BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.990 OF 2012 AGAINST C.C.NO.15 OF 2012 DISTRICT FORUM NALGONDA
Between:
The Andhra Bank rep. by its
Branch Manager, Thirumalagiri Branch
Anumula Mandal, Nalgonda Dist. Appellant/opposite party No.1
A N D
1. Shagam Venkat Reddy
S/o Malla Reddy, aged 45 years,
Occ: Govt. Servant, R/o Thirumalagiri Village
Anumula Mandal, Nalgonda Dist.
Respondent/complainant
2. The Asst. Director,
National Horticulture Board
Ministry of Agriculture, Govt. of India
202, 2nd Floor, Shantiniketan Apts.,
Chirag Ali Lane, Abids, Hyderabad-001
Respondent/opposite party no.2
Counsel for the Appellant M/s V.Narsing Rao
Counsel for the Respondents M/s V.Gourisankara Rao(R1)
M/s V.K.Naidu (R2)
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
THURSDAY THE TWENTY THIRD DAY OF JANUARY
TWO THOUSAND FOURTEEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The opposite party no.1 is the appellant. The first respondent filed complaint claiming a sum of `54,400/- towards subsidy granted by the second respondent and interest @ 24% per annum thereon as also a sum of `10,000/- towards compensation and costs.
2. The case of the first respondent as seen from the averments of the complaint is that he applied for crop loan under LOI Scheme for the purpose of raising sweet orange grove. The appellant bank is the financing bank and the respondent no.2 released a sum of `54,400/- through cheque dated 10.2.2009 to the appellant bank. On representations made the first respondent, the appellant bank addressed letter dated 8.12.2010 to the respondent no.2 informing the respondent no.2 that it had not received subsidy amount relating to horticulture loan of the first respondent.
3. The first respondent submitted that the appellant bank addressed letter dated 8.5.2010 with a request to send the loan amount and thereafter the second respondent sanctioned the loan and sent the amount to the appellant bank which received the cheque in the month of February 2009. On 4.6.2011 the appellant bank addressed letter to the respondent no.2 stating that the cheque was misplaced and thereafter the first respondent got issued notice on 2.12.2011 to the appellant bank and the respondent no.2 for payment of the loan amount of `54,400/-. The second respondent issued reply stating that the claim of the first respondent was rejected.
4. The first respondent submitted that non-payment of subsidy amount since 8.12.2010 amounts to deficiency in service on the part of the appellant bank and the respondent no.2. The first respondent sought for direction to the appellant bank and the respondent no.2 to pay the subsidy amount of `54,400/- to him.
5. The appellant bank resisted the claim on the premise that it had not received the cheque and at request of the first respondent it addressed a letter to the respondent no.2 that the cheque was misplaced and further requested to issue another cheque. It is contended that the appellant bank has performed the required act and there was no deficiency in service on its part.
6. The second respondent filed written version contending that National Horticulture Board set up by the Government of India is an autonomous body and its object is to promote integrated development of horticulture. It would provide assistance by way of banking subsidy to the farmer under various schemes prescribed for the purpose to facilitate the completion/initiation of the projects. The second respondent is under the administrative control of Ministry of Agriculture, Government of India.
7. The second respondent submitted that in terms of the scheme claimants are required to file affidavit with a declaration that no subsidy or grant-in-aid other than the one shown in the application form has been availed or to be availed by the promoters/director/partner/proprietor for the new project from Central Government or any of its agencies except the NHB.
8. The second respondent has submitted that it came to know that the first respondent filed affidavit dated 7.9.2007 with false statement and concealing the fact that he already availed subsidy for the same project and the same crop raised in the same land. The subsidy is a grant from the government and any citizen cannot claim it as a matter of right. Sanction and disbursement of subsidy is governed by the terms and conditions of the scheme and the terms of LOI (Letter of Intent). The LOI will be valid for one year from the date of issue and the promoter has to approach financing bank after obtaining LOI from NHB and get his crop loan sanctioned by the Bank.
9. The second respondent submitted that grant of LOI does not obviate the appellant bank to scrutinize the project proposal. The project has to be implemented within a period of two years. Mere issuance of LOI will not guarantee the grant of subsidy to the beneficiary unless the proposal is implemented in accordance with the information given in the application of LOI. NHB reserve the right to modify, add and decide any terms and conditions of the LOI.
10. The second respondent submitted that the first respondent was not entitled for any subsidy. He submitted an application on 15.6.2006 for grant of LOI for the project on cultivation of sweet orange in an area of five acres and second respondent approved the proposal and issued LOI on 26.6.2006 as also released the amount of `54,304/- through cheque bearing no.243409. The cheque was not present during its validity period. The second respondent addressed letter to the appellant bank on 2.9.2009 inquiring the reason or not presenting the cheque during its validity period.
