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2004 DIGILAW 251 (JK)

J&K Bank Ltd. v. K. Kanta Devi

2004-09-06

PERMOD KOHLI

body2004
1. This petition is directed against order dated 23-3-2004 passed by the Jammu and Kashmir State Consumer Protection Commission, Jammu in Appeal No. 2554/ 2003 preferred by respondent No. 1 against the petitioner Bank, challenging order dated 25-7-2003, passed by the Division Forum constituted under the Jammu and Kashmir Consumer Protection Act 1987. 2. The facts giving rise to the present petition are that Balwinder Kumar Gupta, husband of respondent No. 1 was a loanee of the petitioner Bank with its Branch at Hiranagar, District Kathua. Sh Balwinder Kumar Gupta, late husband of respondent No. 1 had secured a limit of Rs 50,000/- on 2-1-1995 from the afore-said Branch of the Bank. The deceased loanee died in the year 1997. Respondent No. 1 approached the petitioner for settlement of the case in view of the Debt Relief Scheme formulated by the Govt of India in respect to the State of Jammu and Kashmir where-under all loans in the State of Jammu and Kashmir upto the limit of Rs 50,000/- were to be waived off, if secured prior to the particular date as specified in the Scheme. It is alleged that the petitioner herein did not settle the case and on the other hand adjusted the cash certificates available with the Bank against the loan amount. 3. Aggrieved of the action of the petitioner-Bank respondent No. 1 approached the Divisional Consumer Forum by instituting a complaint claiming the benefit of the scheme. The Divisional Forum rejected the complaint and left the complainant free to approach the Civil Court, if so advised vide judgment and order dated 25-7-2003. This order became subject matter of appeal before the State Consumer Protection Commission. The Commission after hearing the parties and considering the respective contentions of the parties opined that the Debt Relief Scheme is applicable to the case of respondent No. 1 and found her entitled to the benefit thereof and allowed the appeal vide the impugned judgment. 4. Mr. Sethi, learned counsel for the petitioner-Bank has vehemently argued that respondent No. 1 was not entitled to the benefit of the Scheme which inter-alia applies only to the sufferers of militancy and not to all the borrowers in the State. 4. Mr. Sethi, learned counsel for the petitioner-Bank has vehemently argued that respondent No. 1 was not entitled to the benefit of the Scheme which inter-alia applies only to the sufferers of militancy and not to all the borrowers in the State. He accordingly referred to a communication dated 26-5-1997 issued by the Ministry of Finance Department of Economic Affairs (Banking Division) Government of India, New Delhi to all the Chairman/ Managing Directors of all Scheduled Banks. Mr. Sethi relies upon the following para of the communication:- "I am directed to say that it has been decided to extend relief by way of write off of eligible loans taken from Banks/ financial institutions upto and inclusive of Rs 50,000 as principal, together with outstanding interest, in the case of borrowers in the State of Jammu and Kashmir only who suffered on account of militancy in the State. Accordingly, a scheme known as "Debt Relief Scheme" has been prepared and a copy thereof is enclosed for your information and necessary action. The scheme will come into effect with immediate effect." 5. A copy of the Scheme accompanying the afore-said publication is also enclosed. Based upon the afore-said paragraph, it is submitted on behalf of the petitioner- Bank that the benefit of the Scheme is available only to borrowers in the State of Jammu and Kashmir who suffered on account of the militancy in the State and with a view to secure the benefit of the scheme, it is obligatory upon the borrower to establish sufferance on account of militancy etc. 6. I have perused the scheme which has been formulated by the Government of India. The relevant extract from the Scheme is noticed here-under:- "DEBT RELIEF SCHEME FOR THE BORROWERS IN THE STATE OF JAMMU AND KASHMIR. 1. (a) The Scheme shall be called "Debt Relief Scheme for the Borrowers in the State of Jammu and Kashmir" (b) It shall come into force with immediate effect; (c) It shall apply to all eligible loans granted to borrowers in the State of Jammu and Kashmir only by Banks/financial institutions as defined hereunder. 2. 1. (a) The Scheme shall be called "Debt Relief Scheme for the Borrowers in the State of Jammu and Kashmir" (b) It shall come into force with immediate effect; (c) It shall apply to all eligible loans granted to borrowers in the State of Jammu and Kashmir only by Banks/financial institutions as defined hereunder. 2. In this Scheme, unless the context otherwise requires: (a) "Borrower" means an individual, proprietary concern partnership firm, Hindu Undivided Family, or any other legal entity identified by the State Government of Jammu and Kashmir for providing relief/ rehabilitation assistance from a Bank/financial institutions and/ or such borrowers of the banks/ financial institutions. (b) "Bank" means a commercial Bank, Regional Rural Bank, State Cooperative Bank, Central Cooperative Bank, Primary Cooperative society, State Land Development bank, Primary Land Development Bank or Urban Cooperative Bank or a financial institution Khadi and Village Industries Commission (KVIC) and Khadi and Village Industries Board (KVIB). (c) "effective Date" means 30th June, 1990 which shall cover all eligible loans disbursed upto and outstanding as on 30th June, 1996. (d) "Eligible Loans" means (i) Fresh loans/ credit limits upto and inclusive of Rs 50,000/- as principal granted by Banks/ financial institutions and disbursed upto and outstanding as on the effective date i.e. 30th June, 1996 to the borrowers in the State of Jammu and Kashmir for the purpose of their business activity for example tourism, transport, small scale industry, trade sector, hotel, house-boat business, retail trade etc. 3.