IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 20^th day of July, 2024

Present: Sri. Manulal V.S. President

  Smt. Bindhu R.  Member

C C No. 94/2023 (Filed on 28.03.2023)

O R D E R

Smt. Bindhu R.  Member

The complaint is filed under Section 35 of the Consumer Protection Act 2019.

The complainant stood as a guarantor on a self bond of ₹ 5,00,000/- (Rupees five lakhs only) for a loan issued by the 1^stopposite party to one Binu Kumar who was a friend of the complainant in 2014. The said Binu Kumar executed an affidavit in front of the 1^stopposite party undertaking the whole responsibility of the said loan. After few months the complainant received a notice from the 2^nd opposite party Bank for demanding to close a business loan of ₹ 5,00,000/- (Rupees five lakhs only). The complainant approached the 1^st opposite party and told him that he did not avail a business loan but offered himself as a surety for a business loan. The complainant demanded the documents for the said business loan but the 1^st opposite party informed that only when he closes the said loan, he could return the documents. As a result of the continuous pressure exerted by the complainant upon the said Binu Kumar he paid the entire loan amount and closed the loan. Thereafter when he requested for the NOC, the manager hanged back. Later when the 2^nd opposite party understood that the complainant would start litigation they issued NOC to the complainant. Thereafter when the complainant again demanded the documents from the 1^st opposite party, he threatened the complainant but did not return the documents. When the complainant approached the 1^st opposite party he informed that it was the 3^rd opposite party who dealt with the said loan and thereafter when the complainant contacted the head office of the Bank they informed that the said loan was created in a special circumstance as unofficial for which the branch only was responsible and they had directed the 1^st opposite party to solve all the issues related to this loan. But no response was obtained from the opposite parties yet and hence the complainant approached this commission against the unfair trade practice by the 1^st opposite party by creating a fake loan upon the documents of the complainant by defrauding both the complainant and the Bank. The complainant had lost his CIBEL score, his goodwill in all financial transactions etc. Because of  this the complainant had to sell his property for a meagre value as he was unable to procure a loan.  Hence the complaint is filed for a direction to return the documents of the complainant, to issue an eligibility certificate in the name of the complainant after correcting the loan documents, to pay a compensation of ₹ 19,55,000/- (Rupees nineteen lakhs fifty five thousand only) towards the unfair practice and deficiency in service from the part of the opposite parties.

On receipt of notice the opposite party appeared before this commission and filed version. Thereafter second and third opposite parties are also additionally impleaded by the complainant and they also appeared and filed version.

The 1^st opposite party contended that the complaint against him is not maintainable before this commission as the 1^st opposite party is not a service provider and the complainant is not his consumer. The 1^st opposite party is only an accountant in the Kerala Bank, Pathanad Branch, not a branch Assistant Manager as stated in the complaint. At the time of the disputed loan in the complaint the 1^st opposite party was working as a cashier in the Kottayam Co-operative Bank, Pathanad Branch. The 1^st opposite party has no relation with the sanctioning of the loan to the complainant. Kottayam District Co-operative Bank known as Kerala Bank, Pathanadu Branch is a necessary party to this complaint and the complaint is bad for non joinder of necessary parties. The first opposite party being a physically handicapped person he is still working in the Pathanad Branch on special consideration.

The complainant and his friend one  Binu Kumar P.G executed  biparte agreement with the Kottayam Co-operative Bank mortgaging the property of the said Binu Kumar in survey 63/5 of 9 Ares in the Vellavur Village and the complainant took ₹ 5,00,000/- (Rupees five lakhs only)  as business loan from the Co-operative Bank on 26.03.2014. The loan was taken upon a condition of repayment in 120 monthly instalments. The said Binu Kumar P.G had availed    ₹ 3,00,000/- (Rupess three lakhs only) and his wife Shalini ₹ 2,00,000/- (Rupees two lakhs only) as loan on the security of the above said property. Since at that time as per the Bank’s policy more than one loan was not given to one person, the complainant for helping the said Binu Kumar and his wife to avail a housing loan by closing the previous loan took a loan of ₹ 5,00,000 (Rupees five lakhs only)  upon the security of the above said property itself. The allegation that the said loan was given upon the self bond guarantee is false since the bank never sanction loans on personal bond. All the loans above ₹ 3,00,000/- (Rupess three lakhs only) were given as business loans. The Bank or its staffs are not responsible for any transaction or agreements between the complainant and the said Binu Kumar. It is not correct that the said Binu Kumar executed an affidavit to the complainant and even if so it would not bind the 1^st opposite party or Bank. The said affidavit was not signed before the bank staff. The complainant himself is liable to repay the loan taken from the Bank. The 1^st opposite party and the said Binu Kumar has no other relation than he is a customer of the Bank.

The complainant had never approached the 1^st opposite party and demanded the documents of the loan to be returned. The 1^st opposite party has never requested the complainant for giving security to any loan. The 1^st opposite party has no right to ask the complainant to pay off the loan and then only he could return the documents as he is only a cashier there. He has not received any direction from the Kerala Bank regarding this loan as he is not the concerned person. The complainant has closed the said loan and the Bank issued NOC also.

All the allegations against the 1^st opposite party that he had done misappropriations with regard to the loan of the complainant are false. All the allegations against the 1^st opposite party and the bank that they had forged some documents in the name of the complainant and issued fake business loan in his name is not true. The complainant himself is responsible for lowering of his CIBIL score as he made default in the repayment of the loan. The complainant has raised all these allegations only to cover up his mistake. The 1^st opposite party has not done any act causing financial loss to the complainant. The documents produced by the complainant are not admissible. The said affidavit executed by Binu Kumar is only a forged one. The bank sent documents related to the loan on as per the request of the complainant dated 14.03.2023 and allegation that the bank sent documents on 03.04.2023 in fear of litigation is not correct. The complainant has no right to realise any amount from the 1^st opposite party as there is no consumer relation between them. Hence the complaint is liable to be dismissed with compensatory cost.

