HON’BLE MR. SUDEB MITRA, PRESIDING MEMBER

Order No. : 11

Date : 10.12.2024

    Feeling aggrieved by and dissatisfied with the final order and judgement of CC/46/2017 dated 30.11.2017, the appellant of this Appeal being the OP of CC/46/2017, Barrah Branch of UBI of India now PNB, Bara  Branch, being amalgamated  as per scheme of Amalgamation, as per Sec. 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act of 1970/1980 notified on 04.03.2020, has preferred the instant Appeal against the impugned order/judgement of CC/46/2017 dated 30.11.2017, passed by the Ld. DCDRC, Purulia in favour of the complainant of CC/46/2017, Sri Chandranath Baral.

    The factual matrix of CC/46/2017 reflects that the complainant of CC/46/2017, Chandranath Baral obtained a loan from the OP of CC/46/2017, the then UBI Barrah Branch of Purulia, now will be referred as the OP/Appellant PNB in this Appeal after the notification of scheme of Amalgamation has come into force on 04.03.2020, to start his business of ‘Sale of Tractor’ in the name and style of M/S. Krishi Bipanan Kendra, for earring his livelihood exclusively by way of self employment.

    It is the specific case of the complainant of CC/46/2017 i.e. the Respondent/OP of  this Appeal, Chandranath Baral that he could partly repay the loan to the OP Bank of CC/46/2017 i.e. to the present Appellant Bank of this Appeal but could not repay the whole amount of loan and subsequently there was compromise settlement of such loan entered into in between the contesting parties of the CC/46/2017 i.e. the A/20/2018 on 24.12.2015 (RBR/A/2/2023) and it was determined on such settlement that the complainant/OP of CC/46/2017 / A/20/2018 (RBR/A/2/2023) respectively i.e. Chandra Nath Baral would pay Rupees Ten Lakh in December 2015 and Rupees Two Lakh and Fifty Thousand upto 31.03.2016 with stipulation that if  the complainant/OP Chandra Nath Baral (hereinafter, in this Appeal, he will be referred as OP) fails to make repayment as per given schedule, the concerned Bank (hereinafter in this Appeal it will be referred as the Appellant) will continue with its legal action against the OP of the Appeal i.e. the complainant of CC/46/2017, Chandra Nath Baral.

    This is asserted by the OP of this Appeal Chandra Nath Baral i.e. it is the case of the complainant of CC/46/2017 Chandra Nath Baral that he could not procure Rupees Ten Lakh but he deposited Rupees Six Lakh thorugh demand draft No. 389843 dated 31.12.2015 for the purpose of repayment of loan of Rupees Twelve Lakh and Fifty Thousand in total, as settled vide compromise settlement, proposed by the complainant/OP Chandra Nath Baral and approved by the OP/Appellant Bank and the said amount, so repaid, was accepted by the OP/Appellant Bank but later whenever he tried to pay up the residual amount of such agreed amount of repayment of loan to the tune of Rupees Six Lakh and Fifty Thousand, before the stipulated date for complete repayment of such loan towards the concerned Barrah Branch of the related Bank i.e. OP of CC/46/2017, the said concerned Branch of the OP Bank of CC/46/2017 refused to accept the same on the ground of non-compliance of time stipulations fixed for repayment of such loan.

    This is the contention of the complainant of CC/46/2017 Chandra Nath Baral that in spite of his letters sent on 16.03.2016, 04.06.2016, 01.08.2016, 07.09.2016, 19.12.2016 and 22.03.2017 requesting the concerned Bank to accept his residual amount of payment towards the loan, taken by him from the concerned Bank’s relevant Branch at Barrah, Purulia, the concerned Bank had not accepted the  balance of settled amount of loan, though he had procured such amount, by selling his valuable properties at less price and the concerned Bank had not either issued N.O.C. for that loan or returned documents of his paternal properties which the complainant had kept deposited with the concerned Branch of the OP Bank of CC/46/2017 against his procuring such loan from that branch of the OP Bank of CC/46/2017.

   It is the specific case of the complainant of CC/46/2017 i.e. the OP of this Appeal that finding no other alternative, he had filled CC/46/2017 and sought for reliefs as stated in the prayer portion of CC/46/2017.

