Presented by: -
Shri Debasish Bandyopadhyay, President.
Complaint Case No. 246/2021
Complainant has filed this Consumer Case No. mentioned above against respondent which is service provider and has provided umpteen times deficiency in service and has been repeatedly practicing unfair trade practice while dealing with complainant which has caused severe mental agony, financial & emotional distress with disruption and complete suspension of livelihood earning source of complainant since December, 2020.
Fact of this case
The case of the complainant which is revealed from complaint petition in bird’s eye view that complainant has incorporated a company exclusively to earn their livelihood by involving themselves full time as a sole operator and that too in women empowerment scheme named Stand-up India Scheme.
That complainant has submitted application for renewal cum enhancement of the Cash Credit for Rs. 31,25,000/- with a estimated turnover of Rs. 1,25,00,000/- & Term Loan for Rs. 80,640/- but only enhancement of Cash Credit was approved partially totaling the amount of Rs. 15,00.000/- on 07.12.2019 and no reason for partially approval of Cash Credit and regarding term loan hold up was communicated to the complainant because no reason of such partial enhancement and term loan hold up exists as the complainant were compiled as per eligibility of respondent norms to get the requested enhancement and term loan. Although the charges of Term Loan Processing were separately deducted on dated 15.07.2019 but processing for same is still hold-up. Hence the respondent has made unfair trade practice & deficiency of service. Despite approving partial cash credit limit of Rs. 15,00,000/- instead of Rs. 31,25,000/- the respondent had insisted, pressurized and accused complainant for non-achievement of the estimated turnover of Rs. 1,25,00,000/- for FY-2019-20. Although the estimated turnover submitted was calculated on cash credit limit of Rs. 31,25,000/- . But the respondent had made this a reason in their assessment to resist and declare that complainant is non-complaint to avail any further facility. Hence the respondent in this point also has made unfair trade practice by going against the banking turnover norms and deficiency of service while assessment of application.
It is stated that in FY -2019 the respondent bank intentionally had pushed the Term Loan A/C – 00037011000637 into NPA for due of Rs. 105/- with no communication intimation from bank and about the due amount which is deficiency of service, although sufficient funds were present in the Cash Credit and Current A/C maintained with banks from were other charges are deducted by the bank. Hence in this point the respondent had made unfair trade practice to misuse their positions and power in their hands to intentionally harm and damage the credit history & reputation of complainant including Loan Guarantors so that complainant suffers irreparable lifelong sufferings by not getting any further credit facility, paying high interest charges, etc. Again second attempt of same practice of maligning & damaging credit record was attempted on 01.12.2020 three EMI and interest payment cheques were intentionally hold up by the respondent to push all Standard Loan A/C into NPA for due or default of Interest & EMI payments on time but this time complainant with all efforts and continuous follow-up & complain with personal visits spending hours daily in respondent branch managed to realize all the EMI & Interest payments cheques which took 05 days of mental & physical harassment which again showed the irresponsible behavior of respondent’s concern and is purely the deliberate attempt to harass & harm the complainant and the same is also the deficiency in service.
It is stated that on 30.04.2020, complainant had applied for re-assessment of the loan under LWCA model scheme (Liberalised Working Capital Assessment) for MSME borrowers having limits upto 5.00 crore and this was the scheme provided as a relief to Covid-19 affected borrowers by RBI through bank, although we received email from the respondent bank departments regarding the scheme availability for us but again, there was no response from respondent’s end after filing application on 30.04.2020 to avail the scheme till the complaint filed in the bank portal on dated 13.05.2020, an complaint email sent to Covid support cell and to various other bank department, which again showed the irresponsible behavior of respondent’s concern which is deficiency of service. Despite being eligible to avail the re-assessment under LWCA Scheme as per bank notified eligibility criteria the respondent bank denied to provide Covid-19 relief measures announced by the regulatory body instead several baseless allegations were charged in assessment outcome, to which a satisfactory and explanative clarification was sent by the complainant via e-mail highlighting and pointing the negligence respondent have made during assessment under the (LWCA) model scheme which was launched only for the period till 31st May, 2020, during the nationwide lockdown to provide immediate relief to MSME borrower, which is again intentional negligence in assessment by the respondent’s concern which is unfair trade practice and deficiency in service . After that a complaint for re-assessment of the loan sent to the Managing Director of the bank (Respondent) via email on 27.05.2020 and hard copy of the same by Indian Postal Service sent on 10.06.2020. But there was no response from the bank officials which is also a deficiency of service. Complainant believe that any relief measures announced in adverse situation like Covid-19, etc. for providing a support is complainant right to avail it if complainant gets qualify as per uniform set of eligibility norms for relief.
