Kerala

Idukki

CC/20/2019

Joseph Joseph - Complainant(s)

Versus

Co operative bank Kaliyar - Opp.Party(s)

05 Jun 2023

ORDER

DATE OF FILING : 28.1.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the    5^th   day of  June, 2023

Present :

SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.20/2019

Between

Complainants                                          : 1. Jose Joseph, S/o. Joseph,

                                                                   Vettikkuzhichalil House,

                                                                   Mundanmudi, Vannappuram.

                                                                2.  Krishnankutty K.K.,

Kunnumpurathu House,

           Mundanmudi, Vannappuram.     

          (Both by Adv: K.T. Abhilashkumar)

And

Opposite Parties                                       : 1. Idukki District Co-operative Bank,

                                                                   Kaliyar Branch

                                                                   Represented by its Branch Manager,

                                                                   Idukki District Co-operative Bank,

                                                                   Kaliyar Branch,

                                                                   Vannappuram.

            (By Adv: V.V. Sunny)

      2. The General Manager,

                                                                   Regional Office,

                                                                   NABARD, Thiruvananthapuram.

  (By Adv: K.M. Sanu)

                                                                 3.  Thommankuthu Milk Producers

Co-operative Society,

                                                                     Represented by its Secretary,

                                                                     Milk Producers Co-operative Society,

                                                                    Thommankuthu.                                                                                                                         

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

          1. This is a joint complaint filed by 2 complainants under Section 12 of the Consumer Protection Act, 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainants are residents of Vannappuram Village.  They rear milch cows for their livelihood and are members of 3^rd opposite party, namely, Thommankuthu Milk                                                                                                             (cont...2)

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Producers Co-operative Society, which is represented here its Secretary.  1^st opposite party is Kaliyar branch of Idukki District Co-operative Bank represented by its branch manager and 2^nd opposite party is General Manager of NABARD with its Regional Office in Thiruvananthapuram.  Complainant used to sell milk produced by them through 3^rd opposite party.  While so, officers of 1^st and 2^nd opposite parties had come to 3^rd opposite party and had informed its members that a loan of Rs.2 lakhs at the rate of 10.5% annual interest is given to milk producers for purchasing milch cows and building cattle sheds.  That the loan will be given upon security of 3^rd opposite party and a subsidy of Rs.50,000/- will be granted by 1^st opposite party for the loan.  Believing this promise, the 1^st and 2^ndcomplainants have availed loan of Rs.95,000/- and Rs.1,90,000/- each on 16.6.2016 and 8.1.2016 respectively. Opposite parties 1and 2 had falsely promised that subsidy of Rs.25,000/- and Rs.50,000/- will be given  to 1^st and 2^nd complainants respectively.  Believing that subsidy will be made available by 1^st opposite party, 1^st complainant had remitted Rs.75,500/- and 2^nd complainant Rs.1,74,425/- towards repayment of loan.  However, after availing the loan and until the date of filing this complaint, complainants were not given the subsidy promised by opposite parties.  When enquiries were conducted with2^nd opposite party, complainants were informed that 1^st opposite party had not given any documents pertaining to the loan availed by them to 2^nd opposite party.  Complainants had taken the loan believing assurances of 1^st and 2^nd opposite parties that they will get subsidy. .  On 3.1.2019, 1^st opposite party had contacted complainants over phone and informed that they should remit entire loan amount and further that it is not aware of any subsidy to which complainants claim that they are entitled.  It had also threatened distraint proceedings in case of non-payment. Non-provision of subsidy to complainants and non-taking of steps by opposite parties for giving subsidy to complainants amount to deficiency in service from the side of opposite parties.  Due to latches of opposite parties, complainant had to pay subsidy amount also along with interest.  Though grievances in this regard were addressed in person by complainants before opposite parties 1 and 2, nothing has been done till date.  Complainants therefore pray for a direction against opposite parties to give subsidy to complainants amounting to Rs.25,000/- and Rs.50,000/- towards each loan availed by them respectively or in the alternate to reduce  subsidy amount from the loan due from them.  They also pray for a compensation of Rs.25,000/- towards deficiency in service from opposite parties 1 and 2 and litigation costs of Rs.5,000/-.

 

2. Opposite parties 1 and 2 have filed separate written versions.  Case of 1^st opposite party is briefly narrated hereunder :

 

According to 1^st opposite party, complaint is not maintainable in law or upon facts.  Answering opposite party has not made any representation to complainants that they will be given subsidy for the loans availed by each one of them.  It is true that  loans of Rs.95,000/- and Rs.1,90,000/- each were disbursed to complainants for building                                                                                                                  (cont....3)

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cattle shed and for purchase of milch cows.  However, this was on the basis of applications separately given by complainants for the loan.  Answering opposite party had granted loans on the basis of existing terms of loan.  These loans were granted to complainants in a scheme enabling members of milk producing societies to purchase milch cows.  In the letter informing grant of loan issued to complainants, terms of loans are also mentioned.  There is nothing in the terms to the effect that loans are subsidised.  Loan was to be repaid from the price of milk which is given to complainants and other borrowers under the scheme from 3^rd opposite party on a day to day basis.  A Dairy Entrepreneurship Development Scheme (DEDS) was floated and loan was granted on the basis of memorandum of understanding executed by 3^rd opposite party with the answering opposite party.  Employees of 1^st opposite party had never assured or informed complainants that subsidy will be available for the loan.  There is no deficiency in service from the side of 1^st opposite party.  Subsidy is given by the Government through its agencies.  Amount of subsidy depends upon certain conditions and it is not granted in a wholesome manner.  Complaint has been filed on premises which are baseless.  Same is to be dismissed as not maintainable.