   The OP of CC/46/2017 i.e. the concerned Bank/Appellant case in CC/46/2017 reflects that since after taking loan, the complainant of CC/46/2017 was irregular in re-payment of loan and since his loan repayment was infrequent and not in terms of repayment schedule, the loan Account of the complainant of CC/46/2017 being turned out as irregular and became ‘Non Performing Asset’ for default of loan payment and the complainant of CC/46/2017, the Bank concerned Asserted, intentionally had not repaid loan as per time stipulation, so given to him as per compromise settlement dated 24.12.2015, entered into between the borrower/complainant of CC/46/2017 and the lender Bank/OP of CC/46/2017 and for getting repayment of such loan from the complainant of CC/46/2017, the OP Bank of CC/46/2017 has started proceedings as per SARFEASI Act and served notice for taking possession of the mortgaged property against loan amount and it is the submission of the OP of CC/46/2017, that in order to sick protection, the borrower Chandra Nath Baral had filed CC/46/2017.

    The case record reveals that on hearing the contentions and recriminations of the contesting parties of CC/46/2017, the concerned Ld. DCDRC, Purulia pronounced the impugned judement dated 30.11.2017 on contest and awarded reliefs in favour of the complainant of CC/46/2017, Chandra Nath Baral.

   By assailing the impugned judgement of CC/46/2017 dated 30.11.2017, pronounced against the OP Bank of CC/46/2017, OP Bank has preferred this Appeal before SCDRC on 19.01.2018. The case record reveals that prayer for the condonation of delay in preferring the Appeal was allowed by the Ld. SCDRC vide order No. 3 dated 20.06.2018.

    The impugned judgement of CC/46/2017 dated 30.11.2017 was assailed by the OP Bank of said Complaint case/Appellant of this Appeal A/20/2018 (RBR/A/2/2023) on the ground that the impugned judgement of CC/46/2017 dated 30.11.2017 is misconceived, contrary to law and erroneous and is a result of improper application of judicial mind. It is asserted by the appellant in the MOA that since the loan was taken by the complainant of CC/46/2017 Chandra Nath Baral for commercial purpose, so he cannot be treated as consumer and the CC/46/2017, consequently, cannot be governed as per C.P. Act of 1986. It is agitated by the appellant that as the respondent/complainant of A/20/2018 (RBR/A/2/2023) / CC/46/2017 Chandranath Baral had neglected to make repayment as per compromise settlement dated 24.12.2015, so SARFEASI Act of 2002 has been initiated by the appellant/Bank against him and so this commission has no jurisdiction to deal with the Appeal.

    It is asserted by the appellant that the OP/Complainant of A/20/2018 (RBR/A/2/2023) and CC/46/2017 Chandra Nath Baral though deposited Rupees Six Lakh to the concerned Branch of the appellant Bank on 30.12.2015 but the Ld. DCDRC mentioned wrongly in the impugned judgement of CC/46/2017 dated 30.11.2017 that the Bank’s acceptance of deposit of Rupees Six Lakh from the complainant of CC/46/2017 instead of Rupees Ten Lakh, as stipulated vide compromise settlement dated 24.12.2015, that was entered into by the Bank i.e. the OP of CC/46/2017 and the borrower Chandra Nath Baral i.e. the complainant of CC/46/2017, is gross deviation from such agreement dated 24.12.2015 entered in between the lender Bank and borrower Complainant of CC/46/2017 and the same reflects tendency of flexibility of the OP Bank of CC/46/2017 in respect of accepting of repayment of loan from the borrower towards the lending Bank.

    It is assailed by the appellant that this alleged flexibility of the lender Bank in accepting repayment of loan by the complainant/borrower of CC/46/2017, unnecessarily without any logic and legal basis, had lent baseless scope to the Ld. DCDRC, Purulia to raise question as to the justification of the lending Bank’s non-acceptance of settled repayment of loan amount within final date of payment of the entire settled amount and that was categorized by the Ld. DCDRC Purulia as a violation made by the lending Bank i.e. OP of CC/46/2017 in respect of terms and conditions of repayment of loan and this wrong assessment of the Ld. Concerned DCDRC, unjustly prompted the Ld. Commission without any basis to hold that the lending Bank itself had broken the terms and conditions of the compromise settlement.

