::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

                                                                     C.C. No.02/2016.

                                                                                                Date of filing: 21.01.2016.

                                                       Date of disposal: 17.10.2023.

P R E S E N Ts:-    

 (1) Shri. Mabu Saheb H.Chabbi,   

                                                    B.Com.,LL.B.,(Spl.),

                                                                      President.,

 (2)Kum. Kavita,

                                                            M.A.,LL.B.,(Spl.),

                                                                                    Member.                                                                                                       

COMPLAINANT/S                          Abdul Razique S/o Afsarmiyan,

                                                            Age: 35 years, Occ:Business,

                                                            R/o H.No.5-10-1 Masoom Pasha Colony

                                                            Via Gandhi Chowk Bhalki,

                                                            Tq:Bhalki Dist:Bidar.                                                                        

                                                    (By Sri.S.Deshmukh, Advocate).                             

                                                  V/s

OPPONENT/S         1. The Branch Manager,

                                       Canara Bank Branch Bhalki.      

                                  2.  The Regional Manager,

                                      Canare Bank Regional Office,
                                        Kalaburagi.                                               

                                                     (OP No.1 By Sri. M.K.Biradar., Advocate  and OP No.2 Ex-parte.).

                                                                                                  :: JUD G M E N T::

By. Sri. Mabu Saheb H.Chabbi , President.

This is a complaint filed by the above named complainant U/s.12 of Consumer Protection Act 1986, against the Ops, for claiming compensation for not releasing the loan amount to the complainant.  Which came to be disposed by order dated 21.03.2017 and being aggrieved by said order, the complianant preferred Appeal No.375/2018, before Hon’ble State Commission Bangalore, which was allowed  by order dated 02.09.2022 by remanding above case for afresh adjudication, hence the following judgment. 

Facts of the complaint.

The brief facts of the complaint are as follows:

1.         The complainant applied for financial assistance before Karnataka Minority Development Corporation (KMDC) Bidar, for his self employment, and in turn the KMDC Bidar forwarded the application to the OP No.1.  On receipt of the application from KMDC the OP No.1 sanctioned loan of Rs.5,00,000/- to the complainant and sent confirmation letter to KMDC on 21.02.2015, forwarding the same for claim of subsidy and informed the KMDC Bidar that, the OP NO.1 sanctioned Rs.5,00,000/- amount to the complainant.  After receipt of such confirmation from OP No.1 regarding the sanction of loan the KMDC Bidar sent a cheque bearing No.004575 dt:11.05.2015, for Rs.1,25,000/-, i.e., Rs.1,00,000/- towards margin money and Rs.25,000/- towards subsidy to the OP No.1 bank under Swavalamabana Margin Money loan subsidy Scheme and requested OP No.1  to confirm the release of loan along with Margin Money and Subsidy to the District Manager of KMDC Bidar.  After, sanction of Margin Money and subsidy from KMDC Bidar the complainant approached OP No.1bank for release of sanctioned loan amount for his cloth business.  As per the instructions of OP No.1 the complainant secured suitable shop and appointed sales girls for monthly salary of Rs.6,000/- and with a lease of building for Rs.8,000/- per month.  The complainant furnished required documents along with his KYC Documents, in spite of repeated approaches to the OP  No.1, he went on to avoiding to release the sanctioned loan amount of Rs.5,00,000/- to the complainant without any valid reason.  Due to non release of loan amount the complainant sustained huge loss and suffered mentally on account of deficiency of service by the Ops.  Legal notice also been issued to the OP No.1, but nothing yield anything and prayed to award compensation for the loss and sufferance of the complainant. 

Written version of OP No.1.

