By. Smt. Beena. M,   Member:

Brief facts of the case:-

          The Complainant has filed the above complaint under section 12 of  the Consumer Protection Act, 1986.  Following the application of the Complainant, the Opposite Party bank sanctioned a loan of 16,00,000/- (Sixteen lakhs only) for self employment to start an organic fertilizer unit at Mullankolly.   Due to lack of rain in that year and heavy rain in the following years made the business heavy loss.  The Complainant had received the amount in two installments and repaid Rs.1,25,229/- towards the loan amount and Rs.1,54,321 towards interest.  As a loan for small scale industry, the Complainant will have to get 35% subsidy.  In order to get subsidy amount, he contacted the Opposite Party and as per the direction, written application was submitted in the month of March 2017 and after that many times he approached the Opposite Party and enquired about the subsidy. That time the Opposite Party gave assurance that they will sent the files to NABARD for getting the subsidy and it will be got before March 2018.  But even after March 2018 the Complainant didn’t get subsidy.  Later the bank informed the Complainant that his loan became overdue hence, he is not eligible for the subsidy benefit. It is further pleaded that the loan became overdue only after March 2018 and if he got the said subsidy amount his loan would not become overdue. The Complainant enquired the details of the subsidy amount and taken information from NABARD under the RTI Act and then he realized that the Opposite Party didn’t take any steps to get the subsidy amount to the Complainant, even if no such application was preferred. This act of the Opposite Party is deficiency of service and clear case of negligence from their part by which the Complainant had suffered loss and mental agony and hence he filed this Complaint for realizing Rs.5,60,000/- with 18 % interest and Rs.50,000/- as compensation and Rs.10,000/- as cost of the proceedings.

          2. The Opposite Party entered appearance and filed version. The Opposite Party admitted that the Complainant had availed a loan of Rs.16,00,000/- to start a organic fertilizer unit as stated in the complaint. The Opposite Party admits the mode of disbursement of the loan and denied rest of the allegations especially regarding the subsidy matter. The Opposite Party submits that the loan will not get subsidy and had never assured the Complainant that the loan would get 35% subsidy. Due to the default of the 3^rd installment amount the Complainant lost his eligibility for subsidy.  The 4^th installment fell due on 01-04-2017, the Complainant not remitted the installment on 01-04-2017, he came to the bank only  on  22-06-2017,  he paid only one lakhs  on that day, on 30-06-2017 he visited the bank and paid balance amount as due on 30-06-2017.  On 01-07-2017 there was a balance of Rs.31,326/- as interest and Rs. 85,923/- towards principal and as the 5^th installment fell due, he defaulted all the installments and as a defaulter he has lost his eligibility for subsidy. The Complainant did not come to the bank in March 2017. After 30-06-2017 the Complainant came to the bank only in March 2018. Even though the loan was overdue, in order to help the Complainant the bank asked him to submit an application  to  condone   the   delay  caused in applying for the subsidy and pardoning the default of repayment. With the intention to help the Complainant bank prepared the Annexure-1 application and sent it to the AGM, NABARD Wayanad. The AGM of NABARD Wayanad rejected the application as the loan fell overdue even in the financial year 2016-2017. After that the Complainant never approached the higher authority of NABARD to know about the rejection of his application. There is no negligence on the part of Opposite Party and there is no lack of service. Regional Manager, NABARD, Kerala is necessary party in this case and the complaint is bad for non jointer of necessary parties. The Complainant is not entitled to get any relieves.    

          3. On perusal of complaint and documents the Commission raised the following points for consideration:-

1. Whether there is any deficiency of service and negligence from the Opposite Party’s side?
2. Whether the Complainant is entitled get any amount from the Opposite Party ?
3. Whether the Opposite Party is liable to pay any amount as compensation?
4.  Relief and cost.

4.  Point No. 1 to 4 :-  For the sake of convenience and brevity all points are considered together.     

5. The Complainant adduced oral evidence.  He was examined as PW1 and the documents produced were marked as Ext. A1 to A7. The Secretary of the Opposite Party’s Bank was examined as OPW1 and Ext. B1 to B12 were marked.  

6.  There is no dispute with regard to the sanction and disbursement of loan to the Complainant. This is sufficient to hold that bank is a service provider and the Complainant is a person who has hired banking service. Therefore, the Complainant is a consumer. The relations between borrower and the bank is that of a consumer and service provider. The Complainant is a consumer within the definition of Section 2(1) (d) of the Consumer Protection Act, 1986.

