Chandigarh

StateCommission

CC/9/2021

M/s Gurneet Farms - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

Anil Soni, Hitender Kansal & Chetan Gupta Adv.

18 Aug 2022

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	09 of 2021
Date of Institution	:	12.03.2021
Date of Decision	:	18.08.2022

 

M/s Gurneet Farms, Plot No.75 to 77, Phase-III, Industrial Area, Sansarpur, Terrace, Tehsil Jaswan, District Kangra (H.P.), through its Prop. Mr.Arvinder Singh.

•  

Versus

Punjab National Bank, Large Corporate Branch, Sector 17-B, Chandigarh-160017 through its Chief Manager.

….Opposite Party

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER

 

Present:--             Sh.Hitender Kansal, Advocate for the complainant.

       Sh.Ajay Sapehia, Advocate for the opposite party.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   It is the case of the complainant that she is  a farmer and in order to improve her livelihood, she intended to start agro plant on her land, under the name and style M/s Gurneet Farms. For obtaining loan facility for the said purpose, she approached the opposite party in the month of December 2013. After completing all the formalities, the opposite party sanctioned loan to the tune of Rs.4.50 crores vide letter dated 07.06.2014, Annexure C-3, out of which Rs.3 crores were to be given as fresh loan and Rs.1.50 crores as cash credit (hypothecation of stock/book debit). The said loan was sanctioned by the opposite party against hypothecation/mortgage of immovable property of the complainant as well as her kith and kin/guarantors. Resultantly, the opposite party requested the Sub-Registrar Mukerian, District Hoshiarpur to mark lien qua the mortgaged property. During the period intervening, the complainant purchased machinery etc. which was required for setting up of the said agro plant. Thereafter, the complainant made number of requests to the opposite party to release the loan amount but it lingered on the matter on one pretext or the other. Ultimately, the opposite party failed to release the loan amount, which caused a lot of mental agony, harassment and financial loss to the complainant, as the sanction granted by the Himachal Government with regard to subsidy was also cancelled by way of issuing show cause notice to the complainant on 17.03.2016, Annexure C-11.

2.           It has been pleaded that under above circumstances, the complainant issued letter dated 11.10.2018, Annexure C-12 requesting the opposite party to release the mortgaged properties and refund the processing fee alongwith interest but to no avail. When nothing came positive in the matter, she served legal notice dated 23.06.2020, Annexure C-13 but to no avail. By stating that the aforesaid act and conduct of the opposite party amount to deficiency in providing service and adoption of unfair trade practice, the complainant has filed this complaint seeking directions to the opposite party to remove lien from the properties mortgaged by her for obtaining the loan aforesaid and also to pay Rs.4 crores as compensation for causing mental agony, harassment etc. alongwith interest and  also litigation expenses.  
3.           Her claim has been contested by opposite party, on numerous grounds, inter alia, as under:-
   1. that the complaint is barred by limitation;
   2. that the complainant did not fall within the definition of consumer;
   3. that the loan in question was sanctioned in favour of the complainant subject to certain terms and conditions;
   4. that disbursement of loan amount was subject to completion/deposit of all genuine title deeds of collateral securities and letter from Director (HTM), Directorate of Horticulture, Shimla regarding approval of project and financial assistance from the said Department;
   5. that in April 2015 it was informed by the complainant that the Government has not agreed to give financial assistance of Rs.4 crore as subsidy to her, whereas, loan was sanctioned keeping in view the project report;
   6. that the project detail was changed and the opposite party had to reexamine the matter;
   7. that in the mean time, the opposite party received written request from one Malkiat Singh son of Sh.Mehnga Singh, who introduced himself to be the owner of one of the properties mortgaged by the complainant;
   8. that it came to the notice of the opposite party that Malkiat Singh was in Hoshiarpur  Jail since February 2014 and as such, it was not made clear by the complainant as to how, when he was in jail,  his property had been mortgaged in the year 2014;
   9. that infact the person who came to submit the title deed of Malkiat Singh alongwith the complainant was identified by her as Malkiat Singh, which fact was not possible as he was in jail at the relevant time, as such, a fake person put in appearance before the Bank at the time of mortgaging the property for sanction of the said loan amount to the complainant;
   10. that  later on, Malkiat Singh alongwith respectable persons of the area Sh.Pritam Singh visited the opposite party and after showing required identity, all documents were handed over to Malkiat Singh on 02.05.2016.
   11. that when the complainant came to know that she is exposed, thereafter, she collected all her title deeds and letters for removing the lien/name of bank from revenue record; and
   12. that the complainant has deliberately concealed true facts from this Commission;

 

