order dated 07/11/2008<br /> <br /> O R D E R<br /> <br /> M.R. DEVAPPA, PRESIDENT. <br /> <br /> Briefly stated the case of the complainant is as follows;<br /> <br /> 1. That the opposite party bank by not allowing the loan amount of complainants in the waiving scheme though the said loan amount was over due on 31-12-2007 and the same also remained unpaid till 29th February 2008.<br /> <br /> 2. That the complainants have borrowed loan for banana cultivation in wet land by mortgaging 3 acres 36 cents in Sy.No.80/1, 78/23, but the bank authorities have failed to appreciate the fact that the complainants held in their name only 3.36 cents but the remaining land Sy.no.80/3 was held by one K.K. Machaiah and his sons K.M. Udaya and K.M. Poonacha which is reflected in the RTC and mutation copy of the property. <br /> <br /> 3. That the opposite party bank has failed to consider the rectification deed executed on 28-02-2007 at Virajpet and also failed to consider a declaration in ABIII (mortgage deed) document no.556/2006-07 of book I dated 30-09-2006 was executed by the above parties as required under Karnataka agricultural credit operation and miscellaneous provision Act 1974 and credit a charge on such land immovable property in favour of 2nd party by 1st party and the clerical error in the address of the party has crept in mortgage deed and the same has been rectified. The relevant portion of the rectification deed is reproduced herein.<br /> <br /> 1. In the schedule in item No.VII in the AB-III(Mortgage Deed) Sy.No.80/3 for 2.45 Acres Nalkeri Village, shall be removed. The remaining entries no change. The property is situated in Nalkeri Village, Virajpet Taluk, Kodagu Dist.<br /> 2. That as rectified and modified as afore said the original form AB-III Sy.No.80/1,2.46 Acres and 78/23 for 0.90 Acres total extent of 3.60 acres of land at Nalkeri Village shall remain in full force and effect.<br /> <br /> 4. Since the opposite party bank has not taken in to consideration of the rectification deed, they have not allowed the claim of the complainant to consider their case under loan waiving scheme and debt relief as the complainants do not own the immovable property morethan 5 acres. The complainants have prayed for following relief; <br /> <br /> a) Call for the records at Virajpet.<br /> b) To set aside the complainant loan amount in Account No. 30080599481 at Virajpet Branch in the ends of justice and equity.<br /> c) To grant such agricultural debt waiver and dept relief scheme 2008 as deems fit in the facts and circumstances of the case, in the interest of justice and equity.<br /> <br /> 5. The complainant has produced the copy of the agricultural debt waiver and debt relief scheme 2008 and related annexures, RTC pertaining to the lands mortgaged in favour of the bank, rectification deed dated 28-02-2007 executed from complainants in favour of the opposite party bank and the declaration made in that regard. <br /> 6. Upon admitting the complaint notice was ordered to be sent to the opposite parties and on receipt of the notice the opposite parties have engaged their counsel and filed the version and also the affidavit in lieu of examination in chief and have taken following contentions and prayed for dismissal of the complaint.<br /> <br /> 1. That this Forum has no jurisdiction to entertain this complaint as the complainants have to seek remedy before the concerned redressal officer appointed by the Central Government.<br /> <br /> 2. That the averment contained in para 1 and 2 of the complaint is denied as false and it is further denied that the loan was disbursed to the complainant on 31-03-1997. <br /> <br /> 3. That the averrments contained in para 3 of complaint is denied as false.<br /> <br /> 4. That it is true that the complainant borrowed loan for banana cultivation as averred in para no.4 of the complaint and it is denied that the total extent is 3 acres 36 cents but the property charged by the complainants is 5.81 acres.<br /> <br /> 5. That the averrments contained in para no.5 of the complaint is denied as false. The complainants have created charge over 5.81 acres of land on 21-9-2006 in Sy.No.80/1 of 2.46 acres 80/3 of 2.45 acres and Sy.no.78/23 of 0.90 acres and at the time of submission of document to the opposite party bank for perusal the name of complainants were entered in the RTC and as such there are no chances of entry of names of K.K. Machaiah and his sons K.M. Udaya and K.M. Poonacha in the RTC does not arise. <br /> <br /> 6. That the averments contained in para no.6 of the complaint is denied as false and the complainants have already created charge over 5.81 acres for the loan availed by them as such they cannot rectify the same, by diminishing the area and hence the alleged rectification deed of the complainants is not tenable under law and the same is void document. <br /> <br /> 7. That the averments contained in para no.7 and 8 of the complaint is denied as false.