Sri Subhra Sankar Bhatta, Judicial Member
This Appeal arises from a judgement dated 11-7-2019 passed in Complaint Case No. 24/2019 by the Consumer Disputes Redressal Forum, Kolkata-I (North). The present Appellant Shri Debabrata Banerjee was the Complainant and Respondent Nos.1, 2, 3 and 4 were respectively the opposite parties of that Complaint Case.
The present Appellant as Complainant instituted the Complaint Case being No. CC/24/2019 against the Opposite Parties No. 1, 2, 3 and 4 before the Ld. District Consumer Disputes Redressal Forum, Unit-I Kolkata u/s 12 of the Consumer Protection Act, 1986 praying for certain relief/reliefs as embodied in the prayer portion of the said complaint.
Succinctly put, the material facts giving rise to the filing of the present Appeal, as culled out from the complaint is that the Complainant had applied to the OPs/Punjab National Bank Limited for Home Lone amounting to Rs.12,00,000/- (which was about 65% of the total value) in order to purchase a flat in the month of July, 2016. Subsequently, the Government of India announced a scheme named “Pradhan Mantri Awas Yogona” and the Complainant asked the bank to make arrangement for getting subsidy under the said scheme (PMAY). The Bank assured the Complainant/Appellant that they would make arrangement under PMAY Scheme and at that relevant time Complainant/Appellant did not feel any foul play on the part of the OP/Bank. The Complainant signed on various papers as per instruction of the bank. The procedure for obtaining loan was completed long back in August, 2016 but the Complainant was kept in dark about the sanction of the loan. It has been alleged that the O.P/Respondents Bank neither issued the sanction letter nor disbursed the loan amount till 20-12-2016. On 21-12-2016 a sum of Rs. 12,00,000/- was disbursed in favour of the Complainant’s/Appellant’s developers and the deed of conveyance was executed and registered in respect of the said fact on 26-05-2017 i.e. after 5 months from the date of disbursement of the said loan. It has been also alleged that the Appellant for the first time came to know from the sanctioned letter that the Respondent/Bank did not take steps for getting the benefit under PMAY Scheme. It has been further alleged that the O.P Bank blocked the sum of Rs.6,00,000/- in the fixed deposit account but the same was not disclosed to the Complainant while processing the loan and such act was done arbitrarily by the Respondent/Bank. The Appellant/Complainant also deposited the original deed of conveyance for creation of equitable mortgage as per direction of the Respondent/Bank. Thereafter, the Appellant/Complainant made Complaints before the Bank but did not get any reply from the Bank. Moreover, The Appellant/Complainant was not allowed to go through the documents upon which he put his signatures as per direction of the bank. It is the specific case of Appellant/Complainant that had he received the sanction letter prior to disbursement loan on 02.12.2016 then he would have cancelled/withdrawn the loan application from the O.P Bank and would have gone to other nationalised bank for availing subsidy under the Pradhan Mantri Awas Yogona. It has been clearly alleged that due to the arbitrary acts of the Respondent/Bank the Appellant/Complainant has been deprived from getting the benefit of the said scheme. Due to such arbitrary and illegal acts of the O.P Bank the Appellant/Complainant was compelled to file a Complaint Case before the Ld. DCDR Forum, Unit-I, Kolkata praying for necessary Redressal. The Appellant/Complainant prayed for a direction upon the OPs/Banks to pay an amount of Rs. 2,67,000/- (Two lakhs Sixty Seven Thousand only) which was the exact benefit that the Complainant was entitled to get under PMAY Scheme and to pay a further sum of Rs. 2,00,000 (Two Lakhs Only) towards damages and compensation for the harassment and/or mental agony and/or embarrassment and/or damages suffered by him and litigation cost of Rs. 25,000/- (Twenty Five Thousand).
O.P Bank entered appearance in that Complaint case and also filed a petition challenging maintainability of the case on the ground that the Complainant is not at all a Consumer under section 2(1)(d) of the C.P Act. Specific defence is that in case of dispute regarding subsidy in interest between the parties i.e. the complainant and the bank, the Complainant cannot be termed or said to be a Consumer which provides him subsidy in the principal amount itself. According to the O.P Bank the Complaint Case of the Complainant is not maintainable as the subsidy does not come within the ambit of C.P. Act, 1986.