7. The main dispute to be considered in this case is whether there has been any kind of omission or negligence on the part of the Opposite Party to obtain the subsidy from NABARD. It is alleged that the Complainant had applied through the Opposite Party to get the subsidy and the Opposite Party admits that the said application was sent them to NABARD and it was rejected on the ground that the Complainant was not eligible for the subsidy as he is a defaulter as pending arrears are there. Ext. B6 is the claim form prepared by the Opposite Party but no document is seen produced to prove that it had been forwarded to NABARD. The Opposite Party has admitted in version that even though the loan  was overdue, in order to help the Complainant the bank asked him to submit the  application praying for condonation of the delay caused in applying for the subsidy and pardoning the default he committed for the repayment. From this it is evident that a mere delay in submitting the application alone does not result in the ineligibility for getting the subsidy to the Complainant. As the Opposite Party has failed to produce evidence of forwarding the application to NABARD, though the Opposite Party has produced the application prepared for forwarding, and as the NABARD has informed that they have not received any application for subsidy which is evident from Ext. A6 reply under RTI Act, the Commission is of the view that the Opposite Party has failed to forward the application for subsidy to NABARD. The Opposite Party has not produced any evidence regarding the said denial of subsidy by NABARD.

          8. Other contentions of the Opposite Party are the NABARD is a necessary party and without impleading NABARD as a party array the above number complaint is bad for non-jointer of necessary party hence the complaint is not maintainable. It is already come out from the evidence that the Opposite Party did not sent subsidy claim form before the NABARD.  Hence the argument that NABARD is a necessary party in this case is untenable. Here the Opposite Party failed to give a sufficient justification for none transmitting the subsidy application in time before NABARD.  If the Opposite Party sent any application to NABARD as they pleaded there would be a receipt or acknowledgement. No receipt or acknowledgment produced in this case. Therefore the Commission can reach a conclusion that the version of the Opposite Party that they had sent subsidy claim application could not be believed. Opposite Party is an institution that has to act very responsibly and honestly towards its customers and need to work to ensure the benefit and welfare of the customers.  If the bank had forwarded the application for subsidy to NABARD properly on time the Complainant should get the subsidy amount.  Here as the bank has failed to forward the application the Complainant has lost the subsidy amount. Hence the Opposite Party has failed to discharge it’s duty properly.     So there has been deficiency of service from the part of the Opposite Party and hence the Complainant has the right to be compensated.

In the result, the petition is allowed directing the Opposite Party

1. To pay an amount of Rs.5,60,000/-(Rupees Five Lakh Sixty thousand only) being the subsidy amount
2. To pay Rs.20,000/-(Rupees Twenty thousand only) as compensation and
3. To pay Rs. 5,000/-(Rupees Five thousand only) as cost of the proceedings

           The above amount shall be paid within 30 days from the date of this order failing which the amount shall carry interest @ 6%.

          Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the  day of  27^th  January 2021.

Date of filing:29.10.2019.

                                                                    PRESIDENT:  Sd/-

                                                                   MEMBER   :   Sd/-

                                                                   MEMBER  :   Sd/-

APPENDIX.

Witness for the Complainant.:-

PW1.              P.J. Michael.                                    Complainant.          

Witness for the Opposite Party:-

OPW1.          Ratheesh kumar. A.R.       Asst.  Secretary,  Sulthan Bathery  PCARDB. 

xhibits for the Complainant:    

A1.      Copy of Letter.                                dt:28.02.2019.

A2.      Copy of Letter.                                dt:23.03.2019.

A3.      Copy of Letter.                   

A4.      Copy of letter.                                 dt:17.05.2019.

A5.      Copy of Application.                      dt:01.07.2019.

A6.      Status of Subsidy Application in r/o loan sanctioned.  dt:06.09.2019. 

A7.      Copy of Loan Pass Book.                         

Exhibits for the Opposite Party:-

B1.      Copy of Loan Application.           dt:23.04.2016.

B2.      Copy of Loan Sanctioned Order. dt:08.06.2016.

B3.      Copy of Form for Creating  Gehan/ Mortgage/ Hypothecation.

B4.      Copy of Certificate of Encumbrance on Property.   dt:09.12.2016.      

B5.      Copy of Loan sanction order.                

B6.      Coy of Claim  form.                                    dt:27.03.2018.

B7.      Copy of Voucher.                                      

B8.      Loan Ledger.

B9.      Copy of Guidelines on Diary Entrepreneurship.

B10.  Copy of Circular No.274/ICD-35/2012.

B11.   Copy of Project Report of Organic Manure Production.

B12.   Copy of Office Note.                     dt:03.06.2016.