The case of the complainant, in brief, is that the complainant Ashok Das, S/o- Late Prafulla Das of Vill- Milanpara, P.O & P.S- Raiganj, Dist- Uttar Dinajpur has filed this complaint under Section 12 of the Consumer Protection Act, 1986 on 08/08/2018 to the effect that the complainant is a consumer of O.P.No-1being a B.P.L Ration Card holder and schedule cast category. He being a schedule cast category person took a subsidy loan through Raiganj Municipality from the O.P.No-1 who sanctioned the loan amount of Rs.20,000/- as subsidy loan. The O.P.No-1 after sanctioning the said loan get only of Rs.10,000/- on 27/04/2011 in his A/C No-3120302469 and advised him that the balance amount of Rs.10,000/- by pressure did one fixed deposit own bank on 14/05/2011 being No-N041286 and the fixed deposit account number is 3122577057 for the period of 8 (eight) years and the date of maturity is on 14/05/2019 and in that reason complainant lost/ destroy the balance amount in future. Further case of the complainant is that he told the O.P.No-1 that he would monthly pay the said loan amount but O.P.No-1 assured that the complainant would have not pay any amount as because they would receive of the loan installment amount from the F.D amount. In the March 2016, one representative came to the house of the complainant and asked him to meet the O.P.No-1 as because many installments of the loan were pending. Accordingly, the complainant met the O.P.No-1 and explained the above facts of taking loan along with installment including the subsidy loan. He also submitted that as the said fixed deposit of Rs.10,000/- was withdrawn as cash no loan was pending, but the O.P.No-1 denied it. On 22/12/2017 from his update saving pass book it was found that Rs.3000/- has been debited and fixed deposit of Rs.17,873/- has been discharged without any intimation to the complainant and the complainant informed the O.P.No-1, when O.P.No-1 expressed that the said subsidy loan of Rs.10,000/- was cleared from the office of the O.P.No-1. On 19/07/2018 the complainant submitted a written complaint to the office of the O.P.No-1 narrating the above facts. Thereafter, the complainant was bound to file a written complaint before the Assistant Director, Consumer Affairs & Fair Business Practices, Uttar Dinajpur Regional Office, Raiganj, Uttar Dinajpur on 08/06/2018 against the O.P.No-1 in the matter of said subsidy loan. The Assistant Director, Consumer Affairs & Fair Business Practices, Uttar Dinajpur after received of the said application sent a letter to the O.P.No-1 which was received on his part on 13/06/2018. But the O.P.No-1 did not send any reply to the said authority and accordingly, two reminders dated 17/07/2018 and 26/07/2018 were given to the O.P.No-1. Inspite of having received the written application dated 19/07/2018 from the complainant, the O.P.No-1 did not pay any heed till today and it is totally part of negligence and deficiency of service of the O.P.
Upon this background the complainant prayed to direct the O.P.No-1 for returning the said debited amount of Rs.3000/- and fixed deposit discharge amount of Rs.17,873/- that is total amounting to Rs.20,873/- and to direct the O.P.Nos-1 and 2 to give compensation of Rs.50,000/- to the complainant for the mental stress and agony and harassment.
The O.P.No-1 & 3 has filed a W.V denying all the material allegations contending inter alia that there is no cause of action to file the case and that the complaint is barred by Law of limitation and also barred by non joinder of necessary parties and that the complainant has suppressed the material facts and that the complainant did not come before this Ld. Forum with clean hands.
The specific case of the O.P’s is that the loan amount was sanctioned for emergency requirement which had not been availed till 14/05/2011 by the complainant, so as to earn installment he made a MMDC/ Fixed deposit bearing No-3122577057 of Rs.10,000/- for the period of 8 years. No pressure was created by O.P.No-1 to the complainant in respect of making the FD account. He voluntarily came before the O.P and did the same. The complainant did not pay of any single installment/ EMI to the O.P against his loan amount as a result the loan amount with interest came to Rs.20,873/-. In spite of repeated reminder the complainant did not re pay any loan amount and did not take care of the repeated request of O.P.No-1. Finding no other alternative, the O.P.No-1 applied write off/ set off power as imposed upon it by norms to the complainant to adjust the outstanding loan by closing MMDC. Closer amount of Rs.17642/- and rest amount of Rs.3231/- was adjusted from his SB A/C vide No-3047991868 and the O.P.No-1 closed the loan account. The O.P.No-1 Bank is a public concern and the interest of general public is involved here. By filing this false and motivated case, the complainant harassed the Bank Authority.
Upon this background the O.P prays for dismissal of the case as the complaint is not maintainable and there is no deficiency of service.
P o i n t s F o r D e c i s i o n:
- Whether the case is maintainable in his present form and prayer?
- Whether there is any deficiency of service on the part of the O.P?
- Is the complainant entitled to get relief as prayed for?
D e c i s i o n W i t h R e a s o n s:
All the points are taken up together as they are related to one another.
In order to prove the case the complainant has examined himself as PW1 and filed some documents namely three Xerox copies of letters dated 08/06/2018, 17/07/2018, 26/07/2018 of Assistant Director, Consumer Affairs & Fair Business Practices, Uttar Dinajpur, One copy of written complaint addressed to the Branch Manager of Central Bank of India, Uttar Dinajpur, One Xerox copy of complaint to the Assistant Director, Consumer Affairs & Fair Business Practices, Uttar Dinajpur, One Original copy of passbook in the name of Ashok Das, One Xerox copy of schedule cast certificate in the name of Ashok Kumar Das and one (fixed deposit) term deposit receipt No-041286 dated 14/05/2011.
