Advocate for the complainant- Sri R.Mishra & S.K.Mishra.
Advocate for the Opp.Party - Sri P.K.Tripathy & A.Pattanaik.
Date of filing of the case – 18.01.2014
Date of order of the case – 25.03.2015
JUDGMENT.
Sri P.Samantara, President.
1. The complainant averred in brief is that he was educated unemployed youth to earn his livelihood availed a term loan of Rs 4,50.000/- sanctioned on 06.07.2006 under priority section credit and the credit intended to open the shop of Xerox machine, spiral binding, lamination and DTP work etc.
2. The complainant also stated, the repayment of loan was scheduled as per the terms, later unable to repay the installment because of poor sale proceed and incurring of loss.
3. On the same line, it is also stated in issuance of final notice dt.27.04.2013,admonishing that the term loan account has classified as NPA and the outstanding amount is Rs 8,58,691/- to repay, failing which legal action u/s.13(2) SARFAESI Act 2002 shall be initiated.
4. In further it is stated that in scrutiny of statement of account, it is surfaced a fixed deposit amount of Rs 65,000/- has been adjusted entirely that deposited on dt.06.07.2006 without the knowledge of the complainant.
5. Thus making the case and with a prayer in interest of justice and equity, the unilateral action of the O.P be cognized and compensated with that the court deem fit.
6. Relied on notice dated 27.04.2013,Bank Statement in five pages (Photo copy) and affidavit.
7. On notice the O.P appeared and filed the written version contending after issuance of notice, the complainant has filed the case with the intention of delay the proceedings of recovery the legitimate dues of O.P. The complainant has availed a loan from the O.P vide loan account No.20620794623 in the year 2006 and admittedly the sanctioned sum was Rs 4,50,000/- the complainant was repaid the monthly installments for few months and intentionally did not pay the dues, though shop is running well and earning in hand some.
8. The out standing amount is now twice of the loan amount. The petitioner has not approached any time to the O.P for settlement of loan amount. The statement of accounts was given as approached with on dated 08.01.2014.
9. The O.P further admitted, the O.P has adjusted a sum of Rs 80,000/- towards the fixed deposit retained with an amount of Rs 65,000/- as a right to set off, the bank has power to transfer the amount as the loan has been classified as NPA.
10. The case has no cause of action and forum cannot interfere with any right to the parties, also no maintainable as non joinder of necessary party and not maintainable as it is barred by u/s.34 of SARFAESI Act. The order dated 19.03.2014 is bad in law. Any person aggrieved under the above act rather take asylum before the debt recovery tribunal.
11. Praying, the petitioner is not entitled otherwise to any reliefs and be dismissed with cost to the O.P in the interest of justice.
12. Relied on agreement (Photo copy) sanction letter (Photo copy), statement of account (Comp print format in 4 pages) fixed deposit receipt (Photo copy and affidavit.).
13. Heard the learned counsels at boths end. The learned advocate of O.P contended vehemently and in complete dismiss of the entire case in limine and perused the documents, written submissions and arguments extensively in apt attention.
14. On the out set, the most contentious issue came to the floor is maintainability, thereof the sustainability of the case.
15. Prima-facie, the petitioner has availed the loan and retained a fixed account deposit under the O.P which is admitted and true so by same context, the complainant is a bonafide consumer. The notice in recovery is served on dated 27.04.2013,so no barred of limitation found to note besides the jurisdiction is amply establish that the case is maintainable within questioned jurisdiction.
16. The core question revolves on the invoking of SARFAESI Act and notice under Sec.13(2) of the Act, the jurisdiction of the entertaining forum is barred, not empowered to act and expressly oust the jurisdiction and a cause of transgression.
17. On the above discussed issue, we concisely prefer to place that we have taken the close consideration of the notice dt.27.04.2013.The bare reading speaks, the issued notice is routine final notice and the core content “Therefore you are once again finally requested to deposit the entire out-standing of Rs 8,58,691/- + interest within 15 days from the date of this notice, otherwise we have no other way to initiate legal action against you under Section 13(2) of the SARFAESI Act, 2002” which amply implies, the action is a contemplated one and not yet exercised as advanced. On the contrary the complainant main grouse is the adjustment of term deposits matured amount without notice the entire expression in our considered opinion is out of scope of SARFAESI Act and the entire principal amount in addition of interest is neither an issue nor a case to the core. So this forum acted and taken cognizance cautiously in view of the decision made out in W.P.(c) No.688 of 2011.
