Jammu and Kashmir

Jammu

CC/393/2017

ABDUL HAEI - Complainant(s)

Versus

J&K BANK - Opp.Party(s)

AK SHARMA

06 Oct 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No.:               28/DFJ         

 Date of  Institution   :  25-04-2013

 Date of Decision      :    17 -09-2018

 

 

Abdul Haie,

S/O Sh.Ab.Baqi,

R/O Village Raipur Domana,

Tehsil & Distt.Jammu.

                                                                                                                                   Complainant

                     V/S

1.The Zonal Manager,

   J&K Bank Ltd.Rail Head Complex,

  Panama Chowk,Jammu.

2.Manager J&K Bank Ltd.

   Bantalab(Jammu).

                                                                                                                                                Opposite parties
CORAM

                  Khalil Ahmed Choudhary  (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                  Member

                  Mr.Ghulam Sarwar  Chauhan                         Member.

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.A.K.Sharma,Advocate for complainant, present.

Mr.Akash Gupta,Advocate for Ops,present.

 

 

                                                              ORDER

 

            Present complaint filed in this Forum with its history reads that the present complaint is filed by the complainant under section 10 of J&K Consumer Protection Act(for brevity to say the Act).The complaint is filed on the grounds that complainant being unemployed youth in order to take the benefit under Govt.sponsored scheme under PMEGP(Prime Minister Employment Generation Programme ) applied for the loan so to set up his business unit of fabrication for manufacturing of gates,grills,doors,windows frames etc.to the tune of Rs.13.95 lacs.That after the complainant approached concerned sponsored department to reap the benefit under the above said scheme, the District Task Force Committee was set up which recommended the case of complainant after thorough verification and satisfaction, as per complainant was to deposit on his own contribution of Rs.1.39 lacs i.e.10%  5% of the total cost and the cost was forwarded to Op bank branch office Bantalab,Jammu.The bank being satisfied with the case of complainant required from the complainant certain formalities to be fulfilled, the detail where of is given hereunder:

1. NOC from all the local banks
2. NOC from Pollution Control Board
3. PAC from Power Development Department
4. Project Report
5. Project Balance Sheet
6. Two Govt.employees as Guarantor
7. Rent Deed.

Inter alia the complaint further reads that the complainant completed all those formalities and had purportedly incurred an amount of Rs.1,70,500/-approximately on this whole exercise besides Rs.5000/-monthly rent of the shop. Other than this has alleged in the complaint complainant also incurred expenses on preparation of bank documents as he was instructed by the bank to approach bank advocate and had incurred Rs.6000/-on preparation of these documents as required by the bank, the Op bank thereafter getting those documents assured the complainant that the said loan amount will be released after one week.

It is further added in the complaint that the Op bank did not sanction loan for about 12/13 days after getting all those documents as stated, which constrained the complainant to approach the bank and asked for release of loan, but Ops are said to have delayed the matter on one pretext or the other and in turn as alleged in the complaint asked the complainant to further furnish guarantee of two witnesses preferably government employees which the complainant also complied with.

It is further case of complainant that till date the bank did not disburse the loan amount and has suffered a lot due to delay in making the payment, despite the fact that he had already incurred huge amount on the completion of requisite formalities and also while taking the shop on rent and further also to have purchased two welding machines from M/S S.I.Electricals,as well as, transformer from M.M.Telecom.This in action not to disburse the loan amount on the part of Op has caused suffering both financially, aswell as mentally to the complainant Further the complainant was also forced to return back the said transformer to S.I.Electricals who had deducted Rs.12,500/-from the complainant, copies of bills evidencing the same factum are enclosed herewith and marked as Annexure-A&B,respectively.The complainant has thereby claimed that the Ops being deficient in providing service to complainantand has served legal notice on,04-12-2012 to Ops reiterating the same request for redressal of his genuine grievance and release the loan amount in his favour.It is also thecase of complainant that after receipt of legal notice Ops called upon complainant and further asked to submit some more documents which were again submitted by the complainant. The complainant had to run from pillar to post to get the loan sanctioned in his favour,but the Ops with malafide intention did not release the loan amount in his favour which has caused severe prejudice to the rights of complainant which also caused mental trauma and harassment. The Ops have thus provided deficient service and across the ambit and scope of above said facts and circumstances, complainant has claimed a total compensation of Rs.8,10,500/-on account of expenses incurred on preparation of documents and further compensation on account of deficient service and mental harassment and embarrassment meted out to him including litigation charges.

