Date of Filing:  22.07.2013.                                              Date of Final Order: 10.06.2014.

            The complainant Sri Paresh Barman is a small businessman of Cement Pole manufacturing. He applied for project under KVIC scheme i.e. Cement Pole Mfg., at Kamat Fulbari, Tufanganj, District- Cooch Behar from the Proforma O.P. i.e. “West Bengal Khadi & Village Industries Board”, at Cooch Behar with 30% (subsidy amount) of the total loan amount Rs. 2,12,000/- of which 30% shall be paid by the West Bengal Khadi & Village Industries Board, and 70% shall be paid by the bank. After sanctioning of the said loan the O.P. No.1, directed the complainant to deposit of Rs.11,000/- in cash, L.I.C. Policy Certificate and his Deed of Land in mortgage. As per direction the complainant deposited the said amount to the Central Bank of India, Tufanganj branch and mortgaged his L.I.C. Certificate and Deed of Land on 24-04-2007. Thereafter, the bank authority sanctioned a loan of Rs.90,000/- on 27-04-2007 being L/A No.TLKVIC-18 against the loan application of Rs.2,12,000/- and paid in two occasions, (i) Rs.70,000/- on 27-04-2007 & (ii) Rs.20,000/- on 20-01-2009. The complainant had already spent Rs.2,12,000/-; but for non-sanctioning the balance loan Rs.1,22,000/- he failed to run his business smoothly. He was carrying on aforesaid business to maintain his livelihood.

            On the other hand the Proforma O.P.(No.3) i.e. West Bengal Khadi & Village Industries Board has already deposited of Rs.63,600/- (subsidy amount) to the Central Bank of India, Tufanganj Branch; but the remaining amount was not released by the bank authority. The complainant sent a Legal Notice with A/D dated 10-06-2013 to the aforesaid bank i.e. O.P. No.1 for the purpose of payment of balance amount  Rs.1,22,000/- and it was received on 14-06-2013; but the concerned authority did not  heed to it, for which he is facing hindrance as well as suffering irreparable loss, mental pain, agony and unnecessary harassments. The complainant has filed the petition before this Forum for redress all of disputes and prayed for direction to the O.Ps to (1) sanction balance loan amount of Rs.1,22,000/-, (2) Rs.50,000/- as compensation for failing to run the business smoothly, (3) Pay compensation of Rs.25,000/-for business loss, mental pain, agony & unnecessary harassment, (4) Rs.50,000/- for deficiency in service & unfair trade practice, (5) Rs.5,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.

            The petition of complaint was filed enclosing unsigned Xerox copies of Pass Book (1 page), Statement of Central Bank for May, 2007-2008, Advocate Notice, A/D Card, along with letter of appointment of Ld. Adv. Mr. Rabindra Dey and I.P.O of Rs.200/-.

            Based on the petition of complaint DF Case NO.71/2013 was registered. After hearing the Ld. Advocate, the case was admitted fixing 20-08-2013 for S/R and appearance. On that date Mr. Kuldeep Kashyap, Branch Manager In-charge, Tufanganj Branch i.e. O.P No.1 entered appearance through his Ld. Advocate Mr. Bipul Goswami for the O.P Nos.1 & 2, by filing Agentnama. He filed a petition for time to file W/V. He also took adjournment on 10-09-2013 and on 17-09-2013. However, he filed W/V along with five unsigned Xerox copies of document under a list, (without marking Annexure/ Enclosure). On 01-10-2013 the complainant took time for filing his evidence. 28-10-2013 was fixed for argument/written argument and evidence in the mean time. On that date the complainant was absent without step and for the O.Ps adjournment was taken. On 19-11-2013 both the President and the Male Member were undergoing training at Kolkata and hence 06-12-2013 was fixed. On 02-01-2014 the complainant was present but the O.Ps were absent without step and hence 17-01-2014 was fixed for argument/written argument. On that date there was Local Bandh. On 10-02-2014 the O.Ps were absent without step and for the complainant adjournment was taken. On 27-02-2014 also adjournment was taken for the O.P though complainant was present through his Ld. Advocate. On 28-03-2014 the date for argument/written argument was fixed as 31-03-2014 and on that date evidence on affidavit of the complainant was filed enclosing one Pass Book of Central Bank and signed Xerox copy of Statement of Central Bank and the Notice. The Evidence on affidavit by Mr. Kashyap was filed for the O.P.No.1 & 2.The Proforma O.P did not turn up in spite of receipt of Notice. 25-05-2014 was fixed for filing written argument as a must but on that date also both the parties in contest prayed for time which was allowed fixing 19-05-2014 there was nothing but repetition on that date also. Hence, 30-05-2014 was fixed for delivery of Final Order but for want of quorum this day i.e. 10-06-2014 was fixed for Final Order.

