In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/85/2021.

Date of filing: 13/07/2021.                     Date of Final Order: 03/5/2024.

Prasenjit Rakshit

S/o Kartick Chandra Rakshit, 

Tarakeswar Parmohal

Ward NO.6 (near primary school),

P.O & P.S-Tarakeswar,

Dist-Hooghly,  PIN-712410.                                                          Complainant

                                                                - Vs     -

1. Branch Manager, Axis Bank,

Tarakeswar Branch,

Rane Apartment, Jaykrishna Bazar,

P.O & P.S-Tarakeswar,

Dist-Hooghly, Pin-712410.

2. The Circle Nodal Officer,

Axis BankLtd., East Zonal Office,

P.S-Shakeseare Sarani, Kolkata-700071.-Opposite Parties.

Before:            President, Shri Debasish Bandyopadhyay.

                           Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that in the year 2018 it is astonished to complainant that he has received an SMS  through his electronic gadget i.e. mobile from where he knowing that something is wrong happened in connection with his savings account upon the OP-1 bank on such pretext he rushed to his friend for actual status of the SMS which he received by electronic media system, after getting actual fact about the said SMS he got shocked that a tune of lump-sum as loan amount has been proceed in connection with his account upon the OPs concerned.  There after receiving that news which the complainant not to intend that happen with him and knocked the door of the concerned Manager i.e. OP-1 but the Manager with willful intention misguided the complainant and told him it is preapproved loan which is in system  ‘deeded loan’ till the complainant sharing any OTP not to disburse the loan amount to him so with an ill motive manager advised him to meet the persons who were standing behind the room of the manager for resolving his disputes and as per the instruction of the manager hopeless complainant contacted with one of such persons namely Soumendu Sarkar and he snatched the mobile from the complainant and misused by sharing OTP in such way the concerned authority provided that complainant a unsecured loan which further depicted by way of SMS a tune of Rs.1213918/- only has been pre/approved loan disbursed to him through account transfer being loan accountno.BPR000503639447 .  Then and there complainant further met with the Manager of concerned Bank i.e. OP-1.  Further complainant uttered his inability to repay such amount as because he is the petty businessman of that locality, he has no capacity to avail such loan and also he did not want such amount.  Further OP-1 Manager misguided by him as well as by his appointed customer push-selling Broker Loan agent to the complainant and assured him there was no difficulties arise in future due to such loan and so innocent complainant by the OP-1 misrepresentation somehow to manage his mental condition. Then and there the complainant knowing fully the actual fact in connection with such loan happened to him from his friend that it is the pre-approved loan, the Bank authority fulfilled their target so they intentionally pushed the complainant under pressure or by misrepresentation the concerned OP-1 fulfilled their ill motive.  It is further astonished to complainant that without informing him the concerned OP-1 has been deducted a tune of Rs.200000/- only from the complainant’s illegally pre-approved loan amount, which by illegal way push the complainant.

The innocent complainant intentionally not to ready to avail such amount of loan but the banking authority i.e OP-1 in collusion with sales executive to fulfill their illegal target trapped the complainant, so the complainant further agitate with his grievance against the op-1 but he has not paid any heed that and also the complainant disclosed to theop-1concerned that he is not intending to take such loan and he prayed the same to be set off.  The complainant after obtaining bank statement on 09.10.2020 of his own savings account being no.911010003011933 upon OP-1 bank concerned from which it reveals to the complainant that a lump sum amount as a premium in respect of said pre-approved push loan amount which is transpire through account from where deducted month by month.  It is further stated here that complainant further obtained bank statement on 31.3.2020 also it reveals to the complainant that the bank authority illegally deducted EMI in respect of the said unintentional loan which is burden of the complainant which is imposed by illegal way the concerned op-1 bank.  It is also mentioned here that the authority deducted the loan EMI from the innocent complainant’s savings account asOP-1 wish yet they also penalized the complainant in respect of such loan amount and the said penalty amount which reveals from the bank statement.  The complainant knocked so many doors for proper justice and verbally communicated appropriate authority  but all his efforts are in vain.  It is surprisingly state here that it also communicate to op-2 but he did not pay any heed.  It is further shocked the complainant from the bank statement of  current account being no.918020073083207 which is lying with the saidop-1 branch in the name of complainant, the op-1 concerned intentionally and by his whimsical attitude deducted loan EMI on 30.4.2021 from the complainant’s current account without prior intimation it is against the banking rules and regulations of the country and deprived good consumer actual relief as he entitled and it is surprisingly stated here that the op concerned also without intimation deducted loan amount from his savings as well as current account in which the complainant has already been deposited near about Rs.50000/- for liabilities towards his business debtors.  The complainant has been lost his faith in his business society due to illegal activities and arbitrary works of the op-1 and also the op-1 whimsically brushed out the savings as well as current account’s balance of the complaint present condition is nil.  On 15.01.2021 someone ld. advocate through letter to the complainant intimate they intent to settle by arbitration but the complainant after getting such reached there on the date fixed but none assisted him as per the letter so the complainant with anal fate heart returned home.