(a) The landing bank/ financial institution shall write off the eligible loans together with the outstanding interest, other expenses, if any charges at the rate (s) applicable to such loans as per the Reserve Bank of India guidelines issued from time to time or the interest rate (s) charged by the concerned financial institutions as the case may be till 30th June, 1996. This amount of write off will be reimbursed to the concerned Banks financial institutions by the Department of Jammu and Kashmir Affairs. Government of India on recommendation of the committee to be set up at the State Level. (c) After providing the relief so mentioned at 3( a) and 3(b) above, in eligible loan accounts, the recovery proceedings, if any, initiated earlier against such borrowers may be withdrawn/dropped by lending bank/ financial institution. 5. Government of India on recommendation of the committee to be set up at the State Level. (c) After providing the relief so mentioned at 3( a) and 3(b) above, in eligible loan accounts, the recovery proceedings, if any, initiated earlier against such borrowers may be withdrawn/dropped by lending bank/ financial institution. 5. (a) Each of the Banks/financial institutions will prepare a detailed claim statement sector-wise/ borrower-wise as per Performa "A: enclosed indicating the amount of outstanding in respect of principal, interest and other expenses, if any separately as on 30th June, 1996 and forward it to the Director in the Department of Finance to be designated for the purpose by the J&K Government. 6. Department of Jammu and Kashmir Affairs, Government of India shall release the payment of claim amount directly to the concerned banks, financial institutions out of the Budget provision to be made in the Demand of that Ministry. 7. (a) On receipt of claim amount from Department of Jammu and Kashmir Affairs, Government of India, the concerned financial institution/Bank will credit the respective amount in the eligible loan accounts of borrowers; (b) After crediting the claim amount in the eligible loan account of the borrower, the bank/financial institution shall also write off the outstanding interest, etc. charged/ debited beyond 30th June, 1996 till the date of actual liquidation of the account." 7. An in-depth examination of the Scheme reveals that this Scheme has been prepared only in respect to the State of Jammu and Kashmir. From the definition of the "Borrower" and "eligible loan", it is also apparent that all loans, credit limits upto and inclusive of Rs 50,000/- as principal disbursed by a Bank/Financial Institution upto 30th June, 1996 to a borrower fall within the purview of the Scheme. The Scheme do not envisage within its compass any condition of suffering in a particular manner. It takes within its fold all borrowers who have secured loan within the prescribed limit and upto the specified date to be eligible and entitled to the benefit of the waiver clause. 8. In so far as the contention of Mr. Sethi that the communication dated 26-5-1997 require the benefit to flow only in case of borrowers who have actually suffered during the militancy, cannot be accepted for the simple reason that no such condition has been incorporated in the Scheme. 8. In so far as the contention of Mr. Sethi that the communication dated 26-5-1997 require the benefit to flow only in case of borrowers who have actually suffered during the militancy, cannot be accepted for the simple reason that no such condition has been incorporated in the Scheme. As a matter of fact what the communication show and means is that the State of Jammu and Kashmir as a whole being adversely affected due to militancy, all its commercial establishments have suffered. Reference to `borrowers suffered on account of militancy in the State do not refer to any particular clause of borrowers but generally refer to the borrowers in the State of Jammu and Kashmir. To my mind this is the only possible intention and meaning that can be given to the afore-said communication, with reference to the scheme which has been formulated only for the State of Jammu and Kashmir. The impression which can be gathered and has been formulated by me is also based upon the fact that almost all the areas of the State have suffered because of the militancy and area of Hira Nagar, District Kathua is no exception because of its proximity to the Indo-Pak Border. On going through the various definitions and clauses of the scheme the only inference that can be drawn is that the scheme applies to all classes of the borrowers who have secured loans upto Rs 50,000/- (as principal )before 30th June, 1996. It is admitted by the petitioner that the loan was advanced to the husband of respondent No. 1 in the year 1995 which is prior in time than the cut of date mentioned under the scheme. I do not find any infirmity in the order of the Commission relating to interpretation of the Scheme. Accordingly, I do not find any valid basis for interfering with the judgment impugned, in view of the detailed discussion made hereinabove. The petition stands accordingly dismissed in limine.