    By filing this MOA, the Appellant contended that the concerned Ld. DCDRC failed to consider that the amount of RS. 6,00,000/- (Rupees Six Lakh) only was deposited by the borrower/Respondent of this Appeal to the appellant Bank on 30.12.2015 and not on 31.12.2015, as held by the Ld. Commission erroneously. It is the stand point of the appellant Bank that it accepted Rupees Six Lakh from the borrower against his due loan on 30.12.2015 so that he could get scope to repay his residual amount of repayment of loan of Rs. 4,00,000/- to the lending Bank by 31.12.2015.

   By filing the Appeal, assailing he judgement of CC/46/2017 of CC/46/2017 dated 30.11.2017, the appellant Bank have prayed for setting aside the impugned judgement of CC/46/2017 dated 30.11.2017, passed by the Ld. DCDRC Purulia to prevent injustice, as alleged, upon the lending Bank.

Point for consideration

    Now it is to be determined and assessed as to whether the instant Appeal, pressed by the appellant Bank/OP of CC/46/2017, deserves positive consideration and on the contrary, it is also to be assessed as to whether the impugned judement of CC/46/2017, passed by the Ld. DCDRC Purulia on 30.11.2017 is sustainable in the eye of law or not.

Decision with reasons

    From the trend of  the arguments so advanced by the Ld. Counsel for the appellant Bank, it could be noticed that at the very outset of his argument the Ld. Counsel for the appellant of this Appeal pressed that since there existed Borrower – Lender relationship in CC/46/2017 in between the complainant of CC/46/2017 and the OP Bank of CC/46/2017, so inconsonance with the scopes of C.P. Act of 1986 the complainant of CC/46/2017 has got no locus standi to file this complaint as per scopes of C.P. act of 1986. This contention of the Appellant is resisted by the OP of this Appeal/Complaint of CC/46/2017 on the ground that there was inappropriate and unsatisfactory service rendered by the lender Bank towards the borrower in maintaining his scope obtained for repayment of loan towards his loan account, maintained by the concerned Bank, against the borrower’s cash credit loan, and since that tantamount to the lenders Bank’s commission of deficiency in service towards the potential user of that service to the borrower, so for that deficiency in service, the borrower here in the CC/46/2017 the complainant and eventually OP in A/20/2018 (RBR/A/2/2023) has chosen the right forum to take the recourse of the scopes of C.P. Act of 1986 for seeking redressal in respect of his grievances, arising from deficiency in service in respect of borrower’s case credit loan account in the concerned Branch of PNB.

    It is needles to reiterate that one of the important series rendered by the Bank in advancing loan of various needs and Sec (2) (1) (0) of the C.P. Act of 1986 which governs the procedures of the CC/46/2017 (since it was filed on 11.09.2017 i.e. much prior to the coming into existence of the C.P. Act of 2019 on 20.07.2020)  defines service as many services that is available to the potential users including (1) Banking (2) Financing (3) Insurance (4) Transport (5) Processing (6) Housing Construction, supply of electricity or other energy etc., it and considering the factual matrix of the complaint case of CC/46/2017, claims and counter claims of the contesting parties  from which the Appeal arose. I feel inclined to hold that there was specific bone of contesting,  existing in between the contesting parties of CC/46/2017 i.e. the present Appeal regarding providing of service by the lending Bank/OP towards the borrower/complainant of CC/46/2017 regarding maintenance of cash credit loan account of the complainant/respondent Chandra Nath Baral No. 1317306413880 by the lending Bank i.e. OP CC/46/2017 in respect of borrower complainant’s repayment of loan as per compromise settlement dated 24.12.2015, entered in between the same borrower and lender of CC/46/2017 and since prima facie it could be found, having regard to the factual aspects of the CC/46/2017 and the recriminations of the contesting parties of CC/46/2017, that the complainant/borrower of CC/46/2017 raised potential question of exercise of deficiency in service by the lender bank towards the complainant, granting scope to the complainant to repay loan due, in respect of cash credit loan account, maintained by the Barrah Branch of the OP Bank of CC/46/2017, the complainant Borrower has potential and cogent ground to file the CC/46/2017 as per scopes of C.P. Act of 1986.