On 29.1.2020, 8.11.2020 and 19.12.2020 via email the complainant intimated the concerned OP bank and their higher authority to consider his inability to repay the loan amount and also he intimated them about the deficiency in service of the OP-1 and unfair trade practice, as because till today he did not avail the said loan amount and also concerned authority as to their wish without prior intimation to the complainant month by month deducted loan EMI from the said loan amount so the complainant prayed before appropriate authority of OP concerned to assist him to set off and lastly n 16.3.21 the complainant intimated the entire facts to theOP-2 i.e. the circle Nodal Officer, Axis Bank Ltd. through email, after getting suchtheconcernedOP-2 representative through email disclosed their requirement and directed the complainant to provide those, the complainant as per their direction tried to provide everything to them but nobody of the concerned OPs to help the complainant.  It is unfortunate to the complainant that theconcernedOP-1 willfully harassed the complainant and intentionally to drag mentally to  issue loan recall notice.  So, the complainant otherwise by his Ld. advocate issued a legal notice in respect of OP-1 in which the ld. advocate on behalf of the complainant disclosed inability of the complainant towards repaying loan amount, but whimsically theOP-1 did not reply.

Complainant filed the complaint petition praying direction upon the opposite party to stop loan account for which complainant has not utilized and also direct to return the amount which OP-1 deducted by illegal means and to pay a sum of Rs.  400000/- for mental agony and pain and harassment and trouble and down grading prestige and to pay a sum of Rs. 386000/-for deficiency in service and litigation cost.

Defense Case:-  The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainant is a business man running his shop under the name and style of “Rakshit Electrical” and engaged in selling and repairing of various types of electrical good including mobile phones.  The complainant maintains a bank account with Kolkata RAC branch of the OP bank being A/c No.911010003011933 and a current A/c being NO.918020073083207.   On the basis of the financial transactions done by the complainant from his account, the complainant was qualified for availing a preapproved loan.  Such preapproved loan can be availed only after specific expression of interest by the customer and upon submission of OTP.  In the year 2018 the complainant was inclined to avail a business loan and accordingly through his mobile banking application he applied for the said preapproved loan by sharing the OTP, which was sent to his registered mobile number.  By and under the said online request the complainant was financed with an amount of Rs.10.00 Lakhs vide loan A/C no.BPR000503639447.  The said loan amount was duly credited to his account no. being 911010003011933 on 6.12.2018.  The said loan amount together with interest was repayable in 42 equal monthly installments @ Rs.35653/-.  The mode of repayment as opted by the complainant was standing instruction debit.  It would be evident from the statement of account annexed hereto that the complainant from time to time utilized the said financial amount, however, failed and neglected to repay the EMIs as per the terms and conditions.  As such, as on 17.4.2021 a sum of Rs.810552/- became due and payable t the complainant under the subject loan account.  The complainant failed and neglected to clear his dues, the OP bank exercise its right as provided under the contract Act and imposed lien to the tune of Rs.291262/- on the current account of the complainant being NO.918020073083207.  The OP bank duly intimated the same vide their letter dated 17.4.2021 and the complainant was also called upon to clear his outstanding.  The said intimated was also sent through email on 19.4.2021.   Inspite of such intimation the complainant did not turn up to clear his dues.  Accordingly, the OP bank on 30.4.2021 deducted the amount ofRs.31000/-.  After giving credit to the said amount a sum of Rs.872187/- is due and payable as on 7.5.2022 by the complainant under the subject loan account.  So, this case should be dismissed with cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Tarakeshwar, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.        All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that the evidence given by the complainant side is more satisfactory and cogent than that of the evidence of OPs.  The case of the complainant side has also been reflected strongly in the evidence given by the complainant.  It is crystal clear that the complainant has proved his case on the basis of giving satisfactory evidence before this District Commission in this case.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 85 of 2021 be and the same is allowed on contest but in part.

The complainant is entitled to get the decree directing the OP-1&2 to stop loan account which has not been utilized by the complainant and also entitled to get the direction to return the amount which OP-1 deducted and to pay a compensation of Rs.50,000/- and litigation cost of Rs.10,000/- to the complainant within two months from the date of passing of this judgment.  Otherwise the complainant is given liberty to execute this award as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.