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 complainant stating that the complainant on 08.02.2001 took an agricultural loan of Rs.1,06,500/- only bearing loan A/c no.NBD/PDA/PT/1031 for purchasing one power tiller (Sujata Super SN-1100AZN) for agricultural purpose and on regular basis repaid a huge amount of EMI  s and she has a huge amount of security deposit money in the OP bank and as such she is a bonafide consumer of the OP bank and in the year 2008 the then Govt. announced that every kind of agricultural loan by the common farmers of India in the period on and from 31^st March, 1997 to 31^st March 2007 will be exempted and they will exempted from repayments of their unpaid loan and the petitioner on many occasions tried to convince the OP verbally by showing Daily newspapers but the OP on every time denied the same on various pretext, though many farmers got the facility of their loans and on every month the OP bank is creating pressure to the petitioner to repay the said loan with a huge interest and on 10.4.2018 the OP bank again creating pressure to repay with huge interest to the petitioner.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 1,50,000/- compensation for mental agony and financial loss and to pay sum of Rs. 20,000/- for litigation cost.

Defense Case:-       The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against op side and stated that the instant case filed by the complainant is barred by thelaw and lack of jurisdictionas no cause of action arose in thematter of deficiency in service from the part of the OP Pandua Branch and the petitioner took an agricultural loan of Rs.1,06,500/- against her account no.NBD/PDA/PT/1031 in the year 2001 (08.02.2001) for purchasing one power tiller for agriculture purpose, he has quite solvency for repayment of her loan amount as stipulated in the arrangement letter at the time of sanction of her loan, which duly acknowledged by her.  The repayment period and EMI has also been incorporated in the said loan agreement, which was duly acknowledged and executed by her.  That during her loan period she has not maintained the financial discipline and norms of the bank.  Accordingly the loan case should not come in the provision of consumer Dispute Redressal Forum and her loan is not subject matter of the debts relief scheme of Central Govt. which she alleged, during the period of debt relief, for her claim and neither she, nor any representative filed any prayer before the bank in the year 2008 for getting the benefit of debt relief scheme.  Due to non-compliance of the norms of the bank loan for the said agriculture loan which is not at all subject matter of debts recovery relief, for adjudication by this Forum.  Accordingly the present claim in the application before this Forum is also barred by limitation.

            The alleged documents and related matter are not available in the bank right now and after the statutory period of Debt relief, and elapse of long time the allegation of the above subject matter of the case, which are not related with the deficiency in service and unfair trade practice coupled with deficiency in service U/sec. 12 of C.P.Act. So the case is not maintainable against the bank.

            The subject matter and allegation as stated in the plaint are not at all true and correct and also not maintainable as the complainant arises after about 10 years which is also barred by limitation.  This court has no jurisdiction to entertain the complaint where the bank is always working for the interest of low middle class family of grass root level and also for the development of society.  The entire concocted story of debts relief scheme of Govt. of India as stated in the plaint are manufactured story and she has not submitted any supported documents as alleged by her.So, the instant case should be dismissed with cost.

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 parties.

            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 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 heard in full. In course of argument ld. Lawyer of complainanthas 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 opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. 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 opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have 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 Pandua, Hooghly and op has it  s place of business at Pandua, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 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, 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, 2019. 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). In view of this position the defense plea of the op bank that this case is not maintainable, this DistrictCommission has no jurisdiction, this case is barred by limitation and there is no cause of action, cannot be accepted.

   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 complainant has taken agricultural loan from op, bank on 8.2.2001.
2. It is also admitted fact that the said loan account no. is NBD/PDA/PT/1031.
3. There is no controversy over the issue that the said agricultural loan which was taken by the complainant was of Rs. 1,06,500/-.
4. There is no dispute over the issue that the complainant has paid EMI and also kept security in respect of the said loan.
5. It is admitted fact that the complainant had taken the said agricultural loan for purchasing one power tiller (Sujata Super SN-1100AZN).
6. It is also admitted fact that the loan which was taken by the complainant has not yet been repaid.
7. There is no controversy over the issue that the complainant adopted the plea that the then Govt. announced that every kind of agricultural loan taken by the farmers of India for the period 31^st March, 1997 to 31^st, March 2007 will be exempted.
8. There is no dispute over the issue that the complainant has not been exempted from repayment of the unpaid loans.
9. It is admitted fact that the complainant in the matter of getting exemption of the repayment of agricultural loans is relying on the newspaper publication.
10. It is also admitted fact that neither the complainant nor the op, bank has filed any Govt. order in the matter of granting exemption of agricultural loan.
11. It is not disputed by the parties that the complainant has not disclose how many E.M.I. he has paid and what amount of loan is remaining unpaid.
12. There is no controversy over the issue that the op, bank has also not disclose the same.

            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. There is no necessity of giving separate decision over the above noted admitted facts.

              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 complainant is adopting the plea that the op, bank authority instead of exemption of the agricultural loan, creating pressure upon the complainant for repayment of the loan which is highly illegal and it amounts to deficiency of service but on the other hand the op, bank authority has taken the defense alibi that the subject matter of loan is not at all coming under the debts recovery reliefs scheme and so this case of the complainant is not maintainable and complainant is not entitled to get any relief in this case.

        For the purpose of arriving at just and proper decision in respect of the above noted point of differences and/ or apple of discords this District Commission after going through the materials of the case record and on close scrutiny of the evidence on record finds that the op, bank authority has failed to produce any document to prove that the prayer of the complainant in the matter of granting exemption of the agricultural unpaid loan is not coming under the debt recovery reliefs scheme. Thus, it is crystal clear that in the absence of above noted important document the defense alibi adopted by the op, bank that the complainant is not entitled to get any relief in this case cannot be accepted. All these factors are clearly reflecting that the op, bank authority has not discharged their onus of proving that there was dues of the complainant in respect of the agricultural loan. This vital matter is clearly indicating that there is gross violation of service on the part of the op, bank authority. Over this issue the definition of expression “service” in Section 2 (O) of Consumer Protection Act, 1986 was wide enough to comprehend services of every description and the District Forum has the jurisdiction to entertain and try such compliant. This legal principle laid down by the Hon  ble Apex Court and it is reported in 2022(2) CPR 249 (SC). Thus it is crystal clear that the service provided by the opposite party, bank authority is not at all proper and it clearly indicates that there is deficiency in service and so the complainant is entitled to get the relief which has been described in points of consideration nos. 4 and 5 of this case.

            A cumulative consideration of above discussion goes to show that complainant has proved his case in respect of all points of consideration and so complainant is entitled to get relief in this case.

In the result it is accordingly

ordered

that the complaint case being no. 58 of 2018 be and the same is allowed on contest but in part.

            It is held that the complainant is entitled to get compensation of Rs. 1,06,500/- and litigation cost of Rs. 5000/- from the op, bank authority for deficiency of service on their part.

Opposite party, bank authority is directed to pay the said amount of Rs. 1,11,500/- within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

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.