JUDGEMENT

          Complainant by filing this complaint has submitted that she obtained a House Building Loan from op vide File No.2691 against the Mortgage of her residential house at the time of taking the aforesaid House Building Loan.  Subsequently a dispute arose between the parties regarding the payment of installment and the complainant moved a writ Application being W.P. No. 2676 (W) of 2006 in the Hon’ble High Court at Calcutta against the op and same was dismissed on 05.02.2007 by the Hon’ble Justice Jayanta Kumar Biswas and subsequently complainant preferred an appeal being AST No. 92/2007 arising out of MAT No.1441/2007 against the judgement and order dated 05.02.2007 before the Hon’ble Division Bench and the appeal was finally heard on 23.03.2007 and after hearing both parties, Hon’ble Justice Kalyan Jyoti Sengupta and Hon’ble Justice Sankar Prasad Mitra were pleased to direct the appellant to pay a sum of Rs.60,000/- only on or before 02.05.2007 on account of part payment towards the arrear dues and the balance sum of Rs.2,00,000/- should be paid by equal 10 monthly installments.

          Thereafter op filed an application along with the judgement and order passed by Hon’ble High Court before the office of the Additional District Magistrate (Development) Hooghly u/s 14(1) of SERFAESI Act 2002 on 26.06.2009 whereupon the Ld. Additional District Magistrate, Hooghly was please to issue summons against the complainant and accordingly the petitioner was duly appeared before the Ld. ADM (Development), Hooghly and the said matter was settled between the parties by an order passed by the Ld. ADM (Development), Hooghly on 22.07.2009 under Memo No. 558(3) J.M. dated 01.07.2009.

          Complainant was directed to pay Rs.60,000/- by 15.10.2009, rest Rs.2,00,000/- in fifteen installments and the order of the Hon’ble High Court, dated 23.03.2007 is confirmed.  Accordingly in terms of the order dated 22.07.2009 complainant paid Rs.2,60,000/- to the op within the said stipulated period as granted by the ADM (Development), Hooghly by way of eight cheques of Punjab National Bank, Nalikul Branch, Hooghly.  Though op received the settled amount from the complainant in terms of the order dated 22.07.2009 of the Ld. ADM (Development), Hooghly but op did not release the documents of complainant which were deposited for mortgaged of property by the complainant with the op, at the time of obtaining the aforesaid house building loan.

          But on 16.04.2011 complainant along with her husband made a Demand Notice to the op through their Ld. Advocate asking the op for returning the documents which were deposited by the complainant to the op at the time of taking the said house building loan,  op received the said Demand Notice by putting their seal and stamp on the receipt copy but no result has yet been received and in the above circumstances, complainant has filed this case for redressal and directing the op to release every document.  It is further submitted that the said application was registered and numbered as C.C. Case No. 14/2012 which was filed at Hooghly Consumer Forum but that was dismissed holding that the said application is not maintainable on the ground of territorial jurisdiction of the Forum of Hooghly u/s 11 of the C.P. Act, 1986 and for which within proper time that is the present case by which complainant has prayed for redressal.

          On the other hand op by filing written statement submitted that Smt. Ashalata Santra as the co-applicant and her husband Ashoke Kumar Santra as applicant on 05.07.2002 applied for financial assistance before the op for construction of a new building/house, on their land measuring about two cottahs at Bargachia in R.S. Dag No. 169, L.R. dag No. 196 under R.S. Khatian No.223, and L.R. Khatian No.43/1, new L.R. Khatian No. 1115, J.L. No.146, P.S. & Sub-Registry office at Haripal, District-Hooghly.  After considering everything in writing dated 08.07.2002 offered a Loan of Rs.3 lakhs to the complainant as borrower and her husband as per terms and conditions the complainant along with her husband by writing dated 20.08.2002 accepted the terms and conditions of the loan offer and was realized the loan and the loan amount was disbursed and all cheques were withdrawn on HDFC Bank Ltd..

          But subsequently they failed to pay the EMIs against the said disbursed loan as per terms and agreement and neglected to honour its commitments in spite of repeated requests.  So, ultimately the account of the complainant became irregular and subsequently declared as NPA.  Under such circumstances, op in writing dated 02.05.2005 issued notice u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.  But even after receipt of the said notice complainant and her husband failed to comply the provision of 13(4) of SRFAESIA and for which a symbolic possession of the secured premises on 25.07.2005 and put the pad lock at the main entrance of the said secured premises.

