DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 11th day of May, 2020
C.D Case No. 23 of 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Shishir Satapathy
S/o Late Kanhei Satapathy
Vill: Chaturbhujapur,
Po: Malada,
Ps: Bhandaripokhari,
Dist: Bhadrak, Odisha
……………………. Complainant
(Versus)
1. The Branch Manager,
Balasore Bhadrak Central Co-operative Bank Ltd.,
At/Po/Ps: Bhandaripokhari,
Dist: Bhadrak
2. Manager of Balasore Bhadrak Central Co-operative Bank Ltd.,
Balasore (Head Office)
At: O.T Road,
Po/Ps/Dist: Balasore
……………………..Opp. Parties
Counsel For Complainant: Sri N. Sahu, Adv
Counsel For the O.Ps: Muzahid Aktar Khan, Adv
Date of hearing: 16.03.2019
Date of order: 11.05.2020
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps.
The facts of the case as narrated in the complaint are to the effect that the complainant made up his mind to purchase a tractor of his own choice to use the same for agriculture purpose and to earn his lively hood. The complainant contacted OP No. 1 requesting to provide credit support for acquisition of a tractor. The complainant, being unaware the process, contacted Sri Aswin Kumar Nayak (OP No. 1) who assured to arrange credit facility and would arrange all facilities available for the purpose. Sri A. K. Nayak insisted upon the complainant to purchase a New Holland tractor which is much batter then other tractors available in the market. OP No. 1 arranged a quotation and processed the loan proposal for sanction and instructed the complainant to furnish all required documents for processing the proposal. The complainant as per instruction of OP No. 1 submitted all required documents on 23.11.2009 for sanction of the loan and accordingly OP No. 1 submitted the proposal to OP No. 2 for sanction of loan of Rs 5,00,000/- as against the cost of tractor excluding other accessories of Rs 5,90,805/-. On the instruction of OP No. 1, the complainant deposited the differential amount of Rs 90,805/- with OP No. 1 who assured to deliver the tractor shortly within two weeks. That apart complainant also deposited Rs 25,000/- towards share and Rs 5,000/- towards process fees which is statutory. The complainant also executed mortgage deed of land measuring area A.4.03dec. in favour of OP bank so as to draw the loan from OP No. 1. Further the complainant also paid an amount of Rs 1,50,000/- towards cost of trolley, cost of insurance and registration in the first week of the December to OP No. 1 who assured to deliver the tractor at the door step of the complainant in the month of December. Instead of December OP No. 1 delivered the tractor in the first week of January, 2010 without any registration and insurance paper and took the photograph of the tractor in presence of the complainant and the supplier but did not supply trolley. Further OP No. 1 handed over the registration papers etc. during second week of February and prior to that the complainant engaged the vehicle for ploughing in the field. In course of operation after a week or more the complainant noticed that the tractor is not taking the load as required and verified the registration paper wherein it was mentioned that the OP No. 1 has supplied the tractor of 3032 model instead of 3037 model. Immediately the complainant rushed to OP No. 1 and complained that he has been supplied a tractor of 3032 model instead of 3037 model as per his quotation. OP No. 1, after receiving the complaint, OP No. 1 assured the complainant to settle the matter immediately within a week but did not take any concrete step towards resolution of the problem. Such action of OP No. 1 amounts to deficiency of service and unfair trade practice. The complainant has, time and again up to the year 2014, requested Sri A. K. Nayak for replacement of vehicle but did not yield any positive result from the bank’s side. Since then the tractor is standing idle in front of the residential house of the complainant. The O.Ps went on serving demand notices for repayment of the loan and finally attempted to repossess the vehicle from the premises of the complainant but failed to take the tractor with them on the ground that the tractor does not have gear box, battery, ignition switch set and other required accessories which are barely required to drive the vehicle and left the vehicle with the complainant under his acknowledgment. After four years from the date of repossession attempt the complainant served a notice through his advocate urging upon the O.Ps to take away the tractor and to liquidate the loan account held with OP No. 1. Since then the OP No. 1 has not taken any action till yet as a result of which the complainant was compelled to take shelter in this Forum.
