FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainants stating that in order to conduct the work of cultivation and agriculture more conveniently the complainants some time towards the end of calendar year 2009 approached the office of the OP to avail financial support by way of loan in order to purchase tractor and the office of the op in consideration to the aforesaid approach and application on 11.12.2009 arranged for tractor loan to the complainants for Rs.5,50,068/- only and issued the loan sanction letter to the complainants wherein the office of the op jotted down terms and conditions wherein as co-lateral security two instruments one of which of Rs.40,000/- (F/V) KVP duly mortgaged in Post Office, Mogra, Hooghly and CFD for Rs.60,000/- were attached to the said loan account more specifically mentioned in the schedule mentioned  and the repayment schedule has been mentioned to be of 10 Half Yearly installment of Rs.63,470/- and 10.25% was fixed to be the fixed rate of instant.  In addition to the same the processing charges were levied at the rate of 1% equivalent to Rs.5,501/- and the documentation charges assured was to be Rs.500/-.  The particulars of the aforesaid loan account has been specifically mentioned in the schedule and the complainant soon after started to repay the loan amount vide A/c no.16740601300006 of UCO Bank, Kamarpara Branch, Hooghly.  In doing the complainant in total paidRs.687400/- only inclusive of the margin money of Rs.55,000/- only.  The said mode of payment, the date and the amount paid by the complainants have been specifically mentioned in the aforesaid loan sanction letter and for such in doing so, the complainants actually paid in excess of the availed loan amount of Rs.5,50,068/- only and paid in total of Rs.687400/- only into their loan Account to the OP and even after paying of such excess amount of the OP did not close the loan account but instead kept on rolling the said account.  Be it mentioned here that during the loan repayment period, the complainants observed and inferred that there exist some anomalies in the passbook of their loan repayment account and noticed that the OP has been calculating and deducting the loan amount in contrary to the repayment schedule as has been mentioned in the loan sanctioned document dated 11/12/2009 at the rate of 10.25% fixed rate of interest.  For such the complainants even gave written intimation for rectification of the interest and even forwarded the copy of such notice to the Lead District Manager, UCO Bank, Chinsurah, Hooghly and also to the DDM, NABARD, Hooghly on 05.11.2014 and the complainants on 14.03.2014 lastly paid Rs.40,000/- only.  Inspite of the aforesaid letter for rectification of the rate of interest, the OP showed utter reluctance to consider the same and kept on availing dilly daily tactics on pretext that the other and the complainants thenceforth for number of occasions requested the OP to close the loan account and to provide NOC against the same and to release the aforesaid two instruments that were attached as collateral security with the loan  account but of no effect as the OP kept on refused to entertain the complainants and did not even till date released the collateral securities.  On the contrary without any prior notice and/or justification and proper reasons suddenly malafidely the OP liquidated one of the collateral securities of the KVP of Rs.40,000/- on 06.10.2015 at its matured amount of  Rs.80,000/- only into the loan account.  Such malafide acts and action on the part of the OP only amounts to Deficiency of service and unfair trade practice. And for such complainants being fed up of such unfair Trade practice and passive acts and intentions of being mal handled by the op agitated their grievances before the SDLSC, Chinsurah on 06.2.17 to protect and negotiate the issue before the Lok Adalat to which the OP did not respond without any justification and reasons and having been failed to convince the OP to close the loan account and to release the collateral securities the complainant compelled to send legal notice on 30.08.2017 to the OP even forwarded the same and to the Head Office of the UCO Bank at 10, B.T.M. Sarani, Brabourne Road Kolkata-700001 and also to the Zonal office, UCO Bank, having office at Town Hall Para, G.T. Road, Burdwan-713101.  Inspire of receiving the said notices neither the OP nor its superior office did not even feel proper and appropriate to respond the same.

Complainant filed the complaint petition praying direction upon the opposite party to reimburse/pay back the excess amount realized by the OP from the complainants and to close the loan account mentioned schedule and to provide clearance certificate in favour of complainants and to discharge and release the collateral securities, mentioned in the schedule and to pay a sum of Rs. 30,000/-for mental pain and agony and harassment and to pay a sum of Rs.20,000/- for deficiency in service and to pay a sum of Rs.50,000/- for practicing Unfair trade Practice and business.