18. It is an admitted fact a term loan is disbursed/sanctioned dt.06.07.2006 amounting to Rs 4,50,000/- vide account No.20620794523 and accumulated to the tune of Rs 8,58,691/- as on dated 27.04.2013 and classified as NPA. The petitioners advocate advanced the O.P is bound to apply its mind and inform the borrower of its reasons as to why and how the account is classified as NPA, particularly when the borrower raises objection and the bank must not resile from the obligation in classifying the account as NPA was fully conformity with the prudential norms of RBI. It is incorrect to presume that once an NPA is always an NPA and the clause 4.2.4 of the prudential norms specifically states that if interest and principal are paid by the borrower in case of loans classified as NPA, the said account should no longer be treated as NPA and may be classified as sub-standard account. So the action under the SARFAESI Act with regard to the said account would not be tenable as jurisdictional fact under Section 13(2) of the SARFAESI Act, would remain unsatisfied .We decline to considered the submission as the notice is not under SARFAESI Act u/s.13(2) notice given by the bank, but was merely a show cause notice and such notice did not constitute “action” in terms of the said provision.
19. The other aspect along with core grouse of the complainant is that the term deposit account No.ODP 914/1 retaining principal amount of Rs 65,000/-,due on dt.30.05.2009payable with maturity an amount of Rs 80,636/- has been retained as security, is adjusted without the prior notice of maturity date in further enhancement of contract or any subsequent option to exercise as per the norms and guidelines of the RBI.
20. The O.P submitted in smart that the agreement dated 15.07.2006,the very clause 3 says “ I further irrevocably authorize you with further consent on my part or reference to me to adjust the amount of the outstanding from the proceeds of the Fixed Deposit Receipt either on its due date or even before its maturity, as occasion may require in case I fail to adjust the account before that time, I also undertake to make good any deficit that may arise after application of the said proceeds. In case there is any surplus left, the same may be remitted to me by your pay order” He further submitted Clause-4 “I also authorize you to apply without further consent on my part or reference to me the entire proceeds of interest accrued on my aforesaid Fixed Deposit Receipt held by you as security towards reduction/liquidation of the advances allowed to me there against “ do not allow the complainant to raise the issue of adjustment with the matured amount in view of the set off right as expressly given in and no question arises in issuance of a notice prior to adjustment of a fully secured assets.
21. Perusal of the agreement and documents, we come across the fixed deposit receipt No.779407, payable on due date of maturity i.e on dt.30.05.2009 has been adjusted and transferred on dt.01.06.2009 in credit of Rs 80,620/- and the debit balance recedes to Rs 5,11,341/- is correct but neither noticed as per the norms of the RBI. Thus the lending bank is at fault u/s.2(g) of the C.P.Act and in terms of the said “deficiency” means any fault, imperfection, shortcoming, manner of performance which is required to be maintained by in pursuance of a contract, is substantiated established and founded one, thus the O.P is liable to pay compensation
Hence ordered:
The case is allowed on contest. The O.P is hereby directed to pay the petitioner an amount of Rs 10,000/- (Rupees ten thousand) only, as compensation for the deficiency caused on their part along with Rs 2,000/- (Rupees two thousand) only, towards litigation expenses, incurred in credit of the total amount to the petitioners account and made it up to date and also be adjusted the same towards the dues pending, within 20 days of this order, failing which interest @ 12% per annum will be accrued on the total amount of Rs 12,000/-from the date of application till realization.
(ii) The interim order passed in Misc. case No. 02 of 2014 on dated 19.03.2014 arising out of the aforesaid C.C.No.06/2014, is hereby vacated.
(3). The O.P also reserves, the option to exercise the right to recover the amount due, in proper recourse of law at his end.
ORDER PRONOUNCED IN OPEN COURT THIS THE25TH DAY OF MARCH 2015.
I agree. I agree.
(S.Rath.) (G.K.Rath) (P.Samantara)
MEMBER. MEMBER. PRESIDENT.
