Date of Filing: 28/06/2013 Date of Final Order: 12/06/2015
The complainant, Sri Anup Kumar Maitry has filed the present case U/S 12 of the Consumer Protection Act, 1986 against the O.Ps, State Bank of India praying for issuing a direction upon the O.Ps to pay compensation for deficiency in service of the O.Ps with cost amounting to Rs.5,00,000/- in total and other relief(s) as the Forum may deem feet and proper.
The factual matrix of the case as can be gathered from the case record is that the Complainant applied for a loan to the O.P. No.1, State Bank of India, Khagrabari ADB branch on 05/06/2007 for Vermin Composed Project (Organic farming) to the tune of Rs.12,60,000/-. Accordingly the O.P bank sanctioned the said loan amount of Rs.12,60,000/-against STDR of Rs.1,45,000/-, L.I.C surrender value of Rs.92,702/- and also took papers of land property of 1.23 acres of land as security. After issuing the credit/loan, the bank authority diverted the total loan amount into two head and transmitted the funds in a C.C. Account bearing No.30254977551 for meet up the working capital and also transmitted some funds into Term loan being account No.30254918529 (which operated with the O.P. No.1, State Bank of India, Khagrabari ADB branch) for meet up the capital expenditure of the project.
It is the case of the complainant that being approached by the complainant, the O.P. No.1 was pleased to grant him the said credit facilities by way of loan after due verification of the relevant documents and the credit worthiness of the complainant. At all times the complainant has strived to repay the loan in compliance with the terms and conditions of the loan agreement. However, on account of unavoidable difficulties the repayment was stalled for a certain period. Thereafter the O.P, bank authority resorted to Section 13 (2) of the SARFAESI ACT 2002 and served a notice dated 28/12/2010. The complainant made all efforts to repay the loan as calculated and explained by officials including the interest accrued thereupon. Subsequently on 01/01/2013 the C.C. loan A/c bearing No.30254977551 was fully repaid and settled and on 05/01/2013, the Agricultural Term loan bearing loan A/c No.30254918529 was also fully repaid and settled after entire satisfaction. The complainant at all times during the repayment schedule has extended oral and written representations and had registered his protest towards the fact that O.P. No.1 had been whimsically charging excess interest and thereby the O.Ps are extracting such amounts which had exceeded the actual payable amount. Such protests and representations were particularly presented in connection with the agricultural term loan. At all times the complainant had noted that the O.Ps have arbitrarily extracted a huge amount for unjust enrichment causing untold financial crunch to the complainant which indicates that the O.Ps in collusion.
It is the further case of the complainant that on or about February, 2008 a huge subsidy amount to the tune of approximately Rs.3,33,000/- was sanctioned by the Govt. and the same was credited to the complainant’s bank account for adjustment with the said agricultural term loan. The complainant contended that in terms of RBI circulars and prevailing banking norms any amount which has been provided by way of subsidy should stand interest free from the date of credit though the said subsidy amount is supposed to be adjusted at the end of the repayment schedule. Such procedure has not been adhered to in case of the complainant and accordingly a high interest amount has been charged upon the said subsidy amount since February. 2008 which is illegal and arbitrary on the part of the O.Ps. Thereafter the complainant earlier requested the O.P. No.1 to recalculate the excess interest which has been charged and take immediate steps for refund of the said amount but the O.P. No.1 himself through his own hand writing recalculate the amount into the computerized copy of bank ledger and the O.P. No.1 also found the irregularity of calculation of the interest and note down upon the said bank ledger but thereafter the O.P. No.1 did not do anything and taken away exorbitant amount from the complainant and in this respect the complainant on several occasion inform the O.Ps in writing but no fruitful result has yet been received by the complainant.
Furthermore, the complainant begs to highlight that, he had a fixed deposit of an amount of Rs.1,45,000/- which was lying as security with the O.Ps. The said fixed deposit amount was adjusted with the C.C. loan account bearing No.30254977551 as late as on 29/12/2012. It appears from the statement that the amount which was due on 30/07/2012 in respect of the agricultural term loan account of Rs.1,89,716/-. The complainant also stated that, had the said maturity amount of the fixed deposit, i.e. Rs.1,55,508/- + Rs.69,089/- = Rs.2,24,597/- been adjusted on 30/07/2012, the due amount could have been set off. However, with ulterior motive and in order to play fraud upon the complainant the said amount was not adjusted at the appropriate time but the repayment schedule was unnecessarily dragged forward to the utter prejudice of the complainant.
