The instant case was instituted on the basis of a petition of complaint filed by Smt. Hema Agarwal and other u/s. 12 of the Consumer Protection Act, 1986 and the said petition was registered before this Forum now Commission as Complaint Case No. 18/2020.

The fact of the case as revealed from the petition of complaint as well as from the evidence is that as per Circular No. 92/ICD -2C/2002-03 dt.12/04/2002 and National Bank for Agriculture and Rural Development, (NABARD) for capital investment subsidy scheme for construction of rural godown (Gramin Bhandaran Yojona). The Complainant No. 1 Smt. Hema Agarwala applied to the Indian Overseas Bank, Malda for a loan and the bank sanctioned a term loan of Rs. 12.04 Lakhs (Rupees Twelve Point Zero Four Lachs Only) on the basis of the documents filed by the complainant before the Overseas Bank, Malda. In this regard it is to be mentioned that in addition to the above loan bank will finance 25% of the project cost amounting to Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs) for subsidy which will be kept reserve till the completion of the project as back ended subsidy.

On 25/09/2004 the Indian Overseas Bank sanctioned 12.04 Lakhs (Rupees Twelve Point Zero Four Lakhs Only) for construction of rural godown under T.L. A/c. No. 390400003. The terms and conditions also mentioned in the said sanctioned letter. According to the terms and condition as mentioned in Sl. No. 3 the bank should claim the subsidy amount and the said subsidy amount should be kept as a “back ended subsidy”. As per sanction letter the Complainant No. 1 availed the loan of Rs. 12.04 Lakhs (Rupees Twelve Point Zeor Four Lakhs Only)   from the Indian Overseas Bank, Malda Branch and started construction of the said rural godown under the continuous supervision of the Indian Overseas Bank, Malda Branch. The Complainant No. 1 also received the amended sanction order on 18/05/2005 of Rs. 6.02 Lakhs (Rupees Six Point Zero Two  Lakhs Only) as back ended term loan with no interest for the completion of the said project and the said sanction letter was in connection with the Loan A/c. No. 390400003.

It has been further stated in the petition of complaint that as per sanction letter dt. 10/09/2004 the subsidy amount of Rs. 6.02 lakhs (Rupees Six Point Zero Two Lakhs Only) under the head back ended subsidy and the branch should ensure the release of the said amount as term loan after the completion of the project. The subsidy received from the NABARD should be kept in the Subsidy Reserve Fund account should be adjusted finally against the loan component of the project. It has been further stated that the said loan of Rs 6.02 lakhs (Rupees Six Point Zero Two Lakhs Only) was the part and parcel of the original sanction of Rs. 12 Lakhs (Rupees Twelve Lakhs Only) dt. 25/09/2004. After the project was completed in July, 2006 the complainant submitted completion certificate issued by Shri Sandip Kr. Jha a registered Architect on 13/07/2006.

It is to be mentioned that Complainant No. 2 executed an equitable mortgage in favour of Indian Overseas Bank, Malda Branch West Bengal to his house property in connection with Loan Reference No. 390400003.

Thereafter, on 26/10/2006 the Complainant No.1 received a letter from Sr. Manager of Indian Overseas Bank, Malda that they conducted a J.M.C. inspection on 10/10/2006 and found certain discrepancies but the Complainant No. 1 was not aware of such inspection as no notice of such inspection was given to her. Moreover, during that period the godown was fully loaded with food grains. However, after receiving the said letter the complainant rectified all the discrepancies as mentioned by the Sr. Manager of I.O.B.

It has been further stated that the Complainant No.1 has fully paid the principal amount along with the interest accrued there on on 28/05/2009. The branch after verification of the accounts and documents and after necessary adjustment of Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs Only) issued a certificate on 28/05/2009 to the effect that the term loan in the name of Mrs. Hema Agarwala is closed on receipt of outstanding amount in full. After clearing the outstanding dues and after obtaining the certificate from the Branch, Malda that the account has been closed and no amount is due. On 28/05/2009 the complainant received a letter dt. 26/03/2010 that with reference to letter dt. 26/03/2010 i.e. after 3 (Three) years 5(Five) months the complainant had failed to rectify the discrepancies and not submitted certificate in this regard as a result of which bank was not able to claim the subsidy from the NABARD. But it is not true that the rectification was made immediately after receipt of the letter from the bank. The complainant on 28/05/2009 repeatedly requested the bank authority to return the documents but ultimately the complainant did not return the documents. Further on 16/05/2006 the Complainant No. 1 received a letter from the Indian Overseas Bank that Rs. 3,83,854/- (Rupees Three Lakhs Eighty Three Thousand Eight Hundred Fifty Four Only) is still outsanding and also avail the loan of Rs. 6,02,000/- ( Rupees Six Lakhs Two Thousand Only). Ultimately, the bank did not return the documents.