The 2^nd opposite party filed version for themselves and also in favour of 3^rd opposite party by Suresh Kumar G, Manager, Kerala State Co-operative Bank, Pathanad branch.

The first contention of the opposite parties is that the complainant has filed the complaint in the capacity of a guarantor for the loan availed by one Binu Kumar. As a guarantor he is not a consumer and the complaint is not maintainable as per the Provisions of Consumer Protection Act 2019 and relief sought for are also beyond the purview of the Act. The allegation that when the complainant approached the head office of Kerala Bank, they informed that the loan was created unofficially and the branch is only responsible for the same is not at all true and denied. All the other contentions in the version by the second and third opposite parties are the same as that of the 1^st opposite party’s version and hence for the sake of brevity it is not reiterated here. Towards the evidence part of the complaint, the complainant marked Exhibits A1 to A11 out of which Exhibit A6 and A9 are subject to proof and the complainant was examined as PW1. 1^st opposite party  was examined as DW1 and 3^rd opposite party as DW2 from the part of the opposite parties and Exhibits B1 to B10 were marked.

Considering the pleadings and evidence on record, we frame the following issues to be answered:-

1. Whether the complaint is maintainable before this Commission?
2. Whether the complainant has established the deficiency of service on the part of the opposite parties?
3. If so what are the reliefs to be granted?

Points Nos. 1 to 3

The case of the complainant is that he stood as a surety for a loan of          ₹ 5,00,000/- (Rupees five lakhs only)  availed by his friend one Binu Kumar from the opposite parties. But later, the opposite parties forged the documents and created another loan in the name of the complainant. Though the complainant repeatedly demanded for the return of the documents which he submitted at the time of issuing the loan in which he was the surety, the opposite parties did not return the same instead abused and threatened him. Hence this complaint is filed.

In order to substantiate his case the complainant produced documents  Exhibit A1 to A10. Exhibit A1 and A2 which are the loan application and loan agreement respectively alleged to have forged by the 1^st opposite party for misappropriating the amount by way of loan in the name of the complainant. The case of the complainant is that the 1^st opposite party in consonance with the other opposite parties have forged the documents of the complainant and issued a loan to someone else in his name.

Hon’ble Supreme Court in City Union Bank Ltd., vs V.R. Chandramohan, 2023 SCC Online SC 341 observed that based on facts of the matter, “there was no wilful fault, imperfection, shortcoming or inadequacy in the discharge of duty on part of employees of bank to be termed as ‘deficiency in service’ under Section 2(1)(g) of 1986 Act.”

The Court held that complaints involving highly disputed questions of facts, or cases involving tortuous acts or criminality like fraud or cheating could not be decided by SCDRC or NCDRC respecting the summary nature of proceedings. The Court further clarified that the burden of proving deficiency in service under Section 2(1)(g) of 1986 Act would always be upon the person alleging it. The Court said that the respondent miserably failed to discharge his burden to prove deficiency in service on part of the Bank employees. The Court, therefore, dismissed the original complaint, quashed and set aside the orders passed by the State and National Consumer Disputes Commission.

"The deficiency in service, as well settled, has to be distinguished from the criminal acts or tortuous acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act".

The allegation of forgery is to be proved by a court of law under the relevant provisions of the criminal laws through a process of elaborate evidence. Consumer Protection Act is though a benevolent legislation needs summary trial. Consumer Commissions lack jurisdiction to try cases which need elaborate evidence. So this complaint cannot be disposed by this Commission.

Thus point No.1 is answered against the complainant and we find that this complaint is not maintainable before this Commission.

As it is found that the complainant is not maintainable before this complaint, we are not inclined to consider the other points.

Hence we are of the view that this is a fit case to be dismissed and accordingly the complaint is dismissed.

Pronounced in the Open Commission on this the 20^th day of July, 2024

    Smt. Bindhu R.  Member      Sd/-

    Sri. Manulal V.S, President   Sd/-

APPENDIX :

Witness from the side of the complainant :

PW1         Joy George

Witness from the side of the Opposite Parties :

DW1         Jinto Jacob

DW2         Sunish Kumar

Exhibits from the side of the Complainant :

A1     Copy of the loan application dated 27.03.2014

A2     Copy of the agreement dated 26.03.2014.

A3     Copy of the letter of acceptance dated 26.03.2014.

A4     Copy of the promissory note dated 26.03.2014.

A5     NOC dated 18.11.2022

A6     Promissory note, dated 27.03.2014

A7     Copy of the CIBIL score details

A8     Copy of the notice dated 18.10.2022.

A9     Copy of the Bank passbook.

A10   Copy of the Aadhar card.

A11   Copy of the complaint submitted to the District Head office, Kottayam dated 09.03.2023.

Exhibits from the side of the Opposite Parties :

B1     Copy of the loan application dated 19.12.2011.

B2     Copy of the loan application dated 22.12.2011.

B3     Copy of the valuation report dated 02.01.2012.

B4     Copy of the petitioner’s loan application dated 27.03.2014.

B5     Copy of the valuation certificate dated 25.03.2014.

B6     Consent letter dated 27.03.2014.

B7     Copy of the Housing loan application dated 17.03.2015.

B8     Copy of the loan account details of the loan applicant.

B9     Copy of the printout from the finacle software.

B10   Certificate u/S 65 B of the Indian Evidence Act, 1872.

By Order,

     sd/-

                                                                                                     Assistant Registrar