            The written version of the O.P.No.1 & 2 speaks that the matters on record are admitted rest are disputed and denied being contradictory and evasive. It has been stated that the O.Ps already paid Rs.70,000/- on 27-04-2007+ Rs.10,000/- dated 01-11-2007 + Rs.20,000/- dated 14-01-2008 + Rs.10,000/- dated 18-01-2008 + Rs.20,000/- dated 20-01-2009= Rs.1,30,000/- out of the total loan amount of  Rs.2,12,000/-( which was conditional with the means of Finance: Margin Money 5% = Rs.10,600/- Govt. Subsidy 30%= Rs.63,600/- and Bank loan 65%= Rs.1,37,800/-, totaling to Rs.2,12,000/-.The O.Ps have not received Govt. Subsidy 30%= Rs.63,600/-.  As per Bank Norms, as the Utilization Letter of the 2^nd face of the business (Project) has not been submitted the amount of loan could not be disbursed. The O.Ps has taken steps to protect the diversion of fund by the complainant. Moreover he is not paying loan installments properly. As per bank norms it did not inform the complainant over telephone to submit the Utilization Letter of 2^nd face of the project and collect the balance amount of loan. It is not possible on their part to grant the rest amount, to protect diversion of fund if any. The O.Ps has prayed for order to dismiss the case with cost. The unsigned Xerox copies of 5 documents under a list have been marked Exhibit- ‘A’ to ‘E’ for the identification and brevity of discussion in the case.

             The Evidence of the complainant dated 31-03-2014 appears to be the replica of the petition of complaint but the 3 documents under List of Documents produced by the complainant have been marked Exhibits-1 to 4 herein below:

1. Original Pass Book of Paresh Barman issued by Central Bank of India, Tufanganj Branch on 26-04-2007, Exhibit-1,
2. Signed Xerox copy of statement of West Bengal Khadi & Village Industries Board in the name of Paresh Ch. Barman & Gopal Ch. Debnath, Exhibit-2,
3. Signed Xerox copy of statement of Ld. Adv. Letter dated 10-06-2013, Exhibit-3,
4. A/D Card as to receipt of Ld. Adv. Letter, Exhibit-4.

            Evidence on affidavit of the O.Ps dated 31-03-2014 is also almost carbon copy of the written versions of the O.Ps. and hence not discussed to avoid duplication of work.

            The issues/points to be framed based on the consumer dispute and the reply of the concerned O.Ps from the materials on record i.e. the petition of complaint of the complainant, his evidence with documents produced/adduced and the written version, evidence and documents produced/adduced by the O.Ps No.1 & 2. The Proforma O.P. did not turned up in spite of receipt of Notice from the Forum and he is in Ex-Parte.     

ISSUES/POINTS   FOR   CONSIDERATION

1. Whether the Complainant Mr. Paresh Barman has carried his business by self employment for his livelihood and a ‘Consumers’ of the O.P. Nos.1 to 3?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainants?
4. Whether the complainant proved his case against the O.Ps. and the O.Ps liable for compensation to him?
5. Whether the complainant is entitled to relief(s) prayed for?
6. Whether the parties in contest are liable to pay any punitive cost for delaying the proceedings?

DECISSION  WITH  REASONS

            In the light of discussions here in above we find that the issues/points should be decided based on the above perspective Bank Loan transaction of the complainant with the Central Bank of India in connection with his project of business of manufacturing cement poles, for the purpose of self maintenance of livelihood, by availing subsidy etc.

