This appeal is directed against the Final Order dated 17.11.2021 delivered by Ld. DCDRC, Malda in CC No. 18 of 2020. The instant complainant case was initiated by one Hema Agarwala and her husband against, I.O.B. Malda.
The consumer case was ended at disposal in favour of the complainants after a hot contest. Against the said final Disposal order this appeal which has contested by the respondents(complainant).
The fact of the case in nut shell is that as per Circular No. 92/ICD -2C/2002-03 dt. 12/04/2002 and National Bank for Agriculture and Rural Development, (NABARD) for capital investment subsidy scheme for construction of rural godown (Gramin Bhandaran Yojona), the Complainant No. 1 Smt. Hema Agarwala applied to the Indian Overseas Bank, Malda for a loan and the bank sanctioned a term loan of Rs. 12.04 Lakhs (Rupees Twelve Point Zero Four Lakhs Only) on the basis of the documents filed by the complainant before the Overseas Bank, Malda.
In this regard it is to be mentioned that in addition to the above loan, bank will finance 25% of the project cost amounting to Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs) for subsidy which will be kept reserved till the completion of the project as back ended subsidy.
On 25/09/2004 the Indian Overseas Bank sanctioned 12.04 Lakhs (Rupees Twelve Point Zero Four Lakhs Only) for construction of rural godown under T.L. A/c. No. 390400003. The terms and conditions also mentioned in the said sanctioned letter. According to the terms and condition as mentioned in Sl. No. 3, the bank should claim the subsidy amount and the said subsidy amount should be kept as a "back ended subsidy". As per sanction letter the Complainant No. 1 availed the loan of Rs. 12.04 Lakhs from the Indian Overseas Bank, Malda Branch and started construction of the said rural godown under the continuous supervision of the Indian Overseas Bank, Malda Branch. The Complainant No. 1 also received the amended sanction order on 18/05/2005 of Rs. 6.02Lakhs (Rupees Six Lakhs Only) as back ended term loan with no interest for the completion of the said project and the said sanction letter was in connection with the Loan A/c. No. 390400003.
It has been further stated in the petition of complaint that as per sanction letter dt. 10/09/2004 the subsidy amount of Rs. 6.02 lakhs (Rupees Six Point Zero Two Lakhs Only) under the head “back ended subsidy” and the branch should ensure the release of the said amount as term loan after the completion of the project. The subsidy received from the NABARD should be kept in the Subsidy Reserve Fund and the account should be adjusted finally against the loan component of the project. It has been further stated that the said loan of Rs 6.02 lakhs (Rupees Six Point Zero Two Lakhs Only) was the part and parcel of the original sanction of Rs. 12 Lakhs (Rupees Twelve Lakhs Only) on dt. 25/09/2004. After the project was completed in July, 2006 the complainant submitted completion certificate issued by Shri Sandip Kr. Jha, a registered Architect, on 13/07/2006.
It is to be mentioned that Complainant No. 2 executed an equitable mortgage in favour of Indian Overseas Bank, Malda Branch West Bengal to his house property in connection with Loan Reference No. 390400003.
Thereafter, on 26/10/2006 the Complainant No.1 received a letter from Sr. Manager of Indian Overseas Bank, Malda that they conducted a J.M.C. inspection on 10/10/2006 and found certain discrepancies but the Complainant No. 1 was not aware of such inspection as no notice of such inspection was given to her. Moreover, during that period the godown was fully loaded with food grains. However, after receiving the said letter, the complainant rectified all the discrepancies as mentioned by the Sr. Manager of I.O.B.
