DATE OF DISPOSAL: 20.08.2024
PER: SRI SATISH KUMAR PANIGRAHI, PRESIDENT
The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 35 of the Consumer Protection Act, 2019, alleging deficiency in service against the Opposite Party (in short the O.P.) and for redressal of his grievance before this Commission.
2. The complainant is un-employed women intended to promote one plastic bottle and soft drinks named Maa Vaishnavi Plastic unit at Tulu Road village, Konisi Hata NH-5, Golanthara for self employment and livelihood under PMEGP Scheme. Accordingly she submitted project report for Rupees 25 lakh to DIC Ganjam for smooth running of the unit in future. The DIC Ganjam after proper verification of project report approved for total project cost by Taskforce Committee under the Chairman District Collector and other concern Bank Authority and sent the application for loan to IOB Haldiapadar. The O.P. IOB Bank called to complainant and stated that at present the Bank will be sanctioned a tune of Rupees 10 lakh towards plant and missionary and 5 lakh towards CC working capital by reducing 10 lakh, out of 25 lakh projects cost as approved by DIC Task force and promised by O.P. Bank to complainant to release the balance amount later when the complainant requires for future. The complainant in compelling situation accepted the under finance as a part of total project cost approved by task force committee. Due to short fall of working capital the complainant faced so many difficulties starting stages i.e. installation of 3 phase 25 K.V. Transformer, and also sub-standard in-sufficient important equipments not send by the manufacturing company at Calcutta, as because it is a fault of O.P. who directly send the entire cost machinery to manufacturing company. The O.P. Bank also issued notice to manufactured company directing to rectify the faults and full pledged installation of machinery, which leads delay in product and loss to the complainant. The complainant even financial losses one side, mental harassment other side, due to lack of sufficient running capital, and less production and marketing product and paying monthly installment regularly. In the meanwhile, Notational Pandemic Covid 19 more than one and half year effected to the complainant as because of declaration of shutdowns/lockdowns, distance maintaining implemented by district administration and Govt. of Odisha effected financial loss to complainant. One of her family member also expired and the complainant and her husband guarantor also affected Covid 19 related health problems facing till today. The complainant informed the facts and illness and financial problems intimated to Branch Manager, IOB and requested to grant additional working capital as promised by the Bank earlier to run the unit. The O.P. agreed to sanction the additional loan with a condition to repay over dues pending in her account. So the complainant clear the over dues near about one lakh by borrowing private loan as per telephonic advise and calls by O.P. Bank. After awaiting long period the O.P. Bank advised to the complainant to purchase one soda soft drink machine to run the unit and promised to enhance working capital of 4 lakh as soon as soda soft drink machine is installed. As a fixed block capital the O.P. Bank dispatched 3 lakh rupees towards cost of soda machine and also the complainant installed in her premises of her unit and requested to release additional workings capital rupees 4 lakh as promises by O.P. Bank. The O.,P. Bank Manager personally visited three and four times to inspect the plant and satisfied and also advised to complainants to bring required papers from DIC to release enhanced additional working capital of 4 lakh, stating letter of permission for enhancement of further working capital is musts from DIC and as because the unit sponsored under PMEGP scheme and also covered under CGTRSI scheme. The O.P. Bank issued letter to complainant to bring requires papers letter number dated 09.02.2022. The complainant approached DIC Ganjam to obtain relevant permission letter to get working capital for rupees 4 lakh. After careful verification of papers of industry, which is effected during covid-19 period and they satisfied to approve request of the complainant and issued letterer sent to direct O.P. Bank vide letter No. 170/PMEGP-VIII/07/2022 dated 01.02.2022. Inspite of letters, notification from DIC DIPA under collector the O.P. Bank not followed the guidelines of Covid-19 effected unit rather harassed to complainant neither rejected the proposal for enhancement nor released the additional working capital in time. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P. Bank to release additional working capital approved by DIC Ganjam letter No. 170 dated 01.02.2022, compensation of Rs.30,000/- and litigation cost of Rs.50,000/- in the best interests of justice.