It is submitted that complainant on 09.07.2020 submitted an application of ECLGS (Emergency Credit of 20 percent) and that amount was disbursed on 26.08.2020 only after repeated complaints to Govt. of India Authority, which is again a deficiency in service as respondent showed the irresponsible behavior in providing service.
It is alleged that on 09.11.2020, complainant submitted a factory address update KYC request to the branch to update it on all loans and Current A/C maintained in the bank and enquired about it on 18.12.2020 by email. But there was no response from the bank official and has not updated the same in the record which is deficiency in service. And on the same day complainant submitted an application for renewal cum enhancement of Rs. 35,00,000/- and Board of Resolution with an projected turnover of Rs. 1,40,000/- which was denied to process verbally on 05.12.2020 the day complainant visited to realize the hold up of cheques. And as a result the Cash Credit A/C got locked which has disrupted the livelihood earning source and other obligations of complainant till date and due to this the complainant is in severe mental trauma & emotional distress and struggling daily for survival of his and his family livelihood with adverse health affect.
It is pointed out that complainant had sent umpteen emails to respondent’s concern including CGO, Circle Head Kolkata West, AGM Complaint Cell, Zonal Complaint Cell, SME Cell, PNB Complaint Portal , Zonal Office and then, complainant also filed a complaint on 14.12.2020 to the Govt. MSME Central Control Room Department as the timeline to pick-up application was passed and after intervention of Govt. MSME Central Control Room then the application was picked up for processing on 22.12.2020 then the complainant was asked to furnish the reason for non-achievement of estimated turnover of Rs. 1,25,00,000/- in CC Limit of Rs. 15,00,000/- which is unfair as per banking rules and guidelines. The submitted estimated turnover was calculated on Rs. 31,25,000/- . Although despite Covid pandemic complainant achieved 4.7 X total sanctioned limit as per Audited Financials, which again showed the intentional irresponsible and negligence behavior by the bank in assessment of the enhancement proposal which is termed as deficiency of service. And again on 06.01.2021, 09.01.2021 the complaint was forwarded to the bank by Govt. MSME Champion Control Room to redress the grievance. On 13.01.2021, complainant sent the issue the General Manager (Mr. Binay Gupta) and on the same day 13.01.2021 branch intimated complainant that enhancement denied due to raised point by processing cell and asked complainant to clarify and respond the raised point by processing cell which was replied by complainant on the same day to the branch and the same clarification was forwarded to processing cell for consideration by the branch on 14.01.2021 which was accepted to their satisfaction and confirmed by processing cell officer as per their phone call on 16.01.2021 to complainant . On 19.01.2021 the bank had only renewed the limit and denied to enhance the limit without mentioning any reason. Complainant repeatedly requested bank officials to mention reasons on 20.01.2021, 24.01.2021, 02.02.2021, 12.02.2021. And on 24.01.2021, complainant had lodged a complaint with the bank Vigilance Department. But, after all there was no response from the bank official. And on 28.01.2021, complainant submitted complaint email to Managing Director of the bank (Respondent) stating that the entire grievance system and official failed to address the concern and the Working Capital A/C (CC A/C) is locked since 07.12.2020 and as the grievance remain unattended and unresolved by bank, complainant will not be able to service the entire loan related EMI and interest related obligation. But there was no response from the bank official.
It is further alleged that on 13.01.2021 complainant via email had submitted that as per SOP (Standard Operating Procedure) Rule the company has taken precautionary steps for the first five days of December, 2020 as the factory was in process of sanitization because one worker has experienced Covid related symptoms in the company premises and also apprised there is halt in factory operation because the Working Capital A/C was locked by respondent bank on 07.12.2020 and this is the reason factory operation is badly and adversely affected . But the bank official has made this halt a reason for denying the credit facility which is totally irrelevant reason as Covid precaution is necessary and compulsory to follow. Hence this time again respondent has made negligence in assessment which is deficiency of service.
It is also pointed out that the respondent on 15.02.2021 intimated the complainant via email that the MPBF method calculation is used during assessment of enhancement proposal, as this method is used only for above 05 crores CC limit as per Bank approved lending policy, but the respondent bank has made assessment from this MPBF method which is not for our application size based limit as our application size is below 05 crores which again showed the irresponsible behaviour, deficiency of service & unfair trade practice and gross negligence by the bank in assessment of the enhancement proposal. On the same day complainant reverted with the clarification email to respondent stating the facts and explanation of the raised points in assessment. But there was no response or acknowledgement regarding submission from the respondent’s bank official till date which is deficiency in service.
