C.F. CASE No. : CC/11/01
COMPLAINANT : Indu Bhusan Banik,
S/o Late Gopal Krishna Banik,
of Vill. Khanpur, P.O. Gobrapota,
P.S. Kotwali, Dist. Nadia, West Bengal,
Pin – 741188
Being Attorney vide Sl. 1 Dated 06.02.10
Power of Attorney on behalf of
Abhisuchi Agriculture Farming Ltd.
Krishnagar, Nadia, West Bengal
OPPOSITE PARTY/OP : Branch Manager,
Bangiya Gramin Vikash Bank,
Vill & P.O. Chitrasali, P.S. Hanskhali,
Dist. Nadia, West Bengal
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 13th April, 2011
: J U D G M E N T :
In brief, the case of the complainant is that the OP bank sanctioned Rs. 3,16,453/- for the complainant for which the OP took in his custody the deed No. 1, C.D. volume No. 21 page No. 2186 to 2205 being No. 791 for the year 2008. The OP paid Rs. 2,44,162/- though he promised to pay Rs. 3,16,453/- out of which the bank received Rs. 2,51,685/- as Govt. subsidy to the complainant. Practically the bank gave a loan amount of Rs. 64,768/- only, but the OP denied to return the land deed. The complainant did not get the full amount of Rs. 8,12,300/- and so he refrained to repay the loan amount of Rs. 3,16,453/-. The bank played fraud upon the complainant. The complainant served lawyer’s notices upon the bank dtd. 21.06.10 and 27.09.10 which were duly received by the OP. As the OP committed deficiency in service, so this case is filed by the complainant praying for the reliefs as stated in the petition of complaint.
The OP Bangiya Gramin Vikash Bank has contested this case by filing a written version, inter alia, stating that this case is not maintainable in its present form and nature. It is also bad for defect of parties as District Horticulture Officer, Nadia is the necessary party in this case and notice under Section 80 CPC is to be served upon him before filing of this case. His specific contention is that this OP bank sanctioned a term of loan of Rs. 8,12,300/- in favour of Abhisuchi Agriculture Farming Ltd. represented by its director Avijit Dey. Out of the loan amount Rs. 2,51,665/- is the Govt. Subsidy, Rs. 2,44,162/- is the party’s own contributions, i.e., margin money and net amount of bank loan is Rs. 3, 16,453/-. The subsidy amount is the back ended which means as soon as the subsidy money is received by the bank from the office of the government it will be immediately created to the loan account of the borrower. But unfortunately in the present case the Horticulture Mission on behalf of Government has not paid any subsidy out of Rs. 2,51,685/- till date. Yet the OP disbursed Rs. 4, 36,800/- in favour of the complainant as loan. As per terms and conditions of the loan the complainant is to deposit the margin money of Rs. 2,44,162/- with the OP bank, but he has not deposited any amount in his loan account No. MTFL/01/10. Besides this, he has not repaid any instalment of the loan amount though he is to pay the instalments. The complainant Firm has violated all the terms and conditions of the loan. On inspection it is revealed that the Firm has not used the loan money for which it was taken. He has not made construction of high tech poly house. Even he has not filed any utilization certificate before this OP. So finding no other alternative, the OP sent demand notice to the said Firm to repay the loan amount upto the date along with interest as per terms and conditions of the agreement. The director of the complainant, Sri. Avijit Das made a commitment in writing before this OP to the extent that if subsidy amount is not released from NHM, Nadia the entire amount of the project (Bank Loan) including subsidy will be treated as bank loan and bank has every right to call back the money. So no question of adopting any unfair trade practice by this OP does arise nor there is any deficiency in service on his part also. Rather the complainant has not acted according to terms and conditions of the loan. So he has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the District Horticulture Officer, Nadia a necessary party in this case?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written version filed by the OP along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for both the parties it is available on record that the complainant applied for agricultural loan to the tune of Rs. 8,12,300/-, out of which he had to deposit Rs. 2,44,162/- as margin money. Next 2,51,685/- was to be paid as government subsidy by the NHM, Nadia and the balance amount of Rs.3,16,453/- was the loan sanctioned by the OP bank. From the documents, it is also available on record that the OP bank disbursed Rs. 4,36,800/- to this complainant. But the complainant did not mortgage his property in favour of the bank though in the agreement property is mentioned as collateral security. Complainant’s specific case is that the OP has not actually paid him Rs. 4,36,800/- rather