Order no. 34
The case of the complainant in brief is that the complainant applied for house building loan and o.p.s sanctioned loan amount of Rs.2 lakhs. The o.p. nos.1 and 2 disbursed two cheques amounting to Rs.1,09,734/- and Rs.68,507/- and the complainant received through o.p. no.1 after deducting the interest Rs.1759/-. The complainant handed over 24 posted dated cheques of Rs.2536/- in the custody of o.p. no.1 towards the security deposit against the said loan of Rs.2,50,000/-. The complainant on repeated occasions requested the o.p. nos.1 and 2 to disburse the said amount of Rs.70,000/- but o.p. nos.1 and 2 did not provide the said amount. The o.ps. charged their PEMI increasing time to time along with interest from the complainant and the complainant paid the same on regular basis. On the basis of the said allegation the complainant filed this case praying for relief by giving necessary direction upon the o.p. nos.1 and 2 to return the twenty four post dated cheques as well as original deed and charging any PEMI and also compensation of Rs.5 lakhs and litigation cost of Rs.50,000/-.
The o.p. nos.1 and 2 contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainant requested the o.ps. for an enhancement of loan amount from Rs.2 lakhs to Rs.2,50,000/- and the same was sanctioned by o.ps. The enhancement of the amount of loan of Rs.50,000/- was sanctioned by o.ps. was subject to certain terms and conditions being fulfilled, on the basis of which the disbursement of enhanced amount would be allowed. Default or breach of the terms and conditions of the existing loan facility offered by o.ps. to the complainant as stipulated under clause 6(F) of the sanctioned letter dt.21.1.03 being one of such terms and conditions which the o.ps. may withdraw and revoke the sanction of the enhancement, o.ps. in terms of the same withdrew the sanction of the enhance limit. According to the terms and sanction o.ps. well within its right to revoke the sanction upon failure on the basis of the complainant to comply with the terms and conditions as required to be fulfilled. It was further stated that an amount of Rs.1,80,000/- was disbursed by o.ps. to the complainant as on the date of issuance of cheques. It as stated by o.ps. that in a judgment reported in AIR 2012 Supreme Court page 2010 wherein it was held that once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents the court suit in addition to full restitution impose appropriate cost. The court must ensure that there was no incentive for wrong doer in the temple of justice. It is stated that the complainant failed to abide by the conditions as specified in the letter dt. 23.4.09 wherein he was requested to start payment of his EMI and was duly informed that failure in doing so, would lead to deem coinsurance on the part of the complainant towards down sizing of the loan to the extent of which the same has been availed. Since the complainant suppressed the material fact therefore o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant was sanctioned home loan amounting to Rs.2,50,000/-.
- Whether the complainant paid the EMI regularly.
- Whether the complainant will be entitled to get back the original deed and other related papers.
- Whether there was any deficiency in service on the part of the o.ps.
- Whether the complainant will be entitled to get any relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. Lawyer for the complainant argued that the complainant was initially sanctioned with an amount of Rs.2 lakhs. The o.ps at the time of sanctioning loan received some documents viz. original deed, linked deed, sanctioned plan, sanctioned letter, mutation, etc. The o.p. nos.1 an 2 disbursed two cheques after deducting the interest Rs.1759/-, subsequently the complainant made an application to o.p. nos.1 and 2 and an amount of Rs.2,50,000/- was sanctioned enhancing the previous loan amount of Rs.2 lakhs. The complainant handed over 24 post dated cheques of Rs.2536/- in the custody of o.p. nos.1 and 2 towards the security deposit against the loan of Rs.2,50,000/-. It was stated by ld. lawyer for the complainant that the complainant vide letter dt.7.8.03 and 24.8.03 requested o.p. nos.1 to 3 to disburse the balance amount or to close the loan account through taking back the disburse loan amount, but no action was taken on the part of o.ps. It was emphasized that o.ps. committed the act of deficiency in service and also negligent in disbursement of balance loan amount. The complainant also stated that the unfair trade practice was committed by o.ps. for squeezing money from the complainant and as such, ld. lawyer prayed for the reliefs.
