SMT.RAJASHREE AGARWALLA,MEMBER:-
Allegation of Unfair Trade Practice and deficiency in Service in respect of non-replacement of defective machinery and inaction of the Op Bank are the allegations arrayed against Ops.
2. Complaint, in brief reveals that, Complainant being a physically challenged youth and in search of opportunities for employment intended to establish a Coir Unit in the name and style as M/S Durgesh Coir Unit, At- Basudeipur, Dist- Kendrapara submitted a project proposal prepared by APTILO and forwarded by COIR Board to the Op-Canara Bank for its approval/sanction for a term loan of Rs. 4,75,000/- & Rs. 1 Lakh as working capital and the Op-Bank sanctioned the loan amount on 31.03.2016. It is revealed from the complaint petition that the Bank officials insisted the complainant to purchase the machineries from OpNo.1 instead of M/S Orissa Agro machineries and accordingly, complainant submitted the quotation issued by Op No.1 before the Bank, Op-Bank released an amount of Rs. 3,60,000/- vide Bank Draft No.996894 dtd. 01/10/2016 and OpNo.1 granted a money receipt bearing No.191 dtd. 03.10.2016. On supply of the machinery by OpNo.1 on 10.01.2017 it was found that, Automatic double headed twoply, Automatic single headed twoply alongwith 2HP motors for feeding Coir Yarn spinning and willing machines, one H.P. Motor are not functioning for inherent manufacturing defects. On repeated complaints and on the instruction of Op-Bank officials, the OpNo.1 received the machineries on 08.04.2017 and under take in writing to replace the machineries within 30 days. It is alleged that inspite of such undertaking, OpNo.1 did not replace the machineries till-date, which according to complainant is unfair Trade Practice adopted by OpNo.1 and deficiency in service on part of the OP-Bank. The complainant also squarely fix responsibilities on OpNo.1 and Op-Bank as the Op-Bank insisted and compelled the complainant to purchase the machineries from OpNo.1ignoring the quotation of M/s Orissa Agro Machinery and the acts of Ops gave financial loss and mental agony to the Complainant. The cause of action of the instant case arose on different dates, but lastly on 08.04.2017, when the OpNo.1 returned back the machineries for replacement/repair. In the complaint, it is prayed that a direction maybe issued to OpNo.1 to deliver the machinery with fresh warranty from the date of delivery and the loan interest be recovered from the Ops jointly or severally and credited to the loan account of the complainant and the Ops be further directed to pay Rs. 2 Lakhs jointly and severally for financial loss and mental agony alongwith cost of litigation.
3. Bharamar bar Swain, Prop.- M/S Ananteswar Engineering Works, Sakhi Gopal, Puri(Op No.1) though Notice was sent by this Forum through Regd. Post with A.D. same returned with Postal remark ‘refused’. Hence, the Notice is sufficient against Op No.1who did not prefer to appear into the case, accordingly set ex-parte by this Forum’s order dtd. 01.06.2018.
CANARA BANK (OP No.2 to 4) on serving of ‘Notice’ appeared through their Ld.Cousnel and filed joint written statement into the dispute denying all the allegations of the complainant and submitting the facts of the case it is averred that complainant in order to establish a Coir Unit in the name and style as M/S Durgesh Coir Unit applied to OpNo.2 Bank for sanction of a loan amount of Rs. 5,75,000/-. After execution of an agreement Op-Bank sanctioned Rs. 4,75,000/ towards machinery and Rs. 1 Lakh as working capital on 31.03.2016, the machineries were kept hypothecated and complainant-loanee accepting the terms and conditions availed the loan of Rs. 5,75,000/-. OP-Bank in their written version also averred that as per the loan agreement the loan has to be repaid within 60 monthly installments and as the complainant-loanee is not repaying the loan dues, the loan has been declared as Non-Performing Asserts (NPA). It is further averred in the written statement that on persuation and submission of quotations by the Complainant-loanee in favour of M/S Ananteswar Engineering Works, Op-Bank released an amount of Rs. 3,60,000/- in favour of M/S Ananteswar Engineering Works for supply of machineries to M/S Durgesh Coir Unit. Op-Bank averred that the machineries were installed on the complainant’s Coir Unit on 11.01.2017 in the presence of Bank Official namely Mr.Alok Biswal, but on 13.04.2017 on further visit by Bank officials found and informed that the machinery/equipments are not in the complainant’s Unit and same were sent to Op No.1 for its repair. Complainant suppressing the real facts has taken false plea that machine has been sent to OpNo.1 for repair or technical defects. More so, the written statement of Op-Bank reveals that the Op No.1 has given a F.I.R. before Satyabadi Police Station on 11.07.2017 narrating the false plea taken by complainant on preparation and fabrication of take receipts etc. It is averred that, Complainant to avoid the payments of the Bank has foisted a false case against the Op-Bank, which is liable to be dismissed with cost.
