Per Shri Dhanraj Khamatkar, Hon’ble Presiding Member
This appeal takes an exception to an order dated 31/08/2010 passed by District Forum, Nashik in a consumer complaint No.53/2005.
2. The facts leading to this appeal can be summarized as under:-
The appellant/org. complainant had booked four flats in a construction to be carried by respondent No.2/org. opponent No.2 at Mauje Anandvali, Nashik, Survey No.39/3, Plot No.8,9&10. He had approached to org. opponent No.1/respondent No.1 for a loan of `13 Lakhs. Opponent No.1/respondent No.1 after completing formalities has sanctioned the loan of `13 Lakhs. While sanctioning loan, the appellant/org. complainant has signed the papers as per instructions of opponent No.1/respondent No.1’s officers without reading. As per loan agreement, E.M.I. of loan was to be paid after getting possession of the flats. However, opponent No.1 had transferred the amount of the loan to opponent No.2 directly without verifying the stages of the construction. It is also contended by the complainant that he was paying E.M.Is. regularly. After sanctioning loan, opponent No.1/respondent No.1 had not handed over the loan agreement or other papers to the appellant/complainant. When the appellant/complainant asked for papers, he was surprised to find entries in the loan agreement and accompanying papers. From perusal of the same, it is noticed that opponent No.1/respondent No.1 had incorrectly charged interest and recovered the amount. Considering this as deficiency in service on the part of opponent No.1/respondent No.1, the complainant/appellant has filed consumer complaint praying that opponent No.1/respondent No.1 be directed to stop the E.M.I. and whatever E.M.Is. appellant/complainant has deposited, it should be adjusted after he gets possession of the flats, direct opponent No.1 to charge interest @ 6.5%, to pay an amount of `10 Lakhs as compensation for mental agony and not to charge any interest till the complainant gets possession of the flats.
3. The opponent No.1 has filed written version stating therein that complaint is not in limitation and the complainant is not a consumer. Opponent No.2 remained absent and hence was proceeded ex-parte.
4. District Forum after going through the complaint, written version filed by opponent No.1, evidence filed by both the parties and pleadings of their Advocates came to the conclusion that in the instant case, the cause of action arose on 19/03/2002 and the complaint is filed on 22/03/2005 without filing delay condonation application and hence, dismissed the complaint. It is against this dismissal of consumer complaint, present appeal is filed.
5. We heard Learned Advocate Mr.Ashutosh Marathe for the appellant and Learned Advocate Mr.Vishal Tambat for respondent No.1. Respondent No.2 remained absent though duly served.
6. Admittedly, respondent No.1 had sanctioned the loan of `13 Lakhs to the appellant. The loan agreement is in the appeal compilation at page-95to109. Learned Counsel for the appellant has drawn our attention to clause No.2.4 of the loan agreement. Clause No.2.4 of the loan agreement states that - “The loan shall be disbursed in one lumpsum or in suitable installments to be decided by HDFC with reference to the need or progress of the construction (which decision shall be final and binding on the borrower). The borrower hereby acknowledged receipt of loan disbursed as indicated in the Receipt hereinbelow.” Learned Counsel for the appellant has contended that respondent No.1 has disbursed the entire loan without taking into consideration the progress of the construction. As the respondent No.1 has disbursed the loan amount without looking into the progress of construction, despite of paying the amount to the respondent No.2, construction is incomplete and appellant could not receive possession of the flats. Further, Learned Counsel has pointed out that Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 came into force on 21/06/2002 and the loan agreement is executed on 19/03/2002. Learned Advocate therefore, contended that as the agreement in the present appeal has been entered into on 19/03/2002 before coming into force the SARFAESI Act, respondent No.1 cannot proceed against the appellant under the provisions of said Act.
7. As against this, Learned Advocate Mr.Tambat had relied on a judgement of the Orissa High Court reported in 2011(3) Bankers’ Journal 17 between the Central Bank of India & Anr. and Ram Chander Sahoo & Ors. decided on 04/02/2011, wherein in Para 4 of the said order, the Court observed that - “Law is also well settled that where a right or liability is created by a Statute which gives a special remedy for enforcing it, the remedy provides by that Statute only must be availed of. This observation was made by the Apex Court while dealing with the question of interference by the High Court in Securitisation Act and D.R.T. Act in exercising the power under 226 of the Constitution of India.” Learned Counsel has stated that respondent No.1 had sanctioned the loan. There is a loan agreement and said agreement is subject to provisions of the Securitisation Act and the proceeding has been concluded. If the appellant is aggrieved, he can approach the Authority under the Act. Instead of approaching to the Appropriate Authority, the appellant has approached to the District Forum. Further, Learned Advocate for respondent No.1 had drew our attention to the prayers in the complaint filed by the appellant before the District Forum.
8. Admittedly, the appellant had taken a loan from respondent No.1. There is a loan agreement. At this stage, the appellant cannot deny that he has not read the agreement and only signed the same as per the instructions of officers of respondent No.1. As per the agreement, the appellant failed to pay the loan and hence the respondent No.1 has initiated action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The remedy to the appellant is only to challenge the same before Competent Authority under the Act which appellant has not availed.
9. Further, the prayers in the complaint are not in accordance with the provisions of the Consumer Protection Act, 1986. From the facts of the case, we find that appellant is not a consumer as well as the complaint filed is not within a period of limitation from the cause of action. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal stands dismissed. The order of the District Forum is hereby confirmed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 28th October 2013.