It is stated that the complainant on 17.02.2021 has requested the bank to respond the four points accordingly. And subsequent reminder has been sent on 22.02.2021, 03.03.2021, 07.03.2021, 29.03.2021, 30.03.2021 & 31.03.2021. But there was no response for our enquiry points from the respondent which is deficiency of service. And on 29.03.2021, complainant again submitted intimation email to the Managing Director of the bank stating that as the grievance remains unresolved Complainant including Guarantors and Directors are not liable for any Loan Accounts becoming NPA A/C as the business operation is seized & Cash Credit A/C locked by the Respondent.
It is also pointed out that when the subsequent complaints has been lodged then the respondent on 29.03.2021, 30.03.2021 & 31.03.2021 had insisted and pressured complainant to accept only renewal sanction which contains illegitimate and unjustified terms & conditions which is unfair trade practice under law (entitling to contract to terminate such contract unilaterally without any reasonable cause and imposing unreasonable charges, obligations and conditions which put the complainant to disadvantage even revoking and ceasing the complaint’s fundamental and consumer rights) although complainant repeatedly reverted about it. But there was no constructive response from the bank official. Despite complainant repeated attempts to resist the Loan Account from turning into NPA A/C the complainant took all the required efforts to resolve its grievance related to negligence in assessment of loan, unfair and illegitimate terms & conditions, etc. so that the Loan Account get start and it remain standard but respondent with its mala fide intent choose to divert the issue to accept its unfair terms & conditions of renewal sanction without addressing the concern and grievance of the complainant.
It is submitted that the respondent since FY-2018 had severally violated several rights as per Customer Right Policy, PNB approved MSME Policy, RBI guidelines/circular FIDD,MSME,NFS,BC No.60/06.02.31/2015-16 dated August 27, 2015 on LIFE CYCLE OF MSEs with a provision to facilitate timely and adequate availability of credit to MSE borrowers especially during the need of funds and additional working capital to meet with emergent need (to fulfill orders) of MSE units and Timeline of credit decision.
It is alleged that due to the irresponsible behavior of respondent’s concern, complainant had lost the order worth Rs. 50,00,000/- and recurring factory expenses, office expenses, workers expenses and overheads costs were accumulating and mounting day by day and intangible asset in the market has been severely damaged which has accounted to decrease the survival of the only livelihood of complainant. At last, the Working Capital (Cash Credit) Account was also locked on 07.12.2020 by the respondent’s Bank Authority forcing to unlock the same only after acceptance of unfair terms & conditions without enhancement of loan limit. The complainant got shocked due to the respondent’s unprofessional behavior.
It is further alleged that the complainant states that being deprived of the proper and facilitated procurement he again and again intimated the respondent by way of the telephonic conversation and by way of electronic mail conversation in order to solve the said issue, however the executive of the respondents have acted like flogging of a dead horse in lieu of providing the proper services to complainant and in lieu of providing the constructive reply to the complainant till date. That the respondent didn’t bother after repeated request from the complainant by which the client has suffered miserably.
It is pointed out that the complainant states that the above mentioned dispute clearly states that there was negligence on the respondent and the said respondent company is running an unfair trade practice in order to dupe the hand earned money of the complainant wherein respondents have intentionally provided the de novo dreadful and deceitful service to the complainant and has not provided the proper and facilitated services towards her which has caused her unnecessary noetic agony and stress. That the above mentioned incident is a clear sign of unfair trade practice as well as deficiency of service by the respondents which the complainant has faced till date.
It is also pointed out that the respondents have miserably failed in providing right and proper service despite the complainant has paid the full amount to the respondent authority and thereby causing deficiency in service. That the respondents duped the hard earned money of the complainant and miserably failed to provide proper service to the complainant.
Defense Case : The OPs in spite of service of notice have not filed any Written Version in this case for which this District Commission has passed the order of ex-parte hearing vide Order No. 5 dt. 16.03.2022. Thereafter, this case has been heard ex-parte.
Points of consideration
On the basis of the pleadings highlighted by complainant side this District Commission is going to frame the following points of consideration and / or issues in the interest of proper and complete adjudication of this case as well as for arriving at just and proper decision :-
- Whether this District Commission has territorial and pecuniary jurisdiction to try this case or not?
