DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _101_ OF ___2015_
DATE OF FILING : 23.2.2015 DATE OF PASSING JUDGEMENT: 03/04/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker
COMPLAINANT : 1. Sri Pannalal Shaw,s/o late Chamri Lal Shaw
2. Smt. Malati Shaw,w/o Sri Pannalal Shaw both of 741, Mahatma Gandhi Road, P.S. Haridevpur, Kolkata – 63.
-VERSUS -
O.P/O.Ps : 1. Branch Manager, State Bank of India, Kabar Danga More Branch,
Kolkata – 104.
2. State Bank of India, Stressed Assets Recovery Branch, Kankaria Centre, 2/1, Russel Street, 3rd Floor, Kolkata – 71.
3. Asset Reconstruction Company India Ltd. Arms Division, Unit 101-106, 1st Floor, Raheja Arcade, Plot no.61, Sector No.11, CBD Belapur Navi Mumbai – 400614.
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J U D G E M E N T
Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that he is the absolute owner of premises no.741, M.G Road, P.S. Haridevpur, Kolkata and he decided to construct a residential building over the said premises for which he required loan of Rs. 4 lacs for the purpose of said construction. Accordingly complainant opened a savings account to that effect. It has further stated that in terms of the arrangement letter dated 14.12.2004 complainant already paid 20% margin money and also to keep STDR (fixed deposit) for Rs.50,000/- against the said loan account and the floating rate of interest was fixed 8% with quarterly rest and thus the loan has to be repaid in equated monthly installment of Rs.3850/- . It has stated that one Biswarup Kandar (State Government Employee) was stood a third party guarantor against the said loan account. In terms of the agreement the loan will be disbursed in the following manner on completion of documents Rs.2 ,lacs, Plastering Rs.1 lac and final payment Rs. 1 lac. Accordingly O.P-1 disbursed the loan in fovaur of the complainant started to realize EMI on and from 30.5.2005 from the savings account of the complainant violating the terms of repayment as per the arrangement letter and by such act the O.P-1 clandestinely made the complainants alleged defaulter of some EMIs against the said loan. When it has come to the notice of the complainant , complainants deposited Rs.30,000/- on 3.7.2007 and Rs.18000/- on 29.8.20078 in the said loan account along with current EMIs. It has claimed that in the month of December, 2014 complainant came to know that EMI through ECS was not realized by the O.P-1 since July, 2014 although there was sufficient fund in the savings bank account of the complainant. Thus O.P-1 lastly realized EMI on 28.6.2014. Thereafter it has come to the knowledge of the complainant from the O.P-1 that loan has already been assigned to O.P-3 on the selfsame date on 28.6.2014. It has claimed by the complainant that till that date they have repaid Rs.4,16,629/- against the said loan account. Photocopy of the same is annexed. It has further stated that as per statement of account it was calculated that a sum of Rs.1,87,362.17 is outstanding when it was assigned. Accordingly complainants sent a letter to the O.P-1 and also informed RBI but O.P-1 did not reply the same. It is the contention of the complainants that they have performed their obligation as borrower but due to such illegal and unlawful activities of the O.Ps, complainants have to suffer extreme hardship which is a deficiency of service. It has claimed that complainant is ready and willing to perform their part as a borrower and still willing to repay the said loan as per the loan agreement. So, he is a consumer and filed this complaint claiming compensation to the tune of Rs. 5 lacs against the O.Ps for their wrongful and deliberate acts and litigation cost Rs. 2 lacs. It has also prayed for return of the title deed of the complainants after realizing the outstanding loan as per loan agreement dated 14.12.2004 and also restraining order from transferring the property to any third party.
O.P-2 also contested the case by filing written version and denied all the allegations challenging the maintainability of the case. It is the positive case of the O.P-2 that the complaint case is barred by principle of waiver and the instant complaint is also hit by the provisions of Securitization And Recovery of Financial Assets and Enforcement Security Interest Act ( SARFAESI Act) . it has further stated that complainant is not a consumer within the provision of Consumer Protection Act and he is guilty of willful suppression of material facts as well as distorting true state of affairs. So, this instant case is vaxatio0us and frivolous. The further case of the O.P-2 is that he has availed of loan from the O.P-1 and defaulter in repayment of the same and since he did not repay the loan along with interest and inspite of requests complainant repay the same, son finding on other alternative a notice was served upon the complainants intimating regarding the non-performance of assets of the said loan. It has also claimed that notice was served under the provision of SARFAESI Act. So, question of return of the Title Deed making payment of compensation does not arise for which he prays for dismissal of the case.
