Delhi

StateCommission

CC/13/237

MUKESH CHANDRA SRIVASTAVA - Complainant(s)

Versus

INDIAN BANK & ORS. - Opp.Party(s)

19 Sep 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 19.09.2019

Date of Decision : 09.10.2019

COMPLAINT NO.237/2013

In the matter of:

 

            Mukesh Chandra Srivastava,

            R/o. A-002, Stellar Park,

            C-58/24, Sector-62,

            Noida.                                                                                                 ………Complainant

                  

Versus

 

1. Indian Bank,

Aggarwal Mall, Plot No.3,

Ashirwad Chowk,

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2. Gold Course Sehkari Awas Samiti Ltd.,

D-162, 1^st Floor, Sector-10,

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Through its Chairman..….Opposite Parties

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1. The case of the complainant is that he moved an application to OP-2 for its membership and allotment of flat. He took a decision to purchase the flat, when Mr. Mahim Mittal, Director Shivkala Group told that the project was financed by several banks including Indian Bank, HDFC Bank, LIC Housing Finance Ltd, Axis Bank, Detuche Bank. While disbursing the loan, OP-2 assured that project is very good, viable and would be deliverable on time.
2. OP-2 informed that Greater Noida Authority notified a tender for the auction of plot under Group Housing Scheme in response of which it submitted bid for plot no.7 in Sector P-1 and 2 measuring 9731.76 sq. mtrs. Its bid was accepted and Greater Noida Authority executed the lease. The price  of the flat was Rs.45 lakhs. He was issued a share certificate no.203 and agreement cum allotment letter dated 24.08.07 are also issued. He was allotted flat no.4101, Plot no.7, Sector PI-2, Shiv Kala Charms, Greater Noida. The allotment was in the  joint name of complainant and his son Shri Rishi Srivastava.
3. Complainant availed loan of Rs.33,80,000/- from OP-2. He paid Rs.8  lakhs in cash for which no receipt was issued. He further paid Rs.3,20,000/- through cheque for which receipt no.823 was issued. He also paid Rs.8 lakhs for wood work and some other home activities. Tripartite agreement was executed between him, OP-1 and OP-2.
4. Subsequently around 03.09.11 he came to know of multiple finance by various housing finance companies. It was found that flat which was allotted to complainant was already mortgaged with other housing finance company/ bank. OP-1 had involved in fraud, scam  in collusion with the builder. He was shocked to learn that Greater Noida authority has issued notice to OP-2 stating that it failed to pay the due amount within stipulated period and the lease deed was liable to be cancelled. Finally notice dated 21.02.11 was issued by Greater Noida Authority stating that OP-2 failed to deposit Rs.3,86,36,802/- as lease hold premium. Complainant with other members made complaint to various authorities. District Magistrate, Gautam Budh  Nagar appointed 4 member enquiry committee to look after the matter. The committee gave report on 05.03.12 holding Mr. Mahim Mittal and officials of OP-1 bank responsible. It was the duty of the bank to check sanctioned plan, layouts prepare legal and valuation report as per statutory guidelines by National Housing Bank. OP-1 failed to perform the said duties under influence of builder. FIR no.1045/2012 u/s 406/420/467/468/471/506 IPC. Hence this complaint for directing OP-1 and Op-2 to refund Rs.45 lakhs, to direct OP-1 to stop EMI and pay Rs.5 lakhs as compensation, Rs.60,000/- as litigation cost.
5. Vide order dated 06.05.13 the Ld. Predecessor of this Commission granted exparte injunction restraining OP-1 bank from recovering monthly instalments till next date. OP-1 was served for 12.07.13. The said injunction was vacated  vide  order dated 29.05.14.
6. None appeared for OP-2 despite sufficient service as mentioned in proceedings dated 07.02.14. It was proceeded exparte vide order dated 04.12.14.
