State Consumer Disputes Redressal Commission
M/S. Mittal Spice & Food Products vs State Bank Of India, Dhenkanal Branch ... on 8 April, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK
CONSUMER COMPLAINT NO.21 OF 2007
M/s.
Mittal Spice & Food Products,
Ratan
Bazar Dhenkanal, represented
through
its Proprietor Nawal Kishore
Mittal,
S/o. Kedarmall Mittal,
At/P.O-
Ratna Bazar,
P.S/Town/Dist-
Dhenkanal.
Complainant
-Versus-
1. State
Bank of India,
Dhenkanal Branch,
I.G.
Super Market, Dhenkanal-759001.
2. Chief
General Manager, State Bank of
India,
Zonal Office, Bhubaneswar.
3. State
Pollution Control Board, Orissa,
Bhubaneswar.
4. General
Manager, District Industries Centre,
Dhenkanal.
5. Executive
Officer, Dhenkanal, Municipality
Dehenkanal.
Opposite
Parties.
For
the Complainant : M/s. G.P. Dutta
& Assoc.
For
the Opposite party nos.1&2 : M/s. A.K.Mishra
& Assoc.
For
the Opposite party no.3 : M/s.
S.P. Mohanty & Assoc.
For
the Opposite party no.5 : M/s.
S.B. Panda & Assoc.
P
R E S E N T :
THE HONBLE SMT. BASANTI DEVI,
MEMBER
A
N D
SHRI
SUBASH MAHTAB, PRESIDENT IN-CHARGE.
O R D E R
DATE: -
08TH APRIL, 2008.
The complainant has filed this case under section 17(1)(a)(i) of the Consumer Protection Act, 1986, in short, the C.P. Act praying to direct the opposite party Nos.1 and 2 mentioned above to waive the interest on the loan amount of the complainant and to allow him to repay the principal loan amount on phasement basis and to pay him compensation rupees 21,00,000/- or in the alternative to direct opposite party Nos.1 and 2 to allot a suitable land to run the unit and to advance some financial assistance for repayment of loan phase-wise.
Complainant has brought this complaint against all the opposite parties alleging gross deficiency in service, unfair trade practices and arbitrary action of the opposite parties due to which he has been remained.
2. The case of the complainant as per the complaint petition in brief is that complainants spices manufacturing unit has been provisionally registered SSI unit bearing registration No.15/05/07460 dated 19.05.2001, opposite party No.4 GM, DIC vide letter No.650 dated 26.02.2002 (Annexure-1) granted certificate to the effect that the complainants unit is a non-planting unit. Complainant has also used modernized Micro-Pulverser set with dust collecting machine and motor, for which there would be no . The Executive Officer, Dhenkanal issued no objection certificate in respect to said unit and the Chief Medical Officer, Dhenkanal issued Food Licence. After verification of the unit, opposite party Nos.1 and 2 sanctioned and disbursed loan of rupees 12.09 lakhs in respect to the unit. When complainant was running the unit, vide letter No.23020 dated 15.11.2002 (Annexure-2), opposite party No.3 directed complainant to shift the unit to a suitable site and to apply for consent to establish the unit at the new sight. Though complainant appealed to the Member Secretary, Orissa Pollution Control Board, Bhubaneswar (copies of appeal memo) yet it has not been disposed of. But vide letter dated 15.03.2003 (Annexure-4), the opposite party No.3 directed complainant to stop running the unit and advised to apply for fresh consent to run the unit at another site after stuffing the unit to such other suitable site. Immediately complainant stopped running the unit and could not shift the unit to a suitable place and made opposite party No.1 vide letter dated 05.07.2005 (Annexure-5) to allot him a suitable place and to sanction further finance for the unit.
But instead of showing complainant a farmer in view of said letter dated 05.07.2005, opposite party Nos.1 and 2 issued him as well as his wife Nirmala Mutal who stands as a guarantor for the complainant for repayment of loan. Complainant vide his letter dated 17.01.2007 (Annexure-6) explained opposite party Nos.1 and the reason for which he could not repay the loan though in the meantime he has paid rupees 5 lakhs towards loan at the same time requesting them to find out a site for the unit and to help him financially. But vide letter dated 25.01.2007 (Annexure-7), opposite party No.1 asked complainant to repay the loan otherwise which he will take lawful action since question of further financial help does not arise the unit having stopped working since long. Complainant deposited with opposite party Nos.1 and 2 rupees 1 (one) lakh on 05.02.2007 promising to deposit rupees 1(one) lakh vide receipt (Annexure-8) on 12.02.2007. Complainant states that in spite of clearance given by the opposite party Nos.4 and 5 to run the unit as unreasonably opposite party No.3 directed to stop running the unit, complainant sustained huge loss in manufacturing spices. Due to his reason when complainant is not in a position to repay the loan to opposite party Nos.1 and 2. Opposite Party Nos.1 and 2 have taken arbitrary coercive action against him thereby they have caused deficiency in service and unfair trade practice. Therefore, complainant filed the C.D. case claiming rupees 10,00,000/- towards compensation, rupees 10,00,000/- towards his mental agony and harassment and towards cost of litigation rupees 10,00,000/- in total rupees 21 lakhs has against opposite party Nos.1 and 2 and to direct them to waive interest over the demanded loan amount of rupees 19,35,241 and to permit him to repay the principal loan amount on phasement basis. He has prayed also in the alternative, to direct opposite party Nos.1 and 2 to allot a suitable land and to advance some financial assistance to him to enable him to repay the loan.