2.         The notices issued by this commission to the OPs served upon them and Ops appeared through their counsel and submitted the W.V. of OP No.1 and OP No.2 adopts the same.  Subsequent to remand of this case though the notices were served upon both Ops but, OP NO.1 only appeared through his counsel and submitted his additional W.V.  However OP No.2 remained absent despite service of notice from this commission, hence, OP No.2 placed ex-parte.  The Ops submitted their W.V. and categorically denied almost all the contents of complaint, further contended that, the complainant is not consumer, complainant is claiming relief in respect of commercial transaction which is beyond the purview of C.P.Act.   The OP No.1 is not denying that, the complainant applied for financial assistance before KMDC and in turn the said corporation forwarded the said application to OP No.1 for sanction.  Mere forwarding the application for sanction of loan would neither bind the OP No.1 bank to sanction the loan nor entitles the complainant to compel the bank to sanction the loan unless fulfills the requirements of the bank for sanction of the loan which the complainant has failed to comply the same.  The loan sought by the complainant was carrying subsidy from the KMDC and subsidy was to be credited to the account of the complainant subject to confirmation by OP No.1 to sanction the loan.  On the request of the complainant before the complainant fulfilled the required formalities and furnishing the documents, sent confirmation letter to the corporation stating that, the OP No.1 bank has sanctioned a limit in principle for Rs.5,00,000/- subject to compliance of terms and condition of the loan policy.   The corporation sent cheque bearing No.004575, dt:11.05.2015, for Rs.1,25,000/- i.e., Rs.1,00,000/- towards margin money and Rs.25,000/- towards subsidy to the OP No.1 bank under the scheme, requesting the OP No.1 to confirm the release of loan along with margin money and subsidy to the District Manager of Corporation and issue utilization certificate for disbursing the loan.  On the request of the complainant the manager of the OP No.1 bank believing that, the complainant would comply the terms and condition of the bank, issued confirmation letter to the corporation and in turn corporation sent the cheque to the OP No.1 bank, but the complainant did not appear before P No.1 bank to comply the procedure.   The complainant has shown in the loan application that, he is having experience of 10 years in running cloth shop but, he was not at all running any such cloth shop.  In the mean time the powers of sanction for fresh loan are withdrawn by the circle office Kalaburagi by the letter dt:13.08.2015 hence, the OP No.1 power to sanction loan was not within his purview as per above letter.  Whatever the documents collected shall be forwarded the same to the Circle Office with recommendation of OP No.1 bank.  But, the complainant did not come forward to take the OP No.1 to the location of the shop to the OP No.1 and did not furnish any details of the location of the shop to the OP No.1.  The OP No.1 has reason to believe the complainant has not at all taken any shop on lease and is not at all running any cloth shop as alleged by him in his application for loan.  The complainant has not furnished income tax return to prove that he is running his cloth business and not furnished KYC Documents.  The manager of the OP No.1 bank was not allowed by the complainant to inspect the location of the shop of complainant and he has not complied the loan policy hence the OP No.1 bank could not able to submit his report to circle Office for sanction of loan to the complainant.  The claim of the complainant is beyond the scope of act, hence complaint is liable to dismiss.  The OP No.1 submitted his additional W.V. on 24.07.2023 and the gist of additional W.V. is as below.  The dispute between the complainant and the OPs is Civil in nature and not fall under the deficiency in service and liable to dismiss.  The government has released the subsidy and margin amount by the KMDC as the rules applicable to the said Scheme and the OP has no right to claim and margin and subsidy amount in question because the total amount was sanction for Rs.3,75,000/- which is the Government Scheme between the respondent and KMDC.  Accordingly the OP Bank has sanctioned a sum of Rs.3,75,000/- on 30.05.2017, as per Project.  Further it is prove that, the loan of Rs.5,00,000/- was not disbursed and only Rs.3,75,000/- released keeping option to the petitioner complainant to utilize 25% his share in the project.  After availment of loan the complainant has not repaid the installment as per agreement and his account become over due and OP Bank filed recovery suit before Civil Judge Bhalki Court in O.S.No.90/2019.  During the pendency of the case transfer to District Commercial Court Bidar and renumbered as OS.No.28/2020 and the summons issued to the complainant by the Commercial Court was refused by the complainant and ex-parte order passed and decree also been passed on 08.08.2022.  The complainant loan of Rs.3,75,000/- on 30.05.2017, and this fact has not been brought to the notice of this Commission or even before the State Forum.  The complainant has not approached before this commission with clean hands the appointed of employees the running business by the complainant and taken shop on lease for RS.8,000/- and payment of salary to the sale boys for Rs.6,000/- is all false and denied by the OP.  Hence, he prayed to dismiss the compliant.            

Evidence of complainant.

