Date of filing : 22.05.2012

Date of final hearing : 14.07.2016

PER HON’BLE MR. SAMARESH PRASAD CHOWDHURY,PRESIDING MEMBER

        The instant complainant under section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act) is at the behest of one Shri Bijon Chatterjee against ICICI Bank Ltd. and others for  deficiency in services on the part of the Bank for not providing with the original Title Deed mortgaged  with the Bank.

        In a nutshell, Complainant’s case is that in order to avail loans for purchasing of flats being numbers 4B and 4C,Gangotri Apartment, Garia Gardens, P. S. Sonarpur, Kolkata – 700 084 the Complainants obtained home loan of Rs.10,41,000/- on 07.01.2002, loan of Rs. 1,04,000/- towards registration expenses of Deed of Conveyance and Rs.2,00,000/- as top up loan on 25.11.2003. The Complainant had paid  a sum of Rs.3,70,000/- only against the said three loans till July, 2007 as per the E.M.I. stipulated. Thereafter, a notice dated 26.09.2007 U/s. 13(2) of the SARFAESI Act, 2002 was received by the Complainant asking him to pay the entire sum of Rs.14,99,648.04 paise to be paid within 60 days, failing which the O.P. Bank will take appropriate step. The Complainant states that he intended to pay off the entire loan on receipt of original Title Deed of the purported security property within  7 days thereof vide letter dated 01.11.2007. Finding no reply from the Bank, Complainant filed a consumer complaint before Ld. D.C.D.R.F., Kolkata, Unit – I being CC No. 45 of 2008. The said complaint was allowed exparte on 19.01.2010 directing the Opposite Parties to supply the copy of original Title Deed of the property of the Complainant and Complainant must pay the unpaid residual loan. The Complainant alleged that inspite of the same, the Opposite Parties are deficient and negligent in handing over the subject Deed of Conveyance. Hence, the complaint with prayer for certain reliefs, viz. – (a)  to pay a sum of Rs.50,000/- towards present value of the suit flat ; (b) cost of Rs. 5,00,000/- for decorating the flats in question ; (c) to pay compensation of Rs. 10,00,000/- and(d) to pay Rs. 50,000/- as litigation cost.

        The Opposite Parties  1 to 5 by filing a joint written version disputed and denied the material allegations levelled by the Complainant contending, inter alia that the Complainant has filed the instant complaint with an object to thwart the legal proceedings which they have undertaken in terms of the SARFAESI Act, 2002. The Opposite Parties have also stated that the complaint is barred by the principles of res –judicata inasmuch as the matter directly and substantially in issue in this proceeding was directly and substantially in issue in a former proceeding between the parties and same has been heard and finally decided by the Ld. District Forum. The Opposite Parties have submitted that the Complainant had never deposit the registered title deed with the Bank and the same fact being known to the complaint, the letters dated 13.10.2011 and 15.11.2011 did not warrant any reply.

        On the basis of the contentions of the parties, the following points are framed for adjudication:-

        1) Is the complaint maintainable?

        2) Is the complaint barred by the principles of res-judicata ?

        3) Is there any deficiency in services on the part of the Opposite Parties to provide the Deed of Conveyance in question?           

        4) Is the Complainant entitled to get the reliefs, as prayed for?

        In order to substantiate his case, Complainant has tendered evidence on affidavit to which questionnaire has been filed on behalf of Opposite Parties/Bank against which reply has been filed by the Complainant.

        On the other hand, one Shri Pratyaya Mukherji being authorised representative of the ICICI Bank has tendered evidence on affidavit against which no questionnaire has been filed by the Complainant and as such question of filing reply by the Opposite Parties does not arise.

        Besides oral statements, parties have relied upon some documentary evidence.

        On the basis of the materials indicated above, we shall proceed to discuss how far the Complainants have been able to substantiate their case.

DECISION

Point No.1 :-

        The Complainant in his petition of complaint has averred that he obtained loan of Rs.10,41,000/-, 1,04,000/- and Rs.2,00,000/- on  07.01.2002, 18.09.2002 and 25.11.2003 respectively from the ICICI Bank in order to purchase two flats bearing Nos. 4B and 4C lying and situated at Gangotri Apartment,  Garia Gardens, P.S. Sonarpur, Kolkata – 700 084  with a stipulation to repay the loan by monthly instalments. The Complainant himself admitted that till July, 2007 he could repay only a sum of Rs.3,70,000/- against the said three loans. In order to recover the said loan the Bank authority issued a notice U/s. 13(2) of SARFAESI Act, 2002 on 26.09.2007 asking the Complainant to repay the entire outstanding amount of Rs.14,99,648.04 paise within sixty days thereof otherwise the Opposite Parties would take recourse of law.