Defense Case:-The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainants are irregular in payment of the loan  amount or their half yearly installment.  The loan was sanctioned on 11.12.2009 with a condition to be repaid within five years ending on 2014 with half yearly installment.  The OP/bank repeatedly requested the complainants to repay the outstanding amount which was very much irregular but the complainants did not pay any heed to the utter cry of the Bank.  At last, to recover the public money from such defaulters, the OP made various and several attempts to recover the outstanding loan amount but the complainant did not repay and the bank had to adjust the securities of the complainants to recover the outstanding loan amount.  The excess amount left after adjusting the securities of the complainants after closure of the loan account was also returned back to the complainants by crediting it to the savings account of the complainants on 04.09.2017 which amounted to Rs.61,726/- and no excess amount has been paid by the complainants as the interest calculated for sanctioned amount of Rs.5,50,068/- and their half yearly repayment amount is Rs.71,669.39/-.  The amount which he has paid is not an excess amount rather it was an interest of the loan that has been sanctioned to the complainants in the year 2009.  The loan account of the complainants was adjusted in the year 2017 by the bank, although it was to be repayable by the complainants in the year 2014 but they did not do so.

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 party.

            The answering opposite party 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 party 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 party 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 contesting opposite party even after appearance in this case and after filing written version, has not filed any petition on the ground of non-maintainability of this case due to the reason best known to him. 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 contesting opposite party also has not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite party in the written version has 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 Mogra, Hooghly and op has it’s office at Balagarh, Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 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 11 of the Consumer Protection Act, 1986 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 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A 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) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the bank authority to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   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 on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:  

1. It is admitted fact that the complainants in order to conduct the work of cultivation and/ or agriculture more conveniently approached to the office of the op for getting financial support by way of loan.
2. It is also admitted fact that the complainants approached to the op for taking loan for the purpose of purchase a tractor and filed an application to that effect.
3. There is no controversy over the issue that the op bank authority arranged the tractor loan to the complainants for Rs. 5,50,068/-.
4. There is no dispute over the issue that op bank authority also issued loan sanctioned letter to the complainants wherein the office of the op jotted down terms and conditions.
5. It is admitted fact that as per terms and conditions collateral security of 2 installments out of which one is Rs. 40,000/- (F/V) KVP under the post office Mogra, Hooghly and one CFD of Rs. 60,000/- were attached to the said loan account which have been described in the schedule of the complaint petition.
6. It is also admitted fact that according to the terms and conditions jotted down in the loan agreement 10^th half yearly installment of Rs. 63,470/- was fixed.
7. There is no controversy over the issue that interest was fixed as Rs. 10.25% in respect of loan account.
8. There is no dispute over the issue that in addition to the same processing charges were levied at the rate of 1% equivalent to Rs. 5501/- and the documentation charges assured was to be Rs. 500/-.
9. It is admitted fact that after getting the loan amount the complainants started to repay the loan amount.
10. It is also admitted fact that the said loan account being no. 16740601300006 of UCO Bank, Kamarpara Branch, Hooghly. 
11. There is no controversy over the issue that according to the case of the complainants they have paid Rs. 6,87,400/-.
12. There is no dispute over the issue that as per case of the complainants they actually paid excess of the availed loan amount of Rs. 5,50,068/-.
13. It is admitted fact that thereafter the complainants had given written intimation to the District Manager, UCO bank, Chinsurah branch, Hooghly and also to the DDM, NABARD, Hooghly on 5.11.2014.
14. It is also admitted fact that the complainants lastly paid Rs. 40,000/- on 14.3.2014.
15. There is no controversy over the issue that the complainant defaulted in the payment of EMI.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainants adopted the plea that inspite of repayment of the loan the op bank authority kept on rolling such amount and claimed more money which is against the terms and conditions of the loan agreement and it indicates that there is negligence and deficiency on the part of the op bank authority but on the other hand the op bank authority adopted the defence alibi that the complainants defaulter in the payment of EMI and inspite of sending several notices they failed to repay the loan amount along with interest and finally bank authority encashed the securities and after adjustment the bank authority has repaid the excess amount of Rs. 61,726/- and so there is no deficiency of service or negligence on the part of op bank authority.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and/ or apple of discords cropped up between the parties and also for the interest of deciding the fate of the points of consideration nos. 4 and 5 this District Commission after going through the evidence on record and also after examining the documents such as bank statements finds that the complainants defaulted in the matter of payment of EMI in respect of loan amount which has been mentioned above and inspite of giving several notices the complainants failed to clear the said loan and for that reason the op bank authority finally after giving notice encashed the securities and after realization of the balance amount of the loan amount repaid the remaining amount of the securities in the account of the complainants.

All these factors are clearly reflecting that the bank authority for the purpose of realizing of the public money and as the complainants failed to pay the EMI at right point of time has rightly encashed the security and for that reason the op bank authority has no fault, negligence or deficiency of service on their part. Thus, it is crystal clear that the complainants have failed to establish their case by way of giving satisfactory and cogent evidence. As the complainants have failed to prove their case by way of giving satisfactory and cogent evidence, this District Commission has no other alternative but to dismiss this case on contest.       

In the result it is accordingly

ordered

that the complaint case being no. 27 of 2018 be and the same is dismissed on contest.

No order is passed as to costs. 

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.