District CONSUMER DISPUTES REDRESSAL FORUMNORTH 24 Pgs., BARASAT. C. C. NO- 155/2017 Date of Filing: Date of Admission Date of Disposal: 23.03.2017 10.04.2017 07.01.2020
Complainant/s :- 1. Narayan Chandra Goswami, S/o. Late Gour Gopal Goswami, 2. Sujata Goswami, W/o. Narayan Chandra Goswami, Vill and P.O. Rajibpur, P.S. Ashokenagar, Dist- North 24 Parganas, Pin-743702. =Vs= O.P/s :- The Branch Manager, Bangiya Gramin Vikash Bank, Biraballavpara Branch, P.S. Ashokenagar, Dist- North 24 Parganas, Pin- 743702. P R E S E N T :-Sri.Karna Prasad Burman………..…..President. :-Smt. Monisha Shaw …………………… Member. Judgment The instant case in a nutshell is that the complainant No.1-Narayan Chandra Goswami applied to the O.P Bank for a loan amount for the purpose of running his business Chowmin and Souse preparing . The complainant No.2 – Sujata Goswami is the wife of the complainant No.1 became the guarantor of the loan and the complainant No.1- Narayan Chandra Goswami had to mortgage his immovable property to the Branch Manager of the O.P- bank, Bangya Gramin Vikash Bank Biraballav Para. The O.P- bank sanctioned a loan amounting to Rs. 10,00,000/- as working capital in favour of the complainant No.1. The O.P- bank disbursed an amount of Rs. 9,00,000/- out of the sanctioned amount of Rs. 10,00,000/- to the complainant. Out of the disbursed amount the O.P- bank kept an amount of Rs. 2,00,000/- in it his bank as fixed deposit in the name of the complainant No.1. The complainant has been paying upto date E.M.I Rs. 1,82,500/- more or less in connection with the said amount. But the O.P willfully adjusted or lien the fixed deposit of the complainant without giving any notice to him. The intention of the O.P.-bank is to grab the property of the complainant No.1 since the O.P- bank issued notice under Section 13(2) and 13(13) of the SARFESI Act, 2002 on 31.05.2016 and 15.07.2016 to him. Thereafter the complainants filed a S.A case No. 82/2017 before the Ld. D.R.T (III), Jeevan Sudha Building, 8th floor, 42/C, J.L. Nehru Road, Kol-700071. But he got no result from this D.R.T. about his case up till now. As such having been constrained the complainants filed this case and prayed for an order directing the O.P to pay his rest sanctioned amount of Rs. 1,00,000/- and prayed further order directing the O.P to supply the copy of statement of accounts and for an order for compensation of Rs. 20,000/- for his mental agony and harassment and litigation cost amounting to Rs. 10,000/- inter-alia. Contd/-2 C. C. NO- 155/2017 :: 2 :: Appearance made on behalf of the O.P. W/V is filed on behalf of the O.P wherein categorical denials are made against the complaint by way of taking pleas that the O.P has sanctioned a credit facility for Rs. 10,00,000/- as working capital on 13.09.2013. As per the terms of sanctioned a cash credit account was opened with sanction limit and drawing power of Rs. 10,00,000/-. The borrower, Narayan Chandra Goswami was issued cheque book for withdrawal of money from the said cash credit account vide account No. 5104250004947 upto the limit of Rs. 10,00,000/-. As per norms of cash credit, Mr. Goswami was allowed to draw money from the account for working capital needs upto the aggregate limit of Rs. 10,00,000/- and the sale proceed of his business would be deposited to the cash credit account. So, the complaint of non-disbursement of loan from the part of the bank is false. O.P further stated that it is stipulated in the terms of sanction that Narayan Chandra Goswami would provide security in the form of bank’s term deposit of Rs. 2,00,000/-. In compliance with the terms of sanction he opened 2 (two) term deposit account of Rs. 1,00,000/- each and these are kept as security to the said loan by the complainant No.1. The O.P further stated in his W/V that the repayment system of the cash credit account is to repay the principal of demand and to repay the interest of the loan whenever it is charged. Therefore it is not clear to the O.P as to how the complainant has found E.M.I of his said cash credit account. The complainant has not repaid the interest charged to the account as per I.R.S.E norms laid down by the Reserve Bank of India. The said account has turned into N.P.A on 22.06.2016. In spite of several reminders the complainants have not shown any initiative to repay the overdue loan amount. Consequently the bank has exercised its right of set off to adjust the security held in the form of term deposit for repayment of the overdue loan. Since the loan account of the complainant, N.C.G has turned into N.P.A the bank as the secured creditor, has proceeded in accordance with the proviso of the SARFESI Act, 2002. It is also admitted in the W/V that the bank side has not yet received any notice from the Debt Recovery Tribunal. Considering such fact and circumstances the O.P prayed for dismissal of this case. Considering the above pleadings and nature and character of this case following points are necessarily come out for consideration to reach the just decision of this case:- 1). Are the complainants consumers under Section 2(1)(d)(i)? 