D.o.F:24/1/2015
D.o.O:30/04/2015
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.24/15
Dated this, the 30th day of April 2015
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.BEENA K.G : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
Smt.Mariyamma, W/o Andunchi,
Al-Ansar Manzil, Belinje, Kundila House, : Complainant
Ethadka Po, Kasaragod.
(Adv.A.B.Nair,Kasaragod)
The Manager,
Federal Bank, Emerald Tower, Kasaragod. : Opposite party
(Adv.C.H.Vishnu Bhat)
ORDER
SMT.P.RAMADEVI : PRESIDENT
The facts of the complaint in brief are that the complainant availed a loan of Rs.1579000/- from opposite party on 24/2/2009 and the rate of interest promised by opposite party was 9.5% per annum and EMI was fixed as Rs.30500/- for 60 months. The complainant used to make payments through her SB A/c and the bank adjusted Rs.30500/- as EMI from the SB A/C of the complainant and the complainant paid a total amount of Rs. 2032045/- till 24/10/2014. The complainant submits that the opposite party is very irregular in adjusting the loan amount from the SB A/c of the complainant hence overdue happened in the instalments. Thereafter the complainant received notice under Sec.13(2) of Securitization Act . the complainant obtained details of the loan account from the opposite party which shows the rate of interest at present is 19.5% and the total number of EMI given to the complainant is 83. There is no justification for the contention of the opposite party regarding the number of EMI. The complainant further submits that he had paid the entire amount and he is entitled get back title deeds and clearance certificate from opposite party .Hence this complaint is filed alleging deficiency in service against opposite party.
2. Opposite party filed version denying all the allegations made against them by the complainant and opposite party raised an issue regarding the maintainability of the complaint before the Forum as preliminary issue since the opposite party initiated recovery proceedings against the complainant as per SARFAESI Act. The opposite party also raised an issue that there are complex questions to be answered in this case and a detailed evidence is required hence the civil court has the jurisdiction to try this complaint.
3. Heard both sides on issue regarding maintainability of the complaint and also perused the documents.
4. The learned counsel appearing for the complainant Sri.A.B Nair argued that the dispute is with regard to the irregularities in adjusting the loan amounts and properly maintaining the accounts and also with respect to the charging of interest etc will amounts to deficiency in service and this forum has ample jurisdiction to try this complaint and this complaint cannot be referred to the civil court. He further submitted that there is no case is pending against the complainant as per SARFAESI Act , the complainant received only a notice as per Sec.13(2) of the above said Act. Relying on the decision made by the Hon’ble High Court of Kerala the learned counsel submitted that the Forum has only bar in issuing interim orders and can pass final orders. Learned counsel appearing for opposite party Sri.C.H Vishnu Bhat argued that issuance of notice under sec.13(2) of SARFAESI Act is the first procedure for initiating DRT proceedings. The learned counsel submitted the decision of the Apex courts regarding the maintainability of the case before the Forum after initiating recovery proceedings as per SARFAESI Act.
Shivashankar Lal Gupta vs Kotak Mahindra Bank Ltd and others II (2013)CPJ 56 NC) the Hon’ble National Commission observed that Securitization and reconstruction of financial assets and enforcement of security Interest of Act 2002 Sec 34 says no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which a debts recovery tribunal or the applets 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 debts due to banks and financial institution Act of 1993. The Civil court mentioned here also includes tribunals and commissions dealing with civil matters .
In Standard Chartered Bank Vs. Virendra Rai 2013(CPJ 337) the Hon’ble National Commission decided that the District Forum or State Commission have no power to interfere with the SARFAESI Act .
We are not going through the merits of the case at this stage. On the above observation of the Hon’ble National Commission this complaint is not maintainable before the Forum hence the complaint is dismissed as not maintainable.
MEMBER MEMBER PRESIDENT
eva