The Appellant/Complainant also filed an application before Ld. Forum below praying for amendment in order to incorporate some facts. The OP/Bank raised objection against the proposed amendment petition. The Complainant/Appellant wanted to incorporate that though the O.P Bank paid Rs. 12,00,000/- to the developer but no sanction letter was provided to the Complainant/Appellant. The O.P Bank did not obtain prior consent of the Complainant/Appellant to block the fixed deposit of Rs.6,00,000/- which was purchased from the O.P Bank resulting unfair trade practices on the part of the O.P bank. The OP/Bank categorically alleged that the proposed amendment should not be allowed as subsidy to be enjoyed cannot come within the purview of C.P. Act. According to the OP/Bank if the proposed amendment is allowed, the same would change the nature and character of the Complaint Case causing irreparable loss and injury to the OP/Bank. The OPs/Banks prayed for dismissal of the proposed amendment.
Considering the submissions of the respective parties and on perusal of the documents available on record Ld. Forum below was pleased to dismiss the Complaint Case by holding that the same is not maintainable as per Consumer Protection Act, 1986 as the Complainant is not a consumer. Ld. Forum below was further pleased to hold that the proposed amendment filed by the Complainant, if allowed, would change the nature and character of the case and as such Ld. Forum below was not inclined to allow the petition for amendment as sought for by the Complainant.
Being aggrieved by and dissatisfied with the above judgement of the Ld. Forum below the Complainant as Appellant has preferred the present Appeal contending inter alia that the Ld. Forum below erred both in law and facts in dismissing the Complaint; that the Ld. Forum below failed to appreciate the true nature and character, import and purport of the facts and the principles of law involved in the case; that the Ld. Forum below acted with material irregularity by holding that the Complainant cannot be treated as a Consumer as per the C.P. Act; that the Forum below was totally wrong in allowing the petition of maintainability filed by the OP/Bank; that the forum below was wrong in rejecting the proposed amendment filed by the Appellant/Complainant; that the Ld. Forum below failed to appreciate that the Respondent/Bank did not file any separate application challenging the maintainability of the Complaint Case; that the Ld. Forum below failed to appreciate that the written version of the OP/Bank cannot be considered as petition challenging the maintainability of the Complaint Case; that the Ld. Forum below failed to appreciate that there was deficiency in service on the part of the OP/Bank for which the Appellant/Complainant did not avail the benefit under the scheme PMAY. On all such grounds the Appellant has prayed for allowing the present Appeal after setting aside the judgement impugned.
After hearing the Ld. Counsels of both sides and regard being had to the facts, circumstances and pleadings of the respective parties we are of the opinion that the following points are required to be adjudged in this Appeal;
POINTS FOR DETERMINATION
- Whether the Ld. District Forum, Unit –I Kolkata has committed any error or illegality or irregularity in passing the impugned judgement.
- Whether the impugned judgement of the Ld. Forum below can be sustained in the eye of law.
DECISIONS WITH REASONS
Ld. Counsel appearing for the Appellant has submitted that the Ld. Forum below failed to consider that the Respondent/Bank did not file any separate application challenging the maintainability of the Complaint Case but the Ld. Forum below erroneously considered the written version of the Respondent/Bank as the petition challenging maintainability of the Complaint Case and wrongly held that the petition filed by the Respondent/Bank is allowed despite no existence of such application. It has been argued that the Ld. Forum below failed to appreciate the case of the Complainant in a proper perspective and as such wrongly observed that the Appellant/Complainant seeks the benefit of exemption of interest under Pradhan Mantri Awas Yojona Scheme. It has been also submitted that the Ld. Forum below failed to differentiate the case laws cited by the Complainant and erroneously arrived at a decision that the Appellant/Complainant is not a consumer under the Consumer Protection Act. According to the Ld. Counsel the Appellant/Complainant requested the Respondent/Bank to apply for subsidy under the said scheme as per assurance given by the Respondent/Bank but they did not apply for the same which tantamounts to deficiency in service and for such activity of the Respondent/Bank the Appellant/Complainant could not avail the benefit of the said scheme. It has been highlighted much that the Respondent/Bank issued the sanction letter to the Appellant/Complainant after the expiry of 5 (five) months from the date of disbursement of loan and registration of the title deed which amounts to unfair trade practice and deficiency in service on the part of the Respondent/Bank. He has further submitted that the Ld. Forum below passed an one sided judgment by not allowing the proposed amendment of the Appellant/Complainant. According to the Ld. Counsel the proposed amendment sought for by the Appellant/Complainant ought to have allowed for just and proper adjudication of the Complaint Case. In support of the above contention Ld. Counsel has placed reliance upon the decision reported in Civil Appeal No. 5540 of 2016 R.K Roja, Appellant—vs.—U.S. Rayudu and Another (Respondents) arising out of SLP (c) No. 15474 of 2016.