 

3. 2^nd opposite party has filed written version contending that complaint is not maintainable for the reason that no service is being rendered by 2^nd opposite party to complainants as defined under Section 2(1)(o) of the Act.  Subsidy given by Government of India is a free financial assistance in which no charges, fees or consideration is paid by recipients of subsidy or any other person.  Complainants have not paid any service charges to the answering opposite party.  Since there is no service as defined under the Act, there is no consumer-service provider relationship also between complainant and answering opposite party.  There are quotes from decisions of Hon’ble National Commission wherein it has been held that subsidy given is not a service as defined under the Act.  For the sake of brevity, we are not extracting the  quotes.  It is further contended that there is no privity of contract between complainant and answering opposite party.  Financing bank / institutions have sanctioned loans to certain projects which comply with guidelines for administering subsidy under Dairy Entrepreneurship Development Scheme floated by department of Animal Husbandry, Dairy and Fisheries.  In this case, loan was given on the basis of contract between the bank and customer.  No loan with subsidy was sanctioned by the answering opposite party.  Role of 2^nd opposite party in subsidy scheme is merely that of an intermediary.  2^nd opposite party can only release subsidy based on the guidelines issued and availability of funds allotted by Government of India from time to time.  In the present case, subsidy scheme of the complainants was not received by answering opposite party from the Financing bank.  Therefore grant of subsidy to complainants was not under consideration of 2^nd opposite party.  Responsibility to grant subsidy does not rest upon 2^nd opposite party.  It is only an intermediary.  Since funds are allotted by Government of India, Central Government is a necessary party to this case.       Complaint is bad for                                                                                                         (cont....4)

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non-joinder of necessary party and mis-joinder of 2^nd opposite party.  None of the complainants have ever approached 2^nd opposite party for availing subsidy.  There was no negligence by answering opposite party. As there is no consumer-service provider relationship, the question of negligence does not arise at all.  There is no element of service involved and hence complainants are not entitled for any of the reliefs prayed for as against answering opposite party.

 

4. 3^rd opposite party was set exparte initially. It had filed application under Order VII Rule 9 of CPC which was allowed. 3^rd opposite party has filed written version supporting complainants. It has contended that 1^st opposite party had recommended grant of subsidised loans to members of 3^rd opposite party society in General Body meeting of society convened on 20/09/2015 and a resolution in this regard was passed as Resolution No.6. Repayment was agreed to be effected by collecting payments from price of milk paid daily to members. 3^rd opposite party had made it clear that in case of default by individual members no liability will be cast upon society for repayment. 1^st opposite party had agreed to disburse loans to members on it’s responsibility and had assured members accordingly. Later, when subsidy was not received, 3^rd opposite party, upon complaints by members, had made enquiries and come to know that 1^st opposite party has not forwarded any documents necessary for grant of subsidy to 2^nd opposite party. This is deficiency in service on it’s part. 3^rd opposite party seeks intervention of this commission to ensure grant of subsidy to it’s members.

 

5. Case was then posted for evidence after affording sufficient opportunity to both sides for taking steps.  Despite repeated opportunities, complainants have not taken any steps.  No oral evidence was tendered from their side.  On the date when the case was posted out for evidence, there was no representation for complainants.  Copy of loan account of complainants which was produced as a singular document was marked as Ext.P1.  We noticed that these are loan account passbook of 1^st complainant and loan account statement of 2^nd complainant and therefore these are marked as Ext.P1 and P1(a) separately.  No evidence was tendered from the side of opposite parties 1 to 3.  1^st opposite party had produced application for loan given by 1st complainant which was marked as Ext.R1 and also loan consent letter issued to 2^nd complainant which was marked as Ext.R2.  No documents were marked on the side of 2^nd and 3^rd opposite parties. After marking of documents, evidence was closed.  We have heard the learned counsels representing opposite party Nos.1 and 2.  Now the points which arise for consideration are :

1)  Whether there is any deficiency in service from the side of opposite parties 1 and 2 ?

2)  Whether case is maintainable as against opposite party No.2 ?      

3)  Whether complainants are entitled for any of the reliefs prayed for in the complaint ?

4)  Final order and costs ?