paid an amount of Rs. 64,768/- only and denied to return this deed to him. But from the statement of loan amount belonging to the complainant filed by the OP it is available that in the loan account of the complainant Rs. 4,36,800/- was debited in his name on 07.01.10 by the OP but the complainant did not repay any instalment of the loan amount sanctioned in his favour though as per terms of the agreement the complainant had to repay the loan amount by 160 instalments @ Rs. 7,120/- per EMI starting from October 09. No document is filed by the complainant to show that he has yet paid the loan amount sanctioned by the OP. The complainant has agitated that the OP has not sanctioned the margin money in his loan account. Regarding this it is the categorical assertion of the OP that till today the margin money is not sanctioned by the District Horticulture Officer, Nadia though the project of the complainant is approved by him. Complainant has not filed any document to show that the amount was sanctioned and disbursed by the District Horticulture Officer, Nadia to the OP. As the District Horticulture Officer, Nadia has not disbursed the said amount, so no question of payment of that amount by the OP does arise. The complainant has not filed any document to show that he has deposited Rs. 2,44,162/- before the OP as margin money as per terms of the agreement dtd. 02.09.09. In the agreement dtd. 02.09.09 there is a clause that the complainant is to utilize the money which is sanctioned in his favour and to that extent he has to file one utilization certificate and thereafter the loan amount of the second phase will be sanctioned. But in the present case, it is available from the documents that the complainant has not filed any utilization certificate to the OP to that extent that he utilized the sanctioned loan amount for the purpose for which he applied for loan. On that point one inspection was held by one Samar Gupta, Officer, Bangiya Gramin Vikash Bank and from his report dtd. 04.05.10, it is available that on physical verification he found that though the complainant’s firm took a loan of Rs. 4,36,800/- from the OP, but the work of the alleged pump house was half done and he did not find any vegetable on the plot of the land where the agriculture firm stood. Regarding this allegation no reply is given by the complainant. Thereafter the OP bank sent a notice to the complainant requesting him to implement this scheme as proposed by the complainant and to submit the utilization certificate, so that the second phase of the loan money be released from his end. Otherwise he would be compelled to call back the full disbursed bank loan with interest. This notice was served on 04.08.10. But the complainant did not send any reply of the above said notice before the OP. Even the complainant has not adduced any oral evidence in support of his contention. On the other hand, on the side of the OP examination-in-chief is filed by DW-1 along with affidavit.
Therefore, on a careful examination of the facts of this case along with the annexed documents filed by the parties our considered view is that the complainant has not acted as per terms and conditions of the agreement signed by and between the parties on 02.09.09. It is also available on record that though the OP gave him a loan of Rs. 4,36,800/- as per terms of the agreement the complainant has not repaid any instalment of the loan. Even he has not filed nay utilization certificate regarding utilize of the loan amount by him. We have already discussed that no document is filed by the complainant that the margin money was sanctioned and disbursed at any point of time by the District Horticulture Officer, Nadia. In this connection Ld. Lawyer for the OP has submitted that the District Horticulture Officer, Nadia is a necessary party in this case as the District Horticulture Officer, Nadia was authorized to sanction and disburse the government subsidy amount of Rs. 2,51,685/-. As the District Horticulture Officer, Nadia is not a main party in this case, so there is no scope to bring before this forum as to why the said amount was not sanctioned and disbursed by him. Considering the facts of this case, we do also hold that the District Horticulture Officer, Nadia is a necessary party in this case, but he is not made a party in this case by the complainant though this point is agitated by the OP in the written version. We do also hold that there is no deficiency in service on the part of the OP in this case.
In view of the above discussions our considered view is that the complainant has miserably failed to prove his case. So he is not entitled to get the relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/11/01 be and the same is dismissed on contest against the OP without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