<br /> <br /> 8. That the contention contained in para no.9 of the complaint is denied as false. The area pledged by the complainant exceeds 5 acres as such they are not entitled for debt waiving scheme and debt relief, as claimed by the complainants.<br /> <br /> 9. That the claim of the complainant is not tenable under law and they are not entitled for the reliefs sought for. <br /> <br /> 10. That the complainants have availed financial assistance from the respondent bank for the purpose of banana cultivation in their property and they have created a charge over their immovable property of an extent of 5.81 acres and after perusal of the documents submitted by the complainants and after spot inspection, the opposite party bank has sanctioned the loan to the complainants vide KCC limit of Rs.1,00,000/-.<br /> <br /> 11. All the documents executed by the complainants and the charge created by them is on 5.81 acres in Sy.No.80/1 of 2.46 acres, Sy.No.80/3 of 2.45 acres and sy.no.78/23 of 0.90 acres of Nalkeri Village, Virajpet Taluk. But subsequently the complainants have played a foul play and executed a rectification deed dated 28-02-2007 diminishing the area pledged by them which is a void, concocted and sham documents and the same is not tenable under law. <br /> <br /> 12. Even otherwise if the complainants intend to rectify the land mortgaged by them to the bank, prima-facie, they have to discharge the loan, get cancelled the mortgage deed dated 28-9-2006 and then only they can avail fresh financial assistance or create any fresh charge over the rectified area. <br /> <br /> 13. That the complainants have grossly violated the terms and conditions of loan, all the norms to be followed by them and filed this false and frivolous complaint against the opposite party bank on whimsical grounds.<br /> <br /> 7. The opposite party bank has filed the following documents;<br /> <br /> 1. Loan application dated 18-9-2006<br /> 2. Mortgage deed dated 28-9-2006<br /> <br /> 8. Having regard to the averments made in the complaint and the contentions taken by the opposite party bank the following issues arise for determination;<br /> <br /> 1. Whether this Forum can entertain the complaint brought by the complainant?<br /> <br /> 2. Whether the opposite party bank has committed any deficiency in service?<br /> <br /> 3. To what order.<br /> R E A S O N S<br /> <br /> 9. Point No.1. Whether this Forum can entertain the complaint brought by the complainant ? <br /> <br /> 10. Ans: - The opposite party has raised the plea that the same matter is pending before the redressal officer of the bank and is not yet disposed off and hence the complaint cannot be entertained by this Forum. It is pertinent to note that the Deputy General Manager, State Bank of India, Zonal office, Bangalore is made as opposite party no.1 in the complaint. One of the complainant vehemently argued that the provisions of this Act shall be in addition and not in derogation of the provisions of any other law for the time being in force, therefore the Forum can entertain the complaint and dispose the case on merits. <br /> <br /> 11. Section 3 of the Act says that the provisions of this Act shall be in addition to the provisions of any other law for the time being in force and not in derogation of such provisions. The remedies under the Act are additional and supplemental remedies designed to provide summary and expeditious relief to the harassed classes of consumers.<br /> <br /> 12. The opposite parties have failed to convince the Forum as to how the Forums are barred from entertaining this type of complaint. If there is any bar of this type they ought to have brought to the knowledge of the Forum but such efforts are not made. In absence of which plea raised by them cannot be accepted.<br /> <br /> 13. The Consumer Protection Act provides an additional remedy to persons coming within the ambit of consumer to seek redress for a breach of contract or hiring of service. The remedies under ordinary civil law and under the Act may to some extent over lap but, or in no way exclusionary of each other. <br /> <br /> 14. The submission of the complainants is that the redressal officer referred by the OP is none other than the higher authority of the OP no.2 and hence OP 1 being the redressal officer is also made a party in this proceedings. Therefore, according to the complainants this Forum can entertain the complaint and submitted that Forum has jurisdiction to entertain the complaint. <br /> <br /> 15. It is also argued that the petition filed before the redressal officer is not disposed off and no proceedings has taken place though the petition was filed in the month of July 2008. If the same is not disposed early the complainants would be deprived of the benefit under the loan waiver scheme hence they have approached the Forum. <br /> <br /> 16. For the foregoing reasons we feel that the complaint brought before the Forum by the complainants can be entertained in consonance with section 3 of the Consumer Protection Act 1988 and as such we answer point no.1 positively.