4.           On merits, the fact that  the opposite party sanctioned loan to the tune of Rs.4.50 crores vide letter dated 07.06.2014, Annexure C-3, out of which Rs.3 crores was to be given as fresh loan and Rs.1.50 crores as cash credit (hypothecation of stock/book debit); that the said loan was sanctioned by it against hypothecation/mortgage of immovable property of the complainant as well as her kith and kin/guarantors; and that the opposite party requested the Sub-Registrar Mukerian, District Hoshiarpur to mark lien qua the mortgaged property have not been disputed. Prayer has been made to dismiss the complaint.
5.           The complainant filed rejoinder wherein, she reiterated all the averments contained in the complaint and controverted those contained the written reply of the opposite party.
6.           This Commission has afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments filed by the  complainant and the opposite party.
7.           We have heard the contesting parties and have also gone through the entire record of the case, including the rejoinder as well as written arguments aforesaid, very carefully.
8.           First we will deal with the objection taken by the opposite party to the effect that the complainant did not fall within the definition of consumer, it may be stated here that since in the present case, the complainant has specifically averred that the agro plant in question was to be established by her, with a view to make her livelihood better, as such, it cannot be said that she is not a consumer. On the other hand, the opposite party has failed to place on record any cogent and convincing evidence to prove that the complainant is not a consumer and on the other hand, the agro plant was to be run by her for earning huge profits. In this view of the matter, objection taken in this regard stands rejected. 
9.           It is not in dispute that the complainant applied to the opposite party for sanction of loan to the tune of Rs.4.50 crores vide letter dated 07.06.2014, Annexure C-3, which was sanctioned by it under hypothecation/mortgage of immovable property of the complainant as well as her kith and kin/guarantors. However, it is coming out from the record that the said loan amount was not disbursed to the complainant on the ground that she had committed fraud by putting presence of some other person, in place of Malkiat Singh, and thus was successful in mortgaging the property of Malkiat Singh, whereas, on the other hand, at the relevant time the said Malkiat Singh was already in Hoshiarpur Jail, in some criminal case, since February 2014. To strengthen its case, the opposite party in para no.1 of its preliminary objections has specifically pleaded that the loan in question was not disbursed to the complainant as the opposite party came to know that Malkiat Sigh was confined in Hoshiarpur jail since February 2014 and as such the question of mortgaging his property in April 2014 did not at all arise.
10.           Thus, now the question which falls for consideration  is, as to whether, in February 2014 or even at the time of sanction of the loan in question, Malkiat Singh whose property also stood mortgaged with the opposite party, was lodged in Central Jail Hoshiarpur or not. It may be stated here that though the opposite party in order to wriggle out of the allegations leveled in the consumer complaint has mentioned in its written statement that Malkiat Singh was lodged in the Hoshiarpur Jail in February 2014 i.e. four months before sanction of the loan, yet, when we go through the contents of Certificate dated 12.08.2014, Annexure OP-6 issued by the Superintendent, Central  Jail, Hoshiarpur, placed on record by the opposite party itself, it transpires that Malkiat Singh was lodged in the said Jail  on 12.08.2014 and was released  on 15.09.2015. However, from 26.03.2015 to 08.05.2015, he was on parol. Thus, in the present case, loan was sanctioned on 07.06.2014 and also the property of Malkiat Singh was also mortgaged on 07.06.2014  i.e. the date when Malkiat Singh was not in jail. However, only the lien was marked in respect of his (Malkiat Singh) land on 13.11.2014. In our considered opinion, the presence of Malkiat Singh for marking of lien on the land in question in the revenue record was not necessary. Thus, it cannot be said that on the date on marking of lien in favour of the opposite party in respect of the property of Malkiat Singh, since he (Malkiat Singh) was in jail, as such, complainant committed fraud with the opposite party. 
11.           Apart from it, the original record  with regard to mortgage of the property of Malkiat Singh has not been produced on record by the opposite party, for the reasons best known to it. Therefore, an adverse inference can be drawn against the opposite party that had they produced the said documents, they would have gone against it.
12.           It is also coming out from the record that neither the loan amount was released in favour of the complainant nor the property of the complainant mortgaged was released by the opposite party, even by the date of filing of this complaint. The complainant has placed on record translated copy of Jamabandi for the period from 2019-2020 dated 12.07.2021, Annexure C-15 to show that the parts of property mortgaged still stands with the opposite party in the revenue record. The fact that the property in question stood mortgaged and its lien  stood marked with the opposite party even till 2022 is  further evident from letter dated 18.05.2022, Annexure OP/8 having been written by the opposite party to the Sub Registrar, Tehsil Mukerian, Hoshiarpur, Punjab, wherein, the opposite party has requested the said Authority to lift the lien of Rs.4.5 crore on the property of the complainant, which stood mortgaged with it.  However, there is nothing on record that the  said lien has been lifted in respect of the  property in question, even as on today. Thus, under these circumstances, the opposite party has failed to give any justification as to why they kept the property in question mortgaged under its name, when the loan sanctioned in the year 2014 was not disbursed in favour of the complainant. On account of this act of the opposite party, the complainant was deprived of, to avail loan from any other Bank/Financial Institution to start her agro plant or any other purpose.  In our considered opinion the said entry of the property of the complainant, showing mortgaged in favour of the opposite party in revenue record was unnecessary, which has definitely caused mental agony, harassment and financial loss to the complainant. However, the complainant did not disclose the specific damages, which has been caused to her due to non removal of hypothecation/mortgage of land/lien from the name of the opposite party in the revenue record.  Under these circumstances, we are of the considered opinion that if lumpsum compensation in the sum of Rs.4 lacs is granted in favour of the complainant that will be fair, reasonable and will also meet the ends of justice.
13.           For the reasons recorded above, this complaint is partly accepted with costs and  opposite party is directed:-
    1. To get the lien removed in respect of the property of the complainant/her guarantors, within a period of  30 days from the date of receipt of  certified copy of this order and issue NOC to the complainant in that regard.
    2. To pay compensation to the tune of Rs.4 lacs to  the complainant for causing her mental agony, harassment and financial loss on account of the reasons mentioned above, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amount of Rs.4 lacs shall carry penal interest @12% p.a. from the date of default till realization.
    3. To pay cost of litigation to the tune of Rs.35,000/- to the complainant, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amount of Rs.35,000/- shall carry penal interest @12% p.a. from the date of default till realization.
    4. However, it is made clear that in case the opposite party failed to get removed lien in respect of the property in question and also issuance of NOC, it shall also be liable to pay additional compensation to the tune of Rs.50,000/- to the complainant alongwith interest @12% p.a. from the date of filing of this complaint till realization.

 

14.           Certified Copies of this order be sent to the parties, free of charge.
15.           The file be consigned to Record Room, after completion.

 

Pronounced

18.08.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 

Rg.