Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 251/2022

This case  has been filed by the complainant against the OPs for passing direction by OP No.1 to adjust and compensate  the whole financial loss who is the complainant has suffered  and to pay Rs. 2,35,000/- with compound interest  for 20 years and also to pay compensation to the tune of Rs. 15,00,000/- and for payment of litigation cost.

Fact of this case

Case of the complainant

The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that  by virtue of a Deed of Conveyance  the complainant has become absolute  owner  of the flat  being No. M of Nabadiganta Abasan at Block-III on 2^nd floor situated at Mouza – Kaikhali  under P.S. Airport, Dist. North 24 Parganas and complainant had applied for PMAY (Pradhan Mantri Awas Yojana) Housing Loan from Bank of Baroda, Tegharia Branch, Kolkata – 700 052 to the tune of Rs. 29,70,000/- under the PMAY Scheme on 1^st March, , 2019 and Housing Loan A/C  No. 29540600005513 in the name of the complainant and his wife Payal Mukherjee was initiated   and the complainant submitted duly filled up  Home Loan Application alongwith PMAY Self-Declaration Form as per prescribed format of Bank of Baroda, Income Proof Certificate, Original Notarized Affidavit dtd. 1^st March, 2019 in the name of the complainant and his wife  and last 3 years Income Tax Return and the same was accepted by the Bank of Baroda and thereafter Home Loan Application  was processed by the Bank of Baroda without any objections and no queries was raised by the Bank of Baroda.  It is pointed out  that the above mentioned loan amount in favour of the complainant  was sanctioned by Bank of Baroda, Tegharia Branch (OP No. 1) on 28.03.2019 under PMAY Scheme and thereafter  loan amount of Rs. 29,70,000/- in the above noted A/C No.    was disbursed on 16.04.2019 and OP No. 1 Bank never asked for  any additional documents.   It is asserted that the complainant since May, 2019 has been  regularly paying  monthly Installment / EMI of Rs. 26,152/- without any interruption  in favour  of OP No. 1 and in the meantime  the complainant enquired  several times in the last 3 years regarding  status of submission of his PMAY Subsidy Application  and PMAY Application ID to the Chief Manager & Credit Manager of OP No. 1 Bank and they had informed verbally that the complainant’s  PMAY Subsidy Application has been sent to OP No. 1 Controlling Office  in the month of August, 2019.  It is also pointed out by the complainant that the complainant had regularly  and continuously  followed up  with Chief Manager & Credit  Manager of OP No. 1 Bank over the last 3 years about the status of PMAY Subsidy Application and PMAY Application ID but it was not provided by the OP No. 1.  It is alleged that the OP No. 1 being sanctioning Bank of PMAY Home Loan is responsible  for submission of PMAY Subsidy Application of the complainant in the portal which was  missed  due to gross negligence  on the part of  officials of OP No. 1  and on 10^th August, 2021, the complainant  had again visited OP No. 1 and to his surprise  came to know that no PMAY Application ID  regarding his PMAY Subsidy  Application is available with  OP No. 1 which is required for tracking  this status of PMAY subsidy loan.  It is also asserted that the complainant time and again  visited the OP No. 1 Bank and requested to provide  PMAY Application ID but has failed to collect the same. Though the OP No. 1 Bank Authority  assured that PMAY Subsidy Application has already been sent to the Controlling Office of OP No. 1 in the month of August 2019.  It is also stated that the complainant  had filed complaint dtd. 20.09.2021 & 06.10.2021 to the MD & CEO of Bank of Baroda and had sent  several emails, reminders  but they did not pay any heed to the appeal  of the complainant and also complainant highlighted several grievances against the OP No. 1 Bank in online CPGRAMS portal but  the OP No. 1 did not pay any heed to take suitable action.  It is further pointed out  by the complainant that the Housing & Urban  Development  Corporation Ltd.  vide letter No. HUDCO/PG/Vol. XXXXI/2021 dtd, 27.10.2021 had informed  that the matter has been taken up with Nodal Department of HUDCO and they have informed  that HUDCO has not received subsidy release  request  in respect of the above noted  Loan A/C  and the complainant has been requested to contact  with the concerned  Branch of the Bank.   It is further alleged that the OP No. 1 Bank Authority  did not submit  the PMAY subsidy application  by the complainant in spite of  getting 28 months  to submit the same  in the portal from April, 2019  to 31^st July, 2021 and thereafter  complainant had filed vigilance complaint against the OP No. 1 Bank.  It has also been asserted  that the complainant vide email dtd. 7.12.2021 addressed to Shri Pankaj Mittal, GM (Operations), Head Office  of Bank of Baroda and also to OP No. 1 raised the matter to prove false  and untrue statements .  It is also  asserted that the malafide  intention  and ulterior motives of the OP No. 1 is visible  from their false and fabricated  reply dtd. 06.12.2021 and corrigendum dtd. 29.12.2021.  It is further  alleged that the OP No. 1 Bank Authority has intentionally  misplaced  and / or destroyed  the complainant’s Notary Affidavit  dtd. 01.03.2019 without  which Home Loan  of Rs. 29,70,000/- would not have been sanctioned / disbursed  by the OP No. 1 Bank  and several times  the complainant had complained  regarding  non-submission of PMAY subsidy  application  and misplacement of original Notary Affidavit dtd. 01.03.2019 but no satisfactory reply was received .  It is also pointed out  by the complainant side  that the complainant has been  paying regularly the monthly EMI to the OP No. 1 without any interruption  as per agreement  of PMAY Home Loan for last 3 years  and this matter is clearly reflecting  that the complainants are the consumers  under the OP No. 1 Bank and the cause of action  of filing  this case  arose on 17.03.2022 and the same is still continuing.  For all these reasons  the complainant  has prayed  before this District Commission for passing the relief  which has been claimed by the complainant in this case against the OPs.

