Tamil Nadu

Nagapattinam

CC/7/2014

Kunjithapadam - Complainant(s)

Versus

The Branch Manager, Canara Bank, Thirukuvalai. - Opp.Party(s)

K.M.Subramaniyam

27 Apr 2015

ORDER

                                                                                                  Date of Filing      : 25.02.2014

                                                                                         Date of Disposal: 27.04.2015

           

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., …. MEMBER I

                   Tmt. R.GEETHA, B.A.,                             …. MEMBER II

 

CC. No.07/2014

 

DECIDED ON THIS 27^th  DAY OF APRIL 2015.

 

1. R.Kunchithabatham

     S/o Rengasai puraiyar

2.  P.Senthil, S/o Palanisami

Tholacheri Village, Kunnur Post,

ThiruthuraipoondiTaluk, Tiruvarur District.         … Complainants

                                                                                      

                                                                /versus/

 

     The Branch Manager,

     Canara Bank,

     Valivalam Branch,

     Thirukuvalai Taluk, Nagapattinam Dt.                        … Opposite party

 

                      

 

            This complaint having come up for final hearing before us on 06.04.2015, on perusal of the material records and on hearing the arguments of Thiru.K.M.Subramaniyam, Counsel for the complainants, Thiru.A.Rajendran, counsel for the opposite party and having stood for consideration, till this day the Forum passed the following

ORDER

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

          This complaint is filed by the complainants u/s 12 of the Consumer Protection Act 1986. 

                        2. The gist of the complaint filed by the complainants is that the 1^st complainant mortgaged his immovable properties in favour of the opposite party on 23.08.2005 and obtained a loan of Rs.3,80,000/- for purchase of Tractor.  The 2^nd complainant is the surety for the loan borrowed by the 1^st opposite party.  The tractor had been registered in the office of the Regional Transport Office, Tiruvarur, its registered number being TN.50 D1827 and the Hypothecation endorsement has been made on the registration book which is also in the custody of the opposite party.  The loan borrowed by the small, marginal and other farmers had been given waiver by the Government of India and accordingly the loan amount borrowed by the complainants is liable to be waived under the Agricultural Debt Waiver and Debt Relief scheme 2008. As the opposite party has not duly granted the relief and waiver, the complainant sent notice to the opposite party through his lawyer.  Even though the complainant had been not duly granted the relief under the said scheme, a sum of Rs.60,000/- had been credited in the principal  amount borrowed by the complainant in his loan account.  The complainants therefore pray for an order to grant waiver of the loan borrowed by the 1^st complainant under the Agricultural Debt Waiver and Debt Relief Scheme 2008 and to return  all the title deeds and the registration certificate book, cancelling the Hypothecation to the 1^st complainant, to pay the sum of Rs.50,000/- towards compensation for the mental agony suffered by the complainant owing to the deficiency of service on the part of the opposite party, to pay Rs.10,000/- towards litigation expenses and to grant such and other reliefs as this Hon’ble Forum would deem fit.

                        3. The gist of the written version filed by the opposite party is that the complainants are not entitled to total waiver and relief under the scheme claimed by him.  The complainant has repaid only Rs.48,000/- and not Rs.60,000/- as alleged by him. The waiver and relief is granted by the opposite party and the sum of Rs.69,423/-

had been given credit in the loan account of the 1^st complainant under the Agricultural Debt Waiver and Debt Relief Scheme 2008.  As the loan borrowed by the 1^st complainant is invested loan out of the overdue amount of Rs.43,000/- and interest of Rs.74,423/- after deducting the sum of Rs.48,000/- paid by the complainant, the balance  of Rs.69,423/- had been given credit in his loan account on 10.07.2008, under the said Agricultural Debt Waiver and Relief Scheme 2008.  For the notice sent by the complainant on 12.06.2013 reply had been duly sent by the opposite party on 10.07.2013 and received by the complainant on 11.07.2013.  The 1^st complainant is liable to repay the loan amount at 9 instalments  at the rate of Rs.43,000/- per year for the 1^st to 8^th  instalments and Rs.36,000/- as the 9^th  instalment with interest.  The 1^st  instalment  due is from 19.09.2006 to 19.09.2007 and the next instalment ought have been paid before the 19.09.2008.  Therefore on 31.12.2007, overdue amount is only Rs.43,000/- and inclusive of interest Rs.74,423/- only and after deducting the sum of Rs.48,000/- paid by the complainant, balance amount of Rs.69,423/- had been credited in his main account under the said scheme.  Therefore the complainant is not entitled to any relief and the complaint is liable to be dismissed.