          Against that complainant filed writ petition being No.2676 (W) of 2006 before Hon’ble High Court but that was dismissed and Smt Ashalata Santra again preferred an Appeal being AST No.92/2007 arising out of MAT No.1441/2007 was filed and order was passed by that Division Bench on 05.02.2007 directing the complainant to pay a sum of Rs.2,60,000/- as arrear interest etc and op was directed to accept the same and further complainant was directed to pay the said sum of Rs.60,000/- only out of arrears of Rs.2,60,000/- before 02.05.2007 as part payment and balance Rs.2,00,000/- shall be paid in equal 10 months installments and first such installment shall be paid by 15^th June 2007. But even after that complainant did not comply the said order of the Hon’ble High Court and due to non payment of said amount which was settled by the Hon’ble High Court as well as current EMI against the said loan, op took steps against the complainant by filing an application u/s SARFAESI Act, 2002 on 26.06.2009 for taking physical possessio0n of the secured property through police help before the Additional District Magistrate (Dev), Hooghly who had asked the complainant to pay the same by 15.10.2009.  Though the op had given relaxation to the complainant by not taking any penal steps by initiating any proceeding due to such order, complainant issued first cheque on 14.09.2009 for a sum of Rs.60,000/- which was encahsed by the op on 16.09.2009 and subsequently complainant paid balance Rs.2,00,000/- up to 01.02.2011.

          So, the matter has already been decided by the Hon’ble High Court and fact remains SARFAESI Act is still pending against him and truth is that complainant took loan in the year July,2002 and EMI started on July 2002 and EMI of Rs.3,363/- would have paid by the complainant by 180 installments that means within 15 years from the date of taking first installment started on July 2002.  So, even after standing order of the Hon’ble High Court for payment of the previous balance EMI and interest etc. complainant did not pay subsequent EMIs which are still outstanding and fact remains as per agreement complainant is bound to pay 180 EMIs on 22.06.2017.  But even after passing of the order of Hon’ble High Court complainant did not pay the subsequent EMI.  So, at this stage complainant have no chance to get any relief when the matter has already been decided by the Hon’ble High Court give such chance to pay balance outstanding amount and also to pay the subsequent EMIs but complainant has not complied. So, the complaint is barred u/s SARFAESI Act and that SARFAESI Act is pending and the present complainant cannot get any relief under any circumstances and the present complaint is not maintainable.

                                                        Decision with reasons

          After studying the entire complaint and written version and also hearing the Ld. Lawyer and also hearing the Ld. Lawyers of both the parties including the loan sanctioned letter dated 08.07.2002 it is clear that complainant took loan of Rs. 3,00,000/- and it must be paid by 180 installments month by month starting from July,2002.  EMI was fixed Rs.3,363/- and that is not denied by the complainant.  it is also proved that already the case was started against the complainant and go forward under SARFAESI Act and op took such step against which the complainant appeared before Hon’ble High Court filed written version W.P. No.2676 of 2006, but Hon’ble High Court rejected such prayer when the authority and locality of the notice u/s 13(2) and 13(4) of SARFAESI Act was not found and it was dismissed by the Hon’ble High Court  Single Bench on 05.02.2007 and against that complainant filed preferred an Appeal being AST No.92/2007 arising out of MAT No.1441/2007 and in that case Hon’ble Division Bench passed an order on 05.02.2007 directing the complainant to clear up the arrear dues that is total amount of Rs.2,60,000/- with condition to pay Rs.60,000/- by March,2007 and balance amount of Rs.2,00,000/- by equal installment and installment must be paid by fifteenth day of June, 2007 and subsequent to that.  Truth is that complainant did not comply it.

          Thereafter when the procedure of SARFAESI Act proceeded against and complainant got further benefit to deposit the same by 15^th  installment and no doubt that has not been paid by 10.02.2011.  But truth is that proceedings u/s SARFAESI Act has not been squashed by the Hon’ble High Court.

          Another factor is that Hon’ble Division Bench of Hon’ble High Court disposed of the appeal confirming the fact that the dismissal of the writ petition by the Hon’ble High Court/Single Bench was right.  So, the matter has already been decided by the highest authority.  Complainant failed to get any benefit in respect of the proceedings u/s SARFAESI Act.  Truth is that complainant has not paid subsequent monthly installment which are fallen due and in the complaint there is no such assertion that they are paying current installments which must be paid by the complainant up to 2017.  So, considering all the above facts and materials we are convinced to hold that when the matter in between the complainant and op had already been decided by the Hon’ble High Court and Hon’ble High Court gave some benefit to the complainant to pay the arrear outstanding by installment then there is no scope on the part of this Forum to entertain it.  Because highest authority the Hon’ble High Court already decided that the WP which was filed by the complainant is not tenable and it was rightly rejected by Hon’ble Justice Jayanta Kumar Biswas which was correct and proceeding u/s SARFAESI Act is legal against complainant and truth is that even after getting such relief from the Division Bench complainant has not been paying the subsequent current installment EMIs and truth is that huge EMI is still outstanding.  So, under any circumstances this Forum has no jurisdiction as per Sections-34 & 35 of the SARFAESI Act and fact remains the matter has already been decided by the Hon’ble High Court.

          So, this Forum has no jurisdiction to decide this case and fact remains SARFAESI Act is followed which is pending against the complainant for which the entire complaint is barred u/s 34 & 35 of the SARFAESI Act and so the present complaint is not maintainable.

          Hence, it is

                                                                  ORDERED

          That the complaint be and the same is dismissed without any cost against the op.