 

                                                                                                                      (cont....5)

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5.  Point No.2 is being considered  first :

 

          As rightly contended by 2^nd opposite party, grant of subsidy is not a matter of right.  There is no consideration for availing subsidy.  That being so, this cannot be brought under the definition of the term ‘service’ as defined by Section 2(1)(o) of the Act.  There is no consumer-service provider relationship between complainants and 2^nd opposite party.  However, case of complainants is that officers of opposite parties 1 and 2 had promised them that there will be subsidy for the loan availed by them under the scheme.  Complainants would only contend that there were oral assurances and promises made on behalf of opposite parties 1 and 2.  None of  the complainants have turned up to give evidence in this regard. Though 3^rd opposite party has contended that there were such promises from the side of other opposite parties and that a resolution was also passed in GB of society, no evidence was tendered to prove these contentions. Minutes, resolution passed or their copies were not produced by 3^rd opposite party. These contentions remain unproved to the extent that subsidy was promised sans any conditions. Reverting to the issue of maintainability, we find that complaint as such against 2^nd opposite party cannot be maintained.  We may also point out that the decision of Hon’ble National Commission mentioned in the written version of 2^nd opposite party holds good in this case.  As there is no consumer-service provider relationship between the complainants on one side and 2^nd opposite party on the other, complaint is not maintainable against 2^nd opposite party.  Point No.2 is answered accordingly. 

 

6.  Point Nos.1 and 3 are considered together :

 

          We have gone through Exts.R1 and R2.  Terms of the loan are typed upon the loan consent/confirmation letters.  There is no mention of availability of subsidy or grant of it to complainants.  Yet written version filed by 2^nd opposite party discloses that there is a scheme floated by Government of India through the agency of 2^nd opposite party, whereby subsidy is offered upon guidelines given to milk producers for purchasing milch cows and building cattle sheds. 1^st opposite party admits  this and also states that loans were granted to complainants for purchasing cows and building/erecting cattle sheds. However, it’s contentions are to the effect that requisite documents for claiming subsidy are yet to be received from complainants. That if new loan is applied for with requisite documents for grant of subsidy it can be forwarded to 2^nd opposite party. It is  clear from written versions of opposite parties 1 and 2  that in order to avail subsidy, the recipients or the borrowers will have to comply with the guidelines of the scheme and an application apparently is necessary for claiming subsidy either by complainants or by their society on their behalf with necessary documents.  They do not have a case that any such application was preferred by them before 3^rd opposite party or that 3^rd opposite party had in fact filed applications on behalf of them and other borrowers under the scheme for grant of subsidy.  Without there being any application for subsidy, we don’t                                                                                                                    (cont....6)

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think that the bank was liable to identify and sort out each case and seek subsidy on their behalf from 2^nd opposite party or the Government.  Oral promises regarding subsidy purportedly made by officers of opposite parties 1 and 2 as claimed in the complaint remain as assertions.  There is no evidence to prove these facts.  Though we notice that 1^st opposite party has taken a stand that loan granted by it does not contain a provision for grant of subsidy, these contentions are misconceived since subsidy is granted by Government of India through agencies like 2^nd opposite party. Subsidies by Govt. or statutory bodies are not ordinarily incorporated as terms of loan. Though subsidy cannot be availed as of right as paid service, conscious and deliberate latches, if any on the side of bank which may result in denial of subsidy from other agencies to borrowers like complainants would amount to deficiency in service. However, in the instant case no such evidence is forthcoming.   We also notice that a contention has been taken that subsidy is to be granted by Government of India which is not a party in this case.  There is force in these contentions.  Since subsidy has to come from Central Government, it ought to have been made a party in this case.  However, we do not think that any purpose will be served by correcting this mistake at this stage in view of discussions held above.  Suffice to say, complainants have not proved any deficiency in service from the side of opposite parties 1 and 2.  No allegations are levelled against 3^rd opposite party. In fact 3^rd opposite party and complainants are sailing together. To conclude, we find that complainants are not entitled for the reliefs prayed for.  Point Nos.1 and 3 are answered accordingly. 

 

7.  Point No.4 :

 

The complaint will not survive in view of our discussions held above and accordingly it is dismissed, under the circumstances, without costs. However, we make it clear that this order will not stand in way of any applications/claims for subsidy if made by complainants in accordance with guidelines of scheme and applicable rules, subject to any time constraints, if there are any.  Parties shall take back extra copies, without delay.

 

                             Pronounced by this Commission on this the    5^th   day of  June, 2023

 

                                                                                                Sd/-

                                                SRI. C. SURESHKUMAR, PRESIDENT

 

                                                                             Sd/-

 SMT. ASAMOL P., MEMBER

 

                        Sd/-

SRI. AMPADY K.S., MEMBER

                                                                                                                      (cont....7)

• 7  -

                                                                                                         

 

APPENDIX

 

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1& P1(a)     -  Copy of Loan account passbook of 1^st complainant and  loan account

                             statement of 2^nd complainant.

On the side of the Opposite Party :

Ext.R1    -  Copy of Loan application given by 1^st complainant.

Ext.R2    -  Copy of  Loan consent letter issued to 2^nd complainant.

 

 

                                                                             Forwarded by Order,

 

 

 

                                                                       ASSISTANT REGISTRAR