S.C. Jain, Member:
1. The Complainant has filed this complaint under Section 17 of the Consumer Protection Act 1986.
2. The facts which are mentioned in the present complaint are that the complainant in the month of May-June 2006 took a loan (Personal) to the Tune of Rs. 3,00,000/- (Rs. Three Lac Only) from OP. The said Loan was disbursed on 26.06.2006 by the OP, after execution of an agreement bearing No. 5255. As per the said loan agreement the first E.M.I. was due and payable in the month of July 2006 and the last E.M.I. was due and payable in December 2008. The period of loan was 30 months starting from July 2006 and ending in December 2008, as such Advance P.D.C.(Post Dated Cheques) amounting to Rs. 12,272/- each, were duly handed over to the OP by the complainant , IN ADVANCE, before the personal loan was disbursed.
3. The complainants father was not keeping good health as such around February 2007 the complainant decided to fully REPAY the above mentioned Personal Loan. Accordingly, the complainant contacted the OP office at New Delhi and was informed that she would have to pay the Principal outstanding alongwith prepayment charges @ 4% on Principal Outstanding.
4. On March 31, 2007, the complainant deposited an amount of Rs. 2,32,526/- vide Bankers Cheque No. 001016, dt. March 31, 2007 drawn on HDFC Bank Ltd Anandlok New Delhi favouring the OP towards entire outstanding Principal Loan Amount, along with the prepayment charges. The said amount was duly received by the OP and in furtherance of the same the OP issued a receipt bearing No. 403316, dt. 31.03.2007 for Rs. 2,32,526/- to the complainant. The said Receipt is Exhibited as EXHIBIT A?.
5. The complainant had requested the OP, in first week of April 2007 after the Banker Cheque, above mentioned, was duly encashed, to kindly handover the unused œadvance? PDCs (Post Dated Cheques) which were handed over in June 2006, by the complainant to the OP, at the time of taking the disbursement of the aforesaid personal loan i.e. various PDCs of Rs. 12,272/- each. It was categorically informed by OP, that as per the Companys norm, rules and policies, the unused PDC will be destroyed and the same cannot be RETURNED. On the verbal assurance of OP, the complainant did not think it proper to ask in writing, for return of the unused PDCs but it was utter shock to the complainant when in first week of July 2007 she received a Legal Notice Under Section 138 N.I.Acts from one Mr. Vinay Kumar Singh, Advocate R/o C/D 49, Kavi Nagar, Ghaziabad stating that œ¦..upon instruction and on behalf of Kotak Mahindra Bank Ltd, (the respondent herein) having its office at C-22, RDCm Raj Nagar, Ghaziabad stating that complainant had taken a Personal Loan under Agreement No. 5255 and undertook to repay the same of RS. 12,272/- including the interest thereon. The said legal notice further stated that complainant had issued a cheque bearing No. 266030, dt. June 05, 2007 for an amount of Rs. 12,272/- drawn on O.B.C., Defence Colony, New Delhi towards the aforementioned personal loan installment. And the said cheque had returned on its presentation, for the reason œINSUFFICIENT FUNDS.?
6. The complainant on receiving the said Legal Notice, immediately visited office of OP, at Ambadeep, New Delhi and showed them the Receipt of having repaid, the entire loan with prepayment charges etc on March 31, 2007. The complainant further, wanted to know how the cheque for the month of June 2007 was presented, œdespite of assurance? given that the unused PDCs would be destroyed. The officials present at the OPs office at Delhi checked their records/computers and found that complaints loan account, had been duly PREPAID on March 31, 2007 itself and there was no outstanding. The OPs officials further assured complainant that in future, such negligent incident, will not happen. And undertook, to intimate their counsel at GHAZIABAD, to immediately withdrawn the alleged Legal Notice dated 28.06.2007.
7. The complainant on the verbal assurance of the officials of the respondent, did not think it fit and proper to file any complainant either with the Delhi Police or before Honble Consumer Forum/Banking Ombudsmen, against Respondents for Cheating, Misappropriation of Funds/Negligence, Deficiency of Service etc. at that particular time but the complainant states that in the 3rdweek of September 2007 she received a COURT SUMMONS, from the Honble Court of Special Judicial Magistrate, CBI, GHAZIABAD directing her to be present before the said court on October 10, 2007. The said Court Summon is œEXHIBIT C?. The said court summons were duly received at her aforementioned residence i.e., A 21, Defense Colony, New Delhi and on perusal of the said court summons it transpired that Kotak Mahindra Bank Ltd. (OP herein) had filed a Complaint Under Section 138 of NIAct against complainant at GHAZIABAD, bearing Complaint Case No. 1197/2007.
