IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 07thday of February, 2019.
Filed on 28-02-2017
Present
Sri.E.M. Muhammed Ibrahim,B.A,LLM (President)
2. Smt. Sheela Jacob, B.com,LLB (Member)
In
CC/No.59/2017
between
Complainant:- Opposite parties:-
Sri.K.S.Abdul Nazar, 1. The Manager
Kattanathu Veedu, District Co-oprative Bank,
Ponnadu.P.O., Mannanchery Branch,
Mannanchery, Alappuzha.
Alappuzha.
2. The General Manager,
Head Office,
Dist. Co-operative Bank
Alappuzha.
3. Additional 3rd O.P.
NABARD
District Office,
Gujarath street,
Alappuzha.
(Impleaded as per proceedings dtd
29-12-2017)
O R D E R
SRI.E.M. MUHAMMED IBRAHIM(PRESIDENT)
This case is based on a consumer complaint filed under section 12 of the Consumer Protection Act, 1986.
2. The averments in the complaint in short, are as follows:-
The complainant is an agriculturist and he applied for financial assistance offered by NABARD for persons engaged in conducting dairy farm with 25% subsidy. The said financial loan having 25% subsidy the application for the loan was made on 24-3-2012. However on 18-2-2012 the second opposite party granted a medium term loan for Rs.4,50,000/- in favour of the complainant. The complainant observed all the terms and conditions while availing the loan and has been continuously repaying the monthly installment of the loan. However the opposite party has not granted the subsidy of Rs.1,12,500/- which legally due to the complainant but all others who availed similar loan from under the scheme for other banks for obtaining subsidy. The complainant approach the opposite party on several occasions demanding to grant subsidy the opposite parties not paid an lead to the request. Hence on 4-11-2015 the complainant filed the petition before the 1st opposite party bank but the 1st opposite party has not taken any action and not sent any reply till date. He has also filed a complaint before the Regional Office of the NABARD on the same day. However he received laying a reply on 11.2.2016 from the Regional office of the NABARD. However on 30.302016 the complainant cleared the entire loan by paying the balance but the opposite parties has not granted the subsidy which was assured by the opposite parties by granting loan therefore the deficiency in service on the part of the opposite parties which resulted in metal agony apart from financial loss. Hence the complainant is entitled to get 1,12,500/- with interest at the rate of 12% per annum as subsidy Rs.1,00,000/-as compensation and cost of the proceedings.
3. The opposite parties No.1 and 3 resisted the O.P. by filing a joint version raising the following contentions:-
The complaint is not maintainable either in law or on facts. The complainant is not a consumer. The service of the opposite parties has been availed by the complainant without any consideration. Hence the said service will come outside the purview of the Consumer Protection Act. The complainant’s grievance is that the opposite parties has not only released to the alleged subsidy granted by NABARD which had lapse due to the fault of the complainant. The reliefs sought for by the complainant is barred by limitation and has become infructous. The complaint is hit by Sec.69 (100) of the Kerala Co-operative Societies Act. There is no negligence or deficiency of service on the part of the opposite parties. The complainant has suppressed material facts the complainant who has not fulfilled by the obligations of the scheme introduced by the NABARD is not entitled to claim the benefits the allegation that the complainant is eligible for RS.1,25,000/- subsidy is false. The opposite party never assured the complainant that application for the subsidy will be processed by NABARD as a matter obtained therefore the opposite parties cannot be blamed for non disbursement of the subsidy to the complainant. There is no inaction for the opposite party. If the complainant had actually given his claim with supporting documents the opposite party would have forwarding the same to the NABARD for consideration. The opposite party would further prayed to dismiss the complaint with cost. Originally there are only 2 opposite parties however NABARD has been impleaded as O.P.No.3. in responds to the notice additional 3rd O.P. NABARD has been entered appearance and filed a detailed version denying the averments and allegations in the complainant. It is contented by additional 3rd O.P. that the complaint is not maintainable against additional 3rd O.P. As there is no element of service being rendered by NABARD to the complainant subsidy given by the Government of India in the present case is a financial assistance for which no charges or fees or consideration is paid by the recipient of subsidy or any other person. The complainant was neither required nor paid any service charges to the 3rd O.P. There is no relationship of the consumer and service provider within the meaning of Consumer Protection Act. There is no privity