Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                President

                    (2)      Smt. Karishma Mandal,

                              Member                 

Date of Order : 07.08.2015

                    Smt. Karishma Mandal

1. In the instant case the Complainant has sought for following reliefs against the Opposite parties:-

1. To refund the claim amount i.e. Rs. 28,800/- with interest @ 12% per annum.
2. To pay Rs. 50,000/- as Compensation for mental agony and financial loss.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant, an unemployed, came to know about the scheme launched by the opposite party for Educated Unemployed which is called “ Educated Unemployed Transport Operator Loan  Scheme ” and the complainant applied for the loan under the said scheme and after the verification, the opposite party granted loan to the complainant as per term and condition and he deposited the instalment and principal amount on every due date and the complainant follow the said term and condition and paid his instalment on time according to term and condition. After some time due to some avoidable reason ( the truck met with an accident ) he could not pay the instalment and he was defaulter by the opposite party and finally N.P.A. was fixed for deposit.
2. In the year 2004, the opposite party launched a special scheme for the defaulter, known as B.S.F.C.O.T.S. 2004 scheme. As per scheme, that defaulter, who were required to settle their loan to fill up a form along with an application with an amount of Rs. 28,800/- as application money which were accepted or rejected as per decision of the Board and if the Board found fit, their amount will be refunded with interest.
3. The complainant filed under the said scheme for benefit of O.T.S. and filed an application with an amount of Rs. 28,800/- on 24.11.2005 ( Annexure – 1 ) and the Corporation issued a receipt. After some time the said application was scrutinised by the Board and the application of the complainant for the O.T.S. was not found fit and it was rejected, but as per condition in the event of rejection, the application amount should be returned, but the same was not refunded.
4. After rejection of claim under OTS 2004, in the year 2006, again a scheme known as plan ‘A’( Platinum 110) was announced by the corporation for the same matter and the complainant again applied for the benefit of scheme along with an application amount ( Annexure – 4 ) and after consideration all the pro & cons the opposite party no. 1 passed an order dated 22.12.2006 which was communicated to the complainant vide memo no. 450-1, dated 23.12.2006 ( Annexure – 5 here ) to pay total amount of Rs. 3,22,803/- only at a time. Rs. 1,44,000/- has already been paid earlier so the rest amount of Rs. 1,78,803/- ( Rs. 3,22,803 – 1,44,000/- ) only to be paid within one month and accordingly the direction of the opposite party no. 1, the complainant paid entire dues by the cheque/draft ( Annexure – 6 ) accordingly to direction made by the authority and the authority in this regard issued a certificate in favour of complainant vide memo no. 1554, dated 12.07.2007 stating therein that the complainant’s liquidated its account the entire settlement amount of Rs. 3,22,800/- has been paid and the rest against the concerned stand written off / Waived. Now there has been no dues against the concern ( Annexure – 7 ).
5. The complainant met to the authority concern about the application amount of Rs. 28,800/- which was not refunded till date, and the authority assured him to refund the said amount as soon as possible but the said amount was not refunded to the complainant and never informed the complainant about the said application amount. The complainant receiving no response of the personal meet, he sent a legal notice on 14.10.2009 to the authority concern ( Annexure – 3 ) stating all the things but the authority has not given any answer to the legal notice then the complainant filed this complaint case before this forum.
6. The complaint Petition was heard and issue notice to the opposite parties and the opposite parties appeared and filed their written statement stating therein that the complainant is not a consumer and also stating that the amount of application was adjusted in the loan and the said was informed to the complainant. The complainant filed his rejoinder stating therein that while the all loan was already being deposited according to settlement then no question of adjustment of application amount and the authority says that about the information for adjustment to the complainant is totally false. The authority did not informed to the complainant for adjustment the application amount.