3.         The complainant examined himself by filing his evidence affidavit and the complainant got examined Rafat Begum W/o Afsermiyan, Govind S/o Manohar Rao and Ahmad S/o Quddusmiyan by filing their respective evidence affidavit and subsequent to remand the complainant himself again adduce his additional evidence as P.W.1 and got marked 07 documents as per Ex.P.1 to Ex.P.07 on behalf of complainant which are as follows,

     1.    Ex.P.1-Copy of letter issued by OP No.1 bank to Dist. Manager KMDC
            Bidar dt:21.12.2015.

2. Ex.P.2-Copy of claim form dt:21.02.2015.
3. Ex.P.3-Copy of letter issued by Dist. Manger KMDC to OP No.1 bank dt:16.07.2015.
4. Ex.P.4-Copy of cheque No.004575 dt:11.05.2015 and issued by KMDC to OP No.1 for the issuance said cheque. 
5. Ex.P.5-Copy of letter submitted by the complainant before the OP No.2 bank dt:29.09.2015.
6. Ex.P.6-Copy of letter issued by OP No.1 bank to the Prop Guru cloth Store Bhalki dt:24.08.2017.
7. Ex.P.7-Copy of Bank Statement.

Evidence of OPs.

4.         One Sri Shravan Kumar Manager Canara Bank Bhalki has been examined on behalf of OP No.1 by filing his evidence affidavit and subsequent to remand of the case the OP No.1 examined one Sri Praveen Kumar S/o Manmathappa Manger, Canara Bank Bhalki, filed his evidence affidavit and noted as R.W.1 and no documents marked on their side.   

Points/Issues.

5.         Heard the arguments advanced by the both parties and perused the respective written arguments and further the pleadings and documents on record of both parties, the points that arose for consideration before this Commission are as below. 

1. Whether the complainant proves that, he is consumer to OPs and further proves the deficiency of service from the OPs?

2. Whether the complainant is entitled for any reliefs if so, What orders? 

6.         Our answers to the points raised above are as follows: -

1. In the affirmative.
2. In the affirmative as per the final order.

7.         In order to decide the complaint issues, this commission discussed points/issues No.1 and 2 together for discussion as both points are inter related to each other- as follows.  

8.         On perusal of the pleadings and evidence on records of both parties it is noticed that, the complainant in order to prove as consumer for the Ops, this commission noticed the admission of OP stating in his W.V. that, OP No.1 sanctioned loan to the complainant for starting his cloth business vide the sanction letter dated 21.02.2015 issued by P No.1 addressing to KMDC District Manager Bidar, stating that, Rs.5,00,000/- loan sanctioned and confirm  the same subject to compliance of terms and conditions of loan policy. Ex.P.2 a claim Form signed by OP No.1 in the name of complainant stating that, out of Rs.5,00,000/- subsidy amount is Rs.25,000/- margin amount is Rs.1,00,000/- and bank loan is of Rs.3,75,000/-.  Another letter Ex.p.3 issued by Dist.Manager KMDC Bidar to the OP No.1 on 16.07.2015, regarding the allotment of Rs.1,00,000/- as margin amount, and Rs.25,000/- as subsidy amount and in total  Rs.1,25,000/- amount showing eligibility of complainant from the Government Scheme.  Ex.P.4 is a cheque issued by KMDC in the name of complainant with a letter addressing to OP No.1 to release the cheque amount along with bank portion loan amount to the complainant.  Letter of request as per Ex.P.5
dt: 29.09.2015, by the complainant to the OP No.1 to release the loan amount of Rs.5,00,000/-, in the earliest possible time.  Looking in to the documents Ex.p.1 to Ex.p.5 it is clear that, the OP No.1 has sanctioned loan of Rs.5,00,000/- to the complainant to open his cloth business and the OP No.1 has issued letter of confirmation to the KMDC as per Ex.P.1 and the OP No.1 also mentioned as per Ex.P.2 that, loan amount was Rs.3,75,000/- and margin amount and subsidy amount was Rs.1,25,000/- which was clearly bifurcated and in total Rs.5,00,000/- loan amount mentioned by the OP No.1 in the said claim Form.  Even Ex.p.3 also a document showing Rs.1,25,000/- a margin amount and subsidy amount which is payable by the Government.  Accordingly, as per Ex.P.3 letter by KMDC cheque for Rs.1,25,000/- issued in the name of complainant and forwarded the same with a letter addressing to OP No.1 as per Ex.P.4.  and the same letter received by OP No.1 on 21.07.2015.  However, the OP No.1 has not released any loan amount of Rs.5,00,000/- to the complainant including the margin and subsidy amount and the complainant issued a request letter to OP No.2 for release of loan in the earliest possible time.

