PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

KAMALPUR, DHALAI TRIPURA

      &

Smt. Dipali Sinha

(Member)

 

 

S/O Lt. Manoranjan Ghosh,

Resident of Kamalpur Town,

P.S.:-Kamalpur, P.O.:- Kamalpur

  District:- Dhalai, Tripura 799285    ..................Complainant

                                                                                                 

 

 

1). The Branch Manager,

     State Bank of India

     Manikbhander BranchKamalpur, 

     District- Dhalai Tripura.

 

 2). The Banking ombudsman 

      for Assam, Arunachal Pradesh,

      Manipur, Meghalaya, Mizoram,

      Nagaland and Tripura, 

      Reserve Bank of India

     Guwahati-781001                 ............... Opposite Parties.     

                   

 

 

  Counsel for the complainant    : Mr. Ratan Deb & 

                                                   Mr. Subrata Debnath   ..............Ld. Advocates.

  Counsel for the OPs      :     Mr. Ranbijoy Deb   ................ Ld. Advocate.

     

 

 

 

1. This instant case was instituted on the basis of complaint under the Consumer Protection Act, 2019 filed by one Mr. Shymal Ghosh of Kamalpur Town, PO+PS- Kamalpur, District- Dhalai, Tripura. 

 

2. The complainant case in brief is that in the year 2009, SBI, Manikbhander Branch (OP-1) offered the complainant to have a TATA Nano car and for that also offered him to take a loan of Rs. 1,40,000/- to pay the price of said car as per scheme of the OP no. 1 Bank. Accordingly, the OP No. 1 claimed 25% of loan amount to be deposited by the complainant in OP No. 1 bank as a margin money. Complainant accepted this offer and paid Rs. 35,000/- as margin money. But neither OP No. 1 availed him the said car nor refunded him his margin money till date. He was shocked when he received a demand notice in the year 2011 for refund of the outstanding of loan regarding that nano car. He asked OP-1 to take initiative to avail him that car but OP-1 remain mum. Thereafter, complainant have another notice in 2012 asking him to refund the said nano car loan. Complainant was surprised and shocked as he was not availed the nano car for which he signed the loan document and also deposited margin money. Thereafter, complainant requested several times to OP-1 to return his margin money as well as provide him "No dues certificates". But the said nano car loan kept remained alive and being shown the complainant was defaulter of that loan. After finding no other solution, complainant wrote an application to the banking ombudsman, Reserve Bank of India building, Guwahati, 78100, seeking relief. On 19.03.2014, in final hearing the matter was settled. Thereafter complainant approached the OP for several times for "no dues certificates" as well as margin money. But complainant got neither "no dues certificate" nor margin money of said car loan.

Being dissatisfied and aggrieved with the service of OPs, the Complainant filed this Complaint under the Consumer Protection Act, 2019 and claiming Rs. 20,00,000/- as compensation besides other relief.

 

3. On the other hand, OP-1 appeared and contested the complaint by way of filing written reply. In the written reply the OP-1 stated that the present complaint filed by the Complainant is not maintainable in the  present form and nature. It is stated by OP-1 that the complainant avail of loan facilities amounting to Rs. 1,40,000/- (One Lakh Forty Thousand) only from the SBI, and the said amount was sent to the seller of Nano Motor Vehicle, TATA Motors Ltd on 22.04.2009 which has been reflected in the statement of account and in the drawing power (DP) delivery letter dated on 22.04.2009. It is the contention of OP that the complainant has not added TATA Motors Ltd., as a necessary party in this case, hence in absence of the necessary party, TATA Motors Ltd, this case is liable to be dismissed. OP-1 further added in his reply that the account of the complainant has been classified as Non-Performing Assets (NPA) and the complainant is liable to pay principle loan amount of Rs. 1,40,000/- only plus up to date interest. OP-1 also added that the complainant has suppressed this material facts to avoid his liability for repayment of the loan and interest. Complainant demanded "No Dues Certificate" but the complainant is not entitled to get a "No Dues Certificate" as the loan amount with interest has not yet been paid. OP-1 further stated in his reply that there is no verdict of the Banking Ombudsman to issue "No Dues Certificate" in conciliation meeting dated 19.03.2014. Therefore OP-1 is not entitle to give complainant " No Dues Certificate" as well as margin money of loan as there was no negligency and deficiency of service on behalf of the OP's bank.

 

4. Complainant filed draft issue on 07.01.2023 and after hearing both complainant and OP the following points are framed for determination.