   It is also found that in consonance with the scopes of Sec. 15  and 17 of the C.P. Act 1986, the complaint case No. 46/2017 and its present Appeal has been filed having due and correct regard to the pecuniary and territorial jurisdiction.

    Accordingly, this Appeal is legally entertainable as per C.P. Act.

    It is transpiring from the available materials on record that undenyingly the respondent/Complainant Chandra Nath Baral had taken loan from the appellant Bank and though it is not forthcoming from the available materials, furnished by the contesting parties of CC/46/2017 and from this Appeal as well that what was the exact amount of such loan taken by the respondent of this Appeal, Chandra Nath Baral from the appellant Bank, yet it could be found, in the absence of any cogent evidence to the contrary, that the respondent of this Appeal/Complainant of CC/46/2017 Chandra Nath Baral could not repay the entire loan amount so taken by him from the appellant of this Appeal as the cash credit loan amount. It is also undenyingly forthcoming from the available materials on record that the appellant Bank had taken steps for realization of said loan from the complainant/respondent Chandra Nath Baral and initiated legal proceedings, according to the relevant law, existing for that purpose.

    However, finally on the basis of compromise settlement, proposed by the complainant/respondent Chandra Nath Baral and approved by the lending Bank i.e. by the OP of CC/46/2017 i.e. Appellant of this A/20/2018 (RBR/A/2/2023), Chandra Nath Baral i.e. the respondent of this Appeal was granted scope vide letter dated 24.12.2015 to repay Rupees Ten Lakh in December 2015 and Rupees Two Lakh Fifty Thosand upto 31.03.2016. It was settled further that if borrower fails to make repayment as per given schedule, lending Bank’s legal action will continue.

    It is forthcoming from the available materials on record, undenyingly that the borrower/complainant/respondent Chandra Nath Baral could not pay Rupees Ten Lakh in December 2015 and for that failure on his end to meet that time schedule, the concerned lending Bank/OP of CC/46/2017 i.e. the Appellant of A/20/2018 (RBR/A/2/2023) has not given scope to the borrower to repay the residual amount of loan amount, to be paid by the borrower/respondent of this Appeal upto 31.03.2016.

   It is forthcoming from the relevant cheque bearing No. 389843 that on 30.12.2015 the borrower/Respondent of this Appeal had paid Rupees Six Lakh towards the repayment of his loan, borrowed by him from the Appellant, Bank and the lender Bank accepted that amount towards repayment of borrowers loan from the Bank since upto 31.12.2015 there was scope exising for the borrower to pay up residual due amount of Rupees Four Lakh out of total amount of Rupees Ten Lakh due to be paid by  the borrower in December 2015. So, the finding of the Ld. DCDRC below that there was application of flexibility made by the lending bank in accepting Rs. 6,00,000/- (Rupees Six Lakh) only instead of Rs. 10,00,000/- (Rupees Ten Lakh) only as stipulated compromise settlement dated 24.12.2015, so entered into by the borrower and lender i.e. the contesting parties of the CC/46/2017 and the present Appeal is incorrect and unsatisfactory as rightly pointed out by the appellant Bank.

    Be that as it may, here in this case the main purpose of the compromise settlement dated 24.12.2015 was for obtaining of repayment of loan of Rs. 12,50,000/- in total, from the borrower/Complainant of CC/46/2017 i.e. the respondent of this Appeal by the lender/Appellant Bank of this Appeal by 31.03.2016.

   Here in this case, admittedly the borrower’s letters dated 16.03.2016, 04.06.2016, 01.08.2016, 07.09.2016, 17.12.2016, 22.03.2017 lent sufficient grounds to hold, in the absence of any cogent evidence of any nature to the contrary, that within 31.03.2016 i.e. within time stipulated for the repayment of entire loan amount as per compromise settlement dated 24.12.2015 entered into by the contesting parties of CC/46/2017 and A/20/2018 (RBR/A/2/2023), the borrower of such loan was constantly expressing his unequivocal written intention to repay the entire loan amount settled to be paid by him towards the lending Bank/Appellant, as per relevant compromise settlement dated 24.12.2015.