3. The Commission admitted the case and issued notice to the Opposite Party.
4. The Opposite Party filed written version through his advocate. It is stated that the averments made in the complaint petition are not all true and correct and the complainant is put to the strict proof of such of those allegations, which are not specifically admitted herein. Admittedly the complainant along with the recommendation of the DIC, approached this O.P. bank with a requests to provide financial assistance for establishment of a plastic manufacturing unit under the name and style of M/s Maa Vaishavi Plastic Industry at Tulu Road, Kanisi and to operate the same. After processing of the said proposal, this O.P. bank issued a sanctioned letter spelling out the terms and conditions therein. After acceptance of the said terms and conditions and execution of necessary documents on 23.12.2019, the O.P. Bank was pleased to sanction for a term loan of Rs.9,50,000/- for starting a manufacturing unit, as per the requests of the complainant. Subsequently, on execution of necessary documents on 20.08.2020 and as per the requests of the complainant, this O.P. Bank sanctioned a cash credit facility for Rs.4,75,000/- for operation of the said unit. Thereafter, to assist the complainant to overcome the crises due to Covid-19 the O.P. Bank was pleased to sanction by way of Working Capital term loan of Rs.1,85,000/- under GECL Scheme and on execution of necessary documents on 07.09.2020 disbursed the said loan amounts in favour of the complainant. As request by the complainant to overcome the financial crises the O.P. again provided Rs.92,000/- under GECL-2 and on execution of necessary documents on 20.08.2021 disbursed the same in favour of the complainant. Inspite of all the timely help and assistance provided by the O.P. Bank, the borrower failed to keep her commitment and pay the installments in time and operate the CC limit regularly. In the meanwhile, this O.P. Bank has also conceded to the demand of the complainant for restructuring of the loan by extending the repayment period from 07 years to 09 years from 27.07.2021. But neither the borrower nor the guarantor paid the amount due from them against the aforesaid loan accounts. As the complainant failed to pay the O.P. Bank vide notice dated 07.04.2021 and 09.05.2022 requested the complainant to regularize the loan accounts, by repaying the entire over dues. Inspite of best efforts by the O.P. Bank, the complainant failed to repay and regularized the loan accounts. So, the O.P. Bank on 18.06.2022 issued a notice of demand U/s 13(2) SARFAESI Act, 2002 and same was published on daily odia news paper Prameya and English newspaper The Statesman on 06.08.2022 and failure to repay the complainant, the O.P. Bank was compelled to issue possession notice on 07.10.2022 U/S 13(4) of SARFAESI Act, and same was published on daily odia news paper Prameya and English newspaper Orissa Posts on 11.10.2022 and took symbolic possession of the mortgaged property. To help the nationalized financial institutions/Banks, to recover its dues by avoiding cumbersome and time consuming procedure of law, a special Act namely Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has been enacted. As per Section 34 of the said Act, this Hon’ble Commission has no jurisdiction to entertain any complaint case or proceeding and no injection can be granted. As per Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 any person aggrieved by the Act of this complainant can prefer an appeal before the Debt Recovery Tribunal only. The relationship between the banker and borrower and is governed by the law of contract, under which this O.P. had given the loan to the complainants. The complainant failed in her commitment to repay the loan and Inspite of demands has not repaid the outstanding loan amount and with an ulterior motive and to complicate the matter and to prevent the bank to recover its dues, this complaint petition has been filed by the complainant, without any valid ground. Being a financial institution dealing with public money, the bank has taken the above commercial decisions after thoroughly examining the conduct and attitude of the complainant. This case involves complex question of facts, evidence and law. It involves the interpretation of the contract and other complex questions relating to the rights and liabilities of the banker and borrower. Hence the O.P. prayed to dismiss the case with cost in the interest of justice.
On the date of hearing, the Authorised Representative of the Complainant and the Ld. Counsel for the OP were present and submitted their arguments respectively. The Commission perused the entire case record minutely.
On forgoing discussion and factual aspect of the case, there is proceeding initiated by the opposite party against the complainant under SARFAESI Act, 2002. In view of Sec. 34 of the SARFAESI Act, 2002 Civil Court not to have jurisdiction - No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).
This Commission by relying upon a citation passed by National Commission, New Delhi in Krishna Lal Batra versus Haryana Urban Development Authority 2013 (1) CPR 151 such as:- “Consumer For a has no jurisdiction to entertain complaint concerning loan matter”. Also another citation passed by National Commission New Delhi in M/s Natraj Bore Well services versus Assts. General Manager, Indian Bank and other 1994(1) CPR 697 such as:- “Non grant of financial accommodation or non grant of loan by a Bank does not amount to deficiency in service”.
Recently, Hon’ble High Court of Orissa held that, “Consumer Commission has no jurisdiction to entertain matters coming under purview of SARFAESI Act.”
Considering the factual position of the case, the complainant’s case is dismissed against the O.Ps and the complainant is at liberty to file his complaint before any other Commission having competent jurisdiction for redressal of his grievance and he may avail the benefits under Section 14 of the Limitation Act 1963 in the best interests of justice.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 20.08.2024.