9.         The OP No.1 contended that, in his W.V. that the complainant has not complied the terms and conditions of the loan policy, as the complainant suppose to produce the document regarding lease agreement deed for opening the shop, appointment of sales boy to the cloth business, business experience certificate, KYC document but the complainant did not respond for the same and produced those required documents before OP No.1.  On going through the averments made by the OP No.1 he has made bald assertion against complainant.  If at all any documents required from the complainant for sanctioning loan, he could collect those documents before sanctioning of loan amount to the complainant.  But, he has stated in his W.V. that, believing the words of the complainant he has issued a confirmation letter as per Ex.p.1 to the KMDC Bidar, which cannot be believed.  The PO No.1 has not produced any document to show that, he has written letter to the complainant for seeking and to produce the documents which are necessary for release the loan amount.  After receipt of Ex.P.4 margin and subsidy cheque in the name of complainant for an amount of Rs.1,25,000/- from KMDC the OP No.1 has not taken any steps to release the loan amount as per sanction letter Ex.P.1.  The KMDC has directed to return back the subsidy and margin amount of Rs.1,25,000/- to the KMDC immediately if the loan is not disbursed within 02 months from the date of Ex.P.4 dt:11.05.2015.  But, in this case the OP No.1 kept silent without informing either to KMDC or to the complainant regarding the circumstances which were make him unable to release the loan amount to the complainant. 

10.       The complainant has issued a letter as per Ex.P.5 for compliance of the loan policy and requested OP No.2 to release the loan amount.  But, still both Ops were not heeded the request of complainant as per Ex.P.5.  The OP No.1 has stated in his W.V. dt:21.03.2016, at Para No.8 that, “when on the request of complainant the manager of Respondent No.1 bank believing that, the complainant would comply the terms of condition of the bank as per their loan policy, issued confirmation letter to the corporation and in turn the corporation sent the cheque to Respondent No.1 bank”.  To substantiate this contention the OP No.1 has not produced any document or evidence before this commission.  But, on going through the documents produced by complainant no such request letter produced either by complainant or by Ops to show that, prior to Ex.P.1 dt:21.02.2015, there was no such request letter by complainant to the Ops.  But, subsequent Ex.P.1, the document Ex.P.5 letter dt:21.09.2015, issued by complainant to the OP No.2 request to release the loan.  In view of these documents there was no such circumstance to yield for the request of the complainant to issue sanction and loan confirmation letter as per Ex.P.1.  Even, on going through the version of statement at Para No.8 of W.V. by OP no.1 doesn’t showed any loyal towards his institution.  The Op No.1 has to act in accordance with the terms and conditions of the loan policy and act in accordance with law and he is not suppose to act at the request of any public including complainant while doing his duty. 

11.       The OP No.1 in his additional W.V. dt:24.07.2023, stated that, the complainant suppressed the fact of release of loan amount of Rs.3,75,000/- to the complainant by OP No.1 on 30.05.2017, but the OP No.1 ought to release Rs.5,00,000/- including margin amount and subsidy amount which has already been received by OP No.1, from the KMDC through Ex.P.4 cheque and letter from KMDC Department.  But, not released the amount of Rs.1,25,000/- by the OP No.1 to the complainant and has not been substantiated by any cogent evidence and documents before this commission and which amounts to deficiency in service by the Ops. 

12.       The loan was sanctioned by the OP No.1 through Ex.p.1 letter dt:21.02.2015, but the OP No.1 has not release the loan amount till 30.05.2017, the OP NO.1 took time to release the sanctioned loan amount of Rs.3,75,000/- to the complainant that too by releasing in different 4 installments to the complainant dt:30.05.2017 Rs.1,87,500/-, on 24.08.2017 for Rs.37,500/-, on 28.09.2017 for Rs.1,10,000/- and lastly on 25.10.2017 for Rs.40,000/- to substantiate this fact the complainant himself has produced Ex.P.7 the statement of account and in the statement of account the above said entries found that, in different dates the OP No.1 released the loan of Rs.3,75,000/- to the complainant in violation of his own document Ex.p.1 and in violation of KMDC Department order letter Ex.P.3.  Though this commission passed an order dt:21.03.2017 based on the memo filed by the OP the case was disposed with an observation that, OP bank would disburse the loan to the complainant.  But, even after the order of this commission dt:21.03.2017, the OP No.1 sanctioned loan of Rs.3,75,000/- only after lapse of again more than 02 months that too in different installments which amounts to deficiency in service caused to the complainant. 