11. The second respondent submitted that as the cheque was not presented within the validity period, the unsent amount was returned to their head office. The appellant bank requested the respondent no.2 to release subsidy amount pertaining to the first respondent without stating the receipt of loss of cheque issued by the respondent no.2. The second respondent and the first respondent concealed the fact that drip subsidy under APMIP and NHM subsidy had already been availed for the same project and crop in the land comprised in same survey number. Had they informed the respondent no.2 about the previous subsidy, the second respondent would have rejected the application at initial stage.
12. The second respondent submitted that the signature of the first respondent in the application for LOI, affidavit and subsidy claim form did not match. For availing the subsidy from the government, the first respondent fabricated the documents and cheated the government. The first respondent is not a consumer of the second respondent as defined u/s 2(1)(d) of C.P. Act. The complaint is not filed within the period of limitation. The letter of intent was issued on 26.6.2006 with validity period of one year and completion of project within a period of two years from the date of sanction of loan. The complaint is filed after a lapse of six years.
13. The second respondent submitted that the first respondent produced the affidavit with false statement concealing the fact that it had already availed no subsidy for the same project. The cheque was not presented during the period of validity. The appellant or the first respondent had not given information for not presenting the cheque. The first respondent cannot maintain the complaint by filing affidavit with false statement and for attempting to obtain subsidy for second time by concealing the subsidy already availed. Hence, prayed for dismissal of the complaint.
14. The respondent no.1 filed his affidavit and the documents, Exs.A1 to A5. On behalf of the appellant, its Manager and on behalf of the respondent no.2 its Senior Assistant Director filed their respective affidavits and the documents, Exs.B1 to B12.
15. The District Forum allowed the complaint directing the appellant to credit the cheque amount of `54,304/- with interest together with `10,000/- towards compensation with interest @ 9% per annum and costs of `2,000/-.
16. Aggrieved by the order of the District Forum, the opposite party no.1-bank has filed appeal contending that the complaint is not filed within the period of limitation and that the complainant is not eligible for subsidy as also that there is no negligence on the part of the opposite party no1. And it is the opposite party no.2 who returned the subsidy pertaining to the complainant.
17. The point for consideration is whether the order of the District Forum is vitiated from misappreciation of facts or law?
18. The first respondent is an agriculturist and he raised sweet orange in his field at Tirumalagiri village of Anumula Mandal. He submitted application for sanction of loan under the scheme, ’Development of Commercial Horticulture through production and Post-Harvest Management’ for which the second respondent would grant subsidy. The second respondent, ‘ National Horticulture Board” was set up by the Government of India as an autonomous body with an object to promote the integrated development of horticulture and to help in coordinating, stimulating and sustaining the production and processing of fruits and vegetables. The scheme is applicable only for projects of horticulture with high tech components and techniques.
19. The first respondent submitted application dated 15.06.2006 for grant of LOI for the project on cultivation of Sweet Orange in the area of Ac.5-00gts and the second respondent approved the proposal and sanctioned subsidy to the extent of `54,304/- and it had issued LOI on 26.06.2006. The respondent no.2 issued cheque for the amount of `54,304/- drawn on Indian Overseas Bank and the second respondent informed the matter of issuing cheque to the first respondent through letter dated 10.02.2009.
20. The first respondent had not presented the cheque for collection of the amount within its validity period and the second respondent returned the unspent amount to its Head Office as ‘unclaimed amount’ after the expiry of validity period of sanction letter. The first respondent addressed letter dated 4.06.2011to the second respondent that the appellant-bank informed him at the first instance that it had not received the cheque from the second respondent and subsequently the appellant admitted that it received and misplaced the cheque and he informed the loss of cheque to the second respondent who stated to have advised him that if he made the appellant write to the second respondent that the cheque was lost, the second respondent would issue another cheque in the name of the first respondent.
21. The second respondent addressed letter dated 02.09.2009 to the appellant-bank making enquiry as to the reason for not encashing the cheque. The appellant through its letter dated 15.4.2011 informed the second respondent that the cheque was misplaced and as such the amount covered under the cheque could not be realized. The letter reads as follows:
“With reference to the above subject we would like to inform you that we have sanctioned a term loan under ATLHP scheme to Shagam Venkat Reddy S/o Malla Reddy R/o Tirumalgiri Village on 08.01.2007 and the total project has been completed. We have sent a requesting letter for claiming subsidy with lr.No.0240/19/ATL/NHB dt.07.03.2008. We have received the subsidy in the form of a cheque for the amount of Rs.54,400.00 (Fifty four thousand four hundred only) in the month February 2009 and it has been misplaced with us.
Hence, we request you to look into the matter and send us the subsidy amount as early as possible.