It is the further case of the complainant that he submitted an amount of Rs.2,800/- or any like amount has been debited multiple times from complainant’s agricultural term loan account bearing No.30254918529 as inspection charges in several times. Furthermore, he also stated that without any plausible explanation varying amount has been debited from his C.C. loan account hearing No. 30254977551 over the period of time. Such amounts have been as low as keeping charge of Rs.550/- and Rs.3,500/- on certain occasions which has stood up to Rs.9,800/- at a time. The complainant was in receipt of a letter date 31/01/2013, wherein the O.P asked to the complainant to pay two bills bearing No.9316 and 9317 dated 30/01/2013 of Rs.46,200/- and Rs.47,707/-. The said bills have been raised by a farm under the name of M/S. Kumar Associates having their office at 26/B seven Tanks Lane, Kolkata-30. Apparently the said M/S. Kumar Associates have rendered their service for "Recovery of bad debt" and the billed amount has been raised as they have been engaged by the O.P as a SARFAESI agent. The bank authority had already resorted to SARFAESI against the complainant and served notice subsequent to which the due amount has been gradually paid off. The Hon’ble Supreme Court of India and the Hon’ble High Courts have time and again cautioned the banks regarding appointment of “Hooligans” and “Criminals” under the guise of “Recovery agents” for recovery of debts. Furthermore, not even for a single instance the said M/S. Kumar Associates deployed any of their agents and/or employees in respect of the recovery of loan from the complainant. More so, the complainant never received any acceptable form of recovery efforts from the said M/S. Kumar Associates. Hence, the bills and forwarding letter dated 31/01/2013 of O.P is absolutely mala-fide, illegal and testifies that the O.P still believes and take help of such measures which have been condemned by the Courts.
The complainant further stated that in continuation of illegal acts omissions of O.P. No.1, State Bank of India, Khagrabari Branch has denied to release the mortgaged documents including title deeds etc. in-spite of the fact that all dues have been cleared an settled in fullness long back. On the last occasion when the complainant approached the O.P. No.1 and requested to get back his original documents, he has been made known that yet another amount is lying due by way of Bills of Recovery agents. Also he stated that on numerous occasions he has been treated with inhuman behavior and unworthy languages by the then Branch Manager of Khagrabari ADB Branch. The Hon’ble Supreme Court of India in the matter of Martha Chemicals has categorically stated that the PSU Banks are not a mere machinery of business, they have certain duties, responsibilities and obligations towards the betterment of Urban and Rural economy. Each customer who intends to avail credit facilities from the bank and who avails credit facilities from the bank deserves a humanly treatment and acceptable language as per our social norms.
On several occasion the complainant intimated the same before the O.Ps on 30/01/2013 the O.Ps filed a petition before the O.P. No.1 in writing and the O.P. No.1 acknowledged the same and thereafter the complainant on 27/02/2013 sent three letters through Regd. Post with A/D to the O.Ps and that letters were duly acknowledged by the O.Ps but no reply was given till today.
Thereafter, on so many occasions and on 27/02/2013 when the letter were sent to the O.Ps and lastly on 03/05/2013 when the O.P. No.1 illegally and motivatedly withheld the documents of security and threatened the complainant that they will not return the same. Due to such ill-motherly attitude of the O.Ps and for wrong calculation of interest and for wrong adjustment of subsidy amount in time, the complainant suffered huge amount of monetary loss and substantial injury and ultimately due to illegal pressure of the O.Ps, the complainant compelled to shut down the farming and also shut down the project.
Hence, the complainant filed the instant Case No. DF/61/2013 with enclosed some original/xerox copy of documents together with I.P.Os. of Rs.200/- before this Forum for redress of the dispute and prayed for direction to the O.Ps to pay (1) Rs.4,00,000/- for monetary loss, business loss and also for illegal trade practice and Rs.1,00,000/- for mental pain, agony and harassment, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1 to 3, State Bank of India has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the complainant has no cause of action to being this case and the case is not tenable in law. The main contention of the O.Ps is that the complainant after calculation of outstanding loan amount has totally paid by the complainant without hesitation and if there is any confusion regarding the outstanding loan amount at that time they may raise objection regarding the excess charge of interest amount in their account.