7. OP-1 filed WS raising preliminary objections that complaint is not maintainable, complainant is not a consumer. It sanctioned loan against security of flat in question after obtaining necessary formalities like legal report, valuation report. There was no cancellation of lease in the year 2007 when the loan was sanctioned. The cancellation took place only in December, 2011. The complainant had been regularly paying EMIs till 05.05.13 which shows that he never disputed his liability to repay the loan and entitlement of OP-1 to recover loan. He acknowledged outstanding debt or loan on 18.04.13 by executing acknowledgement of debts and security in favour of OP-1 which is Annexure-R/6 collectively. Rs.22,66,158/- with further interest w.e.f. 01.08.13  was due  against the complainant and her son Mr. Rishi Srivastava as on 31.07.13. On merits it repeated the same defence.
8. Complainant filed rejoinder and his own affidavit in evidence.
9. The OP filed affidavit of Shri Prafula Kumar Panda, Senior Manager in evidence. It also filed corrigendum affidavit dated 27.01.16 of the same witness, alongwith written arguments.
10. The complainant has also filed written arguments.
11. I have gone through the material on record and heard the arguments.
12. During arguments the counsel for OP-1 submitted that a decree has already been passed by debt recovery tribunal in his favour and against the complainant. In view of the same the jurisdiction of this Commission is barred by Section 18 Debts Recovery Tribunal Act. In support of his submission he relied upon decision of State Commission West Bengal in case no. CC-28/08 titled as M/s. Sumitra Enterprises vs. Bank of India and others  decided on 26.05.10  dismissing the complaint. He also relied upon decision of State Commission Uttrakhand in CC No.18/12 titled as S.K. Dadar vs. P.N. B. Housing Finance Ltd. decided on 17.02.17 dismissing the complaint. Reliance has also been placed on decision of National Commission in CC No.171/10 titled as B.L. Joshi vs. Bank of India decided on 01.04.13 vide which it was held in paras 28 to 30  that jurisdiction of the consumer court is barred by Section 18 of Recovery and Debts Due  to Banks and Financial Institutions Act, 1993.
13. Per contra the counsel for complainant submitted that he has also mentioned in the written arguments that judgement dated 17.05.18 of DRT-1 Delhi referred to OP-1 on 05.02.19 is an exparte judgement. The complainant and his son have filed review petition which has been admitted by DRT and the next date in the said matter is 03.10.19. So according to him the OP-1 can not take shelter of the judgement of DRT.
14. I am unable to appreciate the argument of counsel for the complainant. Mere filing of the review or its admission for hearing does not amount to settling aside the judgement dated 17.05.18. The judgement stand till it is set aside in review.
15. Moreover Section 18 Recovery of Recovery and Debts Due to Banks and Financial Institutions Act, 1993 does not require any judgement of DRT. It only says that once proceeding have been initiated under said act, jurisdiction of all courts is barred.
16. As regard OP-2 it is sufficient to mention hat there are serious allegations of breach of trust, cheating, forgery for which FIR has been lodged. Case is pending trial in Criminal Court for the last about 7 years since 2012. Such cases are not fit for being decided by Consumer Court. In this regard reliance can be placed on Synco Industries vs. SBI AIR 2002 SC 568. In Shrish Critcar  vs. State Bank of Patiyala (IV) 2015 CPJ 154 NC held that issue of forged signature can not raised before  Consumer Court. Similar view was taken in  Reliance Industries vs. United India  1998 CPJ 13 and Rakesh Kumar vs. ICICI Prudential R.P. No.4533/13 decided by NC on 04.08.14. In P.N. Khanna vs. Bank of India II (2015) CPJ 54 NC held that forgery requires elaborate evidence and can not be decided by Consumer Court.
17. Over and above all I  may mention that complaint has been filed by Mukesh Chand Srivastava alone. His son Shri Anil Srivastava has not been joined as a complainant. The allotment was joint in the name of complainant and his son Shri Rishi Srivastava. The complaint is bad for non joinder of necessary parties.

The complaint is dismissed. However complainant would have a right to seek his remedy against OP-2 before Civil Court for recovery of the amount after excluding the period spent in the present case as per decision of Hon’ble Supreme Court in Laxmi Engg Works vs. P.S.G. Industrial Institute 1995 SCC (3) 583.

18. Copy of the order be sent to both the parties free of cost.
19. File be consigned to record room.

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

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