Complaint has been filed before this Forum on,25-04-2013,Ops have been put to service through registered postal means as token of proof upon them are on the file. Pursuant to service effected upon OP the OP through their counsel registered their appearance before this Forum on,27-05-2013 and further minutes of proceedings recorded in the case reveals that vide order dated,12-12-2013.Ops have filed written version which is on record and thereafter case has been fixed for evidence of complainant.On,29-01-2014 complainant has tendered his evidence by way of affidavit which is on record. The case was listed for evidence.On,15-04-2014 affidavit of another witness,namely,Mohd.Hanif has been filed by the complainant and with this evidence of complainant was closed.

The case thereafter was posted for evidence of Ops.

Further the series of orders recorded on the file least mentioning about each and every order to avoid unnecessary burdening of the judgment, but it transpires from the record is that the counsel for OP has taken the plea that the complainant has not provided copies of statements of his witness to Op,same be provided to him. Vide order deated,14-11-2014 the said copies of statement of witness of complainant stands furnished to OP and besides the case was simultaneously fixed for the evidence of OP.On,02-01-2015 counsel for OP least filed the evidence choose to file application seeking cross-examination of complainant’s witness that as per record on,01-09-2015 complainant filed objections to the said application to the said motion as made by Opseeking cross-examination before this Forum and vide order datede,17-10-2015 the said application came to be allowed and Op was allowed to cross-examine the complainant and his witness,namely,Mohd.Hanifand there was direction of the Forum for these witnesses to remain present on the next date of hearing. While not to be oversite, but it actually reflects that much time have been consumed for production of complainant and the said witness before this Forum for cross-examination purpose in this Forum and few of the orders on the file also does reveal the fact that the parties have expressed their desires before this Forum to amicably settle the case, in short to say which could be coupled reason for such detailed cross-examination of said witnesses by the Forum and as is so evidenced.

As per record of the case on,05-03-2016 complainant has appeared and his part statement has been recorded in the cross-examination and further statement has been deferred which finally has been recorded on,10-03-2016.

Cross-examination of other withness,Mohd.Hanif has also been concluded on,10-03-2016 and with this the evidence of complainant have been closed and the case was thereafter listed for Ops evidence.On,19-07-2016 Op in support of the case have also produced evidence of two witnesses by way of affidavit,namely,Anita Nehru,Branch Head of J&K Bank Ltd.and Prabhat Singh,presently Branch Head and with this the evidence of Op have also been closed and thereafter case was listed for arguments.

Record in the case further reveals that the case was being posted for final arguments, complainant too has filed application on,19-08-2016seeking cross-examination of Op witnesses, however, said application have not been considered as it had not been legally maintainable and countenanced with law, thereby invariably the case has come up for final arguments.

Arguments are heard in extenso and record of the case is also minutely gone through, but it reveals here precisely the case of complainant is that

While taking notice of arguments and also record available on the file the actual dispute as projected by the complainant by way of this complaint is that he being unemployed educated person in order to take the benefit under Govt.sponsored scheme under PMEGP for unemployed persons. His case being duly sponsored by DTFCto meet the requirement of the policy as evidenced from the sponsor letter issued from the General Manager DIC to Branch Manager. It was the bank who had been finally authorized to extend the benefit of the said loan under the Sponsorship scheme imparted by the Govt.in other words to take financial call in the matter, but the grievance of complainant is that the Ops have not disbursed the said loan in favour of complainant ,besides it being duly sent to him, which as per the complainant has resulted in huge loss besides mental agony and embarrassment to the complainant for the Ops not rendering him adequate and fair services. The complainant as stated here to fore filed the present complaint for redressal of his grievance.