   However, it is transpiring that the said Appeal of the Respondent/Borrower was not at all entertained by the Appellant Bank, who kept that loan account open to increase the total amount of debt increasing time to time.

    In this backdrop, having regard to the scopes of the basic principal of Consumer Protection Act which is a benevolent legislation, having regard to the appalling financial embarrassment of the Respondent/Complainant of this Appeal and Complaint i.e. Chandra Nath Baral, arising from his taking loan from the Appellant Bank, having regard to the fact that due attention should also be given to the financial interest of the appellant Bank which has also an blocked loan amount sustained so long and not realized from its borrower Chandra Nath Baral consequently, lending no significant financial benefit to the appellant Bank of this Appeal, I find that for giving due adherence to the principles of natural justice and as per my best assessed judgement and to avoid the impasse ematinating and prevailing in respect of the financial transaction that took place in between contesting parties of this Appeal, the Respondent of this Appeal i.e. the complainant of CC/46/2017, Chandra Nath Baral should be given a direction to pay up residual dues of Rupees Six Lakh and Fifty Thousand only, as settled balance amount, towards the Appellant Bank in respect of the loan (Cash Credit Loan) that Chandra Nath Baral had taken from the Appellant Bank. Besides he shall pay rupees Five Lakhs and Fifty Thousand only in total (Rs. 6,50,000/- + Rs. 5,50,000/-) = Rs. 12,00,000/- (Rupees Twelve Lakh) only in total within three months from the date of order, in the form of onetime payment, towards the exhaustive repayment of the residual loan amount, as full satisfaction of the loan amount, so taken by him from the appellant Bank who shall, on receipt of such award immediately issue N.O.C. (No Objection Certificate) in respect of the said loan amount in favour of the respondent of this Appeal and hand over all the relevant documents that the Bank Had taken from the respondent/complainant, Chandra Nath Baral, at the time of his taking the loan amount, referred in the complaint case/Appeal, without retaining anything of those documents of the complainant/respondent at all and appellant shall return the same all to the respondent/complainant on the same form in which that were deposited by the complainant of C/46/2017/ respondent of A/18/2020 (RBR/A/2/2023), Chandra Nath Baral, against proper receipt from said Chandra Nath Baral.

    In the premises, the judgement of CC/46/2017 dated 30.11.2017 deserves modification to some extent, as reflected in the ordering portion of this Appeal, so reflected below.

    Hence, it is

                                    ORDERED

    That the judgement of CC/46/2017, pronounced on contest on 30.11.2017, by the Ld. DCDRC, Purulia by allowing the said complaint case No. CC/46/2017 in favour of the complainant of CC/46/2017 Chandra Nath Baral on contest, stands modified to the following extent and thereby the instant Appeal is allowed in part on contest.

    The respondent of this Appeal A/20/2018 i.e. the complainant of CC/46/2017 Chandra Nath Baral is directed to pay up Rs. Six Lakh and Fifty Thousand towards the settled repayment of balance loan amount and besides that amount and additional amount of Rs. Five Lakh and Fifty Thousand at a time without installment facility towards the repayment of entire loan amount, so taken by him from the Appellant Bank of  this Appeal, Within 3 (three) month from this order, without fail towards the present Appellant Bank of this Appeal (A/20/2018) and on receipt of the same on full satisfaction of loan, the appellant’s Bank shall return and hand over, against receipt, immediately all the relevant documents that the present appellant Bank of this Appeal had  taken from the respondent of this Appeal/Complainant of the CC/46/2017 Chandra Nath baral, relating to his and his paternal immovable properties/land against its’ (Appellant’s) providing the concerned loan, as referred in this complaint case, and appeal as well.

Accordingly, this Appeal is thus disposed of on contest.

Copy of this judgement be furnished, free of cost, to the concerned Ld. DCDRC and contesting parties of this Appeal forthwith as per relevant rules and regulations.

Digitalized copy of LCR be returned to the Ld. DCDRC, Purulia for information and doing the needful according to law.