O.Ps objected the claim of the complainant and contested the case. In submitting written version, O.Ps have raised the question of maintainability as the complainant does not fall within the ambit of relevant provisions of CP Act and as the relation between the complainant and O.Ps is that of “borrower” and “lender”. It is distinctly mentioned in the act that no dispute will arise if the relation between the complainant and O.Ps is “borrower” and “lender”. Secondly it is worth mentioning that the complainant, being a nominal member of a Central Co-operative Society, could have filed a dispute in the appropriate quasi judicial Court under the provision of Sec- 65 of Odisha Co-operative Societies Act 1962 where all the disputes, differences and claims would have been settled and therefore the dispute is not maintainable in the present Forum. Further the complainant has not come to the Forum in clean hands as the dealer-cum-supplier of the tractor has not been made a party to this case which is very much essential and since the matter of dispute is touching to “accounts”, the present case is not maintainable in this Forum. That apart the complainant has filed this dispute after 9 years from the date of availing the loan for which it falls under barred by limitation. The O.Ps have also raised that the complainant has obtained the quotation from the supplier of his own choice and submitted before OP No. 1 along with proposal application to consider sanction of loan. The complainant also executed mortgage deed in favour of the OP No. 2 and executed all other papers in presence of OP No. 1 after which the proposal was sponsored to OP No. 2 for sanction. After maintaining all formalities OP No. 1 placed and order with the dealer to supply the tractor and delivery of the tractor by the dealer in presence of the borrower was made obtaining acknowledgement from the complainant as to he received the tractor in good condition. All other allegations as made in the complaint are strongly denied by the O.Ps only other than the facts supported by recorded evidence. Since the complaint does not bear any merit, the O.Ps fervently requested the Forum to dismiss the case with cost.
Admittedly the present complainant is a borrower of OP bank who has availed a loan of Rs 5,00,000/- after deduction of deposit of the differential amount of Rs 90,805/- and by virtue of an order placed by OP No. 1 bank, the dealer supplier the tractor according to the specification of the quotation. Other allegations as mentioned in the complaint are disputed as both the parties are having different views.
Gone through the complaint and written version of O.Ps, perused the materials on record, heard the counsels of both the parties and observed that the following issues are involved in the case for thread bare discussion and order.
1. That the complainant has alleged that he had opted for a New Holland tractor of 3037 model, the quotation of which was brought by OP No. 1 from the dealer and accordingly the loan was sanctioned by OP No. 2 and placed order to supply the tractor to the complainant. But the complainant has received the tractor of 3032 model instead of 3037 model. The complainant immediately brought the fact to the notice of OP No. 1 in writing on 22.02.2010, 10.11.2010 and 12.03.2011 which was received by OP No. 1 Sri A. K. Nayak Branch Manager with seal and signature. On the contrary O.Ps have strongly objected that the initials/signature appears on written submission as to the Branch Manager in position has received the written submissions are absolutely false and manufactured and denied the said signature are of the then Branch Manager in position. It is relevant to mention here that during such period Sri A. K. Nayak was in position of Branch Manager in branch who has never received any such complaint from the complainant. On perusal of materials available on record it is observed that the signatures appears on the written submissions do not tally with the initials/signatures of Sri A. K. Nayak Branch Manager. Further it is also a fact that Sri A. K. Nayak Branch Manager has been relieved from the branch establishment on 01.011.2011 by virtue of an order of transfer issued by competent authority on 28.10.2011. As such the claim of the complainant who have submitted complaint on 16.04.2014, 13.12.2013 and 10.03.2012 received by Sr A. K. Nayak Branch Manager is completely false. Hence the documents submitted by the complainant to prove his stand are believed to have been forged and manufactured. Hence the contentions on this point of the complainant are out rightly rejected.
2. The O.Ps strongly argued on the point of maintainability of the case. They cited the grounds such as the relation between the complainant and the O.Ps is borrower and debtor, the status of the complainant is not a consumer and the complaint has filed the case beyond the limitation period. The complainant objected the contentions of O.Ps in citing the relevant provision of CP Act in stating that the O.Ps are of Co-operative Society and the complainant is a member of said Co-operative Society. It is distinctly mentioned in the said Act that Co-operative Societies can be impleaded as parties to this case and therefore the case is maintainable in Consumer Forum. As regards barred by limitation the complainant submitted that the process of recovery and service of demand notices by the O.Ps is still continuing. As such the limitation will be counted from the last date of service of notice and therefore the case is maintainable. Further on the point of cause of action complainant submitted that when all of the efforts were failed to get the result, the complainant served a legal notice through his advocate on 04.10.2016 requesting the O.Ps to take immediate action for replacement of the tractor which was not responded. This case has been filed on 17.03.2018 which remains within the limitation period of two years. Hence this case is not coming under barred by limitation.
