ORDER                                    Dated:  16-02-2017

Mohd. Anwar Alam, President

1. The complainants have filed this complaint on 13-05-2016 and alleged that they received an offer letter dated 30.01.2010 from OP1 offering the complainants a pre-approved home loan for a sum of Rs. 35,00,000/- and after carrying out the necessary documentation, OP1 opened the loan account bearing no. LBDEL00001791221 in the names of the complainants and sanctioned the loan in favour of the complainants vide sanction letter dated 27.02.2010. OP1 further created an equitable mortgage in respect of the flat purchased by the complainants and retained all the original documents and title-deeds of the flat was  in its custody and possession.  As per the said sanction letter, the loan was for a tenure of 228 months carrying interest at the fixed rate of 8.25% for the first two years and thereafter at floating rate of interest.  Complainants however subsequently learnt that the amount of loan disbursed in favour of the builder namely Raj Hans Towers Pvt. Ltd was only Rs. 35,00,000/- and not Rs 36,78,000/-as mentioned in the sanction letter dated 27.02.2010. An additional sum of Rs. 1,78,000/- was debited by the bank from the loan account of the complainants for payment to ICICI Prudential Life Insurance Co. Ltd. (OP2) allegedly towards an insurance policy unlawfully sold to them which was with the home loan. Upon expiry of initial period of two years, OP1 increased the rate of interest from 8.25% to 12%  and the complainants paid EMI of Rs. 34,412/- for the months of May to June , 2012.  The prevailing interest charged by other banks was only 11% as against 12% being charged by OP1 bank from them. The complainants after 30.05.2015 stopped paying the EMI of Rs. 2,065/- as  they were neither approached by the OPs nor they wanted the said policies to be renewed  beyond 30.05.2015.  A demand legal notice dated 13.06.2015 was sent to the complainants from OP1 bank wherein the bank alleged  that the complainants had defaulted in payment of the EMI towards Loan A/c bearing LBDEL00001805801 and thus a sum of Rs. 3,812/- became due and payable by the complainants as on 10.06.2015 inclusive of interest.  Complainants felt cheated by the OPs and OPs crossed all limits when the OP1 bank issued a notice dated 30.11.2015 U/s 13 (2) of Securitization and Reconstruction of Financial Assets and Security Interest Act, 2005 (SURFAESI Act).   The bank called upon the complainants to pay the entire outstanding amounts of Rs. 32,75,926.90 as on 30.11.2015 against the home Loan A/c bearing no. LBDEL00001791221 and the top up loan account bearing no.  LBDEL00001805801 and threatened to take action as contemplated U/s 13 (4) of the SARFAESI Act with regard to the mortgaged flat of the complainants. The complainants, however, in order to jeopardizing their investment and lose their flat, contacted the officials of the bank and made payment of entire outstanding EMIs against the top-up loan account bearing no. LBDEL00001805801 under protest and without prejudice to their rights and remedies. Hence OPs are guilty of gross of deficiency in services as well as for indulging in restrictive and unfair trade practices and complainant prayed to direct the OPs to close the top-up loan account bearing no. LBDEL00001805801 and to refund the entire amount paid by the complainants to the OPs against loan account bearing no. LBDEL00001805801 after 30.05.2015. Complainants further prayed to direct OPs to pay a sum of Rs. 11,00,000/- as compensation towards mental agony caused to them and  litigation cost.
2. On 16.11.2016 Ex-parte order passed against OP2.
3. In reply OP1 submitted that this Forum has no jurisdiction to try the present complaint as there are various disputed facts which cannot be dealt with effectively in the present proceedings and bank has already taken measures against the provisions of SURFAESI Act , 2002 and on account of defaults is making payment by the complainant has already issued notice dated 30.11.2015 U/s 13 (2) of the SARFAESI Act, 2002 which was duly received by the complainants.  OP1 also submitted that this complaint is also barred by limitation. OP1 denied rest of the allegations made in the complaint and prayed to dismiss the complaint.
4. On 19.09.2016 OP1 has moved an application U/o VII Rule 11 , CPC R/w section 13 (3B) C. P. Act  for dismissal of the complaint  and alleged that this Forum has no jurisdiction to  deal with the present complaint and  allegations of the complainant can be dealt with only by approaching the Ld. Debts Recovery Tribunal (DRT)  and OP1 has already proceeded under SARFAESI ACT, 2002 hence the complainant cannot invoke the jurisdiction of this Forum and prayed that  complaint be dismissed.
5. On 16.11.2016 complainants filed reply to this application and submitted that their grievance is not within the scope and ambit of jurisdiction of the Debt Recovery Tribunal or the Appellate Tribunal and hence the bar of Section 34 and section 35 of the SARFAESI Act shall not operate in the present case and they have been paying the EMI of the top-up loan account under protest after OP1 issued the notice U/s 13 (2) of the SARFAESI Act therefore the entire basis for filing the application under reply is not made out hence the application is liable to be dismissed.
6. Complainant filed an affidavit regarding non initiation of the proceedings under SARFAESI Act.
7. We have heard the arguments on the application U/o VII Rule 11 , CPC and perused file as well as jurisdiction of this forum and limitation to file the complaint.
8. Considered the application its reply  and allegations made in the complaint as well as the affidavit of the complainant.
9. As OP1 did not file the record of any proceeding initiated by the OP1 against the complainant under the SARFAESI Act therefore affidavit of the  complainant no1 considered  ,which clarify that no proceeding under the provision of SARFAESI Act is filed against OP1 in DRT or any other competent forum. There is no reason to disbelieve the affidavit of complainant no. 1. 
10.  On 30.11.2015  OP bank demanded to pay the entire outstanding amount of Rs. 32,75,969/-  which is challenged by the complainant. Hence actual cause of action arose on 30.11.2015.  This complaint filed on 13.04.2016  on the basis of OP’s demand to pay the entire outstanding amount on 30.11.2015 therefore this complaint is well within the period of limitation prescribed U/s 24 A of the Consumer Protection Act.
11. In this complaint complainant prayed that OPs be directed to  close the top-up loan account bearing no. LBDEL00001805801 and to refund the entire amount paid by the complainants to the OPs against loan account bearing no. LBDEL00001805801 after 30.05.2015. It is pertinent to mention herein that this amount is clarified as amount of Rs. 32,75,969/-. It was further prayed by the complainants that OPs be directed to pay sum of Rs. 11,00,000/- towards mental agony etc and complainants further prayed to direct OPs to pay the complainants the cost of the present proceedings. Hence as per prayers of the complainants the total amount  prayed exceeded Rs. 20 Lakhs.   
12. Hon’ble National Commission vide order dated 07.10.2016 passed in C. C. No. 97/2016 with regard to the reference  dated 11.08.2016 relating to issue numbers (i) to (iv) decided the pecuniary jurisdiction as under:-
13. “(i) It is the value of the goods or services, as the case may be  and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

(ii) The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.

(iii) The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.

(iv) In a complaint instituted under section 12 (1) (c ) of the consumer protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefits the complaint is instituted and the total compensation claimed in respect of such consumers.”

 14. In view of the above settled legal position as well as facts of the complaint this forum has no pecuniary jurisdiction to entertain this complaint.  Looking to the above facts and circumstances we are of the considered opinion that this forum has no jurisdiction to entertain this complaint. Hence application U/o VII Rule 11 CPC filed by the OP1 is partly allowed accordingly and this complaint is not maintainable in this forum so complainant is directed to approach appropriate commission accordingly.

  15. Both the parties will bear their own cost.  Copy of the order made available to the parties free of cost as per law.  File be consigned to record room.

Announced on………