3. The Opposite Party no. 1 and 2 in their written statement has submitted as follows :-

1. This complaint case no. 491/2009 filed by the complainant is not maintainable either in law or in fact and fit to be rejected/ dismissed.
2. The complainant is not within the preview of Consumer Protection Act as he is not consumer within the meaning of the Consumer Protection Act.
3. It is submitted the complainant under the provision of Consumer Protection Act is not a Consumer and in this regard the Hon’ble National Commission has held that loan transaction complainant can not be a consumer under C.P. Act ( Arun Saxsena Vrs. Anil jain 2001 (3) CPR – 1976,2002 (1) CLT (NC) 645). Further in the orders of Hon’ble State Commission Patna vide order dated 04.01.2008 passed in Revision No. 27/07 B.S.F.C. Vrs. Bhagirath Pd. Singh and order dated 30.01.2006 (in complaint case no. 13/2005) Smt. Shanti Devi Vrs. Chairman B.S.F.C. & Others, the Hon’ble State Commission has also passed similar order that the complainant can not be consumer in the meaning of Consumer Protection Act. the Hon’ble State Commission in different cases stated that the relation between the loanee and the corporation is a relation of debtor and creditor as such the complainant could be at no stretch of imagination said to be a consumer. The complaint filed therefore is not maintainable. ( Vide Annexure – 1 to 5 ) 
4. The statement made in Para – 1 of the complaint petition is illegal and denied. It is submitted that the complainant is not liable to get payment of the said amount or interest on any rate as the same has been adjusted / in loan account as per clause of the said scheme 2004 of the O.T.S. scheme and the complainant has knowledge of the same.
5. The statement made in Para – 2 of the complaint petition is partly correct and partly denied the same and it is a matter or record and partly related with the complainant.
6. The statement made in Para – 3 and 4 of the complaint petition are partly matter of record and partly denied and it is submitted that the complainant has not deposited the instalment as per terms and condition as principal with accrued interest thereon and due to default heavy amount was dues against the complainant and he has paid and allowed under O.T.S. Scheme 2006 only 3,22,803/- and rest dues an amount of Rs. 19,16,139.42 has been waived i.e. total dues before settlement of scheme under O.T.S. Rs. 3,22,803/- + Rs. 19,16,139.42 = Rs. 22,38,942.42/- as on settlement order dated 23.12.2006 was dues i.e. about 6 times of deposit amount waived by the corporation under the scheme.
7. It is also submitted that the complainant had applied for transport loan in the name of his Proprietorship firm M/s Satyendra Kumar, 1/B, Ashok Nagar, Kankar Bagh, Patna. The B.S.F.C. ( opposite party ) has sanctioned loan of Rs. 2.92 lakh on 01.03.88 and the complainant availed the loan and opposite party disbursed the loan of Rs. 2.88 Lakh but he has not timely deposited the instalment of loan of interest etc. and several demands were made as well as personally contact for repayment of dues etc. but not paid the same by the complainant then no alternative issued lodged notice U/s 30 and 29 of the S.F.C. Act 1951 vide letter dated 06.02.1990 and thereafter advertise for sale the same/ vehicle on 31.08.1995.
8. The statement made in Para – 5 of the complaint petition is illegal and denied. It is submitted that the statement of complainant is not clear and misleading the facts. It is no where mention in the notice of OTS Scheme 2004 published in H.T. dated 11.11.2004 that if the Board not found fit the case for OTS the application amount will be refunded along with update interest. The complainant wrote a letter dated 23.05.2005 to the corporation raising some issues about proposed settlement of the corporation dues under BSFC OTS Scheme 2004. A proper reply of the letter was issued from H.O. vide letter no. 113 dated 03.06.2005 to the complainant clarifying about the scheme and specifically mentioning that if there is no dispute the complainant must first get if resolved in consultation with the concern Branch manager and only then submit the application in prescribed manner within the prescribed time limit. No dispute will be entertained after the application for settlement under OTS Scheme 2004 has been duly submitted. For the convenience and ready reference a copy of BSFC OTS Scheme 2004 was sent to the complainant vide letter no. 113 dated 03.06.2005. ( Vide Annexure – 6 )
9. The complainant having receipt of this letter which was sent to him by Registered Post on 03.06.2005 applied under the scheme on 26.11.2005. Meaning thereby that the complainant is willing to avail the scheme.
10. The statement made in Para – 8 of the complaint petition is illegal and denied. It is submitted that the statement is misleading. Vide H.O.’s letter no. 487 dated 29.12.2005 through which the application of OTS 2004 was rejected, every reason for rejection was explained to the complainant. ( Vide Annexure – 7 )
11. The statement made in Para – 9 of the complaint petition is illegal and denied. It is submitted that there was no such clauses/ condition for refund of application money is incorporated in OTS Scheme 2004. ( Vide Annexure – 8 )
12. The statement made in Para – 10 of the complaint petition is illegal and denied and not correct as stated above.
13. The statement made in Para – 11 of the complaint petition is illegal and denied. It is submitted that since there was no provision of refund, it has got no meaning to get any result from M.D.
14. The statement made in Para – 12 of the complaint petition is a matter of record.
15. The statement made in Para – 13 and 14 of the complaint petition are illegal and denied. It is submitted that the corporation acted in terms of the scheme published in H.T. dated 11.11.2004. Hence there is adjusted against dues of the complainant.
16. It is submitted that the complainant again applied under OTS 06 on 30.10.2006 unconditionally which was accepted by the corporation and the account was settled at Rs. 3,22,803/- which was communicated to the concern vide memo no. 450 dated 23.12.2006.
17. It is also submitted that the terms and condition of the settlement order issued under OTS 06 was accepted by the complainant and deposited the settlement amount as per settlement order dated 23.12.2006 and accordingly a sum of Rs. 19,16,139.42/- had been waived and therefore “ No dues certificate ” have been issued vide opposite parties memo no. 1554 dated 12.02.2007 and the original mortgaged documents have also been returned back to the proprietor/ complainant on 04.06.2008.

