Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 238/2016

The complainant has instituted this case against the OPs for passing direction in the matter of issuing Clearance Certificate in favour of the complainant in terms of the loan agreement  and to refund the excess amount paid alongwith interest  and also for payment of compensation, litigation cost etc.

Fact of this case

Case of the complainant

The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the complainant took loan from OP No.1 under the scheme of BSKP  which was applied by the complainant on 26.12.2007 and the OPs sanctioned the said loan on 22.02.2018 in the name of the complainant for his wholesale Medicine Shop which is running  by the complainant for the purpose of earning livelihood by means of self-employment and total loan amount was fixed of Rs. 1,40,000/- only and the period of repayment of the said term loan was fixed for 5 years  with a moratorium  period  of 2 months and the monthly installment of repayment was fixed of Rs. 2,100/-  inclusive of interest @ 5.25% each month for 60 months.  It is stated by the complainant that complainant has paid the monthly installment month by month without any default as per terms of the repayment  of the said loan agreement  and after payment of 58^th monthly installment amount ,  the complainant asked the OPs for issuing Clearance Certificate to him as per terms & conditions  of the said loan and also asked for calculation of the interest  on subsidy amount of Rs. 28,000/- for 3 ½ years  but on that point of time the OPs told the complainant  that they could not  issue the Clearance Certificate in favour of the complainant as because the due amount of repayment of the said loan of complainant was Rs. 51,200/- and immediately the complainant opposed the said matter and told that his due amount was  Rs. 4,200/- and he has already paid  his 58^th installments amount as per terms of the loan within time without any default and then the OPs told the complainant that their previous Manager made some mistake  in calculation of the complainant’s installment amount and for that reason he must have to pay Rs. 51,200/-.  It is submitted by the complainant that thereafter the complainant had paid the last two installments amount within time but the OPs had not issued any Clearance Certificate to the complainant after the payment of all the installment amount and  also had not supplied any papers in the matter of calculation of interest as such complainant is a consumer.  It is alleged that the complainant on several times requested the OPs for issuing Clearance Certificate  in his favour  and asked for supplying  documents in the matter of calculation of the interest  on subsidy amount of Rs. 28,000/- as per terms of the loan agreement.  It is pointed out  by the complainant that to avoid this kind of harassment from the part of the OPs  and to escape from burden of such illegal  claim  of continue  to pay them upto date overdue  amount  month by month as per  their demand.  It is alleged that the complainant at last getting no other alternative  had sent a legal notice through his Ld. Advocate on 26.02.2016 to the OPs requested  them to supply the Clearance Certificate in favour of the complainant as per terms of the said loan particularly when the complainant has paid his all installments amount  as per terms of the said loan agreement dtd. 22.02.2008 and also  requested them to return back all the overdue  amounts alongwith  interest.  As per case of the complainant to dispute arising  complainant  and OPs is a consumer dispute within the meaning and scope of Consumer Protection Act, 1986.  It is further alleged that the OPs  by their mal-activities has caused harassment  to the complainant which is the violation of the human rights  and dignity for which complainant is entitled to get compensation  for mental harassment.  According to the case of the complainant finally when the OPs had not fulfilled the demand of the complainant and also had not issued  the Clearance Certificate, the complainant has been compelled to institute  this complaint case against the OPs as per prayer of the complaint petition.

Defence Case        -   On the other hand the OPs after receiving the notice appeared in this complaint case and contested this case by filing W/V and denied each and every allegations of the complainant which have been  highlighted in the complaint petition.  This specific case of the OPs in a nutshell  is that complainant took the loan  under BSKP Scheme  on 22.02.2008 and sanction limit was in total Rs. 1,40,000/- and that was categorized in the following manner:-

1.  Bank Loan…………….98,000/-
2. Subsidy…………………28,000/-
3. Margin………………….14,000/-

Total Rs. 1,40,000/-

The OPs also submitted that as per sanction letter the period of repayment  of loan  was 5 years / 60 months and the amount of EMI was Rs. 2,100/- only inclusive of interest @ of  5.25% .  It is also pointed out by the OPs  that 13.07.2008 the complainant has withdraw  Rs. 98,000/- only of Bank Loan Limit and on 30.01.2012 the complainant already received Rs. 28,000/- as subsidy  from the bank but with a ill intention  the complainant  has suppressed  this matter and keeping mum.  According to the case of the OPs  the complainant admitted that after 58^th installments he claimed Clearance Certificate which was totally irrelevant  as per terms & conditions  of the sanction letter which is duly accepted by the complainant with full   consent.  It is asserted  by the OPs that the bank with a bonafide intention  returned Rs. 24,079 to the complainant’s Loan A/C with a heading of “refund of excess interest on subsidy amount”, as per request of the complainant.  It is asserted by the OPs that complainant’s human right and dignity  never has been violated nor complainant has suffered  any financial loss on the other hand complainant has caused prejudice to the reputation  and dignity of the OPs.  It is further submitted by the OPs that the complainant never entitled  to get any relief  as per law in this instant case  and so this case is liable to be dismissed.

Points of consideration

On  the basis of the pleadings of parties , this District Commission for the purpose of arriving at just and proper decision and also for the interest of proper and complete adjudication  of this case is going to adopt the following points of consideration :-

(i)        Is this case maintainable in its present form and in the eye of law?

(ii)       Has this District Commission jurisdiction to try this case?

(iii)      Is  the complainant consumer under the OPs or not?

(iv)      Whether the complainant has cause of action for institution of this complaint case against the OPs or not?