In order to disprove the case the O.P has examined one witness by filing affidavit. The O.P also filed questionnaires and the complainant also filed reply to the said questionnaires.
On perusal of the oral evidence of the PW1 (complainant Ashok Das) it appears that he has corroborated the case depicted in the complaint but he could not produce any paper regarding the sanction of the subsidy loan. The evidence of the O.P also shows that he has corroborated the case of the O.P depicted in the W.V and he has denied the case of the complainant, but he admitted that the P.w1 (complainant Ashok Das) is a consumer of them and the complainant availed financial assistance from the O.P.No-1 Bank. The P.W1 also could not produce any document to show that he took a subsidy loan through Raiganj Municipality from the O.P.No-1. But he has been able to show the subsequent event that is the letter dated 08/06/2018 and 17/07/2018 along with complaint addressed to the Branch Manager of Central Bank of India, Raiganj Branch dated 19/07/2018. The O.P.No-1 did not send any reply to those letters to the Assistant Director, Consumer Affairs & F.B.P, Uttar Dinajpur, Raiganj. The P.W1 also produced his saving pass book and original term deposit receipt to prove that he is a consumer of the O.P.No-1 and Rs.10,000/- was kept in fixed deposit on 14/05/2011 in the bank concerned. From the Xerox copy of the certificate it appears that Ashok Kumar Das is a person under category of Schedule Cast. The O.P.No-1 in his evidence stated that the loan amount was sanctioned for emergency requirement which had not been availed till 14/05/2011by him, so as to earn installment he made a MMDC/ Fixed deposit bearing No-3122577057 of Rs.10,000/- for the period of 8 years and denied that the pressure was created by him to the petitioner in respect of making the FD A/C. In this regard the P.W1 would not produce any document that he took step regarding creation of pressure upon him. On perusal of the record it is found that the loan documents of Ashok Das was called for on 23/07/2019 by this Forum in view of the prayer of the complainant. But the O.P Bank could not produce the loan documents on the plea that they are sorry to say that loan documents of Shri. Ashok Das bearing loan account number 3120302469 of Rs.10,000/- dated 27/04/2011 has not been found at their office now, due to some unavoidable circumstances i.e refurbishing of their branch premises during this period. Therefore, it is clear from the evidence of the both sides that neither the complainant nor the O.Ps could not produce the relevant document in respect of sanctioning the loan. Whether it was subsidy loan or it was the emergency requirement loan? But from the facts of both sides it is clear that the complainant has taken loan with condition to repay the same. Generally in a certain scheme loan has been given to the loanee by the bank with certain percentage of the loan as subsidy and the whole amount of loan cannot be treated as a subsidy loan. According to submissions of Ld. Advocate for the O.P the loan amount was emergency loan, but in such situation there must be some portion of the loan as subsidy. But it is the bounden duty of the loanee to repay the same. The complainant did not produce any document to show that he repaid the loan. From his term deposit receipt it is found that Rs.10,000/- was deposited under the term deposit scheme before the O.P Central Bank of India and the maturity value was Rs.20065/- only. The bank (O.P) has encashed the said term deposit receipt for recovery of the loan amount with interest without informing him as stated by him. But the O.P clearly stated that on several request the complainant did not come to the bank for repayment and after over the period it encashed the term deposit receipt for recovery of loan. From the evidence of OPW1 it is clear that the loan amount of Rs.10,000/- with interest came to Rs.20873/- and the complainant did not repay the loan amount inspite of repeated reminders and finding no other alternative the O.P applied the rule of set off power to adjust the outstanding loan by closing amount of Rs.17642/- by encashment of the term deposit receipt and rest amount of Rs.3231/- was adjusted from his SB A/c Number 3047991868 and the bank closed the loan account. It is alleged by the complainant that without informing him and without receiving of the original term deposit receipt the bank whimsically encashed the said term deposit receipt. But according to rule “Right of Set-off” is an statutory right and is available to any creditor even in the absence of express agreement and Right of set-off means, where a customer has credit balance in one of his accounts and debit balance in another, the banker has a right to adjust credit balance with the debit balance and to arrive at the net sum due and such right is known as right of set-off. In the instant case, the O.P has rightly applied the said rule of “Right of set-off” to adjust the debit and credit balance of the complainant. Moreover, it is the rule of evidence that the burden of proof of the case is on the complainant. The complainant could not produce any document to show what type of loan was sanctioned to him and even the complainant did not produce any document to show that he has paid loan amount month by month by installments. Rather the O.P filed a GDE Number 1084 dated.15.02.2020 showing that the sanctioned order has been lost.
Under the above facts and circumstances and above foregoing discussions we find no material to attract the provisions of Consumer Protection Act that the O.P/bank committed deficiency in service to its consumer and the case must fail.
C.F paid is correct,
Hence it is,
O r d e r e d:-
That the case be and the same is dismissed on contest against the O.Ps but without any cost.
Let a certified copy of this final order be given to the parties free of cost.
