DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/374/2015
Sh. Vijender Kumar Jain
S/o Late Sh. Roshan Lal Jain
R/o 47, Rishabh Vihar,
Near Karkardooma Court,
Ms. Madhu Jain
W/o Sh. Vijender Kumar Jain
R/o 47, Rishabh Vihar,
Near Karkardooma Court,
HDFC Bank
Express Building
-
New Delhi-110002.…..OPPOSITE PARTY
Quorum: Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
Dr. R.C. Meena, Member
ORDER
Ms. Rekha Rani, President
- Instant complaint has been filed by Sh. Vijender Kumar Jain and Ms. Madhu Jain (in short the complainants) under Section 12 of the Consumer Protection Act 1986 as amended up to date inter-alia pleading therein that in June, 2005, they availed loan of Rs. 17,00,000/- from Centurion Bank at floating rate of interest which was 14.5% p.a. at that time against loan account bearing 90182577 which was repayable in 10 years i.e. 120 months in equated monthly installments (EMIs) of Rs. 26,909/- each commencing from September, 2005 till August, 2015.
In 2006, Centurion Bank was taken over by HDFC Bank (in short OP).Complainants have already paid a sum of Rs. 32,03,919.27/-from September 2005 to July 2015.
In August, 2015, at the time of paying the last EMI, complainant requested OP for issuance of No Objection Certificate.Complainant was informed that a sum of Rs. 16,93,519/- was still due to be paid.On hearing the same, complainants were shocked.Complainants are being charged exorbitant rate of interest @ 21% p.a.
It is prayed that OP be directed to close the loan account bearing no. 90182577 holding the same to have been repaid by the complainants with principle and interest, to issue No Objection Certificate in favour of the complainants to the effect of extinguishment of the lien, right, interest or title of OP in secured property bearing no. 47, Rishabh Vihar, Near Karkardooma Court, Delhi-110092 which was mortgaged to secure the loan; to direct OP further to pay a sum of Rs. 2,00,000/- for charging exorbitant rate of interest.
- Notice of the complaint was sent to OP who appeared and contested the claim vide its written statement. It is submitted that there was no deficiency in service on the part of the OP and that the complaint is not maintainable as the contract between the parties has a clause 15 (g) for appointment of an arbitrator.
- We have perused the record and heard Sh. Prayas Aneja, counsel for OP. Parties have adduced evidence by way of affidavits.
- In Aftab Singh & Ors V/s Emaar MGF Land Ltd & Anr.III (2017) CPJ 270 (NC) the Hon’ble National Commission held that the disputes under the Act are non-arbitral and section 8 of Arbitrtion and Conciliation Act cannot be construed as a mandate to consumer forums, constituted under the Act, to refer parties to arbitration in terms of arbitration agreement. Further as per section 3 of the Act remedy under the Act is in addition to and not in derogation of the provisions of any other law. Reference can also be made to decision of National Commission in complaint case No. 346/13 titled as Lt. Col. Anil Raj Vs Unitech decided on 02.05.2016. In Neeraj Bhope & Anr., Bharatha Laxmi Vetsa & Anr. , Souvik Khamaru vs. Alpine Housing Development & Ors., III (2013) CPJ 58 (Kar.), in Satish Kumar Pandey & Ors. vs. Unitech Ltd., III (2015) CPJ 440 (NC), in Bharat Sanchar Nigam Ltd. vs. Ambika Singh, III (2010) CPJ 265 (U.P.) and in World Wide Immigration Consultancy Services vs. K.R. Shambhu, III (2010) CPJ 349 (Ker.) it was held that availability of arbitration as remedy does not bar complainant from approaching consumer Forum in case of deficiency in services.
- It is further contended on behalf of the OP that the complaint is not maintainable as the complainants are not consumers as they had taken loan from OP for business/commercial purposes. Copy of the loan agreement is placed on record. Our attention was drawn to Page 15 of the facility agreement under the head purpose of the facility. It is written that loan was taken for business requirements.
- It is also submitted in Para VIII of the written statement that complainants have filed SA No. 17 of 2016 titled Vijender Kumar Jain vs. HDFC Bank Ltd. under Secuiritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act against OP before Debt Recovery Tribunal-II, Delhi. It is further stated that in view of Section 18 of RDDBFI Act, this Forum has no jurisdiction to adjudicate this matter. In their rejoinder, complainants have admitted that they have filed SA No. 17 of 2016 titled Vijender Kumar Jain vs. HDFC Bank Ltd. against OP before the Debt Recovery Tribunal-II, Delhi.
- Complainant cannot initiate parallel proceedings before this forum. In Suresh Dutt Sharma vs Citi Financial Consumer Finance in CC No. 52/2017 vide its order dated 15.03.2017, our State Commission observed that:
“Infact SARFASI Act bars jurisdiction of all courts including consumer court. Inthis regard reference can be made to decision of National Commission in Shivshankar Lal Gupta vs. Kotak Mahindra Bank II (2013) CPJ 56 & Traxpo Treating Ltd. Vs. Federal Bank Ltd. I (2002) CPJ 31 NC. Similar view has been taken in complaint case No. 302/12 titled as Yashwant Ghaisa vs. Bank of Maharashtra decided on 06.12.12 and MOH Leathers Ltd., vs. Indian Bank IV (2013) CPJ 107”
8. National Commission in consumer case no. 74 of 2012 titled Shiv Shankar Lal Gupta vs Kotak Mahindra Bank Ltd. & Ors. Vide its order dated 01.02.2013 observed that:
“9. This is an indisputable fact that against the petitioner a case is pending under the Secuiritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The law puts a crimp in invoking the jurisdiction of Consumer Commission.
10. Section 34 of the Secuiritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 reads as under:-
34. 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.
11. The civil court mentioned here also includes Tribunals and Commissions dealing with civil matters. There lies a rub and we cannot entertain this complaint.”
9. The complaint is thus not maintainable before this Forum with loan having been taken admittedly for business requirements and being barred by SARFASI Act. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced this Day of 2019.