<br /> <br /> 17. Point no.2: Whether the opposite party bank has committed any deficiency in service?<br /> <br /> 18. Answer:- It is contended by the opposite party bank that the complainants have created charge over 5.81 acres of land on 21-9-2006 in Sy.no.80/1 and in Sy.No.80/3 and Sy.No.78/23 in all 5.81 acres of land have been mortgaged and the complainants have also submitted the RTC and extract of the mutation register and there are no chances of entry of names of K.K. Machaiah and his sons K.M. Udaya and K.M. Poonacha in the RTC and further contended that as the complainants have already created charge over 5.81 acres for the loan availed by them, they cannot rectify the same by diminishing the area and hence the alleged rectification deed of the complainants is not tenable under law and the same is void document. But as against this the complainants submitted that the rectification deed is executed in favour of the opposite party bank and the then Manager of the opposite party bank is also party to the deed and he has signed the rectification deed and as such the bank cannot plead their innocence in regard to the rectification deed and the rectification deed is binding on the bank even now. It is also contended by the complainants that per one acre loan of Rs.30,000/- will be granted since the complainants only submitted documents in respect of 3.60 acres the bank has granted Rs.1,00,000/- loan in favour of the complainants and therefore it cannot be said that by way of executing rectification deed the area is diminished and it is also argued that the rectification deed was executed prior to the introduction of the Loan Waiver Scheme and no malafide intention could be attributed to the complainants. According to the complainants K.K. Machaiah and his sons belong to the same family and their statements have been recorded by the Manager of the Bank wherein Sri K.K. Machaiah and his sons K.M. Udaya and K.M. Poonacha have stated that they are the owners and in possession of land bearing Sy.No.80/3 to the extent of 2.54 acres, as<br /> such there was some mistake in this regard, therefore the then Manager suggested to execute a rectification deed giving up the land belonging to K.K. Machaiah and his sons and later by way of executing rectification deed the land belonging to complainant to the extent of 3.60 acres was mortgaged in favour of the bank which has been admitted and agreed by the bank as the then Manager has signed the rectification deed.<br /> <br /> 19. We have perused rectification deed and finds the signature of the Manager. According to the complainants, they have mortgaged only 3.60 acres land in favour of the bank, therefore they become eligible to avail the benefit under loan waiver scheme launched by the Government in the year 2008 as they are the marginal farmers and the complainants have produced the circular issued by the Government. The grievance of the complainant is that the opposite party having taken in to consideration that 5.81 acres of land was initially mortgaged by the complainants and as such they are not eligible to avail benefit under the said scheme. According to the complainants the opposite party bank has not taken in to consideration the rectification mortgage deed though they are bound by the rectification deed as the then Manager has signed the rectification deed as such the bank is estopped from saying that the rectification deed executed subsequently does not bind them. <br /> <br /> 20. Since the opposite party bank failed to appreciate that through rectification deed the complainants have only mortgaged 3.60 acres of land in favour of the bank not 5.81 acres of land and the OP 1 and 2 have failed to extend the benefit under the loan waiver scheme as referred to above, it can be said that they have committed deficiency in service and therefore, we answer point no.2 positively. Having held point no.1 and 2 positively we proceed to pass the following order.<br /> O R D E R<br /> The complaint is allowed. The opposite party no.1 and 2 are hereby directed to consider the request of the complainants keeping in mind of the recent circulars issued by the Government in respect of Account no.30080599481 held by complainants at Virajpet Branch of State Bank of India and to grant such other relief for which the complainants are entitled according to the circular made available to OP 1 and 2. <br /> <br /> The opposite parties are further directed to grant compensation of Rs.1,000/- for complainants being put to mental agony and hardship and Rs.500/- towards the cost of this proceedings to the complainants.<br /> <br /> The above order shall be complied by the opposite party within sixty days from the date of receipt of the order.<br /> <br /> <br /> Communicate the order to the parties. <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the open Forum on this 07th day of November 2008.<br /> <br /> <br /> (M.R. DEVAPPA), (K.S. PRASAD), (A.S. HEMALATHA),<br /> PRESIDENT MEMBER MEMBER<br />