It has been further stated that the Complainant No.1 has fully paid the principal amount along with the interest accrued there on 28/05/2009. The branch after verification of the accounts and documents and after necessary adjustment of Rs. 6.02Lakhs (Rupees Six Lakhs Only) issued a certificate on 28/05/2009 to the effect that the term loan in the name of Mrs. Hema Agarwala is closed on receipt of outstanding amount in full. After clearing the batta, outstanding dues and after obtaining the certificate from the Branch, Malda that the account has been closed and no amount is due. On 28/05/2009 the complainant received a letter dt. 26/03/2010 that with reference to letter dt. 26/03/2010 i.e., after 3 (Three) years 5(Five) months the complainant had failed to rectify the discrepancies and not submitted certificate in this regard as a result of which bank was not able to claim the subsidy from the NABARD. But it is not true that the rectification was made immediately after receipt of the letter from the bank. The complainant on 28/05/2009 repeatedly requested the bank authority to return the documents but ultimately the complainant did not get return the documents. Further on 16/05/2006 the Complainant No. 1 received a letter from the Indian Overseas Bank that Rs. 3,83,854/- (Rupees Three Lakhs Eighty-Three Thousand Eight Hundred Fifty-Four Only) is still outstanding and also avail the loan of Rs. 6,02,000/- (Rupees Six Lakhs Two Thousand Only). Ultimately, the bank did not return the documents.
It has been further stated that the bank had the intentional latches for not claiming the amount from the NABARD within the specified time. This is why the O.P. initiated a got-up claim to the effect that the complainant by creating an alleged loan amount bearing No. 390500002. Actually, no document was executed by the Complainant No.1 for opening Account being No. 390500002 and the O.P. No.2 did not execute any equitable mortgage in connection with that loan amount. The complainant has claimed Rs. 10,00,000/- (Rupees Ten Lakhs Only) from the O.P. for the act of negligence in sufficient service and Rs. 5,00,000/ (Rupees Five Lakhs Only) for mental loss and agony and Rs. 1,00,000/- (Rupees One Lakh Only) for the cost of the proceeding.
The case has been contested by the O.P. i.e., Indian Overseas Bank by filing W/V denying all the material allegation as labeled against the bank contending inter alia that the instant case is not maintainable in its present form. There was no deficiency on the part of the O.P., the case is bad for non-joinder of necessary parties. "NABARD" is a necessary party in this case. Architect, Sandip Jha West Bengal State Beverage Corporation Limited is also a necessary party.
The further case of the O.P. is that the complainant is a borrower of the O.P. No.1 as such the instant case does not come under the purview of the Consumer Protection Act and is not entitled to get any relief under the Consumer Protection Act, 1986.
The further case of the O.P. is that the project was supervised by the J.M.C., the Joint Inspection Team of NABARD and Bank and it has been admitted by the complainant that they will rectify the discrepancy as pointed out by the J.M.C. i.e., the project was not completed as per terms and condition.
The further case of the O.P. is that actually loan 2 was sanctioned 18.06 lakhs (Rs. 12.04 lakhs + 6.02 lakhs) as per the prayer of the complainant and it was the condition that the bank will release the loan and subsidy amount will be back ended. It has been also denied that the Complainant No.1 completed the project in July, 2006. The certificate issued by Sandip Kr. Jha is absolutely collusive and not to the satisfaction of the NABARD and the fact of execution of equitable mortgage in favour of the bank and the complainant had the knowledge that unless and until the transaction is completed or fulfill the documents will not be returned. It is also false that the bank issued a certificate on 2009 in the caption that the loan has been closed.
According to the written version of the O.P.s that the certificate was only to the extent of 12.04 Lakhs (Rupees Twelve Point Zero Four Lacks Only) but not for the amended sanction of Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs Only) as such the full amount was not paid. So, the complainant is not entitled to get any relief as prayed for.
The appeal was registered in due course which was admitted on merit and the respondents/complainant has contested the appeal through Ld. Advocates.
Ld. Advocate Mr. R. Jha has conducted the hearing on behalf of appellant and Ld. Advocate Mr. Milindo Paul has participated in the hearing on behalf of respondents.
Decision with reason
As per memo of appeal it is contended on the part of appellant bank all material time the Appellants maintained the captioned Term Loan Account of all dealings and transactions between the Appellant No.1 and Respondent No.1, wherein Appellant No.1 debited the Respondent No.1 with all sums of money paid to the Respondent No.1 by the Appellant No.1; and credited all sums of money paid by the Respondent No.1 to the Appellant No.1. At all material the Appellant No.1 maintained the said Loan account according to English Calendar months.
