By. Smt. Bindu. R, President:

                This complaint is filed by Umesh Kumar, Thekke Elanjikkal Veedu, Valavayal Post, Poothady village, Bathery Taluk against the District Co-operative Bank Limited, Kalpetta North represented by Its Authorized Officer and another.

            2.  The contents of the complaint is that the Complainant is an agriculturist who is earning his livelihood from agriculture.  Complainant states that during 2012-2013 the Complainant approached the Opposite Party for obtaining a loan and the Opposite Party informed that, the loan cannot be granted in the name of the Complainant since he was earlier a permanent resident of Karnataka State.  Complainant states that the Opposite Party informed that loan can be granted in the name of another person for the Complainant, if the Complainant stands as a guarantor and thus the Complainant took an agriculture loan for Rs.4,00,000/- in the name of his neighbour Najmudheen, S/o. Kadhiya, who is a customer of Opposite Party Bank on the collateral security of 2 ½ Acres of land belonging to the Complainant.  Complainant states that the loan was being repaid very promptly through Najmudheen the loanee and in 2015 the Opposite Party informed the Complainant that they are ready to give a loan in the name of the Complainant himself and thereby the Complainant was removed from the joint loan with Najumudheen.  The Complainant states that the Complainant had to sign on new loan papers making Khadiya the mother of Najumudheen as guarantor.  The Complainant further states that the Opposite Party insisted for the signature of his father as guarantor and since his father was unable to present before the Opposite Party, they obtained a power of attorney in the name of the Complainant and thereby the Complainant signed the papers as power of attorney holder of his father as well.  The Complainant states that the Complainant was regularly making repayment of the loan without fail.  The Complainant alleges that he was informed by the 1^st Opposite Party that the 1^st Opposite Party is initiating steps to write off the loan as per the schemes of the state and Central Government as per agricultural debt relief scheme. While thus in the year 2019 consequent to the flood and subsequently in 2020 due to pandemic covid, the Complainant could not remit the instalment amount of the loan due to the loss occurred in the agriculture.  The Complainant was of the firm belief that the loan availed by him shall be written off as intimated by the 1^st Opposite Party.

            3.  To the great dismay of the Complainant he had received a notice bearing No.R.O.6 R-cell/Sarfaesi/583/Sulthan Bathery Br./NFS/20325/2020-21 and on receipt of the above notice the Complainant enquired with the 1^st Opposite Party bank and it was understood that the Opposite Party had converted the scheme of the loan from Agricultural loan in to some other scheme and also without issuing proper instruction and guidelines, the Complainant was asked to sign on some documents by the Opposite Party. The Complainant states that he had not received the benefits granted by the Government including writing off of the agricultural loan since the bank had converted the loan from agricultural scheme in to some other scheme for which the bank ought to get exorbitant interest.  The Complainant further states that he had sustained deficiency of service and unfair trade practice from the side of the Opposite Party due to the above action taken by the Opposite Party. The Complainant approached the Commission seeking for getting relief for the above said deficient act, claiming compensation with other reliefs.

            4.  Upon notice from the Commission the Opposite Party appeared and filed their joint version in which it is contented that the above complaint is not maintainable, primarily for the reason among other reasons that the opposite parties have already initiated legal proceedings under Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act against the Complainant and as per the settled legal position and case law, if the proceedings are pending, this Hon’ble Forum is ousted with jurisdiction to entertain the matter. These opposite parties further submit that the jurisdiction of the Hon’ble Forum to entertain the matter is ousted under section.34 of the Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act. Therefore, this may be considered as a preliminary issue by the Hon’ble Forum. The Opposite Party contented that the Complainant approached the 1^st   Opposite Party bank for a loan for agricultural purpose ,to the tune of Rs.7,00.000/-and the 1^st  Opposite Party Bank were reluctant to give the loan for the reason that the Complainant is a resident of Karnataka State and the Bank agreed to sanction the loan to any of its customers other than the Complainant under the suretyship of Complainant and the Complainant had availed an agricultural loan to the tune of Rs.4,00,000/- in the name of Najmudhin, S/o. Khadiya by mortgaging the property of the Complainant to the extent of 2 acres etc., are totally wrong and hence denied. The further averment in the complaint to the effect that the Complainant had been making repayment of the said loan through the above said Najmudhin and during 2015 the 1^st Opposite Party summoned the Complainant and assured that another loan can be sanctioned in the name of Complainant and subsequently the Complainant was relieved from the loan liability of the loan availed by Najmudhin and the Complainant signed the new loan papers in which Kadiya, the mother of said Najmudin was signed as witness and the Complainant and his father are the signatories of the said laon, the Complainant’s father executed power of attorney in favour of the Complainant and the Complainant signed the loan paper in favour of his father also on the strength of power of attorney etc are all against the truth and are  denied by the opposite parties. The averment that several instalments were paid by the Complainant towards repayment of the loan and the 1^st Opposite Party intimated the Complainant that the Complainant  is entitled to get the Agricultural Debt Relief declared by both Central & State Government and the 1^st  Opposite Party were taking steps to write-off the said loan and further assured that the Complainant would be getting back the amount of repayment already made by him in the above said loan after writing off of the said loan by the Government etc. are totally false and untrue and are mere contentions taken by the Complainant to escape from the loan liability existing with the 1^st Opposite Party.  In fact the Complainant had availed NFS loan (Non Farmer’s Scheme Loan) from the Opposite Party bank which will not come under the Kerala Farmer’s Debt Relief Scheme.  The Opposite Party had further denied all the other allegations and stated that Complainant had already paid Rs.7,11,000/- and the said amount was not accounted to the loan account and the Complainant was informed that an amount of Rs.9,46,987/- is due towards the loan and the Opposite Party had threatened the Complainant for remitting that amount as stated by the Complainant is untrue, baseless and narrated with malafide purposes solely to escape from the loan liability.  These are the major contention raised by the Opposite Parties in their version.