13.       As per Ex.P.6 dt:24.08.2017, letter issued by OP No.1 to the prop. Guru cloth Store Bhalki shows that, the complainant was made to purchase goods worth Rs.1,00,000/- from Guru Cloth Stores on 24.08.2017, the complainant has produced the evidence of Rafat Begum, Govind and Ahmad to substantiate the fact that, he got one shop premises for lease from Rafat Begum for Rs.8,000/- per month from August 2015 till Depawali 2016, the said Govind also appointed as sales boy for monthly salary of Rs.6,000/- and another witness Ahmad who has given evidence in corroboration with P.W.1.  All witnesses were examined by the complainant and due to the instructions given by OP No.1 he proceeded to facilitate OP No.1 in anticipation to release loan amount by producing all necessary documents.  The Ops have not denied the contents of above said witness’s affidavit or produced any documents or material to disbelieve the evidence of above said witness’s including complainant.  On account of the negligent act of the Ops the complainant made to suffer and deprived of his self employment opportunity by opening cloth business and put in to loss at the instance of Ops and the loss which has been sustained by the complainant the Ops are liable to compensate the same as the complainant is consumer to the Ops in view of loan sanction letter Ex.P.1 and sanction claim form as per Ex.P.2. 

14.       The OP No.1 has not stated anything about Ex.P.4 cheque No.004575 dt:11.05.2015 and letter issued by KMDC Department on 11.05.2015 and the OP No.1 received on 21.07.2015, the said cheque in the name of complainant for Rs.1,25,000/-.  The date of cheque was 11.05.2015, and it is having its validity till 3 months only and after lapse of 3 months from the issuance of cheque by KMDC the cheque cannot be presented either by complainant or by OP No.1.  Hence, keeping the cheque beyond the period of 3 months from the date of issuance of cheque without crediting to the account of the complainant or without returning the same to the KMDC Department which amounts to deficiency of service by the Ops. 

15.       The complainant preferred an appeal before KSCDRC Bangalore against the order passed by this commission dt;21.03.2017, and complainant appellant appeal allowed and remanded back for afresh by holding an enquiry by offering opportunity to both parties by considering the decision reported in (2009) CPJ 309 NC and to dispose the matter accordingly.  In the above cited case of Akhilesh Kumar Pandey Vs Bank of Baroda and anr., wherein held by the lordship that, the OP No.1 bank is to compensate the petitioner for a sum of Rs.60,000/- for the harassment, mental agony and loss on account of expenditure incurred for restructuring of the premises, refund the margin money of Rs.30,000/- in not already withdrawn by the petitioner/complainant with interest at the rate of 10% and further order to refund a sum of Rs.16,000/- from the Khadi and Village industry Board to the board, if already not refunded along with interest accrued there on.  In view of the above observation made by the Appellant Court the facts of this case are also having similar facts and the ratio is applicable to the case on hand.  In view of the discussion made above by this commission the complainant has proved his case against Ops for the deficiency in service caused by OPs and answered point No.1 and 2 in the affirmative and proceed to the fallowing order.

::ORDER::

The complaint filed by the complainant against Ops is allowed in part with costs.

The Ops are hereby directed to pay compensation of Rs.2,75,000/- (Rupees two lakh seventy five thousand only) with 9% interest from the date of Ex.P.5 dt:29.09.2015 till its realisation and Rs.5,000/- as litigation charges to the complainant within 45 days from this order. 

            Intimate the parties accordingly.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this 17^th day of October-2023).

Documents produced by the complainant.

1. Ex.P.1-Copy of letter issued by OP No.1 bank to Dist. Manager KMDC
               Bidar dt:21.12.2015.
2. Ex.P.2-Copy of claim form dt:21.02.2015.
3. Ex.P.3-Copy of letter issued by Dist. Manger KMDC to OP No.1 bank dt:16.07.2015.
4. Ex.P.4-Copy of cheque No.004575 dt:11.05.2015 and issued by KMDC to OP No.1 for the issuance said cheque. 
5. Ex.P.5-Copy of letter submitted by the complainant before the OP No.2 bank dt:29.09.2015.
6. Ex.P.6-Copy of letter issued by OP No.1 bank to the Prop Guru cloth Store Bhalki dt:24.08.2017.
7. Ex.P.7-Copy of Bank Statement.

Document produced by the Opponent.

-Nil-

Witness examined.

Complainant.

P.W.1- Abdul Razique S/o Afsarmiyan,                         (complainant)

Opponent.

OP No.1 witness:    Shravankumar Manager Canara Bank Bhalki.

R.W.1- Sri Praveen Kumar S/o Manmathappa Manger, Canara Bank Bhalki.