Case No. 91/2023   

IN THE MATTER OF

 Manoj Trading Compay, Shop No.A11 Dhanipur Mandi Aligarh Head Office-Sodhi Complex-2 Office-First Floor, Kishanpur Tiraha, Ramghat Road, Aligarh (UP) through authorized signatory Mr. Manoj Kumar Gupta

                                           V/s

1. HDFC Bank Reged office HDFC Bank house, Senapati Bapat Marg, Lower Parel, Mumbai through authorized signatory

2. HDFC Bank Branch Ramghat Road, Aligarh through authorized signatory

CORAM

 Present:

1. Shri Hasnain Qureshi, President
2. Shri Alok Upadhayay, Member
3. Smt. Purnima Singh Rajpoot, Member

PRONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission for  the following reliefs-

1. The Op be directed to reimburse the complainant for the  amount Rs.4900000 with interest.
2. The Op be directed to pay the compensation for mental agony and physical suffering @ Rs 500000 and litigation expenses Rs.25000.
3. Any other relief.

2.  Complainant has stated that Complainant Company was sanctioned credit facilities by the op bank on 28.2.2019 with the total limit of Rs. 90000000 only and thereafter complainant was sanctioned credit facility on 13.12.2021 increasing the limit up to Rs. 100733400. Complainant had been regularly maintaining account but due to covid 19 pandemic . Complainant could not maintain the account regular. Complainant was not provided the facilities of loan moratorium to meet the exigency despite of directions issued by Hon’ble Supreme Court and RBI guidelines. Accordingly Op Bank could have deferred the payment of EMIs and the account could have been maintained regular and the OP bank could have escaped from declaring the account as NPA. The facility of moratorium could have provided an opportunity for restructuring the loan. Complainant had continuously contacted the OP bank for restructuring and payment of outstanding dues. Op bank did not cooperate the complainant and never informed the status of the account. The loan borrowed by the complainant was the secured loan within the definition of secured debt under the securitization and reconstruction of financial asset and enforcement of security Act, 2002 (SARFAECI Act). OP Bank was secured creditor under the Act, 2002. As per category of secured loan the right tittle or interest are created in the property in favor of secured creditor. The OP bank having declared the account of complainant as NPA(non-performing asset) as defined under the Act,2002 was under obligation to proceed in accordance with the Act,2002 to recover the loan amount by way of enforcement of security interest created in the property. OP bank was under obligation to give a notice under section 13(2) of the Act,2002 to discharge the liability of the OP bank within 60 days from the date of notice failing which bank was entitled to exercise the right provided in subsection4 of section 13 of the Act,2002 Complainant had an opportunity  on receipt of the notice in view of section 13(3A) of the Act,2002 to make a representation to the OP. On failure to discharge liability by the complainant, the op could have proceeded to recover the loan amount   as provided in section 13(4) of the Act, 2002. The OP bank had never communicated the complainant the status of account and the complainant was not given an opportunity of being heard. This was not only violation of natural justice but also flouting of statutory provisions of law. Complainant was deprived  from presenting his case to provide him an opportunity to clear the outstanding dues. It was mandatory under section 13(2) and 13(3) of the Act, 2002 to provide the time to the complainant to discharge its obligation or to make representation stating the cause of its failure in discharging the obligation. Complainant had offered the bank for one time settlement and submitted letter dated 13.2.2023 to the bank with the request to permit one time settlement with waiver of interest from October, 2022 and 25 % principal and the balance amount to be deposited in installments within three months as the business badly affected by covid-19. Op did not permit one time settlement and harassed the complainant for realization of the loan amount. Complainant had complained to the OP regarding its concerns for OTS and extra EMI interest and penalty  but the OP bank wrongly dismissed the complaint through letter dated 28.3.2023. Complainant was constrained to pay the amount of loan with exorbitant rate of interest and other charges. If the complainant would have been informed about the default for the first time in payment of loan amount, the complainant could have escaped from the liability of payment of exorbitant rate of interest. Complainant had to pay the amount of Rs.2400000 on account of acts and commission or omission and negligence of the OP whereby complainant had to undergo physical suffering which may be assessed at Rs.500000. Complainant had made dues clear with exorbitant rate of interest and other charges but no dues certificate was issued.