It has been further stated that the bank had the intentional latches for not claiming the amount from the NABARD within the specified time. This is why the O.P. initiated a got up claim to the effect that the complainant by creating an alleged loan amount bearing No. 390500002. Actually, no document was executed by the Complainant No.1 for opening Account being No. 390500002 and the O.P. No.2 did not execute any equitable mortgage in connection with that loan amount. The complainant has claimed               Rs. 10,00,000/- (Rupees Ten Lakhs Only) from the O.P. for the act of negligence in sufficient service and Rs. 5,00,000/- (Rupees Five Lakhs Only) for mental loss and agony and Rs. 1,00,000/- (Rupees One Lakh Only) for the cost of the proceeding.

The case has been contested by the O.P. i.e. Indian Overseas Bank by filing W/V denying all the material allegation as levelled against the bank contending inter alia that the instant case is not maintainable in its present form. There was no deficiency on the part of the O.P., the case is bad for non-joinder of necessary parties. NABARD is a necessary party in this case. Architect, Sandip Jha West Bengal State Beverage Corporation Limited is also a necessary party.

The further case of the O.P. is that the complainant is a borrower of the O.P. No.1 as such the instant case does not come under the purview of the Consumer Protection Act and is not entitled to get any relief under the Consumer Protection Act, 1986.

The further case of the O.P. is that the project was supervised by the J.M.C. the Joint Inspection Team of NABARD and Bank and it has been admitted by the complainant that they will rectify the discrepancy as pointed out by the J.M.C. i.e. the project was not completed as per terms and condition.

The further case of the O.P. is that actually loan was sanctioned 18.06 lakhs ( Rs.12.04 lakhs + 6.02 lakhs ) as per the prayer of the complainant and it was the condition that the bank will release the loan and subsidy amount will be back ended. It has been also denied that that the Complainant No.1 completed the project in July, 2006.  The certificate issued by Sandip Kr. Jha is absolutely collusive and not to the satisfaction of the NABARD and the fact of execution of equitable mortgage in favour of the bank and the complainant had the knowledge that unless and until the transaction is completed or fulfill the documents will not be returned. It is also false that the bank issued a certificate on 2009 in the caption that the loan has been closed.

According to the written version of the O.P.s that the certificate was only to the extent of 12.04 Lakhs (Rupees Twelve Point Zero Four Lacks Only) but not for the amended sanction of Rs. 6.02 Lakhs(Rupees Six Point Zero Two Lakhs Only) as such the full amount was not paid. So the complainant is not entitled to get any relief as prayed for. Under such circumstances, the instant case is liable to be dismissed with cost.

In this case the Complainant No. 2 was examined as P.W.-1 and cross-examined and he filed the documents in xerox copies which have been marked X for identification but before the judgement the complainant filed the original documents for perusal of this Forum now Commission.

Now the point for consideration whether the complainant is entitled to get any relief or not.

:: DECISION WITH REASON:

In order to prove the case the complainant has filed the documents in xerox copy at the time of filing and also filed the documents during evidence which has been marked X for identification. Later on the complainant filed the original documents on 12/11/2021. At the time of argument the Ld.Lawyer of the complainant argued that the complainant constructed the godown under Gramin Bharndaran Yojona and the total project was 24.20 Lakhs (Rupees Twenty Four Point Two Zero Lakhs) and the Indian Overseas Bank sanctioned loan of Rs. 12.04 Lakhs (Rupees Twelve Point Zero Four Lakhs ) and 6.02(Rupees Six Point Zero Two Lakhs ) as subsidy which will be kept in back ended subsidy. The complainant was required to pay for the construction of the said godown to the tune of Rs. 12.04 Lakhs (Rupees Twelve Point Zero Four Lakhs Only). In order to obtain the said loan the Complainant No.2 also executed an equitable mortgage in favour of the Indian Overseas Bank, Malda in respect of his house property in connection with the Loan Reference No. 390400003.

On perusal of the record it is found that before sanctioning loan a sanction order was issued by the bank in favour of the Complainant No.1. On perusal of the sanction order it is found that the borrower is eligible for subsidy from the Government for Rs.6.02 Lakhs (Rupees Six Point Zero Two Lakhs) i.e. 25% of Rs. 2407500/-(Rupees Twenty Four Lakhs Seven Thousand Five Hundred Only) to be claimed from NABARD as per pro forma invoice and on perusal of sanction in Para No. 16 the subsidy should  be kept in the Subsidy Reserve Fund  A/c. (Borrower wise) to be adjusted finally against loan component of the project.