Despite the fact that the Respondents availing the advantages of the said loan facilities under the aforesaid financial facility but failed to fulfill their obligation by adhering to the terms and conditions of the captioned loan and also by deliberately ignoring the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD) and eventually denying to pay the outstanding against the captioned loan account.
That the Respondents failed and ignored to include National Bank for Agriculture and Rural Development (NABARD) as a necessary party in the complaint case and without the deposition of National Bank for Agriculture and Rural Development (NABARD) a conclusive presumption could never be drawn, since the deposition of National Bank for Agriculture and Rural Development (NABARD) was of impending nature, having a substance of inclusive importance to draw any inference to the said grievances of the Respondents.
That the Respondents have levied importance of high magnitude on the Certificates/Letters/Written Communications issued by Architect S.K. Jha, but the same observation was denied by the Appellants by rebutting the same as collusive. However, Architect S.K. Jha was never called upon before the Ld. District Consumer Disputes Redressal Commission at Malda to adduce evidence as expert's opinion or as a necessary witness to draw a conclusive assessment and inference of his reports.
That the Appellants had stated that the Respondents had leased out the mortgaged property in favour of W.B.S.B. Corporation Ltd. and received Lease Rent which was in gross violation to the terms and conditions of the said loan, but the said statement of the Appellants were denied by the Respondents, hence, a corroboration of the said averment of the Appellants could be established only upon calling W.B.S.B. Corporation Ltd. as witness or including them further as necessary party or proforma party to the case.
That the Respondents never included National Bank for Agriculture and Rural Development (NABARD), Architect S.K. Jha or W.B.S.B. Corporation Ltd. as necessary party/expert witness to opine substantive opinion or necessary witness to substantiate and adduce material evidence to draw a proper inference based upon facts covering all corners.
That the whole case generates around the subsidy kept at Reserve end and its modus operandi and eventually, as a consequence of non-compliance of the terms and conditions of the captioned loan and desecration of the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD), the subsidy not being released and purporting upon that the related documents of equitable mortgage being apprehended by the Appellant No.1 and claim for further outstanding in connection to the loan account by the Appellant No.1. Thus, the whole case is around the avowal and refutation of "SUBSIDY". In view of that it is a settled principle that Id. District Consumer Disputes Redressal Commission at Malda had got no jurisdiction to try this instant case. By mere reading of the prayer of the complaint/plaint the grievance cannot be interpreted properly and a meticulous appraisal and interpretation of the whole complaint/plaint makes it amply understandable that the case generates around the subsidy kept at Reserve end and its modus operandi.
The Id. District Consumer Disputes Redressal Commission at Malda failed to consider the pleadings of the Appellants. The Ld. District Consumer Disputes Redressal Commission at Malda failed to consider that The Appellant No.1 had disbursed the loan on good faith basing upon the fiduciary relation and purporting upon the documents submitted by the Respondents. But, the Respondents deliberately failed and neglected to understand the terms and conditions of the captioned Loan and following the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD). It was the onus of the Respondents to repay the legitimate loan claim of the Appellant No.1 and by strictly adhering to the terms and conditions of the captioned Loan and following the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD). But the Respondents had an intention only to deceive and misappropriate the public money and derive unlawful gain.
The Ld. District Consumer Disputes Redressal Commission at Malda failed to consider that upon an application of the Respondent No.1, the Appellant so.1 had sanctioned a Term Loan on 25.09.2004 for Rs.12.04 Lakh (Rupees Twelve Lakh Four Thousand) only for construction of Godown under GRAMIN BHANDARAN YOJNA (Rural Godown Scheme) bearing Loan No.064703390400003.
