Date of filing:19.03.2021

                                                      Date of Disposal:16.11.2024

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 16^th DAY OF NOVEMBER 2024

PRESENT

Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

CONSUMER COMPLAINT NO. 25/2021

ORDER

BY Mr. K. B. SANGANNANAVAR: PRL. DIST. & SESSION JUDGE (R)- JUDICIAL MEMBER

1. This is a complaint filed against OP to release the 12000 paddy bags in the good condition which are in the custody of OP and to release the mortgaged property by issuing NOC.  Further to direct OP to pay a sum of Rs.1,19,68,000/- being the cost of paddy after deducting the loan due amount along with interest @ 10% p.a. and to award cost.

2. The Brief facts of the case of the complainant is stated below:

Complainant being one of the reputed customer of OP has availed the credit facilities from OP bank by pledging 12000 paddy bags on 31.03.2018 for a sum of Rs.75,00,000/-.  He has executed necessary loan documents and mortgaged his property.  The value of the 12000 paddy bags is Rs.98,00,000/-.  The present value of the 12000 paddy bags is Rs.1,80,00,000/-.  The loan was sanctioned on the basis of issuance of warehouse receipt issued by OP branch on the basis of lock and key and the said paddy is in OP custody since there will be an inspection from time to time from officers.  He has stated since defaulted in repaying the loan dues in time has initiated SARFAESI Act by issuing demand notices dated 06.07.2019, 18.07.2019 stating that complainant is liable to pay a sum of Rs.60,31,673/- towards the loan amount.  The OP has issued notice dated 24.09.2019 stating that complainant is liable to pay a sum of Rs.61,76,326/- to the loan dues and to the said notice he has issue a reply on 15.12.2019 stating that he has already paid a sum of Rs.15,00,000/-.  On 19.01.2020 there was a publication in Prajavani Daily Newspaper about the default in paying the dues.  He is ready and willing to make payment of the due loan amount, had requested for the release of paddy bags from the OP custody and also requested for issuance of NOC along with title deeds of the mortgaged property.  It is therefore, he alleged against OP that they had rendered deficiency of service since failed to release 12000 paddy bags as requested and failed to issue NOC along with returning of title deeds.

3. The OP has contested the complaint by filing version contending that complainant has not made out the case for grant of relief as prayed in the complaint.  The OP has been continuously in touch with complainant, co-obligants and mortgagor for recovery of dues.  The stock pledged to the bank as security was placed in the godown leased by complainant.  The complainant has fraudulently lifted the stock in connivance with the godown owners without the knowledge of the OP Bank.  The complainant instead of contesting the matter before the DRT has come before this Commission raising untenable allegations.  The complaint may not fall under the purview of CPA, 2019 and only Debtor-Creditor relation existed which has to be decided by DRI-I in OA Nos.52 and 53 of 2021.  The complainant has not paid loan dues of Rs.73,57,662/- and Rs.3,60,071/-.  Further he is also due for Rs.10,54,008/- and Rs.10,54,688/- of different loan accounts.  The OP bank has filed the complaint with Malebennur Police Station.  The OP bank has initiated steps under the provisions of SARFAESI Act, 2002 to recover the amount due to the bank and the complaint raised is illegal and is liable to be dismissed.

4. In view of rival contention of respective parties, Commission held an enquiry by receiving affidavit evidence of complainant along with documents and on the contrary Senior Manager of OP Bank has also submitted affidavit evidence along with documents.  After closure of enquiry, Commission heard learned counsels. 

5. Now the point that arise for consideration of the Commission would be:

1. Whether complaint raised by complainant seeking reliefs from the Consumer Commission could be entertained in view of filing of OA Nos.52 and 53 of 2021 on the file of DRT-I, Bengaluru?
2. Does he prove the alleged rendering deficiency in service on the part of OP and if so is entitle for relief sought in this complaint?
3. What order?

The findings are recorded as below:

Point No.1 & 2:           In the Negative.

Point no.3:                   As per final order for the

following:

REASONS

6. On Point No.1 to 3:  This complaint is raised against the banker OP that he being one of the reputed customer has availed the credit facilities by pledging 12000 paddy bags for a sum of Rs.75,00,000/- has executed necessary loan documents.  According to him, the value of the paddy bags amounting to Rs.98,00,000/- as per his banker valuation and at present the value of 12000 paddy bags is Rs.1,80,00,000/-.  In this regard, he has also stated in his complaint that he has defaulted in repaying the loan dues in time.  The OP has initiated proceedings against him under SARFAESI Act, 2002 stating that he is liable to pay a sum of Rs.60,31,673/- as on 18.07.2019 and he has stated that he is ready and willing to pay the said dues subject to realization of paddy bags and to handover mortgaged property in his favor.  The relief which he has sought in his complaint is to give direction to his banker to release12000 paddy bags in the good condition which are in the custody of OP and to release the mortgaged property and give NOC.  Further has sought to pay an amount of Rs.1,19,68,000/- along with interest @ 10% p.a. being the cost of the paddy after deducting the loan due amount of paddy bags.  The Cause of action to raise this complaint could be seen in this complaint which arose on 31.03.2018 when complainant got loan from OP bank on 06.07.2019, 18.07.2013, 24.09.2019 when OP bank issued legal notice on 19.08.2019 and when complainant replied to the said notice on 05.12.2019 and had sent rejoinder to reply notice on 19.01.2020 when OP gave paper publication in Prajavani Daily Newspaper and on 17.02.2020 when the he replied vide his reply notice to the paper publication and on 28.01.2021 when he issued legal notice.  Thus, he has stated cause of action according to him to raise a Consumer Complaint commencing from 31.03.2018 till 28.01.2021 and he has raised a Consumer Complaint through advocate on 19.03.2021.  In order to proceed with his case has placed copies of legal notices, reply notices, rejoinder reply notices, postal acknowledgement and receipts coupled with demand notice dated 06.07.2019 and 18.07.2019 which in fact are not at all disputed by OP, but facts remain found from notice issued U/s 13(2) of SARFAESI Act, 2002 dated 24.09.2019, wherein requested complainant to repay the entire amount immediately to avoid all unpleasantness. In case of noncompliance, further needful action will be resorted to, holding complainant liable for all costs and consequence.  The details of credit facilities could be seen under the said notice.  The nature of loan is PL- Godown, Site measuring 36’+40/2 x 40’ and 40x20 ft. RCC House Ground Floor 1139 feet and first floor 1139 ft. and book liability is shown as Rs.61,76,326/-.  The paper publication is also issued in Prajavani daily Newspaper.

