BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the day of 31st day of January 2012.
Filed on : 10/06/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No.302/2011
Between
Mahesh Kumar S., : Complainant
S/o. C.P.S. Menon, (By Adv. T.J. Lakshmanan
Residing at “Vaishnavam”, Penta Queen Flats, Padivattom,
House No. 60, Kochi-24)
Kannamthodathu road,
Edappally, Kochi-682 024.
And
Dewan Housing Finance : Opposite parties
Corporation Ltd., 1st Floor, (By Adv. K. Thyagarajeswaran,
KMM Building, Palarivattom, M/s. Master & Thyagu, 3rd floor,
Kochi-682 025. rep. by its Manager. North Plaza, North Railway
Station Road,
Ernakulam- 682 018)
O R D E R
C.K. Lekhamma, Member
The facts of the complainant’s case are as follows:
The complainant had availed two loans from the opposite party. The first loan was taken on 20-01-2007 and its number is 00005331 and the total tenure of loan is 15 years. The loan amount was Rs. 14,90,000/- with monthly instalments of Rs. 15,570/- which is variable. The 2nd loan was taken on 06-02-2007 and the loan number is 00005435 and the loan amount was Rs. 5,25,000/- with monthly installment of Rs. 7,534/- each and the total tenure of loan period was 10 years. Altogether the complainant had taken Rs. 20,15,000/- from the opposite party as Housing Loan. From 21-02-2007 onwards the complainant is paying the installments and paid till May 2011. When the complainant made an enquiry with the opposite party regarding the outstanding of the loan they informed the complainant that he had to pay a sum of Rs. 18,36,097/-. The complainant on 31-05-2011 requested the opposite party to provide the details of the accounts. But the opposite party was not ready to provide the same and the opposite party had visited the complainant in his residence along with 10 people and threatened him that they would take coercive steps against him and also stated that they would not provide any clarifications requested by him and handed over a letter informing him that if he is not clearing the outstanding they would attach the property of the complainant. According to the complainant till this date the complainant had repaid an amount of Rs. 10,00,000/- towards the loan amount and the opposite party has not properly accounted the same. The action of the opposite party in not providing the details of the accounts and not providing an opportunity to the complainant to verify the accounts not only amounts to deficiency in service but also unfair trade practice on the part of opposite party. In such circumstances the complainant approaches this Forum for the following reliefs.
a. to direct the opposite party to furnish the details of the loan accounts of the complainant and also the details how they credited the amount paid by the complainant in his loan accounts.
b. To set aside the amount demanded in letter dated 03-06-2011
c. Restrain the opposite party from initiating any sought of coercive action against he complainant and his property till the disposal of this complaint.
2. The version of the opposite party is as follows:
The opposite party is carrying business not with the guidelines of RBI, but under the guidelines of National Housing Bank. The complainant has not been very regular in repaying instalments. The statement with respect to outstanding of the loan is self contradicting to the letter issued by the complainant himself dated 04-06-2011, in which he has admitted that he is aware of the over dues, which is around Rs. 1,60,000/-and that he would pay the over dues on or before 13-06-2011. But the complainant has not remitted the over dues, instead he approached this Forum with a fictious complaint. The opposite party has credited all the payments made by the complainant till date. Moreover the opposite party has furnished copy of the account statement to the complainant as and when he demanded. The complainant himself has admitted that he has received the account statement vide letter dated 04-06-2011, his complaint based on the story of having not received the same stands nullified and hence needs to be dismissed. The reliefs claimed are excessive and imaginary. Relief (a) is factious, since he himself has admitted elsewhere that he is in possession of the account statement the opposite party is willing and ready to provide a statement of account to the complainant, which will reflect all the payments made by the complainant. Relief(b) is beyond the jurisdiction of this Forum. The complainant himself has admitted that he has availed two loans from the opposite party. He is supposed to remit the installments properly. Now the overdues has exceeded Rs. 1,60,000/- and in such condition direct the complainant to remit the overdues immediately. Relief (c) is hypothetical.
3. The complainant and the opposite party appeared through counsel. The complainant adduced only documentary evidence. Exts. A1 to A6 were marked. The opposite party did not adduce oral evidence. Ext.X1. also was marked . We have heard the counsel for both sides.
4. The points that arose for consideration are as follows:
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get loan account
statement from the opposite party?
iii. Whether the complainant is entitled to get set aside the Notice dated 03-06-2011 demanding the outstanding amount?
5. Points Nos. i to ii During the proceedings vide order in I.A. 305/2011 dated 10-06-2011 this Forum directed the opposite party to refrain from further proceedings in pursuance of Ext. A5 notice. Ext. A5 notice dated 03-06-2011 goes to show that the opposite parties have issued the same under the Securitization and Reconstitution of Financial Assets and Enforcement of Security, Interest Act, 2002 (SERFAESI Act 2002.) The Ext. A5 reads as follows:
Public/Occupants are hereby cautioned not to deal/sign any agreement/occupy the property as the company intends to start legal proceedings against the above (under Securitization Act 2002) which is already mortgaged with the company and the company reserves right to take possession of the property.
The Hon’ble Kerala High Court in HDFC Bank Ltd. Vs. Consumer Disputes Redressal Forum (2011 (2) KLT 132 held in para 5 as under.
“I am of the view of that considering settled the legal position as held by the Hon’ble Supreme court in Mardia Chemicals V. Union of India (2004 (2) KLT 273 (SC) = AIR 2004 SC 2371) and in a series of subsequent decisions, as evident in S.34 of the SARFAESI Act there is an express bar of jurisdiction of Civil Courts and other authorities from granting injunction with respect to any action taken under the SARFAESI Act. Further, under S.35 of the Act it is clear that the provisions shall have an overriding effect with respect to any other law for the time being in force, notwithstanding nothing inconsistent contained therein. Under such circumstances, interference made by the first respondent Forum against steps initiated under the SARAFAESI Act, through Ext. P8 interim order, is without jurisdiction and the said order is unsustainable under law”.
6. Though the opposite party does not have a case that this complaint is not maintainable in this Forum, in view of the above authority we are of the firm view that this Forum has no jurisdiction to entertain the complaint. In the result, the order in I.A. No. 305/11 is vacated.
7. The Primary relief sought by the complainant is to direct the opposite party to issue the account statement with regard to the loan transaction in question. During the proceedings in this case at the instance of the complainant the opposite party produced the said account statement in the Forum which was marked as Ext. X1. So further discussion in this point is not at all warranted.
8. In the aforementioned circumstances we are not commend on the issue involved in the third point. Hence the proceedings in the complaint stands closed with a direction to the complainant to approach the appropriate authority, if so advised.
Pronounced in the open Forum on this the 31st day of January 2012.
Sd/- C.K. Lekhamma, Member.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits:
A1 : Letter of offer Cum Acceptance
dt. 20-01-2007
A2 : “ “
dt.06-02-2007
A3series : Series of receipts
A4 : Letter dt. 30-05-2011
A5 : Copy of public notice
A6 : Copy of statement of account
Opposite party’s exhibits:
X1 : Account Statement