On the contrary Ld. Counsel appearing for the Respondents/Banks has strenuously argued that the Appellant/Complainant is not a consumer as per Section 2(1)(d) of the C.P. Act, 1986. On this point Ld. Counsel has cited the decisions reported in (i) 1994 SCC (4) 225 (Morgan Stanley Mutual Fund—vs.—Kartick Das), (ii) Civil Appeal No. 4665 2021 arising out of SLP (c) No. 3899 of 2021 (Sri Hari Hanuman Das Totala, Appellant—vs.—Hemant Vithal Kamat and Ors., Respondents) (iii) Revision Petition No. 4894 of 2012 (Choudhary Ashok Yadav—vs.—Rewari Central Co.—OP Bank and Anr. decided on 8th February, 2013 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi (iv) First Appeal No. 228/2010 decided on 07.01.2012 by State Consumer Disputes Redressal Commission, Simla, Camp at UNA (Gurvinder Singh—vs.—PNB and Another), (v) LAWS (NCD)—1992—12—145 (NCDRC) decided on December 17, 1992 (Haryana Financial Corporation of Chandigarh—vs.—Jamna Dass Cotton Mills of Hansi) and (vi) AIR 1995 Bombay 227 (PR Sukeshwala and Another—vs.—Dr. Devadatta V.S. Kerkar and decided on 10th August, 1994).
Ld. Counsel appearing for the Respondent/Bank has canvassed much on the point that there is no hard and fast rule or prescribed period under the law for issuance of the sanction letter. Respondent/Bank has provided the sanction letter on 25.11.2016 to the Appellant/Complainant though he was well aware about the sanction of loan. It has been further argued that the loan amount was debited on and from January, 2017 after the sanction and the Appellant/Complainant was aware of the said fact from the very beginning. Moreover, payment of subsidy is not a matter of right and the same will not come under the purview of the definition as embodied in Section 2 of the C.P. Act. According to the Ld. Counsel a person cannot be regarded as a consumer who claims subsidy under the scheme of PMAY. He has candidly submitted that the observations of the Hon’ble Courts have binding precedents and as such Complainant does not fall within meaning of consumer. He has prayed for outright dismissal of the Appeal with cost.
Admittedly, Appellant/Complainant had applied for a home loan of Rs. 12,00,000/- for purchasing a flat in the month of July, 2016 before the Respondent/ Punjab National Bank Limited. The requisite procedure for obtaining the loan was duly completed in the month of August, 2016 and the Appellant/Complainant executed various papers and submitted the same before the Respondent/Bank. On 21.12.2016 a sum of Rs. 12,00,000/- was disbursed and accordingly the deed of conveyance was executed and registered in respect of the flat in question. By a letter dated 25.11.2016 the Respondent/Bank informed the Appellant/Complainant about the sanctioned amount of Rs.12,00,000/- along with the terms and conditions of such loan. It is the specific allegation of the Appellant/Complainant that at the time of submitting application for home loan he had asked the Bank to make arrangement for getting the subsidy under PMAY Scheme which was announced by the Government of India but the
Respondent/Bank in spite of giving assurance did not take proper steps for getting the benefit under the said scheme. It has been alleged that the Respondent/Bank arbitrarily blocked a sum of Rs.6,00,000/- in the fixed deposit account. It has been also alleged that no sanction letter was issued to the Appellant/Complainant in time by the Respondent/Bank. The Appellant received the sanction letter on 26.05.2017 i.e. after five months from the date of disbursement of loan. Due to such arbitrary and illegal act of the Respondent/Bank the Appellant/Complainant was compelled to file the Complaint Case before the Ld. Forum below.
The Sanction letter goes to establish that it was sent to the Appellant/Complainant on 25.11.2016 by the Senior Manager, PNB. Terms and conditions have been categorically embodied in that letter. Hence, the allegation as raised by the Appellant cannot be taken into account. Moreover, there is no whisper in the sanction letter about the subsidy under the ‘PMAY’ scheme launched by the Government of India. No document is forthcoming on record to prove that the Appellant/Complainant requested the Bank for getting subsidy under ‘PMAY’ Scheme at the time of submitting the loan application.