of contract between the complainant and the answering opposite party. The financing bank / institution sanctions the loan to those projects, which comply with the guidelines for administering subsidy under Dairy Entrepreneurship Development Scheme issued by the department of Animal Husbandry, Dairying and Fisheries, Gol(DAHD&F) for eligible subsidy. Thus, in this case, the contract of banker and customer is entered into between the financing bank (O.P.No.1) and the complainant. The 3rd opposite party has neither sanctioned any loan to the complainant nor entered into any contract with the complainant. The role of 3rd opposite party in Gol’s subsidy schemes is merely that of an intermediary. In its present role, NABARD acts as a pass-through agency on behalf of the Gol for disbursing subsidy. This essentially entails that NABARD can only release subsidy based on the guidelines issued and availability of funds allocated by Gol to NABARD from time to time. The subsidy claim of the complainant was not received by the 3rd O.P. in time from Alappuzha DCCB (O.P.No.1). The 3rd O.P. on receipt of the complaint regarding non receipt of subsidy requested the complainant on 11-2-2016 to furnish details of the subsidy claim application to be forwarded by O.P.No.1 through their controlling office ie. (Kerala State Co-operative Bank-KSCB). But KSCB on 24-5-2016 forwarded the subsidy claim application of the complainant as submitted by opposite party No.1 stating that subsidy application of the complainant was lost in transit. Opposite party No.1 requested the 3rd O.P to consider the subsidy claim of the complainant. However, the said subsidy claim could not be processed by NABARD as the claim pertains to year 2012-13 and claim was received on 24-5-2016 and it is not possible to sanction subsidy during the year 2016-17 for loan sanctioned on 2012-13 due to budget constraints. Further, it appears from the documents submitted by KSCB (controlling office) that the claim has been forwarded by the Bank to NABAD first time in 2016. Since the claim was not received by NABARD, as per scheme guidelines, delayed claim cannot be considered for release of subsidy. In this regard, it is humbly submitted that DAHD&F (Gol) had temporarily suspended operation of DEDS scheme and had instructed NABARD to stop accepting fresh subsidy claims from 01-01-2015 until further orders. Since complainant’s subsidy claim was not received by NABARD in time and due to the delay committed by opposite party No.1, NABARD could not consider the same for grant of subsidy.
4. In view of the above pleadings the points that arise for consideration are:-
1) Is not the complaint maintainable?
2) Whether there is any deficiency in service or unfair trade practice on the side of the opposite parties No.1 and 2
3) Whether the complainant is entitled to get the reliefs sought for.
4) Relief and costs.
5. Evidence on the side of the complainant consists of oral evidence of PW1 and got marked as Et.A1 to A4. The opposite parties have not adduced any evidence either oral or documentary.
6. Heard both sides. The learned counsel for the 1st opposite party has filed notes of arguments also.
7. Point No.1
The specific contention of the opposite parties is that the person seeking benefit of subsidy under a specific scheme is not a consumer and granting subsidy is not a service within the meaning of Consumer Protection Act. To support the above contentions the opposite parties would rely on several decisions of the National Commission and has argued that the complainant will not stand at all. Admittedly subsidy has to be released by NABARD if the case of the complainant is against NABARD which is the agency which has to grant subsidy, the above contention would have been hold good. But in this case there is no specific prayer against NABARD. The original prayer in the relief portion of the petition is against opposite parties 1 and 2. As the complainant’s case is that due to the deficiency in service on the part of the opposite parties 1 and 2 in non-sending his application for subsidy along with details and covering letter, the NABARD failed to sanction subsidy legally due to him. Admittedly the complainant is an account holder of the first opposite party bank. Et.A4 is the pass book evidencing the loan transaction. There is no dispute with regards to fact that the first opposite party has sanctioned loan for which the complainant has to pay interest 10% per annum which is clear from Ext.A1 letter. The conditions stipulated in Ext.A1 &Ext.A3 letters would clearly indicate that the complainant is entitled to get 25% of the loan amount as subsidy which would come to the tune of Rs.1,12,500/-. In the circumstances it is clear that the complainant is a customer of the 1st O.P bank and would come within the definition consumer under Sec.2(d) of the C.P.Act 1986. In the circumstances we find that the complaint is perfectly maintainable against O.P.1 & O.P.2.
