Delhi

StateCommission

RP/275/2016

ANURAAG KAUL - Complainant(s)

Versus

KOTAK MAHINDRA BANK LTD. & ANR. - Opp.Party(s)

NAVEEN KUMAR CHAUDHARY

30 Nov 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

Date of Decision: 19.11.2018

 

 

Revision Petition No.275/2016

Arising out of the order dated 29.08.2016 passed in Complaint Case No. 277/2015 by the District Consumer Disputes Redressal Forum (Central), Delhi)

 

 

Mr. Anurag Kaul,

478 B, Ground Floor,

Varun Enclave, Sector-28,

Arun Vihar, Noida – 201 301.

                                                …..Petitioner

Versus

 

1. Kotak Mahindra Bank Ltd.,

Earlier known as ING Vysay Bank Ltd.,

36-38A, Nariman Bhawan,

227, Nariman Point, Mumbai – 400 021.

 

ALSO AT:

 

I.        CFD, 871, East Park Road,

          Karol Bagh, New Delhi -110005.

 

II.       No.6, Vaishali Enclave,

          Pitampura, New Delhi -110088.

 

2. Sangwan Heights Pvt. Ltd.,

Earlier known as M/s. Shreya Developers Pvt. Ltd.,

210 & 211, 2^nd Floor, Harsha Corner Complex,

DDA LSC Gazipur, Delhi – 110096.

 

                                                          .….Respondents

 

 

CORAM

Justice Veena Birbal, President

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

 

1. Present is a petition under Section 17(b) of the Consumer Protection Act, 1986 (in short ‘the Act’) wherein challenge is made to order dated 29.08.2016 passed by the Consumer Disputes Redressal Forum(Central), Delhi, (in short, the “District Forum”) in Complaint Case No.277/2015, whereby the application filed by the respondent No.1 herein i.e. OP No.2 before the District Forum, raising preliminary objection with respect to the maintainability of the complaint has been allowed.
2. Briefly stated the facts are that a complaint under Section 12 of the Act was filed by the petitioner herein i.e. complainant before District Forum stating therein that he had applied for a flat in Hindon Heights at Ghaziabad, UP, which was proposed to be constructed by respondent No.2 i.e. OP No.1 before the District Forum. Petitioner/complainant was allotted a flat bearing No.1 having super area of 1200 sq. ft. for a basic price of Rs.22,22,000/-. On 05.02.2007, petitioner/complainant had paid an amount of Rs.2,22,000/- to respondent No.2/OP No.1 as an earnest money and an agreement was executed between the petitioner/complainant and respondent No.2/OP No.1  and subsequently on 26.09.2007 a tripartite agreement was also executed between the petitioner/complainant, respondent No.2/OP No.1 and respondent No.1/OP No.2 Bank. It was alleged that respondent No.1/OP No.2 bank in connivance with respondent No.2/OP No.1 disbursed the entire loan amount  of Rs.19,50,000/- to respondent No.2/OP No.1 on 03.10.2007 without going into the details of the construction of the flat. It was alleged that in April, 2015 the petitioner/complainant came to know that respondent No.2/OP No.1 was not having even the requisite permission/clearance from the concerned authority for converting the land use as such by disbursing the entire loan, interest of petitioner/complainant was adversely effected. It was alleged that both the respondents/OPs in connivance with each other had cheated the petitioner/complainant and they were also deficient in service. It was also stated that respondent No.1/OP No.2 Bank had filed an original application before DRT against the petitioner/complainant and respondent No.2/OP No.1 for recovery of loan amount with interest. Alleging deficiency in service on the part of respondents/OPs, a complaint was filed before the District Forum seeking refund of the amount with interest and compensation.
3. Upon notice being issued, respondent No.1/OP No.2 Bank had filed an application raising preliminary objection about the maintainability of the complaint against it, wherein it was alleged that the petitioner/complainant did not adhere to the terms and condition of the loan agreement as such respondent No.1/OP No.2 had filed the OA bearing No.328/2012 before DRT-III much prior to filing of the complaint as such complaint filed by the petitioner/complainant against respondent No.1/OP NO.2 Bank was not maintainable.
4. After hearing the parties, District forum held that since original application of respondent No.1/OP No.2 was pending before DRT under the provisions of Recovery of Debts Due to Bank and Financial Institutions Act, 1993 and that section 8 of the aforesaid Act bars the jurisdiction of the District Forum regarding recovery of loan amount due against the petitioner/complainant, as such the complaint was not maintainable against respondent No.1/OP No.2.
5. Aforesaid order is challenged before this Commission by filing aforesaid revision petition.
6. Counsel for the petitioner/complainant has submitted that even if the OA was filed before the DRT, the petitioner/complainant has right to file complaint before the District Forum against respondent No.1/OP No.2 Bank to seek redressal of his grievances against it under the Consumer Protection Act. It is contended that merely filing of OA for recovery of loan by the bank before DRT does not create any bar on the jurisdiction of the District Forum. Counsel for the petitioner/complainant has relied upon the judgment of Hon’ble Supreme Court in Bharat International & Anr. v. State Bank of Travancore & Anr. reported as JT 2001(10) SC 582 and has submitted that in light of the facts and circumstances of the case consumer complaint was maintainable against the bank. 
7. On the other hand, counsel for respondent No.1/OP No.2 has relied upon judgment of the Hon’ble National Commission in Bank of Baroda v. Ranjeet Singh IV (2012) CPJ 397 (NC) and Traxpo Trading Ltd. v. The Federal Bank Ltd. I (2002) CPJ 31 (NC). Counsel for respondent No.1/OP No.2 has submitted that under section 18 of the RDDBFI Act, jurisdiction of Forum is barred when the respondent No.1/OP No.2 Bank has filed a suit for recovery of outstanding dues against the petitioner/complainant. It is contended that in the said OA petitioner/complainant could have claimed set off or even counter claim against the Bank under Section 19 (8) of the said Act and consumer complaint was not maintainable. 
8. Ld. counsel for the petitioner/complainant has submitted that OA filed before the DRT has already been decided vide order dated 15.07.2016 and even the appeal filed by the petitioner/complainant before DRAT bearing Appeal No.363/2016 has also been dismissed by the DRAT vide its order dated 27.01.2017 as not entertainable as the petitioner/complainant did not comply with the condition of pre deposit as the matter has been settled with the condition of pre-deposit under Section 21 of the RDDBFI Act.
9. We have heard counsel for the parties and perused the material on record.
10. Order dated 15.07.2016 passed by DRT shows that OA of respondent No.1/OP No.2 Bank has been allowed  and the petitioner/complainant as well as respondent No.2/OP No.1 i.e. builder have been directed as under:

 

1. I hereby allow this OA of the applicant Bank and direct the defendant No.1 and 2 to pay jointly or severally to the applicant bank within 30 days, a sum of Rs.29,55,095/- (Rupees Twenty Nine Lacs Fifty Five Thousand and Ninety Five only) alongwith cost, incidental expenses and interest @12% compounded with monthly rests from the date of filing of this OA till the date of realization.

 

2. The defendant No.2 is directed to pay the aforesaid amount within 30 days, failing which the same shall be recovered first from sale of the mortgage immoveable property being residential flat bearing No.01, Ground Floor, Jasmine -4, Hindon Heights, NH -58, Noor Nagar, Opposite Raj Nagar, Ghaziabad, UP.

 

3. In case, there is any shortfall, the same shall be recovered from the sale of personal moveable or immoveable assets/properties of the defendant No.1.

 

4. Recovery certificate be issued forthwith and be sent to Recovery Officer, Debts Recovery Tribunal –III, Delhi.

 

5. The Registry of this Tribunal is hereby directed to issue the free copy of the order and sent to all the parties.

 

6. Parties are directed to appear before the Recovery Office, DRT-III, Delhi on 26.08.2016.”

 

 

11. Subsequent thereto the aforesaid order was challenged by the petitioner/complainant before the DRAT wherein following orders have been passed:

     “Counsel for the respondent has today submitted that there has been a settlement with the builder as was being claimed by the appellant. However, the terms and conditions of the settlement are not with him today.

 

     Counsel for the appellant submits that since the bank has accepted the settlement with the builder and if that settlement finally fructifull, the appellant will also get benefitted and therefore this appeal can be dismissed today no as not entertainable for the reason of non-compliance of the condition of pre-deposit, but liberty may be given to the appellant to have the appeal revived in case the settlement between the bank and the builder does not get materialized for any reason and at that time the appellant will comply with the condition of pre-deposit under Section 21 of the RDDBFI Act, which as on date he is not in a position to comply with.

 

The appeal is accordingly dismissed as not entertainable for the aforesaid reason and liberty as prayed for is granted.”

 

 

12. Aforesaid order shows that there is settlement between the builder i.e. respondent No.2/OP No.1 and respondent No.1/OP No.2 i.e. Bank. Petitioner/complainant had made a statement before DRAT that since bank has accepted the settlement with the builder and if that settlement finally fructiful the petitioner/complainant will also be benefitted therefore, he had prayed for dismissal of the appeal as not entertainable for the reasons of non-compliance of condition of pre-deposit. On his request, DRAT has dismissed the appeal as not entertainable. Though, he has sought liberty for revival of the appeal but till today no such liberty has been availed. More than one year and ten months have already passed, the appellant has not approached for revival of the appeal. It may also be mentioned that petitioner/complainant had contested the OA before the DRT.
13. In view of the peculiar facts and circumstances emerging above, no interference in the impugned order is required. It may also be mentioned that even the judgment relied upon by the Ld. counsel for the petitioner/complainant is not applicable to the facts and circumstances of the case. Accordingly, the revision petition stands dismissed.
14. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. Record of the District Forum be also sent forthwith.

              Thereafter the file be consigned to Record Room.

 

 

 

 (Justice Veena Birbal)

• President