Date of Judgement Dt.30.5.2012
J U D G E M E N T
By Sri S.C.Nayak, P.
This is complainant’s case against the State Bank of India , B.M.Pur Branch through it’s B.M. and Debraj Sahu, the present B.M. in his personal capacity alleging deficiency of service on their part.
The case of the complainant is that on his approach the O.P.No.1 agreed to finance him a Tractor for agricultural purpose and advised him to deposit Rs.60,000/- only. The complainant deposited the said amounts and as the Tractor was urgently necessary he signed the papers without scrutinizing the same under the belief that the tractor and trolley is financed for agricultural purposes whose rate of interest is 7% only. Later on the bank provided him the pass book from which the complainant could know that the rate of interest for the said finance is 12.25%. The complainant made payments regularly with 12.25% of interest.
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On 30.7.11 the O.P.No.1 issued notice to the complainant for payment of instalment and pursuant to the said notice the complainant de3posited Rs.15,000/- on two occasions i.e. on 8.9.2011 and 12.12.2011. From the letter of the bank dt.13.12.11 the complainant could know that the O.P.No.1 is going to repossess the vehicle and for that purpose service of recovery agent has been sought. After such information the complainant deposited Rs.25,000/- on 21.12.2011 and Rs.20,000/- on 30.12.2011 on the advice of the O.P.No.1. The complainant has alleged that on 3.1.2012 in his absence and inspite of protest from his family members the vehicle has been seized. Although he requested the B.M. and committed in writing to clear up the loan by 30.1.2012 and deposited Rs.30,000/- in the Bank, the vehicle was not released by the Bank.
The complainant alleges that he is entitled to Rs.90,000/- towards subsidy. But the papers given by the Bank does not show anything about the deposit or subsidy. According to the complainant there was no reason to seize the vehicle. He alleges that by the conduct of O.P.No.1 and O.P.No.2 personally he has incurred a loss of Rs.5,00,000/-. Therefore the complainant has prayed that the vehicle be released immediately and he be paid compensation by O.P.No.1 and 2 to the tune of Rs.5,00,000/-.
The O.Ps. have filed written version. According to them the complainant is not a consumer. The complaint case is barred by limitation. They have also alleged that the complainant case is bad for non joinder of parties. It is alleged that the O.P.No.2 is not a person of Sonepur District jurisdiction and he has not created any cause of action personally to the petitioner. They alleged that the complainant is using the vehicle for commercial purpose. According to them on 17.12.2008 the complainant submitted application for loan of Rs.4,99,000/- which was duly sanctioned on by O.P.No.1 as per the terms and conditions of the agreement papers. The complainant has signed in the agreement after going through its contents. According to the O.Ps. the present loan is a term loan repayable in 18 half yearly instalments amounting to Rs.27,222/- each. Pass Book is issued to the complainant since 20.12.2008 and he is paying interest since 15.5.2009. It is also alleged that the complainant has created a fixed deposit and he is getting his interest on that. The O.Ps. allege that the O.,P.No.1 has issued so many notices to the complainant from time to time regarding his default in the loan account. That at the time of seizure the complainant was defaulted an amount of Rs.2,17,052/- violating the agreement. It is also stated by the O.Ps. that neither the
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O.P.No.1 nor O.P.No.2 was present in the spot when the vehicle was seized. The vehicle has been seized by M/s. Pattnaik Associates who is an empanelled seizure agent of the S.B.I. It is also alleged that the O.P.N o.1 and 2 are in no way concerned with subsidy. It is alleged that the O.Ps. have already released the vehicle on 9.1.2012. On these averments they have prayed that the complaint case be dismissed with cost.
We have heard the complainant in person and the learned counsel for the O.Ps. we have also perused the materials on record including the written notes of argument filed by the parties. From the pleadings of the parties the following points falls for determination by the Forum :-
1. Is the complainant a consumer ?
2. Is the complaint case barred by limitation ?
3. Is the complaint case bad for non-joinder of parties ?
4. Has there been deficiency of service by the O.Ps. ?
5. To what relief the complainant is entitled ?
The O.Ps. have alleged that the complainant use the vehicle for commercial purposes as such he is not a consumer. We have perused the letter of arrangement and agreement filed by the O.Ps. in this case. From these documents we find that the complainant has availed loan for the tractor and trolley for his agricultural works to cultivable his agricultural lands. The complainant has stated that he uses the vehicle for his agricultural work out of which he maintains his livelihood. There is nothing on record to show that he uses the vehicle for commercial purposes. For the reasons stated above we come to the conclusion that the complainant is a consumer within the meaning of Sec.2(1) (d) of the C.P.Act, 1986.
The O.Ps. have alleged that the complaint case is hopelessly barred by limitation in as much as the complainant availed loan on 2008 and filed this complaint case on 2012. But we find that the vehicle in question has been seized from the possession of the complainant on 30.1.2012 and the complaint case is filed on 24.1.2012. As such this complaint case has been filed within the period of limitation in as much as the cause of action of this complaint case arose on 30.l1.2012 when the vehicle has been seized from the possession of the complainant.