8. Point No.2&3
For avoiding repetition of discussion of materials these 2 point are considered together. Admittedly the complainant has filed the present complainant alleging non releasing of subsidy on the closure of the loan granted by the opposite party bank. According to the opposite party No.1 and 2 the complaint is not maintainable as the bank has not received any consideration what so ever from the complainant in the matter of alleged
Subsidy claim and therefore the complainant would not come within the purview of the definition of consumer as defined under Sec.2(d) of the Consumer Protection Act, 1986. It is further contended that the NABARD has been granting subsidy and the opposite party bank has no role in it and complainant has not received the subsidy from the NABARD due to his own fault. It is also contented that the relief sought for in the compliant is hopelessly barred by limitation. It is also contended that the complaint has not alleged any deficiency of service on the part of the opposite party No.1 and 2 in not granting subsidy hence the complainant has no cause of action. According to the opposite party the complaint is not maintainable on merit also as he has not fulfilled the obligations of the scheme introduce by the NABARD. On going through the definition under Sec.2(d) it is clear that the consumer is a person who purchased goods or availed service for the purpose of his own use and a person who does not obtain subsidy given by another agency with whom he has not direct excess nor paid any or promised to pay in consideration. The learned counsel for the opposite party by relying on the dictum laid on by the National Commission in Chaudhary Ashok Yadav Vs. Rewari Central Co-operative Bank and another has argued that subsidy offered to be paid is not service as defined under the Consumer Protection Act, 1986 and a person claiming subsidy from the Government or governmental agency will not be treated as a consumer as per the Consumer Protection Act, 1986. It is true that non-payment of subsidy by the government or governmental agency would not come within the definition of consumer under Consumer Protection Act. But here in this complaint, the allegation of the complainant is not against government or governmental agency like NABARD but against bank alleging that the opposite party No.1 and 2 made the complainant to believe that there is a scheme to grant loan to persons to start dairy farm by providing subsidy through NABARD. On believing the above representation the complainant on 24-3-2016 filed an application for loan anticipating subsidy. Accordingly the 2nd opposite party general manager of the first opposite party bank has granted a loan of Rs.4,50,000/- on 18-05-2012 as middle term agricultural loan having subsidy. It is also clear from the available materials that the complainant observed all terms and conditions of the loan and had repaid the monthly installment of the loan without any default but he has not received the subsidy of 25% of the loan amount as stated by the opposite parties while availing the loan. The complainant who has been examined as PW1 has clearly sworn in para 2 of the office proof affidavit that all other persons who availed loan from the said scheme form other different banks had been provided with the subsidy and in spite of his repeated request the bank has not taken steps to get subsidy by stating one reason or other that the complainant filed a petition alleging that he has not received an subsidy but the bank has not given any reply, that he has also approached the NABARD Kerala Regional Office on the same day but after 3 months he received a reply on 11-2-2016. According to PW1- while granting loan the opposite parties No.1 and 2 have made him to believe that the loan has been granted under the scheme having 25% subsidy but he has not been provided with subsidy. Hence according to PW1there is deficiency in service on the side of the opposite parties bank and its manager. In spite o lengthy cross examination nothing materials has been brought out to disbelieve the above evidence of PW1. The above version of PW1 stands collaborated by Ext.A1 to A3 documents. Ext.A1 is the letter dated 18-5-2012 issued in favour of the complainant by the General Manager of the Alappuzha District Co-operative Bank Head Office Alappuzha while granting medium term agricultural loan of Rs.4,50,000/-for conducting dairy unit. It is further stated in Ext.A1that the period of loan is 5 years and rate of interest is 10%. Condition No.4 in Ext.A1 specifies that complainant would get subsidy and that subsidy would be kept in the subsidy reserve account for 3 years. Condition No.5 in Ext.A1 would further specify that if the complainant makes any default in repaying the loan amount the subsidy amount has to be refunded. Ext.A3 is the communication sent by the head office of first opposite party address to the complainant which would indicate that 25% subsidy amount will be Rs.1,12,500/-. It is clear from Et.A2 letter received by the complainant from the NABARD Kerala Region which would make it clear that the complainant has not received any subsidy as alleged by the complainant and sworn by PW1.
9. Ext.A4 is the pass book issued in the name of the complainant in respect of the alleged loan transaction. The Ext.A4 pass book would contain entry right from the date of sanctioning loan ie 10-7-2012 till the date of closing the loan on 30-3-2015. There is no entry in the Ext.A4 pass book to indicate that subsidy has been credited. Even the opposite parties have no case that the eligible subsidy has been credited in the loan account of the complainant nor given separately as indicated in Ext.A1 letter.
