C.F. CASE No. : CC/10/04
COMPLAINANT : Kalisadhan Mondal,
S/o Late Nishapati Mondal,
Vill. Malpara, P.O. & P.S. Haripukur
& Haringhata, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) M/S. Axis Bank Ltd.,
Service through its Manager,
Nabapally Branch, P.O. Barasat,
Dist. North 24 Parganas.
2) Uday Ghosh @ Banshi Ghosh,
S/o Late Kesto Chandra Ghosh
Vill. Ram Krishnapur,
P.O. & P.S. Chakdaha, Dist. Nadia
3) Sibaji Mukherjee,
S/o Rabindra Nath Mukherjee
of Bongaon Old Bus Stand,
P.O. & P.S. Bongaon,
Dist. North 24 Parganas.
PRESENT : KANAILAL CHAKRABORTY PRESIDENT
: KUMAR MUKHOPADHYAY MEMBER
DATE OF DELIVERY
OF JUDGMENT : 26th August, 2010
: J U D G M E N T :
In brief, the case of the complainant is that he purchased one tractor after taking loan from the OP No. 1, Axis Bank under the category of Agricultural Loan Scheme. At the time of sanctioning loan an agreement was signed by and between the parties on 09.03.07 vide loan agreement No. UTIB/NBP/AGRI.ADV/037/2007- 08. Loan was sanctioned on 09.03.07 and the tractor was handed over to the complainant on 13.04.07. Up to filing of this case he deposited Rs. 72,000/- in favour of the OP No. 1 in 6 installments. But on 05.03.09 the OP No. 1 seized the tractor through OP No. 2 & 3 from the possession of the complainant when only one installment was due. He filed a specific criminal case against the OP No. 2 & 3 which was dismissed and against that dismissal order he filed a revisional application before the Hon'ble High Court which is still pending. Due to seizure of this tractor by this OP No. 1 the complainant had to suffer loss of cultivation of 9000 bighas of agricultural lands resulting financial loss of Rs. 4,00,000/-. Besides this, he suffered further loss of Rs. 1,00,000/- to run his family in absence of income without running of the tractor during the said period. He also suffered a loss for about Rs. 25,000/- for registration charges as charged by the OP No. 1 for registration of documents as security. Thus, he suffered a loss of total Rs. 5,25,000/- due to activity of the OP No. 1. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
OP No. 1 has filed a written version / objection in this case, inter alia, stating that the complainant has no cause of action to file this case and the case is not maintainable in its present form and nature. It is his contention that on 09.03.07 this OP No. 1 sanctioned a loan amount of Rs. 4,85,000/- as term loan in favour of the complainant for buying a tractor. On the selfsame date this OP No. 1 and the complainant entered into a loan-cum-hypothecation agreement where it was fixed that the complainant had to pay installments against his loan in 12 half yearly rests of Rs.40,417/- starting from Sept, 07. The complainant was not diligent enough to pay the installments amount in time though notice was served upon him. Actually the petitioner paid only Rs. 82,050/- up to 10.07.08. As he was a defaulter in payment of installments amount, so having no other alternative as per clause 13 of the hypothecation agreement this OP No. 1 took possession of the vehicle and as per clause 27 of the said agreement he transferred it in the custody of the Pro-OP No. 2 & 3 as zimbadar. The complainant filed a criminal case against the Pro-OP No. 2 & 3 which was subsequently dismissed by the Ld. Judicial Magistrate, 2nd Court, Krishnagar and ordered to return the seized tractor in favour of the zimbadar from the custody of whom it was seized. Against that order of the Ld. Magistrate the complainant filed a criminal revision which is pending, but no order of stay was passed by the Hon'ble Court. The complainant also filed a Writ Petition against the OPs and after hearing both the parties the Hon'ble Court rejected the claim of the petitioner. Against that order of the Hon'ble Court the complainant filed a 2nd appeal before the Division Bench of the Hon'ble Court in which the Hon'ble Court has passed the order to that extent that if the appellant files a representation before the Bank Authority within a period of 4 weeks from date and the Bank Authority would be at liberty to pass a reasoned order in the matter of the said representation after giving a chance of being heard to the appellant, within 4 weeks thereafter and declared the stay petition as infructuous. So this complainant has filed the present case after suppressing the order of the Hon'ble High Court and making a concocted story. Hence, this case is liable to be dismissed against him.