4. Heard the Ld. Counsels appearing for the Complainant and Op No.2 to 4 and ex-parte hearing against OpNo.1, perused the documents filed by complainant as Annexures A to G and another documents filed as per the list on 26.11.2018, which includes the agreement copy dtd. 11.07.2017and statement of loan Account of the Complainant. Op-Bank also filed documents as per the list on dtd. 28.11.2018. The facts of the disputes are that, Complainant to establish a Coir Unit availed a loan of Rs. 5,75,000/- which was sanctioned by Op-Bank. It is also a fact that, Complainant purchased the machineries from one Bhramarbar Swain, Prop.- M/D Ananteswar Engineering Works(Op No.1) on payment of Rs. 3,60,000/-. It is further a fact that, till-date the Coir Unit of the Complainant is not in an operational condition remains idle. The Complainant alleges that, after supply of required machineries by Op No.1 same machineries found to be defective and the machineries were taken back by the Op No.1 for its repair/replacement, but till- date the Op No.1 is neither repairing /replacing the machineries nor refunding the cost of the machineries which according to complainant is Unfair Trade Practice on part of the Op No.1. It is further alleged that Op-Bank persuaded the complainant-borrower to purchase the said machineries from Op No.1, though complainant submitted the quotation of a Govt. Concern namely M/S Orissa Agro Machinery and the quotation was accompanied with the Project proposal, hence alleging deficiency is service of the Op-Bank it is stated that there is hidden agenda between Op No.1 and Op-Bank for which the Op-Bank compelled the complainant-loanee to purchase the machinery from Op No.1.
On allegation of deficiency in service against Op-Bank regarding insisting/persuading the complainant to purchase the machinery from OP No.1’s Firm is not supported by any cogent evidence. More so, the option of purchase and selection of quoted firm for supply of materials/machineries are the choice of the loanee and not in the wish of the financing agency as ultimately the loanee who pays the amount as buyer through the financing agency, hence the Op-bank has not committed any deficiency in service in this aspect.
On further allegation of Unfair Trade practice against Op No.1, Sri Bhramarbar Swain, Prop.- M/S Ananteswar Engineering Works regarding non-return of machineries as per paragraph 8 of complaint petition, it is observed that OPNo.1 remains absent into the proceeding and set-exparte, hence there is no defence by Op No.1 in connection to the allegation of complainant. Complainant to substantiate his allegation files an under taking issued by Op No.1 on 08.04.2017 in support of receive of machinery on 08.04.2017(Annexure-G) from the complainant and non-return of machineries in question a Xerox copy of agreement dtd. 11.07.2017 in between complainant and Op No.1 filed into the dispute, where in it is agreed between the parties that Op No.1 will return the machineries in question to the Complainant’s Firm namely M/S Durgesh Industries. Contesting Op-Bank in their written statement averred that on joint inspection of officials of Op-Bank on 13.04.17, it is found that there were no machineries in the complainant’s firm though the machineries were installed on the date of inspection on 11.01.2017. The Op-Bank also submits that as per the intimation given by both the complainant and OpNo.1 that F.I.R had been lodged before Satyabadi Police Station, Sakhi Gopal against each other. In the case in hand, the consequence of lodging of F.I.R., if any is not placed into the dispute for proper adjudication, it is also a fact that, complaint is silent regarding lodging of any F.I.R. except the agreement executed between complainant and OpNo.1 on 11.07.2017. On perusal of the under taking (Annexure-G) filed by complainant issued in support of receipt of machineries by Op No.1 addressed to complainant’s Firm is appear to be genuine as the signatures of OpNo.1 in ‘quotation’ dtd 31.03.2016 and signature in under taking (Annexure-G) filed by complainant and Op-Bank are similar. Thus there is no doubt that the Op No.1 had received the defective machineries from complainant for its rectification/replacement. On point of return of such machinery, it is implied that the disputed machineries remain with the OpNo.1till-date as the Op-No.1 does not defended by remaining absent from the proceeding and such act of non-returning the machineries are Unfair Trade Practice adopted by Op No.1 and such non-refund of machinery definitely caused financial loss and mental agony to the complainant as the very purpose of setting the Unit of complainant is defeated on non-functioning of the Unit. On allegations of vicarious liability against contesting Op-Bank, we are of the opinion that the Op-Bank should have more vigilant, when the dispute of non-return of machineries were within their knowledge and no effective legal steps has been initiated to protect the hypothecated machineries and question of career of a young physically challenged entrepreneur.
Having observations reflected above, it is directed that, M/S Ananteswar Engineering Works (OpNo.1) shall return the machineries (as per the under taking dtd. 08.04.2017) in a running condition to complainant and to deliver the machineries on the Firm of the complainant at the cost of OpNo.1 and on presence of officials of Op-Bank, within 60 days of receipt of this order. It is further directed that, Op-Bank shall not charge any interest or penal interest calculating from dt. 08.04.2017 to till the installation of the machineries. Failing to comply of the order shall initiate the proceeding against Ops as per the provisions of C.P.Act-1986.
Complaint is allowed in part without any cost against Op-Bank and ex-parte against OpNo.1.
Pronounced in the open Court, this the 28th day of December,2018.
I, agree.
Sd/- Sd/-
PRESIDENT MEMBER