After having heard the counsels of both the parties and on perusal of records this Forum reached at the conclusion that this case filed by the complainant is maintainable in the Consumer Forum and not coming under barred by limitation. Hence the objection raised by the O.Ps is not sustainable.
3. The complainant further argued in stating that OP No. 2, being the sanctioning authority has sanctioned the loan and issued a sanction letter to my address directing OP No. 1 to supply a New Holland tractor of 3037-39HP model along with other accessories which will be used as Public Transport Carrier as against which the O.Ps have supplied the tractor 3032-36HP model which is less powerful then the preferred one as a result of which the tractor could not take the desired load as would have been taken by 3037 model and the complainant sustained huge financial loss. On the other hand O.Ps argued that the model mentioned in the sanction order is a typographical mistake which does not match with the quotation obtained by the complainant from M/s Sanjeebani Motors. The quotation available on record shows that the complainant has obtained the quotation for 3032-36HP model and submitted to OP No. 1 which bears the signature of the complainant. That apart the supply orders placed before the dealer vide No. 3297 dt. 17.12.2009 by OP No. 1 does not bear any specific model but it was categorically mentioned in the said letter that the supply should be made according to the specifications in the quotation. Further it is also revealed from the retail invoice and supply challan that the complainant has acknowledged receipt of tractor to his own satisfaction and in perfect condition. Further the O.Ps have raised that if the tractor not up to the choice of the complainant, he could have refused to receive the tractor instantly and could have brought the same to the notice of OP No. 1 immediately but the complainant has not done so for a prolonged period which leads to believe that the complainant had nothing to complain before the O.Ps. On perusal of records and after having heard the counsels of both the parties the Forum is of the opinion that the complainant has not taken appropriate steps in appropriate time so as to enable the O.Ps to take proper action against supplier. But the inaction of O.Ps can’t be over ruled. If there was a typographical mistake in the sanction letter, OP No. 1 could have got the mistake corrected from OP No. 2 which was not done by the said OP. As the interest in the tractor was of the complainant, he should have been more vigilant to get the tractor of his own choice. Hence much or less O.Ps have caused a little mistake in typing a wrong model in the sanction letter and the complainant has taken advantage of it.
4. The complainant argued in stating that the O.Ps have repossessed the vehicle on 22.05.2012 by handing over an inventory list to the complainant on proper acknowledgement but did not take the vehicle to their custody. The O.Ps on the contrary stated that the said vehicle was not in a condition to move. On checking it was observed that the tractor did not have gear box, ignition keyboard and battery which compelled them to leave the vehicle there on the spot. On scrutiny of inventory list it is observed that the O.Ps have mentioned the facts as stated above in the said inventory list which is also acknowledged by the complainant and therefore it is believed that the O.Ps are very much right on their stand point and the complainant has taken false plea to hide the actual fact and the OP No. 1 has not done any mischief in the entire process rather the complainant has adduced some forged and fabricated documents that leads to believe that Sri A. K. Nayak is innocent as he is involved in any type of unfair trade practice and has been unnecessary dragged to this litigation. As such the entire allegation against OP No. 1 is found fake, frivolous and vexatious for which OP No. 1 is not liable for anything as claimed by the complainant.
In view of the above analysis of facts and the material available on record it is concluded that the O.Ps have not done anything wrong intentionally to leave the complainant to suffer. But the financial sufferings of the complainant cannot be ignored. ORDER
In the result, the complaint be and the same is allowed in part without cost & compensation. The O.Ps are directed to consider exemption of interest on the loan from the date of NPA to the date of filing of this case in order to lessen the financial burden on the complainant and to enable him to repay the loan in three monthly installments. This order must be complied within 30 days from the date of receipt of the order by both the parties.
This order is pronounced in the open Forum on this day of 11th May, 2020 under my hand and seal of the Forum.