The total project cost was Rs.24.08 Lakh (Rupees Twenty four Lakh Eight Thousand) only. The subsidy was being 25% of the project cost i.e., Rs.6.02 Lakh (Rupees Six Lakh Two Thousand) only and borrowers/Respondent's margin was Rs.6.02 Lakh (Rupees Six Lakh Two Thousand) only. The loan was first disbursed by the Appellant No.1 on 13.11.2004. That equitable mortgage was also created on the land used for commercial purpose wherein the godown was to be constructed. That the subsidy ought to be kept in a Subsidy Reserve Fund and was to be adjusted finally against the loan component of the project, only upon austere fulfillment of all the terms and conditions of the sanction letter coupled with the eligibility to claim subsidy as per the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD). Another term loan for Rs.6.02 Lakh (Rupees Six Lakh Two Thousand) only bearing Loan No.064703390500002 being the subsidy amount of NABARD was sanctioned vide sanction letter dated 27.04.2005 which was disbursed on 19.05.2005. The subsidy of Rs.6.02 Lakh (Rupees Six Lakh Two Thousand) only for the captioned loan and was kept as back-end reserve as per the terms and conditions of the sanction letter and as per the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD).
The Ld. District Consumer Disputes Redressal Commission at Malda failed to consider that due to non-compliance of the terms and conditions of the captioned loan and desecration of the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD), the said subsidy reserve was apprehended and thus, not released. That a Certificate of Closure was issued to the tune of Rs.12.04 Lakh (Rupees Twelve Lakh Four Thousand) only, but not for the amended sanction of Rs.6.02 Lakh (Rupees Six Lakh Two Thousand) only. Purporting upon the Certificate of Closure issued to the tune of Rs.12.04 Lakh (Rupees Twelve Lakh Four Thousand) only the Respondent No.1 requested the Appellant No.1 for return of all documents pertaining to the Equitable Mortgage. The Appellant No.1 denied, hence, did not return and apprehended all documents pertaining to the Equitable Mortgage, since, there was absolute non-compliance of the terms and conditions of the captioned loan and desecration of the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD) and moreover, outstanding was lying pending in the said captioned Account and which was required to be paid by the Respondents. That since the Respondents failed to pay the bonafide outstanding pertaining the captioned Loan Account, Appellant No.1 being constrained to secure the public money issued re-call upon the Respondents and claimed the bonafide dues and also invoked further legal recourse.
As per the National Bank for Agriculture and Rural Development (NABARD) rule project should have been completed within 21 (Twenty-One) months from the date of 1st disbursement i.e., 13.11.2004. Further, Respondent No.1 informed the bank on 13.07.2006 (last day of 21th month from the date of 1st disbursement) that they had completed the construction of the rural godown under Gramin Bhandaran Yojana and submitted completion certificate issued by Registered Architect Mr. Sandeep Kumar Jha.
Thereafter, National Bank for Agriculture and Rural Development (NABARD) committee conducted a J.M.C. inspection on 10.10.2006 and found incongruity and inconsistency and the said observation and inference was stated to Respondent No.1 on 26.10.2006. In turn the Appellant No.1 had submitted justification for deficiencies observed during inspection vide letter dated 20.11.2006.
Consequently, due to non-compliance of the terms and conditions of the captioned loan and desecration of the norms and guidelines in force of National Bank for Agriculture and Rural Development (NABARD); National Bank for Agriculture and Rural Development (NABARD) vide their letter Ref No. NB (KOL). ICD. RECALL/9221/2007-08 dated 26.11.2007 informed that the Respondent No.1 is not eligible for subsidy under the CISS- Rural Godown subsidy scheme and requested Appellant No.1 to refund the advance subsidy at the earliest, the said subsidy reserve was apprehended and thus, not released.
The main contention of the appellant bank is that NABARD conducted a J.M.C inspection with the bank officials on 10/10/2016 and found incongruity and in consistency and the said observation and inference was apprised to the respondents on 26/10/2016 in response the respondent submitted the rectification letter on 06/06/2007 i.e. after completion of 29th months from the date of first disbursement i.e. on 13/11/2004 consequently NABARD vide letter dated 26/11/2007 informed that the respondent was not eligible for remedy of subsidy.