Defense Case

The OPs in spite of receiving  notice  initially had not appeared but subsequently appeared on 13.01.2023 to undertake filing Vokalatnama  & Written Version  within 16.01.2023  but on 16.01.2023  the OPs were absent without any steps  and did not file any W/V as a result of which this District Commission has passed the order of ex-parte hearing  of this case.

Points of consideration

On the basis of the pleadings of parties  this District Commission for the purpose of arriving at  just and proper decision  and also for the interest of proper  and complete adjudication  of this case  is going to adopt  the following points for consideration :-

(i)        Is this case District Commission jurisdiction to try this case?

(ii)       Is this case maintainable in its present form and in the eye of law?

(iii)      Is the complainant  a consumer under the OPs or not?

(iv)      Whether  the complainant is entitled to get any direction,  directing the OP Bank to adjust  and compensate  the whole  financial  loss who is the complainant has suffered  due to negligence  OP No. 1 Bank Authority and to pay Rs. 2,35,000/- alongwith  compound interest for last 20 years and also to pay compensation  to the tune of Rs. 15,00,000/- and litigation cost or not?

(v)       To what other relief / reliefs is the complainant entitled to get in this case?

Evidence on record

In order to prove the case the complainant has filed evidence on affidavit and against the said evidence on affidavit  no interrogatories has been filed by the OPs as this case is running ex-parte against them.

  On the other hand the OPs also have not filed any evidence on affidavit to disprove the case of the complainant.

Argument  highlighted  by the parties of this case

The complainant side has filed Brief Notes of Argument and also highlighted their verbal submission and in course of verbal argument the complainant side has given emphasis on the oral and documentary evidence.

Decision with reasons

The questions and / or issues involved in the above noted points of consideration adopted by this District Commission, are interlinked  / interconnected with one another.  For that reason and also for the interest of convenience of discussion all the above noted points of consideration are clubbed together and taken up for discussion jointly.

For the purpose of arriving at just and proper decision in respect of the above noted points of consideration and also for proper and complete adjudication of this complaint case, there is urgent  necessity  of making scrutiny of the material of this case record  and there is also necessity of scanning the evidence on record.

            It is admitted fact that the jurisdiction issue and / or maintainability point are the vital two questions  which are required to be decided at first.  In this connection  this District Commission  after going through the material of this case record  and pleading adopted by the complainant finds that the PMAY Loan has been taken by the complainant and his wife.  But fact remains  that the complainant has personally filed this case  and has not impleaded his wife  as a party of this case.  No explanation  has been given by the complainant as to why the complainant has not impleaded his wife  as a party of this case.  In this regard  it is very important to note that the wife of the complainant is a necessary party and / or proper party of this case.  In spite of knowing this fact the complainant has miserably failed incorporate the name of his wife as a party in this case.  Moreover, the complainant has adopted the plea that he has filed complaint before the Vigilance Commission  against the OP No. 1 and also informed the matter to the Controlling Office of OP No. 1.  But fact remains that the Vigilance Commission  and Controlling Office of OP No. 1 have also not been impleaded  as parties of  this case due to the reason best known  to the complainant  although they are the necessary party of this case.  All these factors are clearly reflecting that this case is outrightly  defective  for non-joinder of parties.

On background of the above noted position this District Commission after going through the prayer portion of the complaint petition finds that the complainant  has prayed  for payment of Rs. 2,35,000/- for 20 years alongwith compound interest  and this figure would come to Rs. 47,00,000/- and the complainant has also claimed compensation of Rs. 15,00,000/-.  Thus, the total amount of claim of the complainant comes to Rs. 62,00,000/- indicates that the claim of the complainant is more than 50,00,000/-.  So, this District Commission has no pecuniary jurisdiction  to try this case.  Thus, it is crystal clear that this District Commission has no pecuniary jurisdiction  to try this case. 

When this complaint case is bad for non-joinder  of parties and this District has no jurisdiction  to try this case, it is crystal clear that  this case is not maintainable in the eye of law.  As this case is not maintainable  in the eye of law.  This District Commission is of the view that the complainant has no cause of action for filing this case.  In this regard it is also important to note that the complainant  has also not incorporated Housing & Urban Development Corporation Ltd. (HUDCO) as a party of this case.  If the Housing & Urban Development Corporation Ltd. (HUDCO) is impleaded as party they can unearth the truth as to whether the OP No. 1 had sent  the notary notice of the complainant to HUDCO or not? This matter is clearly reflecting  that the complainant has not come before this District Commission  in clean hand.  As the complainant has not come before this District Commission in clean hand, the complainant is not entitled to get any equitable relief in this case.  This mater is also indicating that this complaint case is not maintainable  and the complainant has no cause of action for filing this case.

When the complaint case is not maintainable and when this District Commission has no pecuniary jurisdiction to try this case, this District Commission  finds that  there is no necessity of discussion  the other issues which have been framed in this case.

All these factors are clearly reflecting  that the complainant has filed this case before the wrong forum.  In this regard it is important to note that the complainant in his prayer portion has prayed declaratory relief but this District Commission has no jurisdiction  to pass any declaratory award and / or decree.   Such power  for passing declaratory relief is vested before the Hon’ble Civil Court.  This matter is also reflecting that this District Commission  has also not any jurisdiction to try this case.

  In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 251/2022 be and the same is dismissed on contest as it is found not maintainable and this District Commission has no pecuniary jurisdiction to try this case.

No order is passed as to cost.

Let the complaint case be returned to the complainant for filing the same before the Appropriate Forum.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President