Another written objection is filed by the OP No. 2 & 3, inter alia, stating that this case is not maintainable in its present form and nature. It is their contention that the OP No. 3 is the dealer of the tractor and OP No. 2 is a staff under the OP No. 3 who supplied the tractor to the petitioner after getting the money from the OP No. 1 Bank. Subsequently, when OP No. 1 took possession to the tractor from the petitioner for noncompliance of the terms of agreement between them and as per clause of that agreement of the contract the tractor was handed over in the custody of the OP No. 3 as a zimbadar against which the complainant filed a criminal case which was dismissed and the Ld. Court has declared the said act of the OP No. 1 is legal and valid. So the complainant has no cause of action to file this case against them. Hence, it is liable to be dismissed against them as they are not necessary parties in the case.
POINTS FOR DECISION
Point No.1: Is the case maintainable in its present form and nature?
Point No.2: Has the complainant any cause of action to file this case?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written versions filed by the OPs along with annexed documents filed by the parties and after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that this complainant took a loan of Rs. 4,85,000/- from the OP No. 1 on 09.03.07 after executing a deed of loan-cum-hypothecation agreement by and between the parties in order to purchase a tractor. The tractor was delivered to this complainant by the OP No. 2 on 13.04.07. At the time of taking loan repayment schedule was to that extent, “In 12 half yearly rests of Rs. 40,417/- starting from September, 07”. So we find that in per installment the complainant had to pay Rs. 40,417/-. The tractor was seized by the OP No. 1 on 05.03.09 when 4 installments were due out of which the complainant only paid Rs. 98,050/- to the OP No. 1. Besides this, from the receipts it is available that he never deposited Rs. 40,417/- at a time. So admittedly at that time he was a defaulter in payment of installments as per agreement. As per the said agreement dtd. 09.03.07, Clause 13(c) says, “In the event of any default as above the Bank shall have the right to take possession of the security so created whether by itself or through any of the Recovery Agents or Attorneys as may be appointed by the Bank.” Following this clause the Bank seized the tractor. So we find nothing error in seizing the tractor by the Bank. Besides this the complainant filed a criminal case against the seizure and handed over the tractor in the zimbadar of OP No. 2 & 3 vide case No. 256C/09 in the court of Judicial Magistrate, 2nd Court, Krishnagar who passed an order on 17.11.09 in favour of the OPs after discharging them from the criminal case and also directed the police to return the seized tractor from whose custody it was seized. Regarding waiver of agricultural debt the complainant filed a writ petition before the Hon'ble High Court and in that writ petition the Hon'ble Court has decided that the OP Bank followed the guidelines under the scheme the benefit has already been granted in favour of the petitioner and also has passed an order to that extent that if the appellant files a representation before the Bank Authority within a period of four weeks from date, the Bank authority shall be at liberty to pass a reasoned order in the matter on the said representation after giving a chance and being heard to the appellant, within four weeks thereafter. There is no document on the side of the complainant that he filed any representation before the OP Bank and that representation was not considered by the OP Bank also.
The complainant has agitated that due to seizure of the tractor he had to suffer loss of Rs. 4,00,000/- as he could not cultivate 9000 bighas of lands. But there is no document on record on the side of the complainant to show that he actually has the capacity to cultivate 9000 bighas of lands nor in the previous year he cultivated the same quantity of lands and earned Rs. 4,00,000/-. This demand of the complainant has no basis at all. Ld. lawyer for the complainant has cited a ruling from 2010 CTJ 532 (CP) (NCDRC). On a careful perusal of the above cited ruling of the Hon'ble National Commission we hold that this complainant is not entitled to get any benefit from this ruling as in the above cited case the complainant offered the OP that he was ready to clear the due amount and also pay parking charges in lieu of which demanded to release the vehicle in his favour which was denied by the OP Bank Authority. But in the present case the complainant never made such proposal to the OP Bank either in writing or even orally. Even after perusing order of the Hon'ble Court he did not submit any representation before the OP Bank to consider his case. On the other hand, one Puranjay Das (Advocate) on behalf of the OP No. 1 sent a notice to the complainant on 07.03.09, inter alia, stating “We would also like to mention that the tractor is in the possession of the Bank as per the Loan cum Hypothecation Agreement signed by you on 09.03.07, and will be handed back to you once the overdue amount of Rs. 1,05,069/- is regularised”. There is no denial by the complainant regarding the receipt of the lawyer’s notice, but he did not take any step after receipt of the said lawyer’s letter. So considering the conduct of the complainant we hold that he is not at all entitled to get any benefit from the above cited ruling of the Hon'ble National Commission. In view of the above discussions our considered view is that the complainant has miserably failed to prove and establish his case. So he is not entitled to get any relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/10/04 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