 

 

i)  Whether the complaint is maintainable in its present form  and nature ?

ii)  Whether there is any deficiency is service on the part of OP? iii)  Whether the complainant is entitled to relief or reliefs as prayed for?

 

5. Evidence adduced by the parties:-

 

Complainant examined himself as PW1 and he submitted some documents which were marked as Exhibit which are as follows-

i) Exhibit 1- Copy of notice in the letter head of Ld. Advocate of Subrata Debnath addressed to Bank Manager of SBI Manikbhander Branch dated 01.07.2020 along with post receipt.

ii) Exhibit 2- Original copy of reply letter by Mr. Prabir Saha, Ld. Advocate of High Court of Tripura addressed to Ld. Advocate Mr. Subrata Debnath dated 15.10.2020.

iii) Exhibit 3- Certified to be true copy of out come report of conciliation held by office RBI, Guwahati dated 19.03.2014 (two pages).

Sri Dipankar Debbarma, Branch Manager of SBI Manikbhander, was also examined as OPW-1. He submitted some documents which are given below:

a) Loan Application form dated 22.04.2009 (2 pages) marked as Ext.1/OPW-1.

b) Loan Agreement letter dated 22.04.2009 (3 pages) marked as Ext. 2/OPW-1.

c) Agreement Copy cum authorization letter dated 22.04.2009 (8 pages) marked as Ext. 3/OPW-1.

d) Drawing Power delivery letter dated 22.04.2009 marked as Ext. 4/OPW-1

e) Loan statement dated 19.03.2022 (2 pages).

 

6.                   Argument

 

OP filled written argument on 12.10.2023 and on the other hand complainant filed written argument on 16.01.2024. We have gone through the written argument of both sides and prima facie it reveals that both the sides reiterated their submission what has been incorporated in the their pleadings. So for the convenience it is necessary to avert repetition of pleadings once again.

 

7 .  DISCUSSION AND REASONS FOR DECISION:-

 

Before going to decide other issue or issues separately or simultaneously, it is necessary to decide Issue No. 1. Hence Issue No.1 is taken up for discussion and decision.

We have gone through the pleadings of both parties.  Complainant in his complaint as well as examination in chief on affidavit specifically stated that on 01.07.2020 the complainant through his legal counsel served a legal notice (Exhibit-1/PW-1) to the bank manager of SBI  Manikbhander (OP-1) briefing the fact of this case and demanding no dues certificates, margin money and compensation for harassment. In reply, on 15.10.2020 Ld. Counsel for the OP bank sent a letter (Exhibit-2/PW-1) to Ld. Advocate of complainant in reply of said notice which stated about misinterpretation of the contents of the ombudsman's views and denied to issue no dues certificate and denied to fulfill other demands. 

From the above contention it may be concluded that though originally the complainant entered into agreement with the OP-1 in the year 2009 but still his grievances continued and lastly cause of action arose on 15.10.2020 when OP Bank sent reply to his letter dated 01.07.2020. In this regard I may refer to the provision of Section 34 Of Consumer Protection Act, 2019 which read as follows:-      Jurisdiction of the District Commission- 

(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as considerition one crore rupees. and the compensation, if any, claimed ( does not exceed Rupees Twenty Lakhs).

  (2)  A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,-  

a) are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain, or 

  b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a branch office), or personally works for gain, provided that in such case either the permission of the District Commission is given, or the opposite parties who do not reside, or (carry on business or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or 

c) the cause of action, wholly or in part, arises.

d) the complainant resides or personally work for gain.

Further Section 69 Consumer Protection Act, 2019 Provides limitation period for filing Complaint. According to this Section complaint should be filed within 2 years of arising of cause of action. OP Bank submitted that the case of the complainant is barred by the limitation as well as necessary party i.e. Tata Motors Ltd has not been made party in complaint. After considering the contention of the both sides we are of the view that there was privity of contract between complainant and OP. So, Tata Motors is not necessary party in the instant case. We also found that the case has been instituted within 2 years i.e. 10.12.2021 from the date of last cause of action which arose on 15.10.2020. We also found that the complainant is resident of Kamalpur Sub-Division, Dhalai District, Tripura.

As per above provision we find that this Forum has jurisdiction to entertain the complaint of the complainant and to adjudicate the matter according to law. Hence point no. 1 is decided accordingly.