Ld. Advocate of the respondent’s mentioned that the subsidy amount of Rs.6,02,000/- was disbursed on 19.05.2005. The grant of subsidy was also notified by amended sanction vide Memo No.RO/KNM/PCD/203/185/05 dated 27.04.2005. The said letter of Amended Sanction clearly had reference to "Sanction dated 10.09.2004 which was in respect of the term of Rs. 12,04,000/-. "In the said amended sanction it was clearly noted as follows- "The subsidy of Rs. 6,02,000/- for the captioned loan is back ended. Branch should ensure release of the said amount for the completion of the project. The subsidy received from NABARD should be kept in the Subsidy Reserve Fund account which should be finally adjusted with the component of the loan project." The completion of construction /project was required to be completed within 21 Months from the date of disbursement. The godown was completed in due time and a completion certificate dated 11.07.2006 was also given to the Bank. By a letter dated 26.10.2006, the Bank informed the complainant No.1/Respondent No.1 that they have conducted a "JMC Inspection" on 10.10.2006 and found discrepancies which are to be rectified to enable them to conduct further inspection to claim subsidy from NABARD. The Borrower responded to the said letter dated 26.10.2006 by a reply dated 20.11.2006 by clearly stating and raising out a point that she was not aware of the inspection with JMC team on 18.10.2006. She further made it clear in the letter dated 20.11.2006 that the said godown was full of grains and was under lock and key and thus she failed to understand the term 'properly inspected'. It was clearly stated in the said reply that the godown was ready by February 2006 and was in use by March 2006. A point wise reply to the letter dated 26.02.2006 was made, further requesting the bank to visit the godown once again and provide proper advice so that she can follow the instructions accordingly. The bank did not respond to the letter dated 20.11.2006, once again accepting the contention in the said letter. A further letter was sent to the bank on 06.06.2007, once again reassuring that all possible contention in the letter dated 26.011.2006 has been executed, the bank received the said letter but there was no communication from the bank. Thereafter two years passed and the borrower repaid the entire loan amount of Rs. 12,04,000/- along with interest paying a total amount of Rs. 19,62,887/- leaving no outstanding. Accordingly, on 28.05.2009 the bank issued a letter certifying that the loan stood closed and that the relevant document/ security would be returned in due course. However, the bank did not return the documents and inspite of the receipt of the entire loan amount, the Bank issued a letter dated 26.03.2010 referring to a letter dated 26.10.2006 saying that the borrower has not rectified the discrepancies as pointed out in the letter dated 26.10.2006 and thus they are not able to claim the balance subsidy from NABARD and further requested the borrower to remit an amount of Rs.2,22,400/-. The said letter was immediately responded to by a letter dated 19.04.2010 stating clearly that all rectifications were done and informed to the bank by a letter dated 06.06.2007., a copy of the said letter was also enclosed therewith. It was also reiterated and brought to the knowledge of the bank by the said letter that the complainant has constructed the godown following all norms and the bank had released the loan amount. After completion of the godown the borrower also had submitted a certificate of a civil engineer by a certificate dated 11.07.2006 (mistakenly typed as 13.07.2006) in the said letter dated 19.04.2010. A copy of the said certificate was also enclosed. The said notice dated 26.03.2010 was issued by the bank in a very clandestine manner in reference to a letter which was issued 3 years 5 months prior to the issuance of this letter and in between there was no communication from the bank with the reference to the letter dated 26.10.2006 irrespective of the fact that reply to the said letter was given on two occasions i.e., on 20.11.2006 and 06.06.2007. The bank issued a letter on 26.03.20210 to which the borrower responded by a letter dated 19.04.2010 but most surprisingly and at the same time, living up to the previous standards of the bank as in this case, the bank did not respond to the borrower after that. The bank did not make any demand nor did the Bank return the documents. The borrower on a regular basis followed up with the bank but the bank made her run from pillar to post but did not return the document. This ordeal went on for another period of 6 years and after spending 6 years when the bank did not return the security documents, the borrower was compelled to write another letter dated 04.01.2016 in reference to the term loan bearing 390400003 requesting the bank to return the documents and the title deeds. The bank responded after four months of receipt of the said letter by a recall notice date 16.05.2016 surprisingly with a different loan reference being 390500002 wherein it was stated that the borrower had applied and availed a loan of Rs.6,02,000/- and there was an outstanding amount of Rs.3,83,853/- which has not been cleared and demanded the amount from the borrower. A copy of the said notice was also served upon the guarantor (Complainant/ Respondent No. 2). The said notice came as a surprise to the borrower which was received by the borrower on 19.05.2016 and in response to the said letter, immediately on the very same date, the borrower responded to the same clearly stating that no such loan was taken by the borrower and that she had availed a loan for the construction of the godown under the Gramin Bhandaran Yojna (Rural Godown Scheme) vide a term loan No. 390400003 that was totally cleared and closed and the Malda Branch issued a No Dues Certificate. She further stated that she has been requesting the Branch Manager, Malda to return the security documents but the same was not done.