Point No.1.  Whether the Complainant Mr. Paresh Barman has carried his business by self employment for his livelihood and is a ‘Consumer’ of the O.P. Nos.1 to 3?

            From the discussion herein before it is transparent that the complainant carried on his business on self employment by taking bank loan on subsidy for his self livelihood, not disputed by the O.Ps specifically and hence, is a consumer of the O.Ps, as he took the business loan from the O.P.Nos.1 & 2 i.e. the Central Bank of India & through Proforma O.P. (No.3) “West Bengal Khadi & Village Industries Board”, i.e.  even being a manufacturing company and carried on his business, may be that he failed and to recover his business he has come before this Forum for redress.

Point No.2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

            Both the complainant and O.P. No.1 & 2 and the Proforma O.P are residents/carrying on their business within the District of Cooch Behar. The complaint valued at Rs.2,52,000/- at valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

Point No.3. Whether the O.Ps. carried on unfair trade practice/rendered any deficiency in service towards the Complainants?

            From the discussion it is crystal clear that the O.P. No.1 & 2 carried on unfair trade practice/rendered any deficiency in service towards the Complainants as evidenced in their written version/evidence stating that the O.Ps already paid Rs.70,000/- on 27-04-2007+ Rs.10,000/- dated 01-11-2007 + Rs.20,000/- dated 14-01-2008 + Rs.10,000/- dated 18-01-2008 + Rs.20,000/- dated 20-01-2009= Rs.1,30,000/- out of the total loan amount of  Rs.2,12,000/- (which was conditional with the means of Finance: Margin Money 5% = Rs.10,600/- Govt. Subsidy 30%= Rs.63,600/- and Bank loan 65%= Rs.1,37,800/-, totaling to Rs.2,12,000/-. The O.Ps have not received Govt. Subsidy 30%= Rs.63,600/-.  As per Bank Norms, as the Utilization Letter of the 2^nd face of the business (Project) has not been submitted the amount of loan could not be disbursed. The O.Ps has taken steps to protect the diversion of fund by the complainant. Moreover he is not paying loan installments properly. As per bank norms it did not inform the complainant over telephone to submit the Utilization Letter of 2^nd face of the project and collect the balance amount of loan. It is not possible on their part to grant the rest amount, to protect diversion of fund if any. The O.Ps has prayed for order to dismiss the case with cost. The unsigned Xerox copies of 5 documents under a list have been marked Exhibit- ‘A’ to ‘E’ for the identification and brevity of discussion in the case if compared ‘A’ Central Bank Statement with the Exhibit-1 i.e. the Pass Book of the complainant issued by the same said Central Bank of India, it cuts a sorry figure in respect of the Debit Amount/Dr. Amount Withdrawals & Credit Amount/Cr. Amount Deposited as to amounts & dates (differs on certain points). For instance there is no figure of Rs.47,000/- on 27-04-2007 as to withdrawal by the complainant against Credit Balance of Rs.81,000/- as it appears in the Pass Book of the complainant in the Statement of Account Exhibit-‘A’ filed by the O.Ps. Similarly, though there is entry of Rs.11,000/- on 24-04-2007 as Cr. Amount Deposited in the Pass Book of the complainant there is no reflection of the same in the Statement Exhibit-‘A’. What does it mean? Such clandestine performance of the O.Ps, is neither reasonable nor acceptable, in the eye of law and a matter of fact; because the transactions shall reflect identical matters in Statement of Bank A/C and the Pass Book. Pass Books are entered from the statement and not otherwise. The Ld. Counsel for the O.Ps also could not satisfy the discrepancies though by various ways tried his level best to explain. The complainant disbelieved the Exhibit- ‘A’. We are also inclined to believe the arguments brought forward by the Ld. Counsel for the complainant. The Explanations put forward by the Ld. Counsel for the O.Ps are not based on record and he has also not produced any document to substantiate the same, as to said disputed points. Further, if the ‘Application Form cum Receipt for claiming “Margin Money” from Office of the Commissioner for Khadi & Village Board by beneficiary and bank’ Exhibit-‘D’ Is Page 5 speaks that Paresh Barman received Rs.63,600/- on 03/05/2007. What is that & where it has been accounted for/adjusted? The contention of the complainant is that he applied for loan of Rs.2,12,000/- out of which Rs.90,000/- was sanctioned and he received that amount in 2 installments of (Rs.70,000/- + Rs.20,000/-)but there is no specific reply against the same from the O.Ps as to admission/denial though they have in various ways partly admitted/denied the points raised by the complainant but no specific denial, rather it was evasive denials.       