        The materials on record indicate that the account of the Complainant was declared N.P.A in accordance with the guidelines of the Reserve Bank of India and the notice was issued thereafter on 26.09.2007. It is well settled that a Consumer Forum has got no jurisdiction wherever the SARFAESI Act is applicable. The Hon’ble Apex Court while affirming the observation of the National Consumer Commission in case of Yashwant G. Ghaisas and Ors.- vs.- Bank of Maharashtra in Civil Appeal No 1359 of 2013 decided on  01.03.2013 has observed that the National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debt Recovery Tribunal  and this matter is purely covered within the jurisdiction Debt Recovery Tribunal or Debt Recovery Appellate Tribunal.  If there is any grievance against the notice U/s. 13(2) of the SARFAESI Act that should be brought to the notice of the concerned authority.

        Considering the provisions of Section 34 of the SARFAESI Act, 2002 and in view of the observation of the Highest Court of the Land, we have no hesitation to hold that the Complainant  choose wrong Forum, who has got no jurisdiction to entertain a complaint after issuance of notice U/s.13(2) of the SARFAESI Act, 2002.

        Accordingly, this point is decided in the negative and against the Complainant.

Point Nos : 2 & 3 :

        Both the points are taken up together as they are inter linked with each other and to skip reiteration.

        On scrutiny of the record we find that the Complainant earlier initiated a consumer complaint U/s. 12 of the Act against the Chief Manager, ICICI Bank Ltd. (O.P. No. 3 herein) before the Ld. D.C.D.R.F., Kolkata, Unit – I being CC No. 45 of 2008 with a prayer to handover original Title Deed in respect of the property of the Complainant lying with the custody of the Bank and compensation of Rs. 5,00,000/- and costs. By order No. 19 dated 19.01.2010, the Ld. DCDRF allowed the said complaint exparte with a direction upon the O.P to handover the original title deed of the complainant within  45 days subject to payment of unpaid residual amount of loan to the O.P./ Bank. The Complainant did not make any payment whatsoever in compliance with the order of the Ld. District Forum and as such has failed to show any courage to file any execution application for execution of the said order.On the contrary, suppressing the said fact, the Complainant has filed this complaint and as such it is barred by the principles of res-judicata because the matter in issue was directly and substantially in issue before the Ld. District Forum in CC No. 45 of 2008.

        In questionnaire set forth by the O. P./ Bank, the Complainant has admitted in questionnaire No.6 set forth by the O.P./Bank whether – ‘ in case Title Deed of the said property was deposited with the Bank as claimed by you then do you have any acknowledgement given by the Bank for deposition of Title Deed’  to which the Complainant replied   - ‘ I have never claimed to have deposited the title deed to the Bank , and therefore, I  have no acknowledgement thereof ‘.

        Had the Complainant deposited his Title Deed with the Bank, certainly he could have produced a document to show that he has deposited the same with the Bank as mortgaged. On the contrary, the complainant claimed that the deed of conveyance was registered on 11.10.2002 in the Office of District Sub-Registrar, Alipoire, registered in Book – I, volume – 17, pages – 145 – 169 being numbered 2821 for the year 2003 indicates that complainant had full knowledge about the present status of his Title Deed.

        In the notice u/s.13(2) of SARFAESI Act, 2002 dated 26.09.2007 when the Bank calling upon the complainant to make payment of Rs. 14.99,648.04 paise upto 26.09.2007 it was inadvertently mentioned that security interest was created by way of mortgage by deposit of title deed. In fact, complainant took advantage of the situation and when he found that there is no scope to avoid the proceeding of D.R.T. he approached the Ld. District Forum and inspite of obtaining order  when he found that there was hardly any scope to overcome the situation, he has come forward in this Commission with this complaint.

        Therefore, both the points are decided against the Complainant and disposed of accordingly.

Point No. 4

        On evaluation of materials on record and in view of our foregoing discussion in Point Nos. 1 to 3 we have no hesitation to hold that the Complainant should not have filed this frivolous and vexatious complaint and as such the instant complaint is liable to be dismissed with costs which we quantify at Rs.10,000/- to be deposited by the complainant with the State Consumer Welfare Fund within 30 days from date otherwise the amount shall carry an interest @9% p.a. till its recovery.

        This point is also disposed of accordingly.

        In the result, complaint fails. It is, therefore,

ORDERED

        That the complaint is dismissed on contest with costs of  Rs. 10,000/-. The Complainant is directed  to deposit the said amount of cost within  30 days in favour of State Consumer Welfare Fund by way of a Bank Draft otherwise the amount shall carry an interest @9% p.a. till its recovery.