1.      Heard Mr. Abhishek Tripathi, Advocate, for the complainant and Mr. Arun Aggarwal, Advocate, for the opposite parties.

2.      Radhey Shyam Pandey has filed above complaint, for directing the opposite parties to pay ((i) Rs.75700000/- for loss of business, with interest @18% per annum from the date of submitting the documents by the complainant till the date of payment; (ii) Rs.8400000/-, on account of consideration and bank guarantee forfeited by the GIDA; (iii) Rs.50000/- as legal expenses across multiple forums and miscellaneous cost; and (iv) any other relief which is deem fit in the interest of justice.

3.      The complainant stated that he wanted to start a cold storage unit for earning his livelihood and applied for allotment of land in industrial area developed by Gorakhpur Industrial Development Authority (GIDA) on 13.09.2010. He opened a savings bank account with OP-4 on 02.11.2010. GIDA allotted Plot No.A-1/28 area 12873 sq. meter, Sector-15, Industrial Area at village Juriyan, on lease for total lease premium of Rs.10494488.50, vide allotment letter dated 01.03.2011, for opening the cold storage. The complainant deposited Rs.1050000/-, as reservation money, which was about 10% of the entire premium payable and furnished a bank guarantee of Rs.735000/- with the GIDA. GIDA executed Lease Agreement on 25.05.2011, in favour of the complainant. The complainant approached OP-4 for financial assistance. As demanded by OP-4, the complainant deposited Rs.110300/- and Rs.1750/- on 28.04.2011 to initiate the Techno Economic Viability (TEV) study and also submitted the original documents, namely, registry of the land, allotment letter issued by GIDA receipt/challan and other papers on 29.06.2011. OP-1, vide letter dated 15.09.2011, expressed its inability to sanction loan to the complainant. The complainant, vide letter dated 27.01.2012, requested OP-1 to return the original documents submitted by him on 29.06.2011 and also gave a reminder on 05.03.2012. Despite several reminders, the OPs failed to return the documents of the complainant. Deputy Manager, GIDA sent a notice dated 05.05.2012 to the complainant to open the unit failing which the allotment of plot would be cancelled and the bank guarantee furnished would be forfeited. As the OPs did not return the original documents, the complainant filed Writ Petition (C) No.24276 of 2012 before the High Court, Allahabad. The OPs filed its counter affidavit stating that the original documents submitted by the complainant had been misplaced and were not traceable. The High Court, vide order dated 09.07.2012 allowed the writ petition and directed the OPs to bear the cost, in obtaining the duplicate copies of the documents from the concerned departments. As the opposite parties failed to comply the order of the High Court, the complainant filed Contempt Petition No. 6167 of 2012 which is pending. In the meanwhile, GIDA forfeited the bank guarantee of the complainant. Due to loss of the original documents by gross negligence committed by the OPs, the complainant could not arrange fund for opening cold storage as such his bank guarantee of Rs.735000/- has been forfeited and the complainant has suffered business loss of Rs.75700000/-. The complainant filed CC/361/2015, which was withdrawn with permission to file fresh complaint vide order dated 29.06.2015 bringing on record certain additional facts. The complainant sent a legal notice dated 08.12.2015 to OP-4 to return the original documents, who, vide letter dated 01.01.2016 replied that they did not have the documents. Then the present complaint on 05.04.2017.

4.      The opposite parties filed written statement on 11.12.2017 in which application for loan on 28.04.2011 and deposit of the documents have not been disputed. The OPs stated that there is no lease deed in favour of the complainant. Allotment Letter dated 01.03.2011, mentioned that lease deed would be executed after construction and establishment of the cold storage. Lease premium was payable in instalments and the last instalment was payable on 01.01.2017. The document represented to be a lease deed is a licence agreement on a stamp paper of Rs.300/-. There was no occasion for execution of the lease deed as the cold storage was not constructed. In the absence of cold storage allegation of business loss is not admitted. The complainant has concealed the fact that he had filed an application under Section 156 (3) Cr.P.C., which was dismissed by the CJM, Siddhartha Nagar, vide order dated 01.04.2016. The appeal filed by the complainant was also dismissed on 28.11.2016. The complainant has filed the complaint on false facts. The complainant has not produced on record the TEV report. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed. The opposite parties also raised the preliminary objection that the complainant has already availed his remedy by filing a writ petition and contempt petition. In the writ petition and in the contempt petition the complainant has impleaded GIDA as an opposite party. GIDA is a necessary party. The complaint is bad for misjoinder and non-joinder of parties. There is no privity of contract between the complainant and the OPs. The complainant has applied for financial assistance with the OPs for starting cold storage which is a commercial purpose and the complainant is not a consumer. The cause of action arose in January, 2012 and the complaint has been filed in April, 2017 which is time barred. The issues require extensive evidence which is not possible in the consumer jurisdiction. The complaint is also barred by the principle of res judicata as the complainant has already filed CC/361/2015 on the same cause of action, which was dismissed on 29.06.2015.