7. We have examined affidavit evidence of Mr.Syed Israr Ahamed, S/o Syed Khasim Sab, being complainant has reiterated the contents of complaint, as such not necessary to reproduce herein considering the relief sought by him against OP, in view of initiating proceedings against him under SARFAESI Act, 2002.  On the contrary, affidavit evidence of Mr.Girish G R, Senior Manager, Karnataka Gramin Bank, is submitted wherein could see the OP bank had filed OA Nos.52 and 53 of 2021 before DRT-I which in fact is also stated in complainants’ complaint.  In other words, complainant is aware of filing of OA Nos.52 and 53 of 2021 on the file of DRT-I since enquiry reveals complainant has availed one more pledge loan of Rs.9,00,000/- from OP bank against pledge of 1000 bags of Paddy and on co-obligation of Mr.Syed Althaf Ahmed  and it is also revealed that complainant has taken godown on lease from Mr.Syed Altaf Ahmed who is none other the co-obligant to the said pledged loan dated 16.10.2018.  It has also come in the enquiry and in version of OP submits that OP during verification of stock of paddy pledged, it was found complainant in connivance with the godown owners, has wrongfully lifted the stock of 12000 bags of paddy stored in the godown of Smt.Shahtaj Banu and 1000 bags of paddy stored in the godown of Sri.Syed Altaf Ahmed with an intention to cheat the OP Bank and thereby caused wrongful loss to OP Bank and considering wrongful lifting of pledged securities by the complainant, since complainant in this complaint placed nothing on record to show that 12000 paddy bags are still available intact and he has not taken any concern to establish availability of pledged paddy bags where they are stored and in such circumstances, when OP Banker alleged against him that paddy bags pledged were lifted in connivance with the godown owners stored in the godown of Smt.Shahtaj Banu and 1000 bags of paddy stored in the godown of Sri.Syed Altaf Ahmed, which in our view go against the case of the complainant considering filing of OA Nos.52 and 53 of 2021 on the file of DRT-I and the relief which he has sought could not be examined by the Consumer Commission on the basis of materials which he has placed on record.  As such we found force and legal substance in the contention of counsel for OP in view of initiating of SARFAESI Act proceedings; complainant is not entitle for any reliefs.

8. Learned counsel for OP has placed a decision reported by West Bengal State Commission in the case of Hemant Kumar Chokani v. Bank of America in S.C.Case No.86/O of 2001 decided on 28.08.2006 wherein held –

“On the other hand, the OP did furnish a copy of ‘Overdraft Agreement-cum-letter of pledge-cum-guarantee” made between the parties on 07.02.1994, which formed the basis of their mutual relationship and was never denied by the complainant either in the complaint or in subsequent submissions.This agreement being an agreement of a creditor and a debtor allowing overdraft facility on pledge of shares to the complainant has been deemed there to be not a consumer under CPA, 1986 as determined in NC in Standrd Chartered Bank v. T.N.Temtia, where the Hon’ble NC held interalia: ‘In view of this we are of opinion that it was a relationship of a creditor and a debtor so far as pledged shares were concerned.As such the question of hiring of service of the Bank would not arise in such an eventuality.No doubt, the Bank cold exercise the right conferred on it with law.The remedy of the power for an improper sale of pledged property is for recovery of damages.Measure of damages is loss actually sustained.If the sale was not effected in terms of their instructions or it was in violation of provisions of Sec.176, the complainant could proceed against the Bank by ways of a civil suit or recover of damages of an account of the loss supposed by them’…….on examination of records and submission, we find that no detailed evidence was put forward by the complainant on (a) above and in any case, the supposed improper sale would require critical examination of fact and law, not practicable within the confines of this Commission under provisions of C.P.Act an Civil Court ought to be the ‘Forum of Choice”.

9. Thus followed by the principles enunciated in the above case and the case on hand, in our view the Consumer Complaint raised by complainant cannot be entertained in view of filing of OA Nos.52 and 53 of 2021 on the file of DRT-I, is liable to be dismissed.  Accordingly, recorded findings on point No.1 and 2 in the negative and on Point No. 3 proceed to dismiss the complaint with no order as to costs.

10. Furnish copy of this order to parties to the complaint for information.

        Lady Member                                  Judicial Member             

*GGH*