                        4. The complainant filed his proof affidavit and has filed 4 documents which are marked as Exhibits A1 to A4.  The opposite party has filed his proof affidavit and has filed 5 documents which are marked as Exhibits B1 to B5.  Written arguments have been submitted by both the sides.

5.  Points for consideration:-

 

                        1. Whether there is any deficiency of service on the part of the opposite party?

                      2. Whether the complainants are entitled to any relief? If so to what relief?

 

 

                        6. Point 1: The contention of the opposite party in this case is that the loan advanced to the complainant being investment loan payable in 8 yearly instalments of Rs.43,000/- each and the 9^th instalment of Rs.36,000/-.  The 1^st instalment has become overdue on 19.09.2006 and ought to have been paid before 19.09.2007 and the 2^nd instalment has become overdue on 19.09.2007 and is liable to be paid on or before 18.09.2008 and as such the eligible amount to be waived under the Agricultural Debt Waiver and Debt Relief Scheme 2008, is the overdue amount of Rs.43,000/- and the interest Rs.74,423/-.  As the complainant already remitted Rs.48,000/-, the amount given credit in his loan account by way of waiver under the said scheme is Rs.69,423/- and he has also filed calculation memo to that effect.  Clause 9 of Exhibit B1, reveals that the complainant the borrower is the owner of Acre 4.31 of irrigated land and Acre 3.00 of unirrigated land totaling Acre 7.31.  Therefore as per the clause 3 of the Agricultural Debt Waiver and Debt Relief Scheme 2008, the borrower complainant falls under the category of other Farmer as he is cultivating more than two hectares (more than 5 acres) of land. Secondly admittedly the loan borrowed by him is for the purpose of purchasing a tractor and therefore it is investment loan as per classification of clause 3 and clause 4A of the said scheme.  The clarification of clause 4.1A makes it clear that in the case of investment loan, the instalments of such loan that are overdue with applicable interest of such instalments, if the loan was disbursed up to march 31, 2007 and overdue as on December 31, 2007 and remaining un paid until Feb 29, 2008 are eligible amount to be waived. The loan was advanced to the complainant on 19.09.2005.

                        7. The learned counsel for the opposite party has argued that the 1^st instalment has become overdue during the period 19.09.2006 to 19.09.2007 and the  2^nd instalment has to be paid during the period from 19.09.2007 to 18.09.2008 and only one instalment  namely  Rs.43,000/- and  the  relative  interest  alone  has become  overdue and that amount alone is liable to be waived.  But the contention of the complainant  is that the 1^st instalment has become overdue on 19.09.2006  and the 2^nd instalment has become overdue on 19.09.2007 and thus two instalments have become overdue as on December 31, 2007 as per the said clarification and therefore the another 2^nd instalment of Rs.43,000/- with relative interest at the rate of 12% per annum along with inspection charges, totaling Rs.45,417/-, should also be waived as per the said scheme and he has also filed the calculation memo to that effect.  The point to be decided is whether the calculation claimed by the complainant that he is entitled to waiver of two instalments during the period 19.09.2005, the date of advancement loan till 31.12.2007, the date fixed for waiver under the said scheme is to be accepted or not.

                        8. The opposite party’s calculation that the 1^st instalment is has become overdue from 19.09.2006 till 19.09.2007 and the 2^nd instalment has become overdue from 19.09.2007 and hence only one instalment of loan namely Rs.43,000/- alone is to be waived is not at all acceptable. Even as per his own argument the overdue date to give the waiver is 31.12.2007.  Therefore as on 31.12.2007 even the alleged the 2^nd instalment as interpreted by the opposite party remains unpaid. Therefore the complainant is entitled to get waiver of two instalments  of loan of Rs.43,000/- each with related interest. Therefore there is deficiency of service on the part of the opposite party in not waiving the sum of Rs.45,417/- in favour of the complainant under the Agricultural Debt Waiver and Deal Relief Scheme 2008 as claimed by him.