5.      The complainant filed the Rejoinder and Affidavit of Evidence, Affidavit of Admission/Denial of documents of Radhey Shyam Pandey. The opposite parties filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Vinod Yadav, Branch Manager, Arya Nagar, Navgarh (Tetari Bazar), Siddharth Nagar. The OPs filed a Supplementary Affidavit, stating that in compliance of the order of High Court dated 09.07.2012, certified copies of Allotment Letter and Licence Agreement were sent to the complainant through registered post, which was returned back with endorsement of “refusal”. The complainant had taken eight loans and one Bank Guarantee. All the eight loan accounts of the complainant were declared NPA and recovery proceedings have been initiated. After forfeiture of Bank Guarantee, recovery notice was issued to the complainant. Both parties have filed the written synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. The complainant approached OP-4 for sanction of the loan for constructing and running cold storage on the land allotted to him by the GIDA and deposited Rs.110300/- and Rs.1750/- on 28.04.2011 to initiate the Techno Economic Viability (TEV) study and also submitted the original documents, namely, registry of the land, allotment letter issued by GIDA receipt/challan and other papers on 29.06.2011. OP-1, vide letter dated 15.09.2011, expressed its inability to sanction the required loan to the complainant. The complainant, vide letter dated 27.01.2012, requested OP-1 to return the original documents submitted by him on 29.06.2011 and also gave a reminder on 05.03.2012 but the documents were misplaced and not returned. The complainant filed Writ Petition (C) No.24276 of 2012 before the High Court, Allahabad, for directing the OPs to return his original documents. The OPs filed its counter affidavit stating that the original documents submitted by the complainant had been misplaced and were not traceable. The High Court, vide order dated 09.07.2012 disposed of the writ petition and directed the OPs to bear the cost, in obtaining the duplicate copies of the documents from the concerned departments. The OPs in Supplementary Affidavit has stated that in compliance of the order of High Court dated 09.07.2012, certified copies of Allotment Letter and Licence Agreement, receipt/challan were obtained by them and sent to the complainant through registered post, which was returned back with endorsement of “refusal”.  

7.      In the application dated 29.06.2011, the complainant has noted as (i) original registered documents of the land of GIDA, (ii) allotment letter issued by GIDA, (iii) receipt or challan and other papers. The complainant has filed a copies of allotment letter dated 01.03.2011 and licence agreement dated 25.05.2011 as Annexures-2 and 3, respectively with the complaint. A perusal of the allotment letter shows that total lease premium was Rs.10494488.50 (@Rs.815.23 per sq.mt.). The complainant was required to deposit 10% of the premium till 30.03.2011 and second instalment was payable till 01.01.2013. In the meantime, the complainant, after deposit of first instalment had to take possession and raise construction of the cold storage building and make it operational at his own expenses. After deposit of first instalment, the GIDA executed licence agreement on 25.05.2011, permitting the complainant to raise construction of the cold storage building and make it operational.

8.      Clause-14 of the allotment letter provides that the lease deed of the plot will be executed only when the factory has been established and commercial production has been commenced to the satisfaction of the authority or loan has been sanctioned by the financial authority for the project. Admittedly neither the cold storage has been constructed and commissioned nor the loan for construction of the cold storage building and making it operational has been sanctioned till 29.06.2011, as such, in the application dated 29.06.2011, noting of (i) original registered documents of the land of GIDA, does not appear to be correct.

9.      Although, the documents deposited by the complainant have been lost from the custody of the opposite parties, but in order to award compensation for loss of the documents, actual monetary loss or depreciation of the value of the property has to be proved. Certified copies of all the documents issued by GIDA were available and could have been obtained and used by the complainant for availing financial assistance from any other institution. The complainant has neither alleged nor proved that he had ever tried to obtain certified copies of Allotment letter, receipt/challan relating to his deposit and licence agreement dated 25.05.2011 but could not succeed nor he has alleged that any other financial institution has declined to consider his application for sanction of the loan in the absence of the original document. Bank guarantee has been forfeited due to violation of the terms of the allotment and not due to loss of the document. As such, actual loss due to loss of the documents has not been proved. In order to award compensation under Section 14 of the Consumer Protection Act, 1986, negligence of the OPs and resultant loss suffered by the complainant has to be proved.

O R D E R

In view of the aforesaid discussion, the complaint has no merit and is dismissed.