On perusal of the record it is found that the Bank Authority also sanctioned Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs Only) as an amended sanction on 27/04/2005. From the amended sanctioned letter account should be adjusted finally against the loan component of the project.

According to the argument as advanced by the Ld.Lawyer of the complainant is that the complainant completed the work and submitted the certificate of completion by one Architect S.K. Jha  dt. 11/07/2006. Before that the Bank Authority issued a notice dt. 26/10/2006 stating that there was some discrepancy as to the terms and condition as regards to the construction.  After receiving the said letter the complainant rectified the discrepancies as mentioned in the letter. Though the complainant alleged that no notice was given to the complainant. Moreover, at the time of inspection of godown the godown was full of grains.

The Ld.Lawyer further argued that the Bank Authority i.e. the Branch Manager issued a certificate stating that on 28/05/2009 the Branch Manager of Indian Overseas Bank, Malda Branch issued a certificate in connection with the term loan A/c. 390400003 that the loan against Hema Agarwala stand closed on receipt of outstanding amount in full. The relevant documents and security papers will be returned on due course and the account was closed on 28/05/2009.

According to the argument as advanced by the Ld.Lawyer of the complainant how the Bank Authority can claim that there is an outstanding dues as and when the Assistant Branch Manager of Indian Overseas Bank, Malda has issued a certificate that there is no outstanding dues. Moreover, on perusal of the statement of accounts it is also found that on 28/05/2009 the balance amount was Zero Zero. So it indicates that there is no outstanding dues.

In this case the Ld.Lawyer of the O.P. did not argue the case and prayed for time but that petition was rejected. It is to be mentioned that the case was opened for evidence before Durga Pooja i.e. on 23/09/2021.

It is to be mentioned that on that date a Ld.Lawyer of the O.P. was agreeable and insisted the Court to proceed with the case and he told that he will complete the case before the Durga Pooja. On 23/09/2021 after a few line of cross-examination he prayed for time that it is not possible for him to conduct the cross-examination on that date and on his prayer this Forum now Commission was pleased to fix 29/09/2021 for cross-examination of P.W.-1 as last chance and DW. On 29/09/2021 cross-examination was concluded and there was no witness on behalf of complainant side and the evidence of complainant side was closed and on the basis of the prayer of the O.P. the further date was fixed for O.P.W.as last chance. On 28/10/2021 the O.P. filed a petition for time on the ground that the Officer has been transferred this is why it is not possible for him to adduce evidence. But at this stage the Forum now Commission was pleased to reject his prayer and close the evidence of other side and fixed 09/11/2021 for argument.

It is a well settled principle of law according to adversary system of judiciary an opportunity is to be given to the other side. Definitely, the opportunity was given to the O.P. but the O.P. did not avail the same. Now it has been the tendency of the Ld.Lawyer not to proceed with the evidence of the other side and during the appeal they will say that natural justice has been violated. This system should be checked if unlimited opportunity is given the purpose of the Consumer Protection Act will be defeated. Moreover, according to the Provision of Consumer Protection Act a petition of complaint is to be disposed within 90 (Ninety) days from the date of receiving written version. But in this case the Ld.Lawyer of the O.P. agreeable to proceed with the case but ultimately, he did not proceed with the case. So it cannot be said that no opportunity was given to him.

Now let us consider, the documents filed by the complainant.

In the written version it has been mentioned by the Bank that the certificate was issued to the effect that there was no outstanding dues only in respect to the 12.0 Lakhs(Rupees Twelve Lakhs Only) but not for the amended sanction of Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs Only) but in the Certificate nowhere it is found that this Certificate was issued only for 12.04 Lakhs (Rupees Twelve Point Zero Four Lakhs Only) but not for the sanction of  Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs Only). The Branch Manager is not an illeterate person so when he has issued such Certificate it will be presumed that the entire loan has been liquefied and subsidy loan is the continuation of original loan unless and until the entire loan amount is cleared the Branch Manager cannot issue the N.O.C.

Another objection taken by the O.P. in the written version that Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs) was kept in another account being No. 390400002 but the Ld.Lawyer of the O.P. argued that no account was opened by the Complainant No.1 in respect of alleged Loan A/c No. 390400002 at the time of filing of W.V. no document was filed with regard to A/c. No. 390400002.