                        9. The opposite party’s bank has not acted fairly and in good faith. While applying the provisions of the Agricultural Debt Waiver and Deal Relief Scheme 2008,  for the purpose of giving relief to the complainant, the Exhibit B6 the Memorandum of agreement for agricultural loan is filed by the opposite party only on the notice given by the complainant.  The clause 3 of the said Agreement makes it clear that the bank shall be entitled to charge interest on the amount of the loan at the rate of 10% per annum….. or at such other rate in consonance with the RBI directives /guidelines as the bank may specify from time to time by notice in writing and the notice so received by any one of the borrowers including the co-obligant, shall be sufficient and binding on all of them individually and jointly.  It is pertinent to note that in the memo of calculation filed by the opposite party the interest is calculated by the opposite party for the period from 19.09.2005 to 31.12.2007 at the rate of 14.25% whereas the rate of interest as stated is only 10% per annum on the date of advancement of the loan namely 19.09.2005. Further no evidences is let in by the opposite party as to the date from which the rate of interest was revised at the rate of 14.25% as mentioned in the calculation memo and there is also no evidence that notice of the revised rate of interest was given to the complainant, the borrower as provided in clause 3 of the loan agreement.  Therefore there is deficiency of service on the part of the opposite party in not giving waiver of Rs.45,417/- as claimed rightly by the complainant.

                        10. Point 2: In the result, the complaint is partly allowed. Exhibit B6, the Memorandum of loan agreement is marked today. The opposite party is directed to give credit of the amount of Rs.45,417/-(Rupees forty five thousand four hundred and seventeen only)  in the loan account of the complainant towards waiver under the Agricultural Dead Waiver and Dead Relief Scheme 2008.  The opposite party is further directed to execute the cancellation of the mortgage deed executed by the complainant and to return the registration certificate of the tractor after cancellation the hypothecation entry therein and also to return all the original title deeds deposited by him, within 30 days from the date of discharge of the entire loan by the complainant before the expiry of the period of 9^th instalment of the loan i.e. 19.09.2015. The opposite party is further directed to pay sum of Rs.10,000/-(Rupees ten thousand only) to the complainant for the mental agony, hardship caused to him owing to his deficiency of service in not giving waiver of the said sum of Rs.45,417/- and also to pay a sum of Rs.5,000/-(Rupees five thousand only) towards cost of this litigation.  The opposite party is directed to pay the said compensation of Rs.10,000/-(Rupees ten thousand only) within 30 days from the date of this order, failing which the said amount shall carry an interest at the rate of 12% per annum from the date of this order till the date of its realization.

This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this  27^th day of  April 2015.

 

 

    MEMBER I                                    MEMBER II                                 PRESIDENT

List  of document   filed by the complainant

Ex.A1/Dt.23.08.2005: The Memorandum of deposit of title deeds executed by the

  complainants in favour of the opposite party.

Ex.A2/Dt.10.06.2008: Agricultural Debt Waiver and Debt Relief scheme 2008.

Ex.A3/ Dt.12.06.2013 : Office copy of the notices sent by the complainants’ lawyer  to

    the opposite  party.

.Ex.A4/                       : The postal acknowledgment card of the opposite party.

                                                                                              

List  of document   filed by the opposite party

 

Ex.B1/Dt.19.09.2005: The loan application of the complainants.

Ex.B2/Dt.02.07.2013: The statement of account relating to the loan account of the 1^st

    complainant for the period from 19.09.2005 to 02.07.2013.

Ex.B3/Dt.10.07.2013: The office copy of the reply notice sent by the opposite party’s

              counsel to the complainant’s counsel.

Ex.B4/Dt.                   : The postal acknowledgment card of the complainants’ lawyer.

Ex.B5/Dt.10.06.2008: Agricultural Debt Waiver and Debt Relief scheme 2008.

Ex.B6/Dt.19.09.2005: The Memorandum of agreement for agricultural loan between the

    complainants and the opposite party.

 

 

  

 

MEMBER I                                    MEMBER II                                     PRESIDENT

 

 

 

 

 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

NAGAPATTINAM.

 

CC.No.07/ 2014

Order Dt.: 27.04.2015.