This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, Jamini Mohan Goswami proprietor of ‘Ashirbad’.

The case of the complainant’s in short is that ‘ASHIRBAD’ is a business name which is regional stockiest for Shalimar’s Chemical Works Ltd. which originated different daily used articles like edible oil, coconut oil, spices etc. and the said business is situated at Tribeni Bazar in Hooghly district.

The proprietor of ‘Ashirbad’ applied for one Cash-credit loan to the bank and the bank sanctioned the loan in favour of the business of the petitioner vide C.C. A/c. No.2493 and the credit limit was enhanced time to time in favour of the petitioner.  Previously the Shalimar products have very high demand but at present the demand of Shalimar product gradually reduced and the business of the petitioner was going towards loss.  The complainant time to time received the amount from the bank and at the same time deposited the dues along with the interest. 

The business of the complainant was going loss and for which he failed to pay the amount time to time and as a result the bank realized the interest forcibly from the interest accrued over the fixed deposit of the complainant.  The complainant expressed his incompetence both verbal and writing to the bank and requested to realize the entire fixed deposits for realization of the loan which the petitioner had taken from the bank.  The petitioner further requested to the bank authority that after calculation of the remaining amount of the loan may converted into term loan and opportunity may be given to the petitioner so that he may pay the entire amount of the loan and to discharge his responsibility towards his dents and liabilities of the bank.

The opposite party bank did not take any positive measure over the representation submitted by the petitioner to the effect that he is willing to pay the loan amount to the bank.  The bank did not communicated to the petitioner whether the application submitted by the petitioner was entertained or rejected.  The interest was charged time to time and day to day basis.  The complainant sent a notice through his Ld. Advocate to the bank authority so that the bank may have to be taken proper steps for calculation and realization of the fixed deposit amount against the loan.  But till date the bank did not take any positive steps over the issue.  The interest is increasing time to time by the fault of the bank for which the petitioner is not at all responsible.  The rate of interest of cash credit is very high but the rate of interest of the fixed deposit accrued in favour of the petitioner is minimum.  The petitioner has been suffering from payment of interest more; on the other hand the fixed deposit interest is minimum which the bank realized time to time.

Finding no other alternative the complainant filed this case before this Forum for relief with prayer to direct the opposite party bank to pay compensation of Rs.2,50,000/-, to pay Rs.1000/- per day for loss of business from the date of submission of written representation for realization of the fixed deposit amount of the petitioner to the complainant, an order not to charge any interest on and from 28.3.2016 to onwards of the CC A/c. No.2493, an order for realization of the entire fixed deposit of the petitioner against the above referred CC Loan, an order for appointment one competent person to calculate the principal and interest and thereafter suitable installment may be allowed so that the petitioner may discharge the entire liability in favour of the bank.

The opposite party No.1 & 2 contested this case by filing written version denying inter-alia all the material allegations as leveled against them.  These opposite parties submit that the complainant himself admitted that he is the proprietor of his proprietorship concern ‘Ashirbad’ and carrying on reselling business and regional stockiest of Shalimar Chemical Works Ltd.  From the paragraph of the complainant it is evident that complainant carrying his business for commercial purpose and not for earning his livelihood by means of self employment.

These opposite parties further submit that complainant himself is negligent in paying the dues of the bank as per terms of sanction and other loan documents, executed by the said complainant in favour of the opposite parties.  Thereby the complainant unconditionally gave the right to the opposite party to adjust the dues of the complainant, in case of default.  Therefore, the opposite parties have rightly exercised their right of lien and the allegation against the opposite party for realizing the interest and the alleged threatening are absolutely baseless and not true.  The complainant through his Ld. Advocate admitted and acknowledged his outstanding loan liability and undertook to pay the same but actually did not pay the dues of the bank.  As such there is deficiency and negligence on the part of the complainant himself.

 The complainant filed evidence on affidavit and opposite party filed written notes of argument which are taken into consideration for passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant ‘Ashirbad’ is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant ‘Ashirbad’ is a ‘Consumer’ of the opposite party?

   From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the OP No.2 bank is maintaining a cash credit account before the opposite party no.2 bank and opposite party no.1 is the regional Manager, so he is entitled to get service from the service provider i.e. opposite party bank.