(v)       Is the complainant is entitled to get an award directing the OPs to issue Completion Certificate and to refund the excess amount paid alongwith interest  and also entitled  to get  compensation  and litigation cost or not ?

(vi)      To what other relief / reliefs is the complainant entitled to get in this case?

Evidence on record

The complainant in order to prove the case has submitted evidence on affidavit  and against the said evidence on affidavit the OPs have  filed interrogatories and the complainant has given reply to such interrogatories.

On the other hand in order to disprove the case of the complainant the Ops also have filed evidence on affidavit and against the said evidence on affidavit  the complainant has filed interrogatories and against such interrogatories  the OPs have given reply .

Argument  highlighted  by  the parties

In course of argument the complainant side and OPs  have filed their  Brief Notes on Argument and   in addition to such  filing the Brief Notes on Argument the  Ld. Lawyers of both sides also have  highlighted their  verbal submission   and  in course of argument they have given emphasis on the evidence on record.

Decision with reasons

The first 4(four) points of consideration are clubbed together and taken up for discussion jointly due  to  convenience of discussion and as the  questions and / or issues involved in the above noted  points of consideration  are interlinked and / or interconnected with one another  .

For the purpose of arriving at just and proper decision in respect of the above noted 4(four) points of consideration and also for deciding the fate of the above noted 4 (four) points of consideration, there is urgent necessity of making scrutiny of the material of this case record and there is also necessity of scanning the evidence on record.

            After going through the material of this case record and also after making scrutiny of the evidence on record, this District Commission finds that the complainant is a resident of Amta which is under the district of Howrah and OP No. 1 is also running their banking business at Amta which is under the district of Howrah.   When both the complainant and OP No. 1 are of Howrah, it is crystal clear that this District Commission has its territorial jurisdiction to try this case. 

            Relating to pecuniary jurisdiction this District Commission after making scrutiny  of the pleadings of the parties finds that the complainant has claimed the relief which is much more less than Rs. 20,00,000/- which was the pecuniary jurisdiction of this District Forum as per Consumer Protection Act, 1986.  Thus, it is crystal clear  that this District Commission has also pecuniary jurisdiction to try this case.

On close examination of the material of this case record and also after making scrutiny  of the evidence on record, this District Forum / commission finds that the complainant has paid all the 60 installments  to the OP No. 1 Bank Authority in their W/V.  In spite of clearing the installments of EMI in the matter of payment of the BSKP loan the OPs have not issued the Clearance Certificate in favour of the complainant.  This matter is clearly depicting that the complainant is a consumer under the OPs and this complaint case is also maintainable in its present form and in the eye of law.  The above noted vital part of the evidence is also reflecting that the complainant has its cause of action in the matter of institution of this complaint case and the said cause of action is still continuing.

A cumulative consideration of the above noted discussion goes to show  that the complainant  has proved his case in respect of all the above noted 4 (four) points of consideration and thus the above noted 4 (four) points of consideration are decided in favour of the complainant side.

The point of the consideration No. 5 has been framed on the question whether the complainant is entitled to get an award  directing  the OP for issuing  the Clearance Certificate and for refunding  the excess amount paid by the complainant in favour of the OP alongwith  interest and point of consideration  No.  6 has been framed over the issue whether the complainant is entitled to get any other relief from the OPs or not.

In order to arriving at just and proper decision in respect of the above noted 2 points of consideration and also for the interest of proper and complete adjudication of this case, there is urgent necessity of making scrutiny of the evidence on record.  In this regard this District Commission after going through the evidence on affidavit  filed by both sides alongwith interrogatories and their reply, finds that there is no dispute over the issue that the complainant had taken BSKP loan to the extent of Rs. 1,40,000/- for running his medicine shop in the matter of earning his livelihood and in connection with the payment of the said Loan A/C the total EMI installment  has been fixed  60 installments of Rs. 2,100/-. After going through the evidence on record  it is also reflected that the complainant has paid all the above noted 60 installments  of Rs. 2,100/- and thereafter  as per demand of the OP No. 1 the complainant has also paid Rs. 51,200/- to the OP No. 1 Bank Authority.  In spite of making such payment the OPs have not issued the Clearance Certificate.  In this regard it is very important to note that the OPs have failed to produce any cogent and satisfactory evidence.  So, as to why the OPs have not issued the Clearance Certificate to the complainant in spite of payment of the all installment amounts.

All the above noted factors are clearly reflecting that the complainant is entitled to get an award directing the Ops to issue Clearance Certificate and the complainant is also entitled to get an award directing the OPs to refund Rs. 51,200/- alongwith interest  @ 9% per annum.

Over the issue  of the claim of compensation  and litigation cost   the complainant  has failed to produce  any corroborative  evidence  relating to his case of suffering financial loss , mental agony, mental harassment etc.  When there is no corroborative evidence of the complainant in support of such claim of compensation and litigation cost this District Commission is of the view that there is no scope  of allowing any award relating to the payment of compensation and litigation cost.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 238/2016 be and the same is allowed on contest against the OPs but in part.

It is held that the complainant is entitled to get an award directing the OPs to issue the Clearance Certificate in the matter of payment of the loan amount and  also to pay  the excess amount of Rs. 51,200/- alongwith  interest @ 9% per annum.

The OP Nos. 1 & 2 are directed to issue the Clearance Certificate in favour of the complainant in the matter of repayment of BSKP Loan and also directed to refund Rs. 51,200/_ alongwith interest @ 9 % per annum within 60 days from the date of passing of this judgment.  Otherwise the complainant is given liberty to execute this award as per law.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission.

Dictated & corrected by me

  President