount of Rs.10.00 lac (Ten lac) for the purchase of plot measuring 5 biswas situated in khata/khatauni No.28/29 khasra No.144/2 at village Dharampur Pinjore. There is further recital in affidavit that loan to the tune of Rs.10.00 lac (Ten lac) was sanctioned by opposite parties. There is recital in affidavit that deponent purchased plot and also executed agreement of mortgage in favour of opposite party. There is 5 State Bank of Patiala & Ors. Versus Neelam Pathania (F.A. No.74/2017) further recital in affidavit that title deed of plot was also deposited with the bank as an equitable mortgage. There is recital in affidavit that deponent paid all the installments in due time. There is recital in affidavit that opposite party No.1 has illegally debited unilaterally a sum of Rs.79696.56 (Seventy nine thousand six hundred ninety six & fifty six paise) from the account of deponent without any notice and committed deficiency in service. There is further recital in affidavit that opposite parties have interpolated three lines with a pen at the back of complainant in loan agreement document to penalize the complainant with higher rate of interest and committed fabrication and forgery in loan agreement document. State Commission also perused annexures C1 to C11 & CW1/G filed by complainant carefully.
9. Opposite party filed affidavit of Sh. T.N Trivedi Manager State Bank of Patiala Parwanoo Branch Tehsil Kasauli District Solan Ext.OPW-1. There is recital in affidavit that deponent is presently serving a Manager State Bank of Patiala Parwanoo. There is further recital in affidavit that opposite parties did not commit any deficiency in service. There is recital in affidavit that opposite party visited the spot on 25th May 2015 and found that complainant failed to construct the house over plot purchased by her after availing loan from opposite party No.1. There is further recital in 6 State Bank of Patiala & Ors. Versus Neelam Pathania (F.A. No.74/2017) affidavit that opposite party No.1 has charged the interest 5.10% which is 5.25% above BR applicable to personal loan against plot. There is recital in affidavit that opposite party No.1 has debited the amount to the tune of Rs.79696.56 (Seventy nine thousand six hundred ninety six & fifty six paise) in the loan account of complainant on 29.05.2015 strictly as per terms and conditions of loan agreement. There is recital in affidavit that construction of house upon vacant plot within two years was pre condition in the loan agreement qua interest amount. There is further recital in affidavit that complainant is not entitled for refund of amount. There is recital in affidavit that complainant was informed about the rate of interest and other charges upon loan amount. State Commission has also perused annexures OP1 to OP8 filed by opposite parties carefully.
10. Submission of learned Advocate appearing on behalf of opposite parties that learned District Forum has illegally given findings relating to interpolation of three lines with a pen by opposite parties behind back of complainant in written loan agreement executed inter se parties qua interest and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused the written agreement Ext.CW1/G dated 19.09.2011 executed inter se parties qua terms and conditions of loan agreement. It is proved on record that document Ext.CW1/G is a printed 7 State Bank of Patiala & Ors. Versus Neelam Pathania (F.A. No.74/2017) form. It is also proved on record that three lines have been added by way of hand written para i.e. "Bank would charge interest @ 5.25% above BR as applicable to personal loan against property whichever is higher if house on said plot would not construct within two years." Opposite parties have pleaded that official of opposite parties visited vacant plot and found that house was not constructed upon vacant plot within two years after obtaining loan from the opposite parties. State Commission is of the opinion that it is not expedient in the interest of justice and on the principle of natural justice to decide matter of interpolation of written loan agreement in a summary manner under Consumer Protection Act 1986 as it require elaborate inquiry by civil court.
11. Submission of learned Advocate appearing on behalf of complainant that order of learned District Forum is in accordance with law and is in accordance with proved facts is decided accordingly. As matter is relating to interpolation of written loan agreement by opposite parties it is expedient in the ends of justice and on the principles of natural justice to relegate the complainant to civil court for adjudication of matter in dispute. See Consumer Protection Reporter 1995 (1) 103 Sameer Bahadur Versus Bank of Baroda & other SCDRC New Delhi. In view of above stated facts point No.1 is decided accordingly.
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State Bank of Patiala & Ors. Versus Neelam Pathania (F.A. No.74/2017) Point No.2: Final Order
12. In view of findings upon point No.1 above appeal is allowed. Order dated 22.02.2017 passed by learned District Forum in consumer complaint No.115/2015 is set aside and complainant is relegated to civil court for adjudication of dispute relating to interpolation of written loan agreement by opposite parties. Arrangement letter/Housing Finance Ext.CW1/G executed between the parties placed on record will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 28.02.2018.
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