Ld. Lawyer for the o.p.s argued that the instant case is to be dismissed at the outset on account of suppression misrepresentation of material fact by the complainant. It was stated that the complainant requested the o.ps. for an enhancement of loan amount from Rs. 2 lakhs to Rs. 2,50,000/- on his own accord and the same has not been enhanced by o.ps. unilaterally. The said enhancement of Rs. 50,000/- as sanctioned by o.ps. was subject to certain terms and conditions being fulfilled. Default and/or breach of the terms and conditions of the existing loan facility offered by o.ps. to the complainant as stipulated under clause 6F of the sanctioned letter dt.21.1.13. The complainant was requested by o.ps. to pay his EMIs on the loan amount of Rs. 2 lakhs as sanctioned and disbursed of o.ps. at the earliest and by a letter informed to the complainant to comply with the certain requirement as may be evident from a perusal of the said letter which is self explanatory. The complainant was duly informed time and again that in order to prepay the loan amount of Rs.2 lakhs the complainant would be required to visit the nearest branch in order to complete required documentation to initiate the process of prepayment of the loan. The complainant failed to pay heed the instructions and requests of o.ps. and started to sent letters making wild allegations. The complainant delinquent status considering overdue charges remaining to be paid and since the complainant is a defaulter he cannot get any relief from this Forum. It was also stated that this Forum lacks of jurisdiction with adjudication of the matters in relation to recovery proceedings and in this respect ld. lawyer for the o.ps. cited ruling as decided by Hon’ble Kerala High Court wherein it was observed that as per Sec 34 of SARFAESI Act there is an express bar to the effect that no Civil Court has jurisdiction to entertain any suit or proceedings in respect of any matter of which DRTC or Appellate Tribunal has empowered under the said Act. Sec 35 of the said Act stipulates that the provisions contain therein shall have overriding effect, notwithstanding anything contained in any other law for the time being in force. Considering all these aspects Ld. Lawyer for the o.p.s prayed for dismissal of the case.
Having regard to the submissions of the respective parties it is an admitted fact that the complainant took loan of Rs.2 lakhs initially, subsequently with the prayer of the complainant the loan amount was enhanced Rs.2,50,000/- and the complainant at the time of obtaining loan gave all sorts of documents as required by o.ps. for sanctioning loan in favour of the complainant. The complainant in order to show that he paid the EMI regularly failed to produce any document to that effect, on the contrary it appears from the materials on record that the o.p.s on numerous occasions requested the complainant to pay the dues but instead of paying any heed to the request of o.ps., the complainant made wild allegations against the o.ps., even a letter was sent to RBI making allegations against the o.ps.
Being baffled to have any relief the complainant while found that the bank tried to recover the loan amount as per the provisions as laid down in SARFAESI Act the complainant rushed to this Forum seeking relief that the o.ps. cannot realize the amount from the complainant. From the materials on record as well as from the judgment pronounced by different High Courts and Supreme Court that whenever a proceeding under SARFAESI Act is started by the bank this Forum has no jurisdiction to entertain the plea of the complainant who is admittedly the defaulter in payment of the loan amount of the bank. DRTC is only Forum whereby the complainant could have raised his plea before the said Forum. But instead of availing of that Forum the complainant rushed to this Forum to avail of his relief. In this respect we can rely on the decision as disposed of in WPC No.34756 of 2010 T and also in respect of WPC No.688 of 2011 wherein it was held that the District Disputes Redressal Forum, Puri had transgressed its jurisdiction in entertaining an application filed by the borrower u/s 13(3B) of the C.P. Act, 1986. Relying those judgment and on materials on record we hold that the case filed by the complainant is not maintainable and the same is dismissed accordingly. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No. 63/2013 is dismissed on contest without cost against the o.p.s.
Supply certified copy of this order to the parties free of cost.