Hence, the alleged case is illegal and denied.

4. The Complainant has filed Rejoinder to the written statement filed by the opposite party no. 1 are as follows :-

1. The opposite party annexed several judgment to show the complaint filed by the complainant is not maintainable and complaint is not a consumer and defined in the Consumer protection Act. It is necessary to mention that all the judgment annexed with the written statement are not applicable in present case. In the present case, the complainant filed present case only for payment of security/placation money f Rs. 28,800/- which was deposited along with the application of O.T.S. Scheme.
2. The opposite party only wants to create confusion in this forum and such action proved their malafide action.
3. The statement made in Para – 4 of the written statement under reply it is submitted that it is wrong to say that about deposited along with application of O.T.S. Scheme has been adjusted in loan account and the complainant has knowledge about it.
4. In reply to Para – 5 of the written statement of opposite party. It is respectfully submitted that the statement made in Para – 2 of the complaint petition is totally correct.
5. In reply to Para – 6 of the written statement, it is respectfully submitted that the contention of the opposite party in respect to O.T.S. Scheme 2004 is mischievous and they wants to create confusion before this forum. It is correct to say that the complainant was a loanee of Bihar State Financial Corporation and using the O.T.S. ( Platinum ) Scheme 2006 refunded all the loan amount as per the Scheme.

It is further contention of the opposite party with respect to notice U/s 29 and 30 of the Bihar State Financial Corporation Act, the opposite party never send any notice to the complainant with respect to dues amount prior to 1998. It is submitted that in the year 1998, the aforesaid truck, which was purchased from the loan amount, was met with an accident and the complainant became in trouble, therefore, the installment was not paid in the prescribed time. It is further submitted that the complainant deposited all the installment prior to 1998 within stipulated time.

6. In reply to statement made in Para – 7 and 9 of the written statement, it is respectfully submitted that in the O.T.S. Scheme 2004, it is not mentioned in the advertisement about what will be happen about the application money when the application for O.T.S. will be rejected. It is necessary to mention that in the advertisement it is specifically mentioned about the application cost will be forefitted it the application will be rejected. It is also respectfully submitted that the letter dated 03.06.2005 and 09.12.2005 were never communicated to the complainant.
7. In reply to Para – 10 of the written statement it is submitted that it is correct to say that there was no such clause/ condition for refund application money incorporated OTS Scheme 2004 but it is also not specifically mentioned about forefitted and / adjusted the application money, meaning thereby it is refundable when the application for OTS was rejected.
8. It is necessary to state that the complainant case is clear with respect to payment of application money only, therefore judgment cited in this case by the opposite party is not applicable in this case.

We have perused the complaint petition along with its Annexures, Written Statement of opposite parties and rejoinder thereto filed by the complainant and have also heard both the parties.

The opposite parties in written statement has raised objection regarding maintainability of the case on the basis of orders passed in this regard in different cases of similar nature by Hon’ble National Commission and Hon’ble State Commission and the complainant has not cited any Judgment /Order of any Superior Court on the contrary and just submitted that in his view the present case is maintainable as he has preferred the case for refund of amount which was deposited as application fees for O.T.S. Scheme. But in the circumstances set forth above we are in agreement with the contention of the opposite parties that this case is not maintainable.

Accordingly this case is dismissed as being not maintainable in the light of order of Hon’ble National Commission and Hon’ble State commission, referred to above.

There will be no order as to cost.

                                                  Member (F)                                                       President