The O.P-3 also contested the case by filing written version and claimed that all the allegations are false and frivolous and denied payment of EMIs. It is the further case of the O.P-3 that since complainant is defaulter on regular payment of term loan to the O.P-1, complainant became defaulter and ultimately became declared as a Non-Performing Asset by O.P-1. Accordingly O.P-2 after few days passed absolute assignment of the Deed debt due and payable by the complainants arising out of loan dated 14.12.2004 along with securities in favour of O.P-3. It has claimed that O.P-2 issued a notice to the complainant for repayment of the loan amount due by him and thereafter finding no other way O.P-2 sent a notice under section 13(2) of the SARFAESI Act on 30.9.2011 upon the complainant to pay the loan amount along with interest. But complainants did not pay the loan amount . It has claimed that after receiving the notice complainants did not raise any objection under section 13(3A) of the SARFAESI Act and this O.P is now initiating proceedings for recovery of loan through SARFAESI Act. It has also claimed that since the matter in dispute falls within the purview of SARFAESI Act ,there is a Tribunal empowered to determine the dispute and Ld. Forum shall have no jurisdiction to entertain any such proceedings which may be taken cognizance by DRT and no injunction can be granted by any Court.
The case is running against the O.P-1 in exparte.
Points for decision in this case is whether there is any deficiency of service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
At the outset it should be mentioned here that vide order no.14 dated 7.8.2015 this bench was f the strong opinion that the instant case is maintainable. But at this stage we find that after scrutinizing all the documents and judgment referred in this case that borrower without filing objection under section 13(2) notice issued by the Secured Creditors/Bank and filing civil suit seeking injunction restraining bank from trespassing/transferring the property is not maintainable. It may be questioned whether it will be maintained in the Consumer Forum or not. We aware that in view of section 13(5) of the C.P Act, 1986 every proceedings before the District Forum shall be deemed to be a judicial proceedings within the meaning of Section 193 and 218 of the Indian penal Code and District Forum shall be deemed to be a Civil Court.
Thus the reported judgment reported in 2007 Kerala page 64 is applicable here. Apart from that there is a suppression of material facts . So, a person should not get any relief if he does not come with clean hand and ventilate his grievance. So, any litigant who attempts to pollute the dream of justice or who touches the pure fountain of justice with tainted hand is not entitled to any relief ,interim or final. So, complainant ought to have ventilate his grievance before the Debt Recovery Tribunal not before the Consumer Forum. So, complainants will no way be prejudiced if there is anything against his interest. We have perused that notice was sent to the Borrower Pannalal Shaw and Malati Shaw, copy of which is attached herewith. Thus where the provision is clearly barred ,although it is a social beneficial legislation, we are unable to protect the consumer in this circumstances.
Apart from that section 18 of the Recovery of Debt Due to Banks and Financial Institution Act, 1993 clearly speaks on and from the appointed date no Court or other authority shall have or be entitled to exercise any jurisdiction power or authority (except the Supreme Court and High Court exercising jurisdiction under Article 226 and 227 of the Constitution of India) in relation to the matter. Thjus the jurisdiction has already been snatched after serving notice under section 13(2) of the SARFAESI Act. So, we are sorry to say that we are unable to redress the matter in favour of the complainant.
Hence, it is
Ordered
That the complaint case under section 12 of the C.P Act 1986 is dismissed on contest against the O.P nos. 2 and 3 on contest and in exparte against O.P-1 ,but in the sorry state of affairs we make no order as to cost.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the complaint case under section 12 of the C.P Act 1986 is dismissed on contest against the O.P nos. 2 and 3 on contest and in exparte against O.P-1 ,but in the sorry state of affairs we make no order as to cost.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member President