22. The District Forum has not accepted the contention of the appellant-bank that it had stated at the instance of the first respondent in the letters dated 15.04.2011 and 08.12.2011 that the cheque was misplaced and that it was a mistaken conception of the facts. The District Forum observed that if it is stated in one letter, it could be understood that the fact so stated was on mistaken notion of the fact and the repetition of the same statement in both letters would render the fact of non-receipt of cheque by the appellant, nugatory. The District Forum observed:
“It is not in one letter but it is in two letters it was stated that the cheque misplaced in the bank of OP-1. A responsible Bank Manager had signed these two letters and when it is stated therein in no uncertain terms that the cheque was misplaced, an argument contrary to it cannot be entertained to hold that the statement therein that the cheque was misplaced is incorrect. The misplacement of cheque in the hands of OP-1 is an admission in Exs.B5 and B6 and as such it is binding on OP-1 that the cheque is misplaced in the bank. The said admission in Exs.B5 and B-6 is not explained. It is well established principle of law that unexplained admissions bind the party who make them. Therefore, it is established beyond doubt that the cheque for a sum of rS.54,304/- the original of Ex.B-9 was misplaced in the bank of OP-1 and this is attributable to the sheer negligence of the employees of OP-1 band and OP-1 is vicariously liable for such acts of its employees.” .
23. In fact, the finding of the District Forum in regard to the appellant receiving and misplacing the cheque is not challenged in the appeal. Thus, the appeal filed as regards to limitation and eligibility of the first respondent to subsidy has to be addressed. The first respondent submitted application for grant of subsidy to the second respondent on 26.6.2006 and the second respondent sanctioned the subsidy on 08.01.2007 and issued cheque for an amount of `54,400/- in the month of February 2009. The first respondent approached the appellant bank to know about the cheque and on being informed by the appellant that the cheque was lost, he addressed letter to the second respondent on 4.6.2011.
24. The second respondent had given reply dated 12.12.2011 informing the appellant that the second respondent would not accept the statement of the appellant that it had not received the cheque as the appellant admitted in its letter dated 15.4.2011 that it had received the cheque and it could not trace the cheque which was misplaced.
25. From the date of admission of the appellant-bank that the cheque was misplaced during the time it was in its possession, the complaint is filed within the period of limitation.
26. The respondent no.2 informed the appellant-bank that it had sanctioned loan based on the inspection report of the appellant-bank and the subsidy amount of `54,900/- towards full and final Back Ended Capital Investment Subsidy for the project to be adjusted against the term loan amount on completion of project and till the time the amount was to be kept in separate account by the appellant-bank and the subsidy amount was to be adjusted “only as a part of the recovery of last installment of 36 months period from the date of release of term loan”.
27. The second respondent submitted that the first respondent availed loan concealing the fact that he had already availed Drip Subsidy under APMIP and NHM for the same project and crop raised in the same land and the respondent no.2 would not have granted subsidy if the appellant and the first respondent brought to its notice of the subsidy earlier granted in favour of the first respondent.
28. The statement of the second respondent is not denied by the first respondent. The first respondent submitted affidavit dated 7.09.2007 stating that he had not availed subsidy under any other scheme and in case it is found he availed subsidy under other scheme, the second respondent is entitled to recover subsidy released under the cheque in question. The first respondent stated:
“The financial assistance is provided for the specified activities covered under the scheme only and no part of the project would be used for carrying on any activity other than the horticulture activities under the scheme or any other scheme of NHB. Any breach of this condition, submission of false or exaggerated claims, would amount of breach of trust and would make the promoters liable to refund the back ended capital-investment availed under the scheme or any other financial assistance taken under the various promotional scheme of NHB and the promoters/directors/partners/proprietors may have to fact to provisions under the relevant laws applicable.
No subsidy/grant-in and has been availed to the availed by the promoters/directors/partners/proprietors for the project from any other central Government organizations except the NHB. In case of concealment of any facts in this regards the board would have right to recover the subsidy released by for this project and to take appropriate legal action”.
29. Having availed subsidy for the same project under ”ÄPMIP and NIHM”, the first respondent applied for subsidy under the scheme, “Development of Commercial Horticulture through Production and Post-Harvest Management”, which he is not entitled to. The first respondent has not revealed to the second respondent at the time of applying for subsidy, about the subsidy he had availed under two other schemes. The first respondent cannot avail subsidy for the same project under two different schemes. Therefore, as contended by the second respondent, the first respondent is not entitled to subsidy of Rs.54,304/-and as such the first respondent cannot claim the amount covered under the cheque bearing number 243409 as he suppressed the material fact and approached the District Forum with unclean hands.
30. The Hon’ble National Commission in “Neelam Gupta vs Reliance Life Insurance and another” reported in I (2011) CPJ, 241 held that material suppression of facts of the case would disentitle the person approaching Consumer forum from claiming any relief.
31. To the effect, the order of the District Forum is liable to be modified. The first respondent was not informed for considerable period of time about the appellant misplacing the cheque while the cheque was in its possession. The appellant being a bank ought not to have taken two mutually destructive plea that it had not received the cheque as also that it had misplaced the cheque. For resorting to such an act, the appellant is liable to pay an amount of Rs.3,000/- to the first respondent and accordingly, the order of the District Forum is liable to be modified.
32. In the result, the appeal is allowed. The order of the District Forum is modified. The appellant/opposite party no.1 is directed to pay an amount of `3,000/- to the first respondent/complainant. The complaint against the second respondent/opposite party no.2 is dismissed. The parties shall bear their own costs. Time for compliance four weeks.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.23.01.2014
కె.ఎం.కె.*
