Date of hearing : 30th July, 2015
Date of judgment: Tuesday, the 4th Day of August, 2015
JUDGMENT
The instant appeal u/s 15 of the Consumer Protection Act 1986 (hereinafter referred to as the Act) is at the behest of opposite party Nos.1, 2 and 3 to impeach the judgment dated 17.7.2014 passed by the Ld. District Consumer Disputes Redressal Forum (in short DCDRF), Burdwan in DF case no.270 of 2011 in a proceeding u/s 12 of the Act.
The respondent M/s. Ghosh Engineering Works of which Shri Rabin Ghosh is the proprietor, has initiated the complaint stating that in order to set up a small entrepreneur business under the District Directorate of Micro and Small Scale Industries, Burdwan being an unemployed youth has approached O.P. No.1, i.e., Branch Manager of State Bank of India, Nabagram Branch, P.S. Jamalpur under district Burdwan for loan to the tune of 70% of the total project cost under Swanirbhar Karma Sansthan Project (SKSP). The assessed cost of such project was Rs.8,90,000/- and the petitioner has made an application to the Block Development Officer (BDO) under the scheme of S.K.S.P. The opposite party/Bank agreed to sanction a loan of Rs.7,01,000/- in a loan account being No.30699994729 in the name of M/s. Ghosh Engineering Works. However, only on 7-3-2009 the opposite party/Bank released Rs.50,000/- but since the purchasing cost of those materials was around Rs.2,00,000/- he requested the O.P.No.1 for releasing more money so that the entire machineries could be purchased. However, after much persuasion, on 16-3-2009 a cheque amounting to Rs.1,29,637/- was issued in favour of one Shri Laxmi Metal Rolling Works, Kolkata for purchasing raw material. The petitioner times in number requested the opposite parties for releasing further amount so that he could purchase the materials and set up the same in order to start the business. But the opposite parties credited only Rs.1,50,000/- on 17.3.2009 and as the money so far released was not sufficient to set up the unit, the petitioner requested to release further amount and ultimately on 11.5.2009 a further amount of Rs.1,70,000/- was sanctioned and the machineries were delivered on 6.6.2009. However, as the amount in terms of the agreement dated 3.3.2009 was not released he could not repay the loan which was required to be paid in 84 equal instalments of Rs.13,022/- per month commencing from May, 2009. The said loan amount was declared NPA on 03-04-2010 when Rs.5,73,568/- was due from the complainant to the O.P. Bank for which the Bank has already filed one civil suit being title suit No.51 of 2012 in the court of Civil Judge (Sr. Division), Burdwan. The petitioner has alleged that due to arbitrary and illegal action on the part of the O.P. the entire project has been ruined and being an unemployed young entrepreneur he has lost all hopes of his life. Hence the application with the prayers, viz. – the opposite parties may be directed to pay a sum of Rs.18,50,000/- on account of financial loss, loss towards interest, security and damage and mental pain and agony, cost of litigation, etc.
The O.P. Nos.1,2 & 3, by filing a written version have denied the allegations stating that in course of operation of the loan account the complainant has not deposited any instalment and failed and neglected to operate the account, as per the terms and conditions. Due to non-serving of interest the said account became bad and sticky and has been declared NPA since 03-04-2010. The O.P. No.1 approached the complainant for adjusting the dues but failed. So the Bank was forced to recall the advance and had to adjust the securities. It has also been stated that for non-payment of the amount of loan they have filed one suit being T.S. No.51 of 2012 in the court of Ld. Civil Judge (Sr. Division), Burdwan. The O.P./Bank has submitted that there was no deficiency in service or negligence on the part of the complainant and the petition of complaint is liable to be dismissed.
The O.P. No. 4 i.e. New India Assurance Company appeared in the proceeding but chose not to file any written version or to contest the case.
Upon hearing the Ld. Advocates appearing for the parties and on going through the statement of both parties and brief notes of argument, the Ld. DCDRF by the impugned order allowed the application on contest against the O.P. No.1, 2 & 3 and also against the opposite party No.4 directing the O.P Nos.1, 2 and 3 to pay jointly and severally to the complainant Rs.4,00,000/- only due to loss to interest on security and damages and also a sum of Rs.1,50,000/- as compensation for harassment, mental pain and agony and Rs.10,000/- only as costs of litigation which prompted the opposite party Nos.1, 2 and 3 to prefer this appeal.
The point arises for consideration in this appeal - as to whether or not the Ld. DCDRF was justified in passing the order impugned.
DECISION
From the materials on record it emerges that the respondent No.1 who is the complainant of the case, was an unemployed youth runs a unit of manufacturing pant hooks and torch switch. In order to set up a small business under District Directorate of Micro & Small Scale Industries, Burdwan, the complinant made an application on 15-02-2008 before the Block Development Officer under Swanirbhar Karma Sansthan Prakalpa (Atmamaryada) and therein he submitted the project cost of such enterprise estimated at a sum of Rs.8,90,000/- . According to the terms of the project 70% would be provided by the Bank loan for which the complainant approached the O.P. No.1 for providing him loan for the purpose of setting up the project and to that effect the Bank had agreed to. Accordingly, on 03-03-2009 a composite term loan agreement for small scale industries/small business under the scheme of BSKP for educated unemployed youth was executed by the complainant. In the agreement it was agreed that the Bank will provide a C.T. loan of Rs.7.01,000/- which would carry an interest @ 13.75% p.a. and the borrower shall repay the loan by monthly instalments of Rs.13,022/- p.m. payable from May, 2009. The materials on record indicate that the disbursemet of sanctioned loan amount in favour of the complainant was Rs.50,000/- on 7..3.2009; Rs.1,29,637 on 16.03.2009; Rs. 1,50,000/- on 17-03-2009 and Rs.1,70,000/- on 11-05-2009 and also an amount of Rs.65,000/- on 24.09.2010.