10. In view of the content of Ext.A2 letter it is clear that the subsidy has not been sanctioned and the application sent by complainant seeking to grant subsidy has not been forwarded to NABARD and therefore the manager of NABARD has directed the complainant to furnish information regarding the letter sent from the controlling officer of the opposite party bank. In view of Ext.A2 letter it is crystal clear that the 1st and 2nd opposite parties failed in their duty in forwarding the application of the complainant for getting subsidy along with a covering letter of the controlling officer of the bank. Hence there is deficiency in service on the part of the 1st and 2nd opposite party.
11. There is nothing on record to show that the complainant has not received the subsidy offered while sanctioning the loan for non-compliance of the any of the terms of the subsidy or due to the fault of the NABARD or due to the direction of the Reserve Bank or due to the paucity of funds to grant subsidy.
12. it is also brought out in evidence through PW1 that other persons who obtained similar type of loan from the same banks under the same scheme have already received the subsidy but the complainant has not received the same. In the circumstances it is pertinent to point out the relevant averments in Ext.A2 letter which would indicate it was due to the non-sending of letter (covering letter ) along with the subsidy application submitted by the complainant before the first opposite party bank the NABARD could not grant the subsidy. Hence it is crystal clear that it is due to the negligence and dereliction of duty on the side of the employees of 1st and 2nd O.P., the complainant has not received the subsidy which is legally entitled to him as he has promptly repaid the loan installment within time.
13. It is pertinent to point out that the additional 3rd O.P. would raise a contention in para 7 of the version that the subsidy claim of the complainant has not received by the additional 3rd O.P. from the opposite party No.1. Hence they sent Ext.A2 letter requesting the complainant to furnish details of the subsidy claim application forward by O.P. No.1 through their controlling officer and that the said controlling officer (KSEB) forwarded the subsidy claim on 24-5-2016 only by stating that the subsidy application of the complainant was lost in transit and the 1st O.P. requested the additional 3rd O.P. to consider the belated subsidy claim of the complainant forwarded by the 1st O.P. during the year 2016. But NABARD could not process the claim as it pertains to the year 2012-13 due to budget constraints. According to NABARD (addl.3rd O.P.) delayed claim cannot be considered for releasing subsidy and that DEDS scheme has been temporarily suspended from 1-1-2015 until further orders and for the reason also subsidy cannot be granted. The above contention of the additional 3rs O.P. remains unchallenged by the 1st and 2nd opposite party nor any evidence has been adduced to prove that the subsidy application filed by the complainant was duly forwarded by the 1st and 2nd O.P. to the NABARD during the year 2012-13 itself.
14. On evaluating the entire materials available on record we have no hesitation to find that the complainant has not obtained subsidy which is legally entitled to him while availing agricultural loan for conducting dairy farming. But the same has not been received due to the culpable negligence and dereliction of duty of the officials of O.P.1 and O.P.2 banks. Hence there is deficiency in service on the side of the opposite parties No.1 and 2 and the complainant is entitled to get the subsidy amount compensation and costs from the opposite party No.1 & 2. The points answered accordingly.
In the result the complaint stands allowed directing the opposite parties No.1 and 2 to pay Rs.1,12,500/- as subsidy amount which is legally due to the complainant.
The opposite parties No.1 and 2 are also directed to pay compensation to the tune of Rs. 25,000/- and Rs.5000/- as costs of the proceedings to the complainant.
If the opposite parties failed to comply with the above directions within 30 days from the date of receipt of a copy of this order the complainant is entitled to recover Rs.1,42,500/- with interest at the rate of 10% per annum from the date complaint till realization from opposite parties No.1 and 2 jointly and severally and from the assets of O.P.1 and O.P.2.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 07th day of February, 2019.
Sd/-Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Sheela Jacob (Member)
Appendix:-
Evidence of the complainant:-
PW1 - K.S.Abdul Nazar (Witness)
Ext.A1 - Loan Sanction letter dtd 18-05-2012
Ext.A2 - Letter dtd 11-02-2016
Ext.A3 - Letter issued by Alappuzha District Co-operative Bank Ltd.
Ext.A4 - Pass Book
Evidence of the opposite parties:- Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