Before proceeding further in the matter, the evidence lead by the parties to the case also needs to have course over so as to appreciate the facts on record and further to appreciate the real controversy as put on record before this Forum for its redressal.The complainant’s statement as tendered by him by way of affidavit and his witness need not to be reproduced here as the same is clear reproduction of facts already put in the complaint,however,what is stated in the cross-examination part that needs to be reproduced here.

It is stated by the complainant in his cross-examination that he has started practice as an Advocate since Dec.2015.The loan as applied for was for setting up the business of fabrication unit for making grills,doors,windows etc.It is stated that he does not remember the exact date of sanctioning of loan amount by the bank. It is true that sanction of loan was modified. It is true that as per modified sanction, he was required to furnish collateral security by way of mortgage of land and deposit in the shape of TDR.He complied with the requirement of TDR.It is a fact that initially to comply with mortgage claim, he offered mortgage of his residential house, which was not accepted by bank and thereafter he offered property of third party, namely, Zaffer Iqbal S/O Nasar Ali R/O Raipur Domana,and same was accepted by bank. The property belonging to Zaffar Iqbal for mortgage has construction raised over it and he do not remember the measurement of said property. It is true that exact land on spot belonging to Zaffar Iqbal is more than the one recorded in sale deed. It is correct that Bank Manager asked him to clarify the lands, as to which is measuring 5 marlas and 7 ½ marlas.He clarified to the bank that after calling Patwari on spot actual portion is shown as, land measuring 5 marlas was purchased by Zaffar Iqbal,whileas,later on said Zaffar Iqbal purchased 2 .5 marlas of land. It is true that land measuring 2 1/2 ,marlas was occupied by said Zaffar Iqbal later on, but no document prepared in this regard. There is no written clarification regarding measurement of land given by Patwari nor anything to this effect is placed by him on record. He can produce said clarification in writing. He produced copy of Report of Patwari.He had produced photocopy of Report. It is true that Patwari Report only pertains to 5 marlas of land it is do not make mention regarding rest of 2 1/2 marlas of land,Patwari Report is marked as AH (subject to objection) .He do not mention in complaint nor in any evidence affidavit regarding2 1/2 marlas of land of Zafar Iqbal.Application dated 21-11-2012,annexed with the written version by the Branch Manager Ban Talab,Jammu and same is true and correct. He was admitted in LLB Course in the year 2004 and completed degree of law from Dogra Law College in the year 2008.He do not remember as to when he applied for licence to practice as a lawyer. He do not remember as to when notification regarding issuance of licence was issued. He can produce the copy of licence,which was issued by State Bar Council in the month of Feb.2010 when he applied for establishment at that time licence for practicing law was issued to him by State Bar Council. For establishing the unit he take permission from all necessary departments, which was issued by all the concerned departments. When permission was granted to him by all departments for establishing unit, thereafter till date he did not surrender licence,It is true that scheme under which he applied for establishing the unit was meant for unemployed educated persons. It is true that the original loan documents regarding any credit facility prepared by Mr.Ashok Bhat (Advocate)are still in his possession. All the documents annexed with complaint are the photocopies of original. There is no document on record, which show that he returned the transformer to M.M.Telecom. There is no document on record to show that M.M.Telecom deducted Rs.12,500/-while returning the transformers. It was conveyed orally by Manager J&K Bank Br.Bantalab Jammu o him for completion of formalities. He do not remember as to when he was called by Br.Manager Bantalab asking for completion of formalities. He do not remember the details of documents asked by Br.Manager Bantalab and the documents submitted by him. It is true that Bank has rejected the loan request and did not disburse the loan amount on the ground that mortgage property is not identifiable/located. He did not mention in complaint nor in his evidence affidavit that anybody ever accompanied him during the process of loan with concerned Bank.

A short but an interesting question falls for determination in the present case is whether an Advocate can avail loan under self employment scheme?