2). Has this Forum jurisdiction to entertain this case? 3). Is there any deficiency in service on part of the O.P? 4). To what other relief/ reliefs the complainant is entitled? Contd/-3 C. C. NO- 155/2017 :: 3 :: Decision with Reasons Considering the facts and circumstances as well as the nature and character of this case all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. On perusal of the materials available on the case record it is appeared to us that the complainant No.1 has applied for sanctioning loan to the O.P. bank and complainant No.2 is the guarantor of the said loan. The O.P bank sanctioned a cash credit amount of Rs. 10,00,000/- in favour of the complainant No.1 for his working capital. The complainant No.1 stated that the O.P. bank disbursed an amount of Rs. 9,00,000/- to him and out of that disbursed amount of Rs. 2,00,000/- has been kept by the O.P bank in it as fixed deposit Rs. 1,00,000/- each in the name of the complainant No.1. But the O.P never said that the amount was disbursed to the complainants. If the O.P sanctioned the loan amount and if the O.P would not disburse the sanctioned amount in that event the status of the complainant No.1 could have been as Consumer as per the C.P. Act. But here in this case we found that the O.P sanctioned the cash credit amount of Rs. 10,00,000/- only in favour of the complainant No.1 as his working capital and for that purpose the complainant No.1 had to open a cash credit account vide No. 5104250004947 which is upto the limit of Rs. 10,00,000/-. Therefore, we found there is an ambiguity since it is not clear to us as to whether the sanctioned amount was actually disbursed to the complainant No.1 or the O.P has denied for disbursing the same. Therefore, we are of the view that the complainants have not acquired the status of consumer for which they are not entitled to seek relief from this Forum as prayed for. Furthermore, the complainants admitted in the complaint that they have filed an S.A case No. 82/2017 before the Ld. D.R.T (III), Jeevan Sudha Building, 8th floor, 42/C, J.L. Nehru Road, Kol-700071 and the same is pending there up till now. Therefore the complainants are barred to seek reliefs as they prayed for by way of simultaneous way. Both the parties reside under P.s. Ashokenagar within the territorial jurisdiction of this Fora and the claim amount does not exceed the pecuniary limit of this Fora. So, this Fora has both territorial and pecuniary jurisdiction to entertain this case. It is admitted facts by both the parties and submitted documents of both sides lead us to presume that the O.P- bank sanctioned a cash credit amount of Rs. 10,00,000/- in favour of the complainant No.1 for his working capital. It is also admitted that the complainant No.1 had to open a cash credit account No. 5104250004947 for working capital up to the aggregate limit of Rs. 10,00,000/-. Therefore, there are certain terms and conditions which require Contd/-4 C. C. NO- 155/2017 :: 4 :: fulfillment by the complainants to run the said account for the purpose of running the business of the complainant No.1. But the complainants did not file any document to show us that they are in righteous path in maintaining the regularity of transaction between themselves and the O.P- bank for the sake of running the business of the complainant No.1. Therefore, we have no hesitation to hold that the complainants failed to comply with the terms and conditions of their sanctioned loan for which the O.P has to maintain some legal obligation on its part to stop the transaction by way of servicing notice upon them as per provisions laid down under Section 13(2) and 13(13) of the SARFAESI Act, 2002 on 31.05.2016 and 15.07.2016. It is legal disability of the O.P but not deficiency in service. Therefore, it is clear to us that the hands of the complainants are not clean. So, we found no deficiency in service on part of the O.P. Considering the fate of point Nos. 1 and 3 positive result of point No.2 does not help the complainants. Considering such legal position point No.4 became needless to be discussed. Thus the instant case failed to achieve its success on contest. Thus, all the points are disposed of accordingly. Fees paid are correct. Hence, for ends of Justice, it is Ordered It is ordered that the instant case be and the same is dismissed on contest but without cost. Let the plain copy of this order be supplied to the parties free of cost as per the provision of the CPR, 2005. Dictated & Corrected By President President Member | 