After going through all the related documents furnished by the parties to the appeal before the Ld. Dist Commission, it is revealed that on 26/03/2010 the Indian Overseas Bank, Malda issued a letter with reference to 26/10/2006 i.e., after lapse of 3 (three) years and 5 (Five) months that the complainant did not rectify the discrepancy as noticed by the Bank's letter dt. 26/10/2006. It is not understood why the Bank Authority was kept mum for a long time. Moreover, as and when the Branch Manager of Malda Indian Overseas Bank issued a Certificate on 28/05/2009 that the loan against Mrs. Hema Agarwala stands closed on receipt of outstanding dues.
So, the letter dt. 26/03/2010 is quiet contradictory in view of the certificate granted by the Branch Manager. For the own faults of the Bank Officer, the Bank was not able to claim subsidy from the NABARD for which the complainant cannot be held liable and the complainant will suffer. The principle of estoppel will come to play as because the Bank issued certificate No outstanding' dues and thereafter cannot claim that there are outstanding dues.
Another point is to be considered whether the Consumer Forum now Commission has any jurisdiction to try the case as and when it is found that the Bank Authority did not return the documents which were executed by the Complainant No.2 for an equitable mortgage. Definitely, there was a deficiency of service and there was also a deficiency of service for claiming outstanding dues when at all no due is found on the basis of the Certificate issued by the Bank.
Another point may be argued that as and when there is a case of subsidy, the Consumer Forum now Commission has got no jurisdiction. It is well settled principle of law in the case of subsidy, the Consumer Forum has got no jurisdiction but the instant case is not claiming subsidy. It is a case of claiming deficiency of service and non-return of documents. So definitely, the instant case is quite maintainable.
It is further revealed that the appellant bank has all along tried to shift the liability upon the borrower while there was failure on their part in providing proper service upon the borrower as a bonafide customer of bank.
The bank (appellant) tried to establish that J.M.C inspection was done in presence of NABARD officials while the J.M.C observation letter furnished by the bank does not contain the signature of any NABARD official.
So, the considered view of this state Commission is that, the observation and findings of the Ld. District Commission in adjudication of this dispute are found appreciable, convincing and no interference requires at appeal hearing.
Thus, the instant appeal devoids of any merit.
Hence, it is ordered
That the appeal be and the same is dismissed on contest without any cost. The final order of Ld. DCDRC, Malda dated 17/11/2021 in CC No. 18 of 2020 is hereby affirmed. If the appellant Bank pays the award money to the respondents (Complainants) within 45 days from this day and comply the direction of the District Commission in respect of issue of documents within 45 days no interest will be levied from the appellant bank and the rest ordering portion of the Final order of Ld. District Commission shall have no effect.
Let a copy of this order to be handed over to the parties of appeal free of cost and the same to be communicated to the Ld. District Commission Malda.