3. Complainant has also stated another aspect of the matter. Complainant carries on the business of storage of food grains and required a warehouse. Government had allotted funds for providing credit to the private sector to facilitate the augmentation of the existing agriculture warehousing infrastructure. The loans have to be provided for projects involving creation of storage infrastructure for agricultural and allied produce including construction/ modernization and the expansion of the warehouse. The scheme was operated under the national bank for agriculture and rural development (NABARD). Complainant was advanced loan of the amount Rs. 10700000 against credit facility -4/BBG-WC term loan sanctioned by the letter dated 28.2.2019. Complainant submitted affidavit of its authorized signatory Mr. Manoj Kumar Gupta to the bank on 12.3.2021 clearly deposing the eligibility of the complainant to get subsidy. The existing plan of godown for Jagjeevan Farry Pvt. Ltd. Sujanpur, Palwal Road Aligarh was submitted by the complainant with the measurement 65*238= area 15470 square feet and capacity 3500 tons of the godown. All the necessary information and documents were provided by the complainant to process the subsidy by the bank. Complainant had brought to the notice of the Op through letter dated 20.3.2023 regarding subsidy and was mentioned in the letter that Mr. Isam Singh (Aligarh) was casual to address the request for the subsidy. Bank had failed to proceed toward  the claims of the subsidy and the complainant was kept in dark about the progress of the subsidy by the concerned authorities. The complainant was deprived from availing the facility of subsidy and thereby caused loss to the complainant which is assessed at Rs.2500000. Complainant has also suffered loss towards payment of exorbitant rate of interest and other charges levied by   bank amounting Rs. 2400000  and thus complainant has suffered total loss amounting Rs.4900000  by the acts of commission or omission and negligence of the op bank. Complainant is the consumer and the OP bank is service provider. OP bank has failed to render services/ facilities to the complainant who is entitled for reimbursement of the amount Rs.4900000 with pendente lite and future interest @ 18% per annum with Rs.500000 as compensation for harassment and litigation expenses Rs.25000.                            
4. Op submitted in WS that the complainant has filed the complaint for reimbursement of the amount Rs.4900000 with interest @18% per annum and compensation Rs.500000 with litigation expense Rs.25000 as an afterthought and without any legal basis. Complainant has availed financial facility in the form WC/ WCTL/WCTL GECL from the answering OP and executed various facility documents for availing the facility. However, since the complaint cannot maintain financial discipline, account turned  into NPA and entitled the bank to proceed against the complainant in accordance with the law. There is no deficiency in service. Since the complainant availed the financial facility and allegations that the OP charged exorbitant rate of interest proves that financial facility was sanctioned as per terms and conditions of the facility documents executed by the complainant willingly and without coercion. Hence adequate services were provided by the Op. Complainant sought the outstanding dues vide OTS 13.2.2023 which was replied by the Op as being outside the preview of the Op.              
5. Complainant has filed his affidavit and papers in support of his pleadings. Ops have also filed affidavit in support of their pleadings.
6. We have perused the material available on record and heard the parties counsel.
7. The first question of consideration before us is whether the complainant is entitled to any relief?
8. Complainant has alleged that he had suffered loss on account of failure of the OP in complying with the procedure provided in the SARFACI Act, 2002 in classifying his account as NPA. Complainant has raised specific allegations in this regard to comply with the provisions of law and depriving the complainant from the opportunity of being heard and providing time to meet the exigency. Op has not specifically replied  to the allegations made by the complainant and the allegations made by te complainant are not rebutted by the Op and are treated to be proved against the Op. Complainant has also alleged that the Op had not provided facility of loan moratorium as  directed by Hon’ble Supreme Court and RBI guidelines Op has also not specifically replied to the allegation in this regard made by the complainant and the pleas raised by the complainant in this regard are also proved against the Op as being not specifically rebutted by the Op. thus it is proved that the complainant has suffered loss of the amount Rs.2400000 and mental agony physical pains which may be a assessed at Rs.500000 by the act of commission or omission and negligence of the Op as stated by the complainant.
9. Complainant also alleged that he had applied for subsidy under the scheme operated under the Nation Bank for Agriculture and Rural Development (NABARD) on the loan amount Rs.10700000. complainant has alleged to have submitted all the documents and all necessary information to the Op Bank but the OP Bank failed to proceed towards the claim of the subsidy and he was kept in dark about the progress of granting the subsidy by the concerned authorities. Op has not specifically rebutted the allegations made by the complainant in this regard. Complainant has stated to have suffered loss amounting Rs.2500000 by the act of commission or omission and negligence of the OP bank which stands proved.                  
10. The question formulated above is decided in favor of the complainant.
11. We hereby direct the Op to pay the complainant Rs.4900000 (Forty Nine Lakh) with pendente lite and future interest @ 9% per annum. Op shall also pay to complainant Rs.25000 (Twenty Five Thousand) as mental agony and Rs.20000 (Twenty Thousand) as litigation expenses.
12. Op shall comply with the direction within 30 days failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
13. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
14. File be consigned to record room along with a copy of this judgment.