1. THESE groups of appeals were moved before us for admission hearing on behalf of the appellants on 26th December, 2003, when we proceeded to issue notices before admission to the respondents making it returnable today and accordingly matters have been listed on today''s Board. Notices to the respondents have been duly served and except respondent No. 1 in Appeal No. 1953, 1959 and 1960/03 rest of respondents No. 1 org. complainants have chosen not to appear before us.
2. AS we have been prima facie satisfied on hearing the submissions across advanced as also on perusal of the material in the respective appeal paper books that the common impugned order rendered by the District Forum, Raigad cannot be sustained that we proceed to dispose of these appeals with the common judgment at the stage of their admission itself.
The appellants herein are org. O.P. No. 1 in the respective complaints and respondent No. 1 in the appeals are complainants in the respective complaints. Respondent No. 2 who are org. O.P. No. 2 in the complaints is the credit society of which complainants are the members. (For brevity''s sake appellant-org. O.P. No. 1 in the respective complaints are hereinafter referred to as ''Bank'', respondent No. 1-org. complainants as ''complainants'' and respondent No. 2 -org. O.P. No. 2 in the respective complaints as ''credit society'').
The Bank has taken exception to the common impugned order dated 18th November, 2003 passed by District Forum, Raigad (Alibag) holding the Bank being deficient in rendering services vis-a-vis the complainants in initiating the proceedings for recovery of loan amounts advanced to the respective complainants and so holding vide impugned order has proceeded to struck down the recovery notices issued and served by the Bank upon the respective complainants and prohibiting the Bank from taking steps for recovery of the loan amounts from the respective complainants.
3. ON careful perusal and consideration of the material as available in the appeals herein and as will be pointed out here below, we are of the considered view that the District Forum has while considering the nature of grievance as made and the underlined principles as envisaged in Section 2(1)(g) of Consumer Protection Act, 1986 which defines deficiency in services has not addressed itself in a proper perspective which is required.
It is clear from the pleadings of the parties, particularly complaints of the complainants and related material such as loans agreements, that there is no dispute as also denial of the fact that the Bank has advanced loans to the respective complainants, which transactions are well documented by the borrower-complainants executing separate loan agreements as also letters of general lien in favour of the Bank. The said documents form part of appeal paper books in the appeals herein.
4. BY reading the terms of the loan agreement executed between the Bank and the borrower-complainants, there is express binding and undertaking executed by the complainants as borrowers assuming that they would discharge loan liability of the Bank.
Interestingly, it is not the case of the borrowers/complainants that they or for that matter, any one of them have discharged the loan liability of the Bank.
It is noticed that the complainants came out with a very novel plea before the District Forum in the complaints after receipt of recover notices being dated 4th January, 2001 issued and served by the Bank upon the respective borrower-complainants about existence of the loan liability and failure of the borrowers to pay the same. Copy of the said notices form part of appeal paper books wherein necessary implications have been given to the complainant-borrowers that they should discharge their loan liability immediately and failure to do so would invite suitable action for recovery thereof.
5. IT is in these circumstances, complainant-borrowers approached the District Forum pleading that the Bank is not entitled and justified to issue such notices and, therefore, same be quashed and interestingly and curiously, District Forum has accepted the same as proper course on behalf of the complainant-borrowers and has proceeded to quash the same.
6. IT is noticed from the pleading in the complaints that the plea, in justification, put forth by the complainant-borrowers in seeking reliefs vide their respective complaints from the Consumer Fora was that the credit society-org. O.P. No. 2 of which they are members had agreed and undertaken to deduct the amount from their monthly salary for payment of the loan liability to the Bank and since there is failure on the part of the credit society to deduct from their salaries and reimburse to the Bank that the action taken by the Bank was not justified. IT is also hinted that the Bank should go after the credit society and recover the amounts towards loan liabilities of the complainant-borrowers. Such a plea which is indeed incomprehensible in the facts/situation and particularly in the operation of banking business was found acceptable to the District Forum which has proceeded to make the award in favour of the respective complainants in the terms as indicated while giving resume of the facts in this judgment.
It is noticed that the Bank responded to the process of the District Forum and filed the written statement highlighting the various aspects such as execution of loan agreement, advancement of loan, various undertakings executed by the respective complainants-borrowers, etc. However, we do not find even a remote whisper of the pleas as taken by the Bank or for that matter the contents of the documents in the impugned judgment. It is, therefore, obvious that the District Forum has proceeded in a perfunctory manner and glossed over the issue by ignoring or rather overlooking the relevant material, which was placed before it and which was obligatory upon it to apply its mind thereto.
Further interesting fact is that credit society although duly served did not bother to file its written statement within stipulated period. We are told that at belated stage, credit society wanted to file its written statement, but was not allowed by the District Forum.
7. IN the facts/scenario, as we have adverted to hereinabove, the prime issue is whether dispute of the nature and the grievances as have been made by the complainant-borrowers would fall under the category of consumer dispute constituting deficiency within the meaning of Section 2(1)(g) of Consumer Protection Act, 1986.
We only reproduce how Consumer Protection Act, 1986 defines deficiency in service in Section 2(1)(g) of the Act. "2(1)(g) : ''deficiency'' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."
8. THE plain reading of the said definition would imply that any act or omission of provider of services vis-a-vis the consumers would constitute deficiency in the event of there being a fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force.
Simply it would imply that there has to be some flaw in the various steps, which the provider of services, the Bank in the matter herein would take in its action vis-a-vis its customers, like the complainants herein.
As noticed there is no denial of the fact that the loan liabilities against the respective complainants of the Bank still stand. There cannot be any doubt of the fact that the Bank will be within its right during the course of its banking business to take necessary steps for recovery of the loan amounts advanced to its borrowers. This is a statutory right as also contractual right and this has precisely the Bank has exercised. Performing statutory duty would not constitute deficiency in service within the meaning of Section 2(1)(g) of Consumer Protection Act, 1986.
9. THAT being so, prohibitory order passed by the District Forum preventing the Bank from performing its contractual as also statutory right and holding it being deficient, so also striking down the recovery/demand notices issued and served by it upon the respective borrowers, in our view cannot be sustained.
10. THAT being so, the common judgment in all these groups of complaints needs to be set aside. ORDER
1. Appeal Nos. 1953/2003 to 1962/2003 are allowed and common impugned order dated 18th November, 2003 therein stand set aside and all the complaints herein being Nos. 31, 34, 37, 40, 65, 67 of 2001 and 64, 72, 74, 79 of 2002 on the file of District Forum, Raigad stand dismissed. 2. We would find justifying in saddling the complainants with cost, since it is apparent that they have perused their remedy under wrong advice that we are sparing them. 3. Copies to be furnished to the parties.
Ordered accordingly.