It is the also case of the O.Ps that all the securities are adjusted. So, there is no scope of recalculation.
Ultimately, the O.Ps prayed for dismissal of the case without any costs.
In the light of the contention of the complainant, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
Evidently the Complainant took loan from the O.Ps, State Bank of India and ultimately repaid the same with interest. So the complainant is consumer under the O.P bank.
Point No.2.
The O.P No.1, Branch Manager, State Bank of India, Khagrabari ADB has office at Khagrabari, P.S. Kotwali within jurisdiction of this Forum and total valuation of this case is Rs.5,00,000/- which is far less than maximum pecuniary limit of this Forum i.e. Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try this case.
Point No.3 & 4.
It is the case of the Complainant, Anup Kumar Maitry that he took loan of Rs.12,60,000/- from the O.P. No.1, S.B.I.
Annexure-‘1’, copy of the loan application and agreement shows that the complainant took term loan of Rs.5,60,000/- and working capital loan of Rs.7,00,000/-, totaling Rs.12,60,000/- from the O.P. No.1, S.B.I, Khagrabari for the purpose of Vermin Composed Project (Organic farming) at the interest @ 12.75% P.A. and @ 13.75% P.A. respectively.
It is the next case of the complainant that on account of unavoidable difficulties the repayment was stalled for a certain period and thereafter the bank authority take recourse of Section 13 (2) of the SARFAESI ACT 2002 and served a notice dated 28/12/2010 upon him.
Annexure-‘2’ copy of the notice dated 17/09/2012 regarding intimation to take possession shows that Rs.14,92,525/- and interest was demanded from the complainant and U/S 13 (2) of the SARFAESI ACT 2002 and he was intimated that if he failed to repay said loan possession of secured assets i.e. land would be taken.
It is the further case of the complainant that subsequently he repaid and settled the CC loan and Agricultural Term Loan on 01/01/2013 & 05/01/2013 respectively.
Statement of account regarding Agricultural Term Loan shows that the complainant repaid the entire loan on 05/01/2013. Statement of account regarding CC Loan also shows that entire loan was repaid by the complainant on 01/01/2013.
It is the case of the complainant that the O.P. No.1, S.B.I took extra interest from him illegally.
In view of ruling reported in 2014 CJI (NC) statement of account is a very relevant material in loan dispute. But in the present case the O.P, S.B.I has not filed any such statement of account.
The complainant has filed some statement of account regarding said loan account but the complainant has failed to point out taking of any extra interest by the O.P, S.B.I.
It is also case of the complainant that on or about February, 2008 a huge subsidy amount to the tune of approximately Rs.3,33,000/- was sanctioned by the Govt. and the same was credited to the complainant’s bank account for adjustment with the said agricultural term loan. The complainant contended that in terms of RBI circulars and prevailing banking norms any amount which has been provided by way of subsidy should stand interest free from the date of credit though the said subsidy amount is supposed to be adjusted at the end of the repayment schedule. Such procedure has not been adhered to in case of the complainant.
It is the further case of the complainant that subsidy amount of Rs.3,33,000/- of the complainant has not been credited in his account in due time and as a result he lost huge interest.
It appears from the copy of special term deposit receipt dated 12/05/2008 that Rs.3,33,000/- has been deposited in the name of the complainant, Anup Kr. Maitry (as subsidy) and date of maturity of the said certificate was 12/05/2013 and amount payable on maturity was Rs.5,07,091/-. Statement of account of loan account shows that on 09/05/2012 Rs.4,39,482/- has been credited in the said loan account by adjusting said Fixed Deposit amount. We do not find any irregularity in this matter. Though it is the case of the complainant that subsidy amount should be deposited to his loan account directly.
It is the case of the complainant that he had a Fixed Deposit of Rs.1,45,000/- and said F.D was adjusted with CC Loan as late as on 29/12/2012 though the date of maturity of the same was 30/07/2012. But no document is forth coming before the Forum regarding the said Fixed Deposit.
It is also the case of the complainant that after payment of entire dues he requested the O.P, S.B.I to return back all his original deed but he has not got back the same as yet.
Copy of the application dated 30/06/2013 shows that by submitting the said application to the O.P. No.1, Branch Manager, S.B.I, Khagrabari, the complainant requested them to return back his original deeds within 7 days.