8. The complainant contacted the OPs office at Ambadeep, New Delhi but proved futile. As the officials presents at OPs Ambadeep office showed their inability, as the matter was pending adjudication, before the Honble Court, at Ghaziabad but on the advice of her Advocate the complainant again visited OPs office at Ambadeep, K.G.Marg, New Delhi office, and requested to issue atleast a letter stating that on 31.03.2014 her Loan A/c had been fully repaid, to the complete satisfaction of the OP. the OP on her request issued a letter dt. October 08, 2007 stating that they are withdrawing the Complaint Case filed under Section 138 N.I.Acts pending in the Court of JM (CBI) Ghaziabad. The said Letter, dt. 08.10.2007 is EXHIBIT D?.
9. But inspite of this letter when the case came up before the Judicial Magistrates Court at Ghaziabad on 10.10.2007, the OP did not withdraw the criminal complaint and the counsel for the OP stated before the Honble Court of Judicial Magistrate, Ghaziabad that he has no such instructions to withdraw the criminal complaint but when complainant placed the copy of the letter dt. 08.10.2007 before the Judicial Magistrate, the counsel for the OP stated that he has no knowledge of such letter issued by the OP bank and the case has been filed because the cheque issued by the complainant had been received back unpaid for want of sufficient balance and the cheque was issued by the complainant being the monthly installments of the loan he had obtained from the bank and further stated before the court that he will enquire from his client and the case was adjourned for 31.10.2007, but on 25.07.2007 OP before the date of hearing which was fixed for 31.10.2007 before the Honble Judicial Magistrate Court at Ghaziabad moved an application for withdrawal of the criminal complaint stating therein that since the amount of the bounced cheque has been received by them and the matter has been settled requested the Honble Court for granting permission to withdraw the criminal complaint and Honble Court of the Judicial Magistrates allowed withdrawal of the complaint and complaint was accordingly dismissed as withdrawn. This fact of withdrawing the complaint came to the notice of the complainant only on 31.10.2007 when he went to the court of Honble Judicial Magistrate on Ghaziabad to attend the proceedings.
10. Aggrieved by the behavior and attitude of the OP bank in dealing with unprofessional and unethical manner and for harassing her for no fault of hers and dragging her to the court without any cause of action because without ascertaining the facts that the complainant has paid the full amount of the loan with interest and has forclosed the same after paying 4% pre payment charges filed the criminal case against her for return of the cheque on the ground of insufficient balance whereas OP was required to return of the PDCs to her after payment of the loan amount or atleast cancel them at their end, but the OP knowingly deposited the cheque in their Ghaziabad Branch and created false and colorable jurisdiction of Ghaziabad Court just to harass her and in Ghaziabad Court she could not get even Anticipatory Bail, which amounts to negligence and unfair trade practice and filed the present complaint before this Commission praying therein to award Rs. 15 Lac alongwith interest @ 18% p.a. from 01.04.2007 till its realization for expenses incurred in defending the false, frivolous and mischievous complaint case filed by the respondent bank under Section 138 of Negotiable Instrument Act at Ghaziabad Court and further prayed for awarding legal expenses also as well as has prayed for award of Rs. 15 Lac as compensation towards harassment, humiliation, torture and mental agony faced by her due to illegal, unlawful, wrongful acts and deeds of the OP.
11. Registered notice under AD cover was sent to the OP who appeared and contested their case. Both the parties filed their evidence by way of affidavit and both the parties led their arguments. File perused.