3. Opposite party Nos.4 and 5 have not filed written version.
4. Opposite party No.3 has filed written version praying to dismiss the case against him as complainant has sought for relief only against opposite party Nos.1 and 2 challenging to notice of the opposite party No.1 vide letter No.25.01.2007 to repay the loan and interest, failing which action would be taken against him. It is stated by opposite party No.3 that he has rejected vide letter dated 15.11.2002 the application for consent of the complainant to run the unit as the proposed site for establishment of spice unit is located inside the residential area and noise pollution due to grinding of spices may create public nuisance.
However, he had advised complainant to shift the unit to any other suitable location outside the residential area and to apply fresh for consent to run the unit there, complainant has also not appealed to appropriate Forums in case he was aggrieved with the aforesaid decision of opposite party No.3.
5. As per joint counter affidavit filed on behalf of opposite party Nos.1 and 2, Sri Mahendra Kumar Chouhan, the Chief Manager, S.B.I., Dhenkanal, opposite party No.1 has claimed for dismissal of the C.D. case mainly on the ground that the complainant is not a consumer in view of section 2(1)(d)(ii) of C.P. Act and the C.D. case in the present form is not maintainable. It is stated on behalf of both opposite party Nos.1 and 2 that initially they had sanctioned and disbursed loan amount in favour of the complainant for carrying spices manufacturing (grinding) business in the year 2002. Complainant made profit in operating the manufacturing unit thereafter and made turnover rupees 38.95 lakhs, making profit of rupees 2.80 lakhs during the period from 01.04.2004 to 31.03.2005 and in this respect has produced balance sheet dated 21.06.2005 (Annexure-B). After several demand for payment of loan amount though complainant only deposited rupees 1,00,000/- on 05.02.2007 with them promising to deposit further amount of rupees 1,00,000/- on 12.02.2007 yet did not deposit the same. Though D.I.C., Dhenkanal (opposite party No.4) vide letter dated 26.02.2002 gave clearance at the time of sanction of loan that N.O.C. is required from Pollution Control Board, yet as a matter of fact N.O.C. from Pollution Control Board, in short, P.C.B. is necessary for Trading activities. Subsequently, closing the loan transaction relating to spices manufacturing, complainant took an equitable mortgage of property loan in afresh for Trading purpose vide application dated 02.07.2005 (Annexure-5) from them. This second loan transaction has no connection with the loan for manufacturing. But in suppression of facts, complainant has tied up purposefully the previous loan with the subsequent equitable mortgage loan.
In case a loanee of later description fails to repay the loan, the Bank can recover the loan amount which belongs to category of N.P.A. disposing of the mortgaged property if it is non agricultural. In respect to later loan as complainant fails to repay towards loan, opposite parties have every right to take lawful action against the loanee in view of section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, I short, the SRFASI Act. As complainant did not repay the loan, it was declared as category of N.P.A. and issued notice dated 28.11.2006 (Annexure-C) under section 13(2) of the said Act to the complainant demanding to repay the loan due rupees 19,35,241.99 paise outstanding as on 03.10.2006 with further interest and incidental expenses and cost assessing charge over the secured assets and mortgaged property as per Scheme B of the notice. They having given sufficient opportunity to the complainant to pay them the outstanding amount, a symbolic possession of the said property has been taken by affixing notice on the mortgaged property without dispossessing complainant from the property asking him to vacate physical possession thereof as C.D. case is pending. Thus they claim that no deficiency in service or unfair trade practice has been practiced over the complainant. Their only interest is to recover the loan amount from the complainant who has adopted delaying tractice to avoid payment of loan dues.
6. We have heard the learned counsels from the side of the complainant and opposite party Nos.1 and 2 only as other opposite parties did not appear at the time of hearing of the case. Also perused the xerox copies of documents filed by both parties.
7. Two important questions arise for decision in this case.
8. First of all question arises as to whether complainant is a consumer to seek relief under the C.P. Act and secondly whether opposite party Nos.1 and 2 have given rise to mental torture and financial loss to the complainant causing deficiency in service and unfair trade practice.