 

8. Point No. (ii) and (iii) are taken together for discussion and decision.   

  The Complainant alleged that in the year 2009 OP-1 offered the complainant to have a TATA Nano car and for that also offered him to take a loan of Rs. 1,40,000/- to pay the price of said car as per scheme of the OP no. 1 Bank. Accordingly, the OP No. 1 claimed 25% of loan amount to be deposited by the complainant in OP No. 1 bank as a margin money. Complainant accepted this offer and paid Rs. 35,000/- as margin money. But neither OP No. 1 availed him the said car nor refunded him his margin money till date. He was shocked when he received a demand notice in the year 2011 for refund of the outstanding of loan regarding that nano car. He asked OP-1 to take initiative to avail him that car but OP-1 remain mum. Thereafter, complainant have another notice in 2012 asking him to refund the said nano car loan. Complainant was surprised and shocked as he was not availed the nano car for which he signed the loan document and also deposited margin money. Thereafter, complainant requested several times OP-1 to return his money as well as provide him "No dues certificates". But the said nano car loan kept remained alive and being shown the complainant was defaulter of that loan. After finding no other solution, complainant wrote an application to the banking ombudsman, Reserve Bank of India building, Guwahati, 781001 seeking relief. On 19.03.2014 in final hearing the matter was settled. Thereafter complainant approached the OP for several times for "no dues certificates" as well as margin money. But complainant got neither "no dues certificate" nor margin money of said car loan.

Complainant examined himself as PW-1. PW-1 (complainant) categorically stated what has been stated in his complaint petition as well as in affidavit in chief.

PW-1 stated in cross-examination that he had applied for booking of Nano Car to SBI, Manikbhander Branch and he had paid booking money to the Bank. He did not remember whether he has signed an agreement of loan repayment documents. He further admitted that he had taken loan amounting to Rs. 1,40,000/-. He also added that he did not lodge any complaint against Tata Motors Company. He never get Nano Car and he did not make any correspondence to Tata Motors. He did not submit any application to this forum. Lastly, he admitted that he has submitted outcome report of conciliation meeting held by RBI Guwahati Exhibit-3/PW-1.

On the contrary it is stated by OP-1 that the complainant avail of loan facilities amounting to Rs. 1,40,000/- (One Lakh Forty Thousand) only from the SBI, and the said amount was sent to the seller of Nano Motor Vehicle, TATA Motors Ltd on 22.04.2009 which has been reflected in the statement of account and in the drawing power (DP) delivery letter dated on 22.04.2009. OP-1 further added in his reply that the account of the complainant has been classified as Non-Performing Assets (NPA) and the complainant is liable to pay principle loan amount of Rs. 1,40,000/- only plus up to date interest. OP-1 also added that the complainant has suppressed material facts to avoid his liability for repayment of the loan and interest. Complainant demanded "No Dues Certificate" but the complainant is not entitled to get a "No Dues Certificate" as the loan amount with interest has not yet been paid. OP-1 further stated in his reply that there is no verdict of the Banking Ombudsman to issue "No Dues Certificate" in conciliation meeting dated 19.03.2014. Therefore OP-1 is not entitle to give complainant " No Dues Certificate" as well as margin money of loan as there was no negligency and deficiency of service on behalf of the OPs bank.

OP was examined as OPW-1. OPW-1  categorically stated what has been stated in his written reply as well as in affidavit in chief.

OPW-1 stated in his cross-examination that he has been working as branch Manager at SBI Manikbhander Branch since 12.06.2023. He stated that he does not know whether there was any settlement before Ombudsman Authority. He submitted some documents some of which are also exhibited. These documents are Loan Application form dated 22.04.2009 (Exhibit-1/OPW-1), Loan Agreement (Exhibit-2/OPW-1), Agreement Copy Cum authorization letter dated 22.04.2009 (Exhibit-3/OPW-1), Drawing Power delivery letter dated 22.04.2009 (Exhibit-4/OPW-1) etc.

Now let me appreciate the evidence adduced by complainant and opposite party in the instant case. 

Exhibit-1/OPW-1 reflects that the complainant makes application before branch manager SBI Manikbhander branch for availing SNBF (SBI Nano Car Booking Funding Scheme) wherein it has been mentioned in clause no.4 that the complainant agree that in the event of the allotment and in case of his failure to clear the SNBF loan or do not obtain sanction for conversion of the loan amount under regular car loan scheme of the Bank, Bank has got irrevocable authority to seek cancellation of the allotment for claiming the refund of the  deposit to the credit of his loan account without prejudice to the right to claim any charges/ interest incurred in this regard. It is mentioned in clause no. 5 that in case the borrower opt for retaining the booking amount with Tata Motors for the next preferential allotment, the bank may at its discretion can continue the loan after completing necessary formalities including documentation. If Bank decides otherwise, the loan is payable by the borrower forth with or else the Bank will exercise its right to seek cancellation of the option and adjust the refund amount to the SNBF Account.

