Orissa

Jajapur

CC/28/2019

Prasant Kumar Nayak. - Complainant(s)

Versus

Branch Manager,Canara Bank,Rambag Branch. - Opp.Party(s)

Ramakanta Ghadei,Santosh Kumar Samal.

26 Jul 2021

ORDER

               

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:    1.Sri Pitabas Mohanty, I/C President,

                                                                          2.Miss Smita Ray, Lady Member.                       

                                                      Dated the 26 TH day of July ,2021.

                                                      C.C.Case No.28 of 2019

Prasant kumar Nayak   S/O Biraja kinkar Nayak   

At.  Mahapur, P.O. Kabirpur  ,

P.S.Jajpur Sadar  Dist.-Jajpur.                                                                                        …… ……....Complainant .                                                                       

                   (Versus)

1.Branch Manager,Canara Bank, Rambag Branch ,At/P.O. Rambag   

Dist . Jajpur. Represented through its Branch Manager,Jagatran Mahanta

S/O Mohendra Mahanta.

2.Regional Manager,Canara Bank,Bhadrak,At/P.O/Dt.Bhadrak

                                                                                                               ……………..Opp.Parties.                                                                                                                                            For the Complainant:                Sri  Ramakanta Ghadei , S.K. Samal,  Advocates.

For the Opp.Party: No.1             Sri S.K.Parida, M.Alli, Itishree Mohanty, Advocates.

For the Opp.Party : No.2              None.

                                                                                                     

                                                                                            Date of order:  26.07.2021

SHRI PITABAS  MOHANTY,  I/C PRESIDENT  .                                                 

The petitioner has filed the present dispute against the O.Ps alleging deficiency in service due to non disbursement of sanctioned  loan .

            The brief fact of the present dispute shortly are that as per complaint petition the petitioner being an unemployed youth having no other source of income came in contact with O.P.no.1 and as per the persuation of O.P.no.1  decided to avail a loan of Rs.19,00,000/- on the strength of equitable mortgage for the construction of a building for rented purpose on his own land situated  at  mouza – Barabati,khata no.546 ,plot no.2420/3033 AO-07 dismil which is within the district of Jajpur .Subsequently as per advice of O.p.no.1, the petitioner prepared equitable mortgage deed for the above cited land in favor of the O.P.no.1  as well as  as per advice of O.P no.1 obtained valuation report and legal opinion and complied all banking formalities by spending near about Rs.1,00,000/- towards stamp registration fees cost of sale deed IT return, valuation report ,cost of legal fee only to avail the above cited loan. It is alleged by the petitioner that after receipt of the relevant documents, the O.p.no.1 though sanctioned the loan of Rs.19,00,000/-  and assured the petitioner to release the loan amount within 7 days but did not release the loan amount for which the petitioner approached the O.p.no.1 in several times and subsequently O.P.no.1 refused to release the loan amount. Accordingly finding no other way the petitioner has filed the present dispute along with interim petition U/S 13(3)b with the prayer  as per interim petition the O.P.no.1 may be directed to return the original loan file  of the petitioner  as the O.p.no.1 after sanction has not release the loan amount as well as to pay  Rs.1,00,000/- as compensation to the petitioner for deficiency in service .

            In the present case out of 2 O.Ps the O.p.no.1 has appeared and filed the objection against interim petition of the petitioner along with show cause against the allegation of the petitioner of the  main / original dispute .  The O.P.no.1 not only in the objection against the interim petition of the petitioner but also in the show cause against the main dispute has stated that the petitioner had applied to O.p.no.1 bank for sanction of a loan for construction of a commercial building to rent out the same. He had supplied documents, legal opinion , report which was sent by O.P.no.1 to O.P.no.2. After scrutiny it is observed by O.P.no.2 that the documents supplied by the petitioner is not sufficient to sanction the loan i.e IT return was very miserable as per guide line of Bank. Accordingly the O.P.no.2 has rejected the loan applicat6ion of the petitioner. Neither O.p.no.1 nor O.P.no.2 has advised the petitioner to execute mortgage deed before sanction of loan . The petitioner assured the O.p.no.1 before executing mortgage deed for reconveyance of E.M deed in his own cost in case loan is not sanctioned in his favour . After rejection of the loan application the O.p.no.1 has tried  his level best to return original file as well as for reconveyance of E.M deed but the petitioner did not take any steps to this effect. The O.P.no.1  has not sanctioned the loan in favour of the petitioner .The O.p.no.1 has already re-conveyanced the equitable mortgage in favour of the petitioner. The O.p.no.2 found that the petitioner had no capacity for repayment of the loan amount and interest thereon. The petitioner has already taken back all of his documents .The petitioner is solely responsible for his expenses for which he is not entitle for any compensation. Accordingly the present dispute may kindly be rejected with cost.