            6.  Evidence in this case consists of the Ext.A1 filed by the Complainant and Ext.B1 to B6 from the side of Opposite Party.  Complainant was examined asPW1 and the Opposite Party No.1 was examined as OPW1. 

            7. The following are the main points to be considered in this case by the Commission.

1. Whether the Complainant had sustained any deficiency of service or unfair trade practice from the side of the Opposite Parties?
2. If so, the quantum of compensation and costs to be paid to the Complainant?

8. Heard both sides and considered the matter in detail.

9. Point No.1:-   Ext.A1 filed by the Complainant goes to show that the Complainant had received a notice under Sarfaesi Act vide Ref No.R.O.6 R.cell/SARFAESI/583/S. Bathery Br/NFS/20325/2020-21 dated 23.03.2021 issued by the Opposite Party and the Opposite Party had produced  Ext.B1 the loan Application, Ext.B2 a copy of the Agreement, Ext.B3 the Pronote signed by the Complainant which shows that an amount of Rs.10 lakh was received by the Complainant from the 1^st Opposite Party,  Ext.B4 a receipt showing the details of the amount received and Ext.B5 the Statement of Account and Ext.B6 an authorization letter.

10.  On going through the entire details in the complaint, the contentions in the version, and also the facts revealed from the evidences it can be seen that the Complainant had availed a loan for Rs.10 Lakh from the Opposite Party bank and had repaid a certain amount towards the loan as repayment.  The Complainant had not produced any document to the effect that the said loan was applied for, and availed by him, for agricultural purposes.  Even though the Complainant stated that the loan was given to him for agricultural purposes it is evident from Ext.B1 which is an application for “Consumption/Jubilee Sulabh Loan” in which the purpose of loan is clearly stated as house maintenance.  The signature on the application and the thumb impression of the surety had not been disputed by the Complainant. Moreover Ext.B2 which is an agreement executed by the Complainant with the Opposite Party in which also the purpose of loan is shown as “house maintenance” in second page.  The Complainant had not disputed that he had not received the amount from the bank and also not disputed the signature on the loan applications .  Bank had initiated recovery steps under Sarfaesi Act and while then the Complainant filed I.A.114/2021 which was dismissed by this Commission stating in Para 4 as follows:- “the Respondents started to proceed against the property of the Complainant under the Sarfaesi Act,  and that they issued the notice bearing No.R.O.6 R.cell/Sarfaesi/583/S. Bathery Br./NFS/20325/2020-2021.  Therefore, he filed this complaint and this petition for the remedies aforesaid.  There was an ex-parte order in favour of the Complainant. Section 34 of Sarfaesi Act provides that “No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).   Section 35 of the Act provides that the provisions of this Act shall effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law”.  Therefore from a reading of these provisions it can be seen that this Commission has no power to grant injunction if the dispute is covered under the Sarfaesi Act.  Therefore this petition is to be dismissed”.

11.  Overall consideration of the evidence adduced reveals  the Complainant had not proved with any substantiating evidence that the loan was availed by him is for agricultural purpose as stated by him and therefore Point No.1 is found against the Complainant.

12.  Point No.2:-  Since Point No.1 is found against the Complainant, we do not have analysed Point No.2.

In the result, the complaint is dismissed without costs.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 27^th day of October 2023.

Date of Filing:-31.03.2021.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Umesh. T. S.                                     Agriculture.

Witness for the Opposite Parties:-

OPW1.          Noushad. C. S.                                 Senior Manager, Kerala State Co-

operative Bank.

Exhibits for the Complainant:-

                        Nil.     

Exhibits for the Opposite Parties:-

B1.                  Copy of Application for Consumption/Jubilee Sulabh Loan.

                        Dt:22.03.2015.

B2.                  Copy of Agreement.                                  Dt:31.03.2015.

B3.                  Copy of Promissory Note.                       Dt:31.03.2015.

B4.                  Copy of Acknowledgment.                      Dt:31.03.2015.

B5.                  Statement of Account.                             Dt:14.09.2023.

B6.                  Authorization Letter.                                Dt:26.04.2023.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-