12. The OP in their written reply, stated that the complaint is barred by limitation being filed after expiry of limitation period as prescribed under Section 24 A of the Consumer Protection Act and is thus liable to be dismissed. The OP admitted in her reply that advance loan of Rs. 3 Lac which was to be paid in 30 monthly equal installments of Rs. 12,272/- each and in the month of March 2007, the complainant approached the bank and enquired about the procedure for pre-closer of the loan account and the bank on her request issued a statement to her, showing therein the outstanding amount and she was also informed that in case she wishes to forclose her bank account, then she has to gave a prior notice of 30 days for such intentions. OP further stated that as per the agreement between the parties, it was agreed that in case of forclose at anytime after payment of first six EMIs then the borrowers was required to give a prior notice of 30 days for such intention, but in the present case instead of giving any such prior notice, the complainant deposited the outstanding amount as per the statement with them and as a result, the payment was recorded in the books of account, but the account could not be terminated and as the account could not be terminated because of the afore mentioned reason, post dated cheques handed over by the complainant towards payment of the loan were kept with the bank. The OP further stated in their reply that as the account could not be terminated due to the fault of the complainant they deposited one cheque amounting to Rs. 12,272/- for encashment which was dishonored for want of sufficient funds in the account and that is why proceedings under Section 138 were initiated by the bank against the complainant but as soon as on receipt of the summons by the complainant when the complainant approached them in the month of October, 2007 and informed the bank about the said pre-closer of the loan amount, the loan account was immediately terminated in the books of accounts and the letter dt. 08.07.2014 was issued to the complainant and vide the said letter they had confirmed to the complainant the termination of the bank account and has further agreed to withdraw all the legal proceedings initiated under Section 138 of the Negotiable Instrument Act and were subsequently withdrawn by them from the Court of Honble Judicial Magistrate at Ghaziabad on 25.10.2007. OP stated that as such there has been no deficiency in providing services to the complainant on their part.
13. After going through the submissions made by the complainant and reply filed by the OP as well as evidence filed by way of affidavit by both the parties, we find that the complaint is not at all barred by limitation as provided under Section 24 of the Consumer Protection Act 1986 and Section 24 A states œlimitation period-(1), the District Forum, the State Commission or the National Commission shall not admit a complaint, unless it is filed within two years from the date on which the cause of action has arisen.?
14. The complainant took the loan from the bank which was disbursed on 26.06.2006 and was fully repaid with 4% pre-closure charges on 31.03.2007. The OP on return of the cheque of Rs. 12,227/- on account of insufficient funds (the cheque was towards payment of installments, which was deposited after making the full and final payment of the loan amount) OP initiated the proceedings under Section 138 of Negotiable Instruments Act in the first week of September 2007, which were withdrawn vide OPs letter 25.10.2007 after the fact came to their notice that the account had already been terminated after payment of the full loan amount with pre-closer charges, hence the cause of action for filing the present complaint before this Commission arose on 25.10.2007 when the criminal complaint was withdrawn and he was put to much harassment and mental agony due to non granting of the Anticipated Bail and unnecessary dragging the complainant to the criminal court for no fault of the complainant and after that the complainant filed the complaint before this Commission on 21.10.2009, which is well within the limitation period of two years.
15. The submissions of the complainant that the OP had unnecessarily, unlawfully and illegally dragged him to the Ghaziabad Court because no cause of action had arisen in Ghaziabad and entire transaction took place at Delhi, complainant also resides at Delhi, her bank of which the PDCs were issued is at Delhi and the loan was also disbursed by the OP bank from Delhi Branch, but in order to harass her deposited the cheque in dispute in their Ghaziabad Branch so that jurisdiction of Ghaziabad Court could be created and filed their criminal complaint under Section 138 of Negotiable Instrument Act before the Court of Judicial Magistrate at Ghaziabad. This exercise of creating a colorable jurisdiction of Ghaziabad Court clearly reflects the intention of the OP bank to harass the complainant.
16. It is also not disputed that the complainant deposited the amount as per the statement supplied by the OP bank for pre-closure of the account showing therein the outstanding loan amount as well as the pre-closure charges of 4% and it was the duty of the OP bank to terminate the loan account of the complainant and stop encashing the balance post dated cheques in future after closer of the account. By depositing the post dated cheque after payment of the full loan amount with pre-closure charges without verifying their records amounts to deficiency on the part of the OP Bank, apart from this OP committed grossed type of deficiency by initiating proceedings u/s 138 of Negotiable Instrument Act without verifying their record and unnecessarily harassed the complainant who had to attend criminal court at Ghaziabad many a times.
17. Accordingly we orders as follows:-
OP shall pay a compensation of Rs. 1,00,000/- (Rs. One Lakh Only) for causing harassment and mental agony and trauma to the complainant. This amount shall include cost of litigation also.
18. The above orders be complied with by the OP within 30 days of the receipt of these orders and if OP fails to comply the above orders the complainant shall be at liberty to approach this Commission u/s 25/27 of Consumer Protection Act, 1986.
19. Copy of the orders be made available to the parties free of cost as per law and case file be consigned to record room.