On perusal of sanctioned order dt. 25/09/2004 it is also found that the Bank Authority granted subsidy of Rs. 6.02 Lakhs (Rupees Six Point Zero Two Lakhs Only). So definitely that subsidy will be in the account of original Term Loan Account No. 390400003. Moreover, it is also found from the sanctioned letter that subsidy amount should be kept in Subsidy Reserve Fund Account and that should be adjusted against the loan component of the project. Actually, the 25 per cent of the amount of Rs. 6.02 Lakhs (Rupees Six Point Zero Lakhs Only) has kept as a caution deposit. Moreover, at the time of filing written version the O.P. did not file any document. So how this Forum will come to a conclusion that the amount of subsidy was kept in another account. Amended sanction order is a continuation of original sanction order.

It is very peculiar to mention that on 26/03/2010 the Indian Overseas Bank, Malda issued a letter with reference to 26/10/2006 i.e. after lapse of 3 (three) years and 5 (Five) months that the complainant did not rectify the discrepancy as noticed by the Bank’s letter dt. 26/10/2006. It is not understood why the Bank Authority was kept mum for a long time. Moreover, as and when the Branch Manager of Malda Indian Overseas Bank issued a Certificate on 28/05/2009 that the loan against Mrs. Hema Agarwala stands closed on receipt of outstanding dues.

So the letter dt. 26/03/2010 is quiet contradictory in view of the certificate granted by the Branch Manager. For the own faults of the Bank Officer the Bank was not able to claim subsidy from the NABARD for which the complainant cannot be held liable and the complainant will suffer. The principle of estoppel will come to play as because the Bank issued certificate ‘No outstanding’ dues and thereafter cannot claim that there is outstanding dues.

Another point is to be considered whether the Consumer Forum now Commission has any jurisdiction to try the case as and when it is found that the Bank Authority did not return the documents which were executed by the Complainant No.2 for an equitable mortgage. Definitely, there was a deficiency of service and there was also a deficiency of service for claiming outstanding dues when at all no due is found on the basis of the Certificate issued by the Bank.

Another point may be argued that as and when there is a case of subsidy the Consumer Forum now Commission has got no jurisdiction. It is well settled principle of law in the case of subsidy the Consumer Forum has got no jurisdiction but the instant case is not claiming subsidy. It is a case of claiming deficiency of service and non-return of documents. So definitely, the instant case is quiet maintainable.

Perused the original documents filed by the complainant on 12/11/2021. After serving copy to the other side and on perusal of the original documents it is found that the Xerox copies tallies with the originals and there is no discrepancy.

So on considering the facts and circumstances the complainant has been able to prove the case as such the complainant is entitle to get compensation for negligence and deficiency of service by Bank and for non-returning the original documents.

C.F. paid is correct.

Hence,            ordered

that case be and the same is allowed on contest against the O.Ps with cost.

The complainants get Rs. 5,00,000/- (Rupees Five Lakhs Only) as compensation for deficiency of service and unfair trade practice and negligence.

The complainants also get Rs. 2.5 Lakhs (Rupees Two Point Five Lakhs Only) for harassment and mental agony and also for loss of the goodwill by the O.P. in the business of the complainant, Rs. 50,000/- (Rupees Fifty Thousand Only) for litigation cost.

The complainants get Rs. 5,00,000/- (Rupees Five Lakhs Only) plus 2.5 Lakhs (Rupees Two Point Five Lakhs Only) plus Rs. 50,000/- (Rupees Fifty Thousand Only) totaling Rs. 8,00,000/- (Rupees Eight Lakhs Only). The O.Ps are jointly and severally liable to pay the entire amount. The entire amount will be paid within 45 (Forty Five)days from the date of order failing which the Bank Authority will have to pay 5 % (five percent) p.a. as a simple interest over the awarded amount from the date of filing of the case. The O.P. is directed to issue the documents to the complainants on proper receipt within forty five (45) days from the date of order.

In this regard it is to be mentioned that the Indian Overseas Bank Authority will initiate an enquiry in to the matter whether the Certificate to the effect that there was no outstanding dues in respect of Mrs. Hema Agarwala and also enquire in to the letter dt. 26/03/2010. The Bank Authority also enquire under whose fault the bank was not able to claim the subsidy from the NABARD whether there was any intentional latches on the part of any officer of Malda Branch or other officer in this regard and the entire amount will be deducted from that officer for whose fault, the Bank was not able to claim the subsidy amount from NABARD.

Let a copy of this Final Order be sent to the Hon’ble Chairman and Managing Director, Indian Overseas Bank Chennai, 763, Annasalai 600 002.

Let a copy of the order be given to the parties free of cost on proper application