- Is this case maintainable in its present form and in the eye of law or not?
- Is the complainant consumer under the OPs or not?
- Whether there is any cause of action for filing this case by the complainant or not?
- Whether the complainant is entitled to get relief in respect of the prayer highlighted in the complaint petition or not?
- To what other relief / reliefs the complainant is entitled to get in this complaint case?
Evidence on record
In this case the complainant has filed evidence on affidavit on behalf of the complainant and also filed series of documents but in support of the claim of the complainant no supportive evidence has been given.
Argumenthighlighted by the complainant side
The complainant side has filed BNA containing the points of argument.In addition of filing BNA the complainant has highlighted verbal argument in support of this case.
Decision with reason
The first 4(four) points of consideration are taken up for discussion at first as the questions involved in these points of consideration are interlinkedand / or interconnected with one another.These 4(four) points of consideration Nos. 1 to 4 thus clubbed together and taken up for discussion jointly.
Out of the said points of consideration the 1st point of consideration is related with the question of jurisdiction.In this regard it is important to note that the complainant is a resident of Sankrail, Howrah which is falling within the territorial jurisdiction of this District Commission.But fact remains that in this instant case the complainant has prayed before this District Commission for passing direction to the residence to provide 90,00,000/- asa compensation to the complainantand this matter is clearly indicating that the claim of the complainant is exceeding the pecuniary jurisdiction of Rs. 50,00,000/- of this District Commission and so it is crystal clear that this District Commission has no pecuniary jurisdiction to try this complaint case.As this District Commission has no pecuniary jurisdictionto try this complaint caseit is crystal clear that this case is not maintainable in the eye of law.So, the points of consideration Nos. 1 & 2 are thus decided against the complainant.The point of consideration No. 4 is related with the question of cause of action of this case.In this regard, this District Commission after making scrutinyof the complaint petition as well as material of this case record finds that the complainant has failed to explainas to when the cause of action for filing this case arose and how long it has been continued.When there is no reflection about arising cause of action in respect of the claim of complainant, it is revealed that this case is not maintainable.
A cumulative consideration of the above noted discussion goes to show that this District Commission has no pecuniary jurisdiction to try this case and this case is not maintainable in the eye of law and there is no cause of action of the complainant for filing of this case.All these 3(three) factors are also depicting that the complainant is not consumer under the OP.As a result of which all the first 4 (four) points of consideration are decided against the complainant.
Thepoints of consideration No. 4 is related with the question whether the complainantis entitledto get any relief in this case as per prayer of the complaint petition or not?The point of consideration No. 5 is related with the question as to whether the complainant is entitled to get any other relief or reliefs in this case or not?
For the purpose of arriving at just and proper decision in respect of the above noted 2 (two) points of consideration this District Commission after making scrutinyof the evidence on record as well as documents on record finds that the complainantis dealing the businessfor commercial purpose.In this regard, it is important to note that when the complainant is carrying on the business for commercial purpose, this case is not maintainable before this District Commission.In this connection, it is the settle principle of law when persons avails service of commercial purpose, to come within the meaning of consumer as defined in the Consumer Protection Act, he will have to establish that services were availed exclusively for the purpose of earning of livelihood by means of self-employment.There cannot be any strait jacket formula and as such the question will have to be decided in facts of each case depending upon evidence based on records. This legal principle has been observed by the Hon’ble Apex Court in the case of SHRIKANT G.MANTRI Versus PUNJAB NATIONAL BNAK and it is reported in II (2022)CPJ (SC) in this instant case.This District Commission after making scrutiny of the evidence on record finds that the complainant has failed to establish that he used to run this business for earning his livelihood which is for self-employment.There is no corroborative evidence in the case record to support the case of the complainant that he is running the business to earn his livelihood for self-employment.Thus, it is crystal clear that the complainant has failed to establish the fact that he is not running the business for commercial purpose.
Recapitulating the above noted discussion this District Commission finds that the complainant has failed to establish his case in respect of points of consideration Nos. 4 & 5.As the complainant has failed to prove the case in respect of all the issues / points of consideration framed in this case, this District Commission has no other alternative but to dismiss this case.
In the result, it is accordingly,
ORDERED
That this Complaint Case being No. 246/2021 be and the same is dismissed ex-parte.No order is passed as to cost.
The parties are entitled to get a free copy of this judgment.
Let this judgment be uploaded in the official website of this D.C.D.R.C., Howrah.
Dictated & corrected by me
President