The role of an advocate is essentially different from the role of any other profession. An advocate is said to belong to a noble profession. The Act itself envisages the State Bar Councils who are the elected peers of advocates themselves to lay down the standards for the professional conduct and etiquette. That would naturally bring in its wake the power to regulate entry to such a noble profession. It is said that law is a jealous mistress that calls for undivided loyalty and unflinching attention from her devotees. Dry drudgery of desks ‘dead wood is the essential requirement of an advocate aspiring to win laurels in the profession. The attack on the impugned rule on the ground of excessive delegation of legislative power will have to be examined in the light of scheme of the Act which has entrusted the power and the duty to elected representatives of the profession constituting the State Bar Councils to lay down the high standards of professional etiquette as expected of the advocates enrolled by it. It is pertinent to note that the Act has entrusted to the Bar Council of India,amongst Ors.,the functions to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils. The Bar Council of India is entrusted with the function to recognize Universities whose degree in law shall be a qualification for enrolment as a advocate and for that purpose to visit and inspect Universities with such directions as it may give in this behalf. It conducts seminars and organizes talks on legal topics by eminent jurists and publishes journals and papers of legal interest. In this connection is also exercises general supervision and control over the State Bar Councils, it is also entrusted with the task of promoting and supporting law reform. All these provisions as laid down by Section 7 of the Act leave no room for doubt that even prior to the enrolment as advocate the teaching of law and laying down of the curriculum for law courses are also the tasks entrusted to the Bar Council of India, which is the apex body of professionals monitoring these matters in conjunction with the State Bar Councils. Thus even at pie-entry stage of an advocate to the profession his equipments as a student of law and the requirement basic legal education with which he should be armed before he can aspire to be enrolled as an advocate are also looked after by the Bar Council of India and the State Bar Council, concerned which works under the general supervision and control of the apex body,namely,the Bar Council of India. Thus the Bar Council of India is cast with the duty to take all such steps as it considers necessary to filter students at the entry stage to the law course e.g.by providing an entrance test, as well as at the entry point to the profession e.g.by providing an examination or a training course before enrolment as an advocate. The Act also deals with the topic of regulation of professional conduct of advocates from the entry point itself.

L/C for OP placed reliance on the judgment of Supreme Court of India passed in case titled (Dr.)Haniraj L.Chulani V/S Bar Council of Maharashtra and Goa,wherein it has been held as under:

A,Advocate Act,1961,Sections 24(1)(e),28(2)(d) and 49-Maharashtra and Goa Bar Council Rules, Rule 1-Bar Council of India Rules, Rules 2,9and 47-Constitution of India, Articles 14,19 (1)(g) 19(6)and 21-Enrolment as an Advocate-Appellant is a medical practitioner who does not want to give up his medical practice but wants simultaneously to practice law-Respondent-State Bar Council of Maharashtra & Goa was justified in refusing enrolment of appellant as an Advocate under the Advocates Act,1961-To put forward his best performance as an Advocate he is required to give whole-heard and full time attention to his profession-Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise-If he is permitted to simultaneously practice as a doctor then the requirement of his full time attention to the legal profession is bound to be adversely affected-Consequently however equally dignified may be profession of a doctor he cannot simultaneously be permitted to practice law which is full time occupation-If the entry to the profession is restricted by the State Bar Council by enacting impugned rule for not allowing any other professional to enter the Bar when he does not want to give up the other profession but wants to carry on the same simultaneously with legal practice, it cannot be said that the Bar Council has by enacting such a rule imposed any unreasonable restriction on the fundamental right of prospective petitioner who wants to enter the legal profession.

                 

L/C for Ops vehemently argued that there has been no deficiency on their part, as the land over which construction was done was mortgaged measuring 7.45 marlas,whereas, the title documents produced by the complainant pertains to 5 marlas and the complainant has also not provided any document to the bank regarding Nishandehi of the said land, as well as, any clarification about the measurements of said land.

                     It is settled preposition of law that the burden lies upon complainant to prove deficiency in service on the part of OPs,but complainant failed to discharge his burden,therefore,we did not see any deficiency in service on the part of Ops,which calls for interference.

 

                      In afore quoted back drop, complaint fails, accordingly, same is dismissed.However,in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records .

 

Order per President                                                 (Khalil Choudhary)                               

 

                                                                               (Distt.& Sessions Judge)

                                                                                   President

Announced                                                           District Consumer Forum

17-09-2018                                                              

                                                                                       Jammu.

Agreed by                                                                

                                                                              

Ms.Vijay Angral          

  Member                                                                                                                                                               

 

Mr.Ghulam Sarwar Chauhan

Member