It is true that the complainant could not repay the loan amount which was payable by him in 84 equal monthly instalments @ Rs.13,022/- commencing from May, 2009. Time and again, the complainant being an unemployed youth had reported O.P.No.1 that unless the entire amount is released he would not be able to start the project. We have already noticed that the estimated cost was Rs.8,99,000/- and in order to obtain loan he had mortgaged house property as collateral security. But only a sum of Rs.4,99,637/- was sanctioned in favour of him till 31-7-2009. On 14-9-2009 the complainant reported to the Sabhadhipati of Burdwan Zilla Parishad stating the fact that he could not start the business as the amount of loan of Rs.7,00,000/- had not been sanctioned in his favour in terms of the agreement but it yielded no result.
Now, the question is whether there was fault or deficiency in releasing the amount of loan as per agreement dated 03-03-2009.
When the record was taken up for hearing Ld. Advocate appearing for the appellant has submitted that the complainant/respondent No.1 had entered into an agreement with the Bank with an undertaking that he would repay the amount of loan by instalments of Rs.13,022/- commencing from May, 2009 and as the complainant did not fulfil the terms and conditions of the agreement and did not repay the amount of loan they initiated a suit for recovery of money being T.S. No.51 of 2012 in the court of Civil Judge (Sr. Division), Burdwan. Therefore, when the civil suit is pending for recovery of money the question of adjudication of the dispute by the Ld. DCDRF was not justified.
Ld. Advocate for the appellant has drawn our attention to a decision of Hon’ble Supreme Court of India in civil 2002(1) SCR 225 (Synco Industries –vs- State Bank of Bikaner at Jaipur and ors.). The referred decision indicates that the Hon’ble National Consumer Dispute Redressal Commission dismissed the complaint with observation “the complaint is against the bank, whether the bank is entitled to reduce the loan facilities or not we do not consider it to be a fit case to be tried under the Consumer Protection Act. The original petition is dismissed However, the complainant is at liberty to go to the Civil Court or any other forum, if so advised”. The Hon’ble supreme Court of India has observed that the matter should not be disposed of in a summary fashion and appropriate claim to be decided in a Civil Court and it would be an abuse in the process of Consumer Forum to deal with the matter. Ld. Advocate for the appellant has also taken to us another decision of the Supreme Court of India in civil appeal No.5899 of 2012 (Chandi Prosad Uniya & ors. –vs- State of Uttarakhand. In para 16 of the said decision apex court has observed that excess payment of public money which is often described as “tax payers’ money” belongs neither to the officers who have effected the over payment nor that of the recipient. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right in such situation law implies an application on the payee to repay the money otherwise it would amount to unjust enrichment.
We have gone through the decisions referred to hereinabove. The Bank authority though knowing the fact that the complainant is an unemployed educated youth and has been recommended by a committee headed by BDO for sanction of loan under the scheme BSKP for educated unemployed youth. Therefore, unless the agreed amount of sanctioned loan of Rs.7,01,000/- is accorded it would not be possible for an unemployed youth like the complainant of this case to start a business. Obviously for that reason the complainant could not start the business. The agreement dated 03-03-2009 indicates that the Bank was under obligation to sanction one term loan of Rs.7,01,000/- . We have carefully gone through the agreement and no where in the agreement we find that there was any scope on the part of the Bank to sanction the loan in favour of the complainant by instalments. The Bank was under obligation to grant the borrower a composite term loan of Rs.7,01,000/-. Clause 13 of the agreement authorize the bank to take action against the borrower but unless the Bank does not fulfil their obligation in sanctioning Rs.7,01,000/- as per agreement dated 03-03-2009 the question of failure to comply with the terms of payment by way of instalments does not arise.
At the time of advancing argument Ld. Advocate for the respondent has placed before us a document which goes to show that the Bank has already initiated an action under section 13 of Securitisation and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 on 4.6.2012 for realization of outstanding amount of Rs.7,36,269/-. The Bank has also instituted a suit for recovery of money against the complainant being T.S. No.51 of 2012 in the court of Civil Judge (Sr. Division) at Burdwan. The initiation of those proceeding would not absolve the responsibility of the Bank for deficiency of service if it is found that they did not comply with the terms of the agreement dated 3-3-2009.
In the case beforehand it is quite clear that the Manager, State Bank of India, Nabagram Branch did not act with the tune of the agreement and he himself is entirely responsible for shattering the entire idea and entrepreneurship of an unemployed youth. Had the O.P. No.1 i.e., Branch Manager of State Bank of India, Nabagram Branch would have been sensible, the complainant would not get any scope to raise his finger towards the Bank alleging fault and deficiency in service on the part of the Bank. This case is a clear example of whim and arbitrary attitude on the part of Bank official causing thereby drainage of public money. Threfore, the decisions referred by the Ld. Advocate for the appellant has become counter-productive in as much as the O.P. No.1 being a responsible officer of a nationalized bank viz. State Bank of India has shown masterly inactivity in complying with the terms of the agreement and thereby caused huge loss to the Bank, which runs through tax payers’ money.
For the reasons aforesaid wedo not find any reason to interfere in the impugned order. As a result, the appeal is liable to be dismissed on contest but without costs.
Accordingly, the appeal is dismissed on contest but without costs. The judgment dated 17-7-2014 passed by the Ld. District Consumer Disputes Redrssal Forum, Muchipara, Burdwan in DFcase Bo.170 of 2011 is hereby affirmed.