In view of the above contradicting views of both the parties, after hearing we have perused the record along with documents and citations filed by both the parties.

            Admittedly the petitioner has applied  the alleged loan to O.p.no.1 and in support of such loan application the petitioner has filed

A-xerox copy of equitable mortgage deed which has been signed by the petitioner and O.P.no.1 .

B-Sale deed bearing No.25417 dt.24.08.2018,

C- Nil encumbrance certificate in respect of the property mortgage to O.p.no.1 bank .

D-Income Tax return

E-Agreement for lease in favour of M/S Gupta Distributor .

F-Citation of Hon’ble National Commission reported in 2018(4)CLT-104-N.C –para-9

 

2. Similarly the O.P.o.1 also has filed the following documents:

A-Transurim CIBAL

B- Registration certificate (GST)

C-Income Tax return for 2016-17 to 2018-19

D-Financial statement of the petitioner .

E-Adhar card,ID card,Pancard

F-Citation (1) 2011(1)OLR(CSR)-453-State commission Odisha

                 (11) 2010(1)CLR(SC)-845-SC

            The only moot question in the present dispute relates to consider whether prior to sanction the O.p.no.1 is justified to sign the equitable mortgage deed.?

As per plea taken by O.p.no.1 vide para-5(a) that the O.P.no.2 after scrutiny has rejected the loan application of the petitioner on the ground as per IT return the petitioner is no way capable to repay the loan amount along with interests. This indicates that the O.P.no2 is the final authority for sanctioning the loan and if this aspect is taken into consideration then what  was justification on the part of O.P.no.1 to execute the equitable mortgage deed prior to decision of O.P.no.2. In case the E.M deed was not executed prior to decision of O.p.no.2 then the amount of Rs.14,000/- which was spent by the petitioner could have been saved. As such in our considered view the execution of E.M deed by O.P.no.1 prior to decision regarding sanction of loan is gross deficiency in service on the part of O.P.no.1.

            Further in absence of  any  documentary evidence the plea taken by O.P.no.1 vide para-5(b) that the petitioner assured for the reconveyance of E.M deed in the own cost is also not acceptable in the eye of law.

            Similarly during at the time of hearing the learned advocate of the petitioner has stated that for availing the alleged loan the petitioner has spent the following amount

1.Rs45000/- for registration of sale deed.

2. Rs10,000/ IT return

3. Rs5000/- legal opinion

4. Rs7,000/- valuation.

5.Rs,5000/- estimate.

6. Rs14,000/- E.M deed

7. Rs12,000 entry

  ________________________

Total:- Rs.98,000/-      

            More over the citations which has been filed by O.P.no.1 is distinguishable on the ground it relates to payment of balance or rest laon amount for which not applicable to the present dispute rather the citation  2018(4) CLT-104-N.C-para-9 filed by the petitioner is fully applicable  for the present dispute.

            We are also inclined to hold that sanctioning of loan though discreasing power of the bank but when that discretion is exercised malafidely , whimsically capriciously that is subject to judicial scrutiny.

            The above clarification  from our side clearly go to establish that the O.p.no.1 has committed patent deficiency in service in the present case  for which the petitioner is entitled for compensation .

Hence this order

            The dispute is allowed against the O.ps .The O.ps are directed to pay Rs.50,000/- ( fifty thousand )  which relates to  Rs.20,000/- as expenses for the alleged loan  + Rs.20,000/- as compensation  + Rs.10,000/-  as cost of litigation ) to the petitioner  within one month after receipt of this order, failing which the awarded amount will carry an interest at the rate of 12% per annum from the date of filing of the present dispute till its realization.

 

                    This order is pronounced in the open Forum on this the 26th  day of  July,2021. under my hand and seal of the Commission .