BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR
Complaint No. 726 of 2013.
Date of institution: 01.10.2013.
Date of decision: 31.03.2016.
- Omwati aged about 48 years wife of Shri Ashok Kumar
- Rajiv Kumar aged about 24 years son of Shri Ashok Kumar.
Both residents of Moti Badh Bank Colony, Near Khera Mandir, Mauja Gobindpura, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar. …Complainants.
Versus
Bank of India, Yamuna Nagar Branch through its Manager. …Respondent.
Before: SH. ASHOK KUMAR GARG…………….. PRESIDENT.
SH. S.C.SHARMA………………………….MEMBER.
Present: Sh. V.K. Rajoria, Advocate, counsel for complainants.
Sh. P.K.Kashyap, Advocate, counsel for respondent.
ORDER
1. Complainants have filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent (hereinafter referred as OP) be directed to correct their statement of account and to charge interest at the rate of 7% per annum and further to remove the locks from the residential house of the complainants and also to pay compensation as well as litigation expenses.
2. Brief facts of the complaint, as alleged by the complainants, are that the complainants obtained a loan of Rs. 12,50,000/- vide loan account No. 572575110000025 from Op Bank and at the time of disbursement of the loan it was stated to the complainants that rate of interest shall be charged at the rate of 7% per annum. At that time, Op Bank had obtained the signatures of the complainants on various blank papers on the pretext that they shall later on fill it and further they assured that they shall not misuse the documents on which the signatures of the complainant has been obtained. After some times, the complainants felt that OP Bank is levying higher rate of interest upon which the complainants asked the OP Bank the reason for this but the official of OP Bank could not give any plausible reply rather they showed some documents on which higher rate of interest was mentioned. In the month of August, 2013, because of some family circumstances, the complainants and other family members were not at home for a week and when they returned to Yamuna Nagar and found that the house of the complainants was locked by the bank. Immediately, complainants approached the OP Bank and asked the reason for this. On enquiry, the official of the bank stated that they have taken symbolic possession of their house measuring 122 sq. yards situated at Mauja Gobindpuri, Tehsil Jagadhri, District Yamuna Nagar and further the officials of the OP Bank stated that they are going to put the house in question on auction. The act of the Op bank is uncalled, unwanted, illegal and liable to be quashed as no prior notice has ever been issued to the complainant by the OP Bank. The complainants requested the OP Bank to withdraw the notice as well as to remove their locks from premises in question and to receive the defaulted amount from them as per terms and conditions entered between them and to calculate interest at the rate of 7% per annum but the OP Bank instead of doing the needful threatened the complainants to put their house in auction for which the OP Bank has no right, title or interest to do so. Hence, this complaint. .
3. Upon notice, OP Bank appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no locus standi, no cause of action, Forum has no jurisdiction to entertain and try the present complaint as the OP Bank has already issued notice under SARFAESI Act and after issuance of the said notice no Civil or Consumer Court has got jurisdiction and further the complainant has concealed the true and material facts and not come to the court with clean hands and on merit it has been admitted that the loan was granted to the complainant. As the OP Bank is a nationalized Bank, so, the rate of interest is charged as per guidelines of the RBI. It has been specifically denied that Op Bank ever leveled higher rate of interest, as alleged. In fact the complainants themselves have remained failed to pay the loan amount regularly inspite of repeated requests of the Op Bank and when the complainants failed to pay the loan amount, then finding no way the OP Bank initiated the proceedings under SARFAESI Act and a notice was issued under section 13(2) of the Act (Annexure R-1) for recovery of Rs. 13,42,303/- up to 31.10.2012 which was duly received by the complainant and publication was also made in 2 news papers ( Annexure R-2 and R-3) and further possession notice was also issued (Annexure R-4). Even an application under section 14 of the Act has also been moved (Annexure R-5) to take the permission for symbolic possession to the District Magistrate, Yamuna Nagar and lastly prayed for dismissal of complaint.
4. Both the parties failed to file any evidence despite so many opportunities, hence, their evidence was closed by court order on 28.3.2016. However, at the time of filing of the complaint, complainants filed a short affidavit alongwith their complaint and possession notice under section 13 (2) of the SARFAESI Act as Annexure C-1, Public notice as Annexure C-2, Receipt of deposit of Rs. 15000/- as Annexure C-3, Account statement as Annexure C-4 to C-6.
5. On the other hand, short affidavit of the Branch Manager Jagdev Garg has been filed by the OP Bank alongwith copy of registered notice dated 7.11.2012 under section 13(2) of the SARFAESI Act, 2002 as Annexure R-1, copy of cutting of publication in newspaper dated 22.2.2013 as Annexure R-2 and R-3, Photo copy of Possession notice as Annexure R-4 and Photo copy of application under section 14 of the SARFAESI Act to the District Magistrate, Yamuna Nagar as Annexure R-5.
6. We have heard the counsels for both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely.
7. The only plea of the complainant is that Op Bank is charging higher rate of interest from the complainant on the home loan and further they are paying the installments regularly which is evident from the account statement Annexure C-3 to C-6 despite that the OP Bank has put the locks on their premises in question.
8. On the other hand, counsel for the OP Bank hotly argued that the complainants are the defaulter of the bank and their account has been marked as non performing assets (NPA) w.e.f. 4.9.2012 and an amount of Rs. 13,42,303/- was due up to 31.10.2012 against the complainants and draw our attention towards the notice dated 7.11.2012 given under section 13(2) of the SARFAESI Act (Annexure R-1). Further, learned counsel for the Op Bank argued that despite notice, the complainants failed to make the payment, so the publication was also made in the two newspapers which is evident from Annexure R-2 and R-3 and even the symbolic possession of the house in question had already been taken by the OP Bank which is evident from the possession notice Annexure R-4 and R-5. Lastly argued that as the Op Bank has initiated proceedings under SARFAESI Act against the complainants, hence, this Forum has no jurisdiction to entertain and try the present complaints and referred the case law titled as Shiv Shankar Lal Gupta vs. Kotak Mahindra Bank ltd. & Others 2013(1) CLT page 531 wherein it has been held by the Hon’ble National Consumer Disputes Redressal Commission that Consumer Protection Act 1986, Section 2(1)(d):
(i) ……
(ii) ….
(iii) Consumer Protection Act, 1986 and SARFAESI Act 2002, Section 13(2), 34- Jurisdiction- This is an indisputable fact that against the petitioner a case is pending under the SARFAESI Act, 2002- The law puts a crimp in invoking the jurisdiction of Consumer Commission. Word Civil Court mentioned in section 34 of Act, 2002, also includes Tribunals and Commissions dealing with Civil Matters- Complaint dismissed with costs in the sum of Rs. 10,000/-.
9. In the present case also, it is evident that the Op Bank has initiated the proceedings under SARFAESI Act against the complainants which is evident from the documents Annexure R-1 to R-5 filed by the OP Bank and all these facts have been concealed by the complainants in their complaint. Law cited by the counsel for the Op Bank is fully applicable to the facts of this case whereas the arguments advanced by the counsel for the complainant have no weightage.”
10. In the circumstances noted above and after going through the provisions of section 34 of the SARFAESI Act 2002, we are of the considered view that this Forum has no jurisdiction to entertain and decide the present complaint.
11. Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.
Announced in open court. 31.03.2016.
(ASHOK KUMAR GARG )
PRESIDENT,
(S.C.SHARMA )
MEMBER