9. In respect to the aforesaid first point, it may be stated that nowhere complainant has taken a stand that exclusively, for earning his livelihood by self employment, he has started spice manufacturing unit. Rather, in paragraph 4 of the complaint petition he has admitted to have installed the unit and engaged in manufacturing various types of spices and in paragraph 5 of said petition has admitted that opposite party No.1 has sanctioned huge amount of composite loan of rupees 12.09 lakhs which amount is normally taken on loan for commercial purposes. These are sufficient to hold that for business of manufacturing various type of spices and deriving profit thereof, complainant had installed and also operated said unit for commercial purpose. Therefore, he is not a consumer. Further, it is stated by opposite party Nos.1 and 2 that closing the initial loan transaction, complainant has taken loan for trade purpose through equitable and in support of the same has produced Annexure-A. Complainant is silent in this respect. In these end of the view, we find that the complainant has not taken the loan from the opposite party Nos.1 and 2 exclusively to earn his livelihood by self employment whereas he took said loan on two occasions for commercial purpose viz. for manufacturing and trade of spices. He is also not the case of the complainant nor complainant has proved by any means that as per contract /agreement, the Bank had undertaken to provide a suitable site and additional funds in case complainant could not continue the spice unit at the place in question and Bank failed to discharge his obligation in this respect. Therefore, complainant is not a consumer under section 2(1)(d)(ii) read with the explanation under the C.P. Act. Thus, the present case is not maintainable.
10. In respect to the aforesaid second point, it may be stated that complainant claims not to have earned sufficiently by running the spice unit as the S.P.C.B. prohibited to run the manufacturing unit as aforesaid and in spite of his request in writing dated 05.07.2005 (Annexure-5) to opposite party No.1 to allot him a suitable place along with for further finance, opposite party No.1 did not listen. It is seen that after D.I.C. wrote letter dated 26.02.2002 (Annexure-1) to the S.B.I., Dhenkanal loan to run spices manufacturing unit was sanctioned and disbursed by the S.B.I. and the complainant was running the said unit until receipt of letter dated 15.03.2003 (Annexure-4) as per which the S.P.C.B. directed not to operate the unit. Thus he operated said unit for about one year. Opposite party Nos.1 and 2 have produced the copy of the balance sheet dated 31.03.2005 of the complainants unit (Annexure-B) showing a turn over of rupees 38.95 lakhs and profit of 2.280 lakhs during the period from 01.04.2004 to 31.03.2005. That is the statement relating to Trading Profit and loss account for year ending 31.03.2005. Income is shown By Sales. Thus after closing operation of manufacturing spices in the unit in view of the aforesaid letter dated 15.03.2003, the complainant had started trade by selling spices. Therefore, complainant hardly is to be believed that the manufacturing unit having been stopped operating in view of the direction to stop operation vide letter dated 15.03.2003, there was no income for which he could not repay towards loan.
11. Moreover, Annexure-A dated 02.07.2005 discloses that complainant availed fresh mortgage loan from the S.B.I. by mortgaging landed property for Trading showing previous years sales income and net profit.
Thus, though there is prohibition of S.P.C.B. to run the spice manufacturing business in the residential locality, the complainant had continued the Trading business. In the circumstance, there was no reason for the complainant withholding repayment to S.B.I. towards loan transaction. The S.P.C.B. is the rightful authority to issue no pollution certificate, in short N.P.C. It is seen from the letter dated 15.11.2002 of the S.P.C.B. that complainant had moved this Board to consent about the running of the spice manufacturing unit which S.P.C.B. has turned down as the unit was located inside residential area and grinding of spices may create noise pollution and may create nuisance.
Vide said letter though the Member Secretary of the S.P.C.B., Orissa advised complainant to shift the unit to a suitable place and apply for fresh consent, the complainant has not done so.
Thus laches lies with the complainant in running spices manufacturing unit. In this circumstance, it is unreasonable on the part of the complainant to expect from S.B.I. (opposite party Nos.1 and 2) to waive interest and to allow him to pay principal loan on phasement basis. Thus, we find complainant has no case at all against the opposite party Nos.1 and 2. It appears that when complainant failed to pay the loan dues to opposite party Nos.1 and 2 and opposite party Nos.1 and 2 sent notices to recover the loan dues even by putting the mortgaged property into sale, complainant has made futile attempt to abstract lawful act of the said opposite parties initiating the prompt proceeding having no prima-facie case in his favour. Therefore, we find there is no merit in the present case.
12. Hence, the C.D. case is dismissed on contest against opposite party Nos.1 and 2 and against the rest of the opposite parties without cost.
13. The interim orders dated 08.03.2007 and 27.02.2008 in the present case hereby stand vacated.
BASANTI DEVI MEMBER (SUBASH MAHTAB) PRESIDENT IN-CHARGE