It is an admitted fact that the Bank sanctioned Rs. 12,00,000/- as loan to the Appellant after perusing relevant papers and the cheque of that amount was duly handed over to the developer. Undoubtedly, Appellant got possession of the said flat in the year 2016. Curious enough to note that the Appellant/Complainant has raised the question of not obtaining the benefit of subsidy under the ‘PMAY’ Scheme at a belated stage i.e. after the lapse of several years. Practically, Appellant/Complainant is certainly estopped from raising such question at a belated stage. Reasons best known to the Appellant/Complainant as to why he did not raise such question at the right time of obtaining the loan.
We have meticulously gone through the judgments passed by the Hon’ble Apex Court, Hon’ble NCDRC and various State Commissions. On a careful perusal of the facts, circumstances and materials on record and regard being had to cited decisions it can be safely concluded that Appellant/Complainant is not a ‘Consumer’ under the Consumer Protection Act. The claim of benefit of interest as subsidy under the ‘PMAY’ Scheme cannot be and should not be given taking recourse to the C.P. Act. Appellant/Complainant has hopelessly failed to prove that there is deficiency in service or unfair trade practices on the part of the Respondent/Bank.
Another aspect is that Ld. Forum below pleased to reject the amendment petition of the Complainant by observing that if the same is allowed, in that case, the nature and character of the Complaint Case would be changed to a great extent. By virtue of proposed amendment the Appellant/Complainant wanted to incorporate the facts that though the Respondent/Bank disbursed Rs. 12,00,000/- to the developer but no sanction letter was provided to the Appellant/Complainant in time and that the Bank did not take prior consent of the Appellant/Complainant while blocking the fixed deposit. Thus, the Respondent/Bank has caused unfair trade practices. On a careful perusal of the proposed amendment it can be safely opined that the amendment as sought for is certainly a new and inconsistent story. Appellant/Complainant instituted the Complaint Case on the very issue of not getting the interest as subsidy under the ‘PMAY’ Scheme. Subsequently, by dint of proposed amendment the Appellant/Complainant tried to incorporate new story. In our firm view the proposed amendment if allowed, will certainly change the nature and character of the Complaint Case to a great extent. On this score the findings of the Ld. Forum below is absolutely correct.
During the course of hearing, Ld. Counsel appearing for the Appellant/Complainant has highlighted much that the Ld. Forum below failed to consider that the Respondent/Bank did not file any separate application challenging the maintainability of the Complaint Case. Respondent/Bank filed their Written Version but the Ld. Forum below erroneously considered the same as the petition challenging the maintainability of the Complaint Case and thus caused mis-carriage of justice. According to the Ld. Counsel no separate application was filed by the Respondent/Bank challenging the issue of maintainability.
It is crystal clear from the record that the Respondent/Bank filed an application challenging maintainability of the Complaint Case with the prayer to treat the same as their Written Version. Ld. Forum below accepted the same in presence of both sides. Considering the pleadings of the respective parties Ld. Forum below arrived at a definite conclusion and held that the Complaint Case of the Complainant is not maintainable as the Appellant/Complainant is not a consumer under the C.P. Act. After considering the cases of the parties, arguments of the respective Ld. Counsels for the respective parties the Ld. Forum below came to the decision. In our opinion Ld. Forum below was absolutely correct in holding the decision. In fact, Ld. Forum below did not cause any irregularity, illegality or mis-carriage of justice in reaching to the final conclusion. We do not find much substance in the arguments advanced by the Ld. Counsel for the Appellant/Complainant. The facts and circumstances of the cited decision and the facts and circumstances of the present case are not same and alike in nature. The same has no application in the present case at hand. Issue of maintainability can be heard and disposed of as a preliminary issue if the issue affects the jurisdiction of the Commission.
Considering the facts, circumstances and nature of materials available on record and having considered the submissions advanced by the Ld. Counsels for the respective parties and with our profound respect to the cited decisions which have been referred on behalf of the Respondent/Bank we hold and firmly hold that the Appellant/Complainant is not a consumer within the ambit of C.P. Act and as such he is not entitled to get any relief as sought for. We further hold that the Complaint Case filed by the Complainant is not maintainable in the eye of law. Ld. Forum below was absolutely correct in their approach. We do not find any reason for interference in the judgment of the Ld. Forum below. It requires to be sustained.
Both the points are thus disposed of.
Thus, the Appeal fails.
It is, therefore,
ORDERED
That the present Appeal being No. 597/2019 be and same is dismissed on contest without any order as to costs.
The judgment dated 11th July, 2019 passed by the Ld. Consumer Disputes Redressal Forum, Kolkata—I (North) is hereby affirmed.
Let a copy of this judgment be sent to the Ld. Forum below forthwith for information and taking necessary action.
Note accordingly.