It is the further case of the complainant that the O.P. No.1, S.B.I has not returned back the same as yet, rather they claimed Rs.46,200/- & Rs.47,707/- as bill of SARFEASI, agent M/S Kumar Associates though SARFEASI Act, 2002 is not applicable in this case.
Annexure-‘3’, ‘4’ & ‘5’ i.e. letter No. Agl/36/355 dated 31/01/2013 issued by the O.P. No.1, Branch Manager, S.B.I, Khagrabari along with bill of Rs.46,200/- & Rs.47,707/- issued by M/S Kumar Associates shows that the O.P. No.1 asked the complainant to pay such amount.
During hearing of argument the Ld. Agent/Adv. of the complainant drew our attention to clause 8 of Annexure-‘1’ the loan agreement dated 04/10/2007 signed by the complainant and bank authority, which shows that if the complainant failed to repay the loan the bank authority would take recourse of Public Demand Recovery Act and could auction movable and immovable properties of the complainant and submitted that but here the O.P bank take recourse of SARFEASI Act illegally.
We find that in clause 8 of the said Agreement there is clear mention that for recovery of loan the bank authority can take recourse of Public Demand Recovery Act.
On the other hand the Ld. Agent/Adv. of the O.P bank placed reliance upon clause 7 of the said Agreement where it is stated that besides the condition mention in the Agreement, the bank authority may imposed any other condition and that condition will be effective and submitted that on strength of the said clause, the bank authority may take shelter of SARFEASI ACT against the complainant.
But we think on basis of said ambiguous clause in the said Agreement in corporated by the O.P bank. It cannot be said that SARFEASI Act is applicable in this case specially when at the time of granting loan i.e. in the year 2007 SARFEASI Act was in existence and there is no specific mention of the said Act in the Agreement.
During argument, the Ld. Agent/Adv. of the O.P bank submitted that in view of S 34 of SARFEASI Act no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or Appellate Tribunal is exposed by or under the SARFEASI Act.
But in the present case, we have already held that SARFEASI Act is not applicable in this case.
Evidently, the complainant has already paid all dues but the O.P bank has not been returning his original deed rather claiming Rs.46,200/- & Rs.47,707/- from the complainant as remuneration of the Recovery Agent.
We have already came to conclusion that SARFEASI Act is not applicable in this case. We further find that the complainant has already paid entire dues and the O.P bank has received said amount without taking possession of mortgage property of the complainant.
We also find that the O.P bank has been claiming huge amount of Rs.93,907/- from the complainant as bill of Recovery Agent. There is nothing to show actually what alleged Recovery Agent did regarding recovery of said loan as Recovery Agent.
We further find that State Bank of India is not a mere machinery of business. They have certain duties, responsibility and obligation towards the betterment of Urban and Rural Economy and it is very much doubtful whether a public sector bank can appoint mussleman in the name of Recovery Agent to recover the loan and compelled the lonee to met expenses of such Recovery Agent.
Considering over all matter into consideration and materials on record we are in view that the complainant is not liable to pay huge amount of Rs.93,907/- alleged to be bill of Recovery Agent and the O.P, S.B.I is liable to return the deposited original deeds to the complainant.
During hearing of argument the Ld. Agent/Adv. of the complainant regarding “deficiency” submitted a dicition passed in Appeal No. FA-08/126 by Hon’ble State Commission, Delhi where Hon’ble State Commission pleased to hold that word deficiency as defined by Section 2(1)(g) of the Consumer Protection Act, which means : “Any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Evidently, inspite of payment of entire dues the O.P bank did not release the original deeds of the complainant, which amounts to deficiency in service.
Accordingly, the case as well point No.3 & 4 are decided in favour of the complainant.
Thus, the case succeeds.
ORDER
Hence, it is ordered that,
The present Case No. DF/61/2013 be and the same is allowed on contest with cost of Rs.5,000/- against the O.Ps.
The O.P. No.1, The Branch Manager, State Bank of India, Khagrabari ADB, The O.P. No.2, The Zonal Manager, S.B.I., Siliguri and the O.P. No.3, The Chief General Manager, S.B.I., Kolkata are also directed to pay Rs.50,000/- jointly and/or severally as compensation for monetary loss, illegal trade practice, mental pain & agony and harassment to the complainant. The ordered amount shall pay to the Complainant within 45 days failure of which the O.Ps shall pay Rs.100/- jointly and/or severally for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned parties/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member
District Consumer Disputes
Redressal Forum, Cooch Behar