The O.Ps. alleged that the complaint case is bad for non joinder of parties as much as the repossession agency has not been made party in this case. We find that the repossession agency has seized the vehicle under the instruction of O.P.No.1. So the agency is neither the necessary nor proper party in this case. In its absence also an effective adjudication of this case can be done.
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Now it is to be seen whether there has been deficiency of service by the O.Ps. or not. The complainant alleges that he has signed the papers without scrutinizing the papers under the bonafide belief that he is availing loan for agricultural purposes where rate of interest is low i.e. 7%. But after receiving bank pass book the complainant come to know that the rate of interest is 12.25%. But we find from the letter of arrangement and agreement paper filed by the present O.Ps. in this case that the complainant has signed on these documents in English language so we are inclined to believe that he must have signed these documents after understanding its contents./ We have perused clause (f) of the letter of arrangement which is reproduced below :-
“ (f) Interest
Interest will be charged monthly/quarterly/half yearly or as on the dates of repayment instalments fall due at the rate of 0.5% being over SBAR with a minimum of 13% per annum rising or falling with the change in the S.B.A.R on the amount outstanding in the account ”
For the reason stated above we cannot find fault with the bank realizing the interest at the rate of 12.25%. Further more for agricultural purpose loan is advanced under K.C.C. repayable on demand or upto one year but the present loan of the complainant is term loan repayable in 3 years or above which limit is above 2 Lakhs but upto Rs.5 Lakhs and 13% P.A. was applicable with effect from 10th November 2008 as per circular of Bank. So the bank’s action in this regard cannot be faulted.
It is also alleged by the complainant that subsidy amount has not been released in his favour. Bank is not concerned either with the sanction or release of the subsidy amount. Subsidy is availed through agriculture deptt. and released by APICOL and they have not been made parties in this case. So this contention of the complainant has no force.
The complainant has alleged that he has deposited Rs/60,000/- in the loan account. There is nothing on record to substantiate the stand of the complainant. It is ascertained from the O.Ps. that the complainant has deposited Rs.60,000/- in fixed deposit in his name which is the security amount for the loan. It is in the custody of the bank and it will be finally adjusted during the closing of the account. As the complainant will get interest on that at the rate fixed by R.B.I. he is not prejudiced on the action of the bank and the bank has a general lien over all deposits of the borrower as observed by the Apex Court in case of Syndicate Bank Vrs. Vijaya Kumar.
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The complainant has alleged that the vehicle has been forcibly seized from his possession by the O.Ps. We find that since the complainant defaulted in the payment of instalments the vehicle has been seized from him as per the terms of the agreement executed by the complainant himself. So the bank’s action in this regard cannot be faulted.
But we are not in a position to give our seal of approval to the manner in which the vehicle has been seized from the complainants. On 30.1.2012 the complainant was present before O.P.No.1, submitted request letter to repay the default amount within one month and he also deposited an amount. These facts are ascertained from para 8 of the written arguments of the O.Ps. In this case the O.Ps. have filed the affidavit of one Dhananjaya Biswal who is the authorised person of the Empanelled seizure agency. He has deposed in para 3 of his affidavit that the borrower was present in the spot and on his instruction the driver signed on the inventory list. But this affidavit of Sri Biswal cannot be relied in view of the averments of the O.Ps. in para 8 of their written notes of arguments. So we are inclined to believe that the vehicle has been seized by the recovery agency in the absence of the complainant. During the relevant time the complainant was in the bank before O.P.No.1 He submitted letter of request before O.P.No.1. seeking one month time. He has also paid Rs.30,000/- on that date which has been received by the Bank as is evident from the copy of pass book filed by the complainant. So when the bank accepted the part payment of Rs.30,000/- on that date, it should have given some time to the complainant and should not have seized the vehicle on the same day in the absence of the complainant. This according to us is deficiency of service on the part of the Bank.
But we find that the vehicle has been released on 9.1.12 and the same has also been received by the complainant. So in the instant case we hold that there has been moderate quantum of negligence on the part of the O.P.No.1. We find that whatever the O.P.No.1 have done, he has done in his official capacity as the B.M. of the Bank. So we are not inclined to fasten any liability on the O.P.No.2.
Now it is to be seen to what relief the complainant is entitled. The complainant has claimed Rs.5,00,000/- as compensation. He has not substantiated his claim of such a huge amount. We have already hold that there has been moderate quantum of negligence by the O.P.No.1. In the mean time the vehicle has been released and the same is in possession of the
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complainant. The vehicle has remained in the possession of the O.P.No.1 for a period of six days. Taking an overall view of the matter and in the facts and circumstances of this case an amount of Rs.6000/- as compensation to the complainant for mental agony, harassment and allied factors would meet the ends of justice. We order accordingly.
O R D E R
It is hereby ordered as follows :-
The O.P.No.1 shall give to the complainant Rs.6000/- as compensation for mental agony, harassment and allied factors within one month from the date of receipt/production of this order.
Complaint allowed in part.
Dated the 30th day of May 2012s
Typed to my dictation
I agree I agree. and corrected by me.
Smt. N.Parwin, Sri A.Mishra Sri S.C. Nayak
Lady Member Male Member President
Dt.30.5.2012 Dt.30.5.2012 Dt.30.5.2012