Exhibit-2/OPW-1 reflects sanctioned of loan on the condition incorporated by OP No.1. It is mentioned in clause no.4(a) of Exhibit-2/OPW-1 that in the event of non-allotment, this SNBF Loan will be adjusted from the refund money received from TATA Motors. Further it reflects from Clause No. 4(d) of Exhibit-2/OPW-1 that in the event of failure to repay the loan amount within the stipulated period from the date of allotment, the borrower may seek conversation of the SNBF loan amount to the Regular Car Loan Scheme as per the terms and conditions applicable to Car Loan Scheme and subject to the fulfillment of the same to the satisfaction of the Bank. Clause no. 4(e) of Exhibit-2/OPW-1 reflects that in the event of failure to obtain sanction of the SNBF loan to the Regular Car Loan within the stipulated period, Bank will exercise its right to seek cancellation of the allotment and for adjusting the refund amount to the SNBF Loan Account and for the shortfall, if any, may claim the same from the borrower with interest.

It appears from the evidence on record that there was SNBF loan scheme which means that SBI Bank had collaboration with the TATA Motors Ltd and the complainant after knowing the said fact applied for the availing the loan for Nano Car and accordingly complainant and OP-1 entered into agreement. It appears from  last para of clause 6 of exhibit-3/OPW-1 that the borrower further agrees that in case of non allotment of Car to him, the Bank will be entitled to adjust the amount of refund towards his/her loan account. In both the above events, the Bank is also entitled to recover amount of accrued interest, processing fee and other incidental charges either by debit to the borrowers Savings Bank account with Bank or by proceeding against the individual for recovery of dues.

Now, let me reproduce the relevant provision of  the Consumer Protection Act, 2019 in this regard. 

Section 2(42) provides that "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

Section 2(46) provides that unfair contract means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following:- imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage;2(46)(vi).

From the record  I found that the bank OP-1  incorporated such terms and condition in the agreement which seems to be detrimental to the interest of customer. The bank authority simultaneously incorporated  2 clause in the agreement wherein one clause clearly reflects that bank authority will adjust the amount in case of non allotment and second clause reflects that bank authority will proceed against the customer to recover of said amount of loan with interest. Principle of natural justice, equity and good concise does not permits incorporation of such terms and condition which are disadvantageous to the consumer. Consumer protection also says that. A prudent man under the above fact and circumstances always think that the OP-1 Bank will recover the amount from the Tata Motors Ltd which has been given to Tata Motors Ltd. Instead of recovering the said loan amount directly from Tata Motors Ltd. the OP-1 took initiative to recover the said loan amount from the complainant. This is against the violation of principle of natural justice. 

It is mention here that Ombudsman is totally separate entity and the customer/consumer is free to agitate his grievances before competent authority  as per law.

Here we hold that the OP-1 is liable for deficiency and negligency in services.

Now we take the point whether the complainant is entitled to compensation amounting to Rs. 20,000/- .

We meticulously gone through the ITR submitted by complainant and also gone through the evidence and found that complainant suffered mental agony and harassment. He had to approach ombudsman at Guwahati and had attended conciliation at Guwahati. He has also suffered a lots since 2009.

Considering aforesaid facts and circumstances we hold that complainant is entitled to get compensation.

 

9. Hence, it is

 

                                                       O R D E R E D

 

  That, the consumer complaint bearing no. 04CCKMP2021 is hereby allowed against OP no. 1. The Branch Manager, SBI Manikbhander is hereby directed to return margin money of Rs. 35,000/- to the complainant. OP no. 1 is also directed to issue "no dues certificate" to complainant. Apart from this we also direct OP-1 to pay compensation of Rs. 50,000/- to the complainant.

 

10. In default, the complainant may put the order/Judgment under execution by filing an Execution Application  as per provision of the CP Act and rules made thereunder. 

 

11. Office is directed to supply the copies of judgment free of cost to the parties.   

12.          The case is thus disposed of on contest.

13.          Make necessary entry in the relevant register. 

 

                                               PRONOUNCED