STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 481 of 2011

Branch Manager, Bihar State Co-Operative Land Development Bank Ltd. Samastipur Brach, Samastipur

                                                                                                                                               … Appellant/Opposite Party

Versus

Bidya Nath Rai, Son of Ram Briksha Rai, Resident of Village- Chaklahshahi, Police Station- Halai, Tajpur, Anchal- Marwa, District- Samastipur

                                                                                                                           …. Complainant/Respondent

Counsel for the appellant: Adv. Rajesh Prasad Choudhary

Counsel for the Respondent: Adv.

Dated 10.04.2023

As per Sanjay Kumar, President.

O r d e r

Present appeal has been filed on behalf Appellant/opposite party Bihar State Co-Operative Land Development Bank Ltd. Samastipur through its Branch Manager for setting aside the judgment and order dated 21.04.2011 passed by District Consumer Disputes Redressal Forum, Samastipur in Complaint case no. 138 of 2003 dated 21.04.2011 whereby and whereunder the District Forum, Samastipur has directed appellant to pay to the complainant an amount of Rs. 30,000/- as compensation for physical and mental harassment and Rs. 10,000/- as cost of litigation within 60 days from the date of order failing which the complainant shall be entitled for interest@14% p.a.

          It has further been directed to appellant- Bank to pay complainant Rs. 40,000/- from which he shall pay Rs. 9,500/- to the appellant. Complainant will not pay any interest and appellant Bank will not take any coercive steps against complainant.

          Briefly stated the facts of the case is that complainant had applied for grant of loan in Samastipur Branch of land Development Bank for starting wooden Industry and loan amount of Rs. 35,000/- was sanctioned on 26.03.1996 and Rs. 19,500/- was disbursed as first installment for construction of shed and purchase of raw material, 2^nd installment of remaining loan amount of Rs. 15,500/- was to be paid after construction of shed and purchase of raw material.

          Complainant has further alleged in his complaint petition that he constructed the shed and also gave advance amount to purchase the wood but thereafter when he approached the Bank for release of 2^nd installment one employee of the bank namely Awadhesh Singh demanded 20% as bribe to release the 2^nd installments. The construction of shed was of no utility and the advance payment made against purchase of wood also went futile. Complainant represented to higher authorities but no action was taken as such complainant failed to start new furniture industry.

          Complainant from other source of earning paid Rs. 2,000/- on 31.10.96, Rs. 2,000/- on 23.06.1999 and Rs. 2,000/- on 30.06.2001, Rs. 2,000/- was deposited for membership of Co-Operative Bank, however for payment of Rs. 2,000/- made in the year 2002 receipts was not granted. Said amount was paid to Awadhesh Singh who is employee of Bank. Complainant has repaid total amount as Rs. 8,000/- and Rs. 2,000/- as membership fee.

Written statement was filed on behalf of Bank in which it was admitted that on application of complainant Rs. 35,000/- was sanctioned as loan amount for starting furniture industry for which first installment was released on 26.03.96 but 2^nd installment of Rs. 15,500/- was not released as on verification of the utility it was found that complainant has not used the first installment amount for the purpose for which it was sanctioned. Complainant had neither constructed the shed for starting furniture industry nor has paid any advance for purchasing the wood and misused the fund.

          The period of repayment was 9 years with interest at the rate of 12% and yearly installment fixed was Rs. 3,942.35/- to be paid by 31^st January. Allegation of demand of gratification is false and baseless. Complainant had paid altogether Rs. 6,000/- to the Bank.

          After hearing counsel for the parties and considering materials available on record the District Commission has held that there are receipts of payment of Rs. 6,000/- (Rs. 2,000/- paid thrice) but the payment of Rs. 2,000/- made to Awadhesh Singh, employee who did not gave receipt of said deposit as he was demanding bribe for release of 2^nd installment as such altogether Rs. 8,000/- was deposited by complainant.

          The District Forum has further held that although Bank has released the First installment of Rs. 19,500/- but second installment of Rs. 15,500/- was not released. The reason for not releasing 2^nd installment by bank was that upon verification and enquiry made by Bank it was found that neither shed was constructed nor any advance payment for raw material was made, which was not accepted by the District Forum because no enquiry or verification report has been placed on record.         Heard counsel for the parties, perused the impugned order and materials available on record. The order passed by District Consumer Forum as impugned in this appeal is neither sustainable in law or on fact for the following reasons.

1. The onus to prove deficiency in service lies on the complainant  and this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by other side cannot be said to be evidence by which the case of complainant can be said to be proved. It is the obligation of the complainant to provide the facts probanda as well as the facts probantia.
2. It is difficult to believe that for release of 1^st installment no bribe was demanded however for release of 2^nd installment bribe was demanded.
3. Onus was upon the complainant to establish that although he had constructed shed and paid advance to purchase raw material still 2^nd installment was not released but the Tribunal has erroneously shifted the burden on other side. Even in ex-parte proceeding complainant has to prove allegations made in complaint by adducing evidence and statement on affidavit can not be accepted as inviolable truth.
4. It appears improbable that bank will provide receipt for 3 payments and deny receipt of 4^th payment. Once allegation is made against Awadhesh Singh for demanding bribe for release of 2^nd installment, it is quite unlikely that he will give Rs. 2,000/- to said Awadhesh Singh to deposit in his loan account.
5. Judgment and order is based on conjecture and surmises and lacks reasoning and logic.
6. The cause of action for filing complaint had arisen in the year 1996-97 when 2^nd installment of loan of Rs. 15,500/- was due and denied but complaint was filed in the year 2003 as such complaint was time barred.
7. There is no averment in complaint petition that loan for business was sought for earning livelihood rather loan was provided for business purpose to earn profit as such case was not maintainable before Consumer Forum.

For the reasons stated above the judgment and order dated 21.04.2011 passed by Ld. District Consumer Forum, Samastipur is not sustainable in the eye of law and is accordingly set aside. The appeal is allowed, the complaint case no. 138 of 2003 filed before Consumer Forum, Samastipur is dismissed.

(Ram Prawesh Das)                                                                             (Sanjay Kumar,J)

       Member                                                                                               President

Md. Fariduzzama