Point No.4. Whether the complainant proved his case against the O.Ps. and the O.Ps liable for compensation to him?

            In view of discussion herein above and before we find cogent ground to hold the O.P. No.1 & 2 contributed negligence/deficiency in service to the complainant and to have proved in his case against the O.Ps. Accordingly, the O.Ps are liable for compensation to him.

Point No.5. Whether the complainant is entitled to relief(s) prayed for?

            The complainant, as such is entitled to reasonable relief(s) in view of the materials on record, fact and circumstances and not beyond i.e. the balance due amount of loan of Rs.1,22,000/- subject to payment of the bank loan re-payment installments as per ‘Agreement’+ compensation for business loss, mental pain, agony, unnecessary harassment, negligence/deficiency in service (taking together) + reasonable Litigation Cost and nothing else and that also by adjustment of A/C by joint sitting of the concerned parties in litigation, including the so called Proforma O.P.in this case who could be reasonably a witness of the case only to prove as to the subsidy matters by deposing on affidavit through the complainant who made him Party, instead of making him a Proforma O.P, in terms of the C. P. Act, 1986, Rules & Regulations there under un- embarrassed.

Point No.6. Whether the parties in contest are liable to pay any punitive cost for delaying the proceedings?

            From the discussion herein above we find that both the complainant and the O.P. No.1 & 2 are liable for punitive cost for taking so many adjournments on various plea/lame excuse, by not filing written argument and thereby dragging the proceedings. Hence, indiscriminately, reasonable punitive cost should be imposed to deter such complainant/ O.Ps to neglect/disobey the Forum, Law & procedure, Rules & Regulations in terms of the C.P. Act, 1986, Rules & Regulations there under.  

ORDER

            Therefore, it is ordered that the complaint do succeed in part and the same is allowed, directing the Opposite Party Nos.1 i.e. The Branch Manager, Central Bank of India, Tufangang Branch & 2 i.e. The Manager, Central Bank of India, Biswa Singha Road, Cooch Behar, to pay the balance loan amount Rs.1,22,000/-, Rs.40,000/- towards   business loss, mental pain, agony, unnecessary harassment, negligence/deficiency in service (taking together) and a reasonable litigation cost of Rs.2,000/- to the complainant Mr. Paresh Barman jointly and/or severally within 60 days of this order, failure of which they shall pay at the rate of Rs.100/- each for each days delay, on expiry of the aforesaid period of 60 days, if any by depositing the amount in the State Consumer Welfare Fund, West Bengal, if accrued, due to such delay.

              The Proforma O.P i.e. The District Officer, West Bengal Khadi & Village Industries Board, Cooch Behar District Office, is directed to co-ordinate & co-operate in the matter of statement of A/C by submitting his documents in respect of the ‘Subsidy Matters’ to avoid any unnecessary litigation and hardship to the parties, in contest.

                It is further order that the complainant as well as each of the O.P. Nos.1 & 2 shall pay punitive cost at the rate of Rs.1,000/- each as a token by depositing the same in the State Consumer Welfare Fund, West Bengal for dilatory tactics by taking numerous adjournments by taking time and/or remaining absent on different dates, not filing the written argument in spite of having appointed Ld. Counsels, by depositing the same in the State Consumer Welfare Fund, West Bengal, within the aforesaid stipulated period i.e. within 11-08-2014.

            Let plain copy of this Final Order be supplied, free of cost, to the concerned party/ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.