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

 Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

  The complainant case is that he/ she being a business establishment used to stock Shalimar Chemical works limited namely edible oils, coconut oil, spices etc. That the complainant applied for one cash credit loan to opposite party No.2 and it is sanctioned and enhanced time to time. As the demand of the Shalimar products reduced in the market so his business was going towards loss for a few years but he continued the loan account and paying due amounts regularly. The complainant could not pay the interest regularly for which the bank realized the interest forcibly from the interest accrued over his fixed deposit. So without causing any delay informed the opposite party both verbal and in writing that he is not in a position to continue the cash credit loan and requested humbly the bank to realize the entire fixed deposits for realization of the loan. And after calculation of the remaining amount of the loan may be converted into term loan and opportunity may be given to him so that he may pay the entire amount of the loan and to discharge his responsibility towards his debts and liabilities of the bank. The opposite party bank did not take any positive measure over the representation submitted by him. But the bank did not communicate to him either reject or entertain his petition.  Then the complainant served a legal notice through his Ld. Advocate so that bank may have taken proper steps for calculation and realization of the fixed deposit amount against the loan. The interest rate in the cash credit loan is very high on the other side the interest in the fixed deposit is minimum. So the complainant suffered huge loss at the deficiency of service of the opposite party bank.

 The opposite party argued that the complainant is carrying on wholesale business as Regional stockiest of Shalimar Chemical Works for commercial purpose, making profit and not for earning his livelihood by means of self employment. The complainant nowhere stated that he is carrying on wholesale business for self employment for earning his livelihood.  It is also submitted that the cash credit loan is given only for the business purpose and in the instant case the said total cash credit limit was availed of and enjoyed by the complainant in order to developing his wholesale business or commercial purpose, which does not come under the purview of consumer protection Act,1986. He further averred that the complainant filed the instant complaint case by suppressing the material facts as well as for avoiding repayment of the loan. So he is not entitled to get any relief as prayed.       

  After hearing the arguments and perusing the case record and documents it is crystal clear that the complainant availed of cash credit loan from the opposite party bank and used to pay loan amount alongwith interest regularly and when the business establishment  running loss then the complainant became irregular  in paying the loan amount  including interest therein as such the opposite party  realized the loan amount and interest from the interest of the fixed deposit filed before the opposite party bank. When the complainant realized that the interest of cash credit is higher than the interest of the fixed deposit so he prayed before the opposite party bank to realize the fixed deposit but the opposite party is not interested to pay heed at the utterance of the complainant as such the complainant filed the instant complaint petition before this Forum as incorporated in the prayer portion of the complaint petition.  

It is to be mentioned that when the bonafide customers of the banks are making complaint against the bank when they are not getting proper service as a consequence they are compelled to take the recourse of this Forum for redressal as it is a social legislation. The complainant herein being responsible person is fully aware of his rights and duties he never compromise with the injustice upon him.

It is a fact that opposite party bank getting complaint from the Complainant never tried to mitigate the grievances rather than ignored the utterance as a result the liability of the complainant soared day by day so getting no alternative he preferred the recourse of this Forum on the other hand the opposite party contested the case before this Forum with a plea to reject the complaint petition on the ground that the complainant run the business for commercial purpose.

 In the instant case the opposite party No.1&2 bank always tried to evade its responsibility on the false pretext and never tried to provide service to its customer/consumer/ beneficiary. The complainant by producing sufficient evidence established that the opposite party No.2 is deficient in providing service to this complainant as such the complainant suffered at the behest of negligence on the part of the opposite party No.2.

 From the above discussion we may safely conclude that the opposite party No.2 is deficient in providing service towards this complainant who is a consumer of OP No.2 and availed of loan facility from the opposite party bank for which the opposite party No.2 bank is liable to pay compensation and other reliefs as prayed in the prayer portion of the complaint petition to that extent as ascertained by this Forum.

  4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

 The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove his case and the Opposite Party is liable to pay compensation for harassment and mental agony to this complainant. 

    ORDER

 Hence, it is ordered that the complaint case being No.93/2017 be and the same is allowed on contest against the opposite party No.2 with a litigation cost of Rs.4000/- payable to this complainant.

The Opposite Party No.2 is directed to adjust the fixed deposit proceed with the loan account and inform this complainant regarding his liability if any within 30 days from the date of this order.  

The opposite party no.2 is further directed to pay  compensation amounting to Rs.6,000/- within the time framed for harassment and mental agony of the complainant.

 All the payment are to be made within 30 days from the date of passing final order.

 Opposite Party No.1 is exonerated from this proceeding.

 At the event of failure to comply with the order the Opposite Party No.2  shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 30 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.