Punjab

Sangrur

CC/626/2014

Krishan - Complainant(s)

Versus

Kotak Mahindra Bank - Opp.Party(s)

24 Feb 2015

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

               

                                               

                                                Complaint No.    626

                                                Instituted on:      19.11.2014

                                                Decided on:       24.02.2015

 

 

Krishan aged about 65 years wife of Late Jagdish Ram, resident of Ward No.16, Khalsa Flour Mill Wali Gali, Sangrur.

                                                        …Complainant.

                                Versus

1.     Kotak Mahindra Bank Limited, Kaula Park, Sangrur through its Branch Manager.

2.     ICICI House Finance Limited, Kaula Park, Sangrur through its Branch Manager.

                                                …Opposite parties

 

 

For the complainant    :       Shri Anil Aggarwal, Advocate.

For OPs                    :       Shri G.S.Shergill, Advocate.

 

 

Quorum:    Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

 

Order by : Sukhpal Singh Gill, President.

 

1.             Shri Krishan complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that husband of the complainant had taken a loan of Rs.3,00,000/- from OP number 2 in the year 2004 vide account number LBSAN0000610614 which was also insured with OP number 2 and during the life time of Shri Jagdish Ram, the entire loan was paid by him and closed the loan account on 22.09.2008 and statement of loan account was issued showing the balance of loan as nil. It is further stated that there is nothing due again him.  It is further averred that the husband of the complainant died an accidental death due to heart attack.  The grievance of the complainant is that OP number 1 is trying to illegally sell the house of the complainant, as no loan was taken from OP number 1 and the loan has already been cleared with the OP number 2.  It is further averred that OP number 1 is threatening to sell the house and to recover the alleged outstanding amount to the tune of Rs.6,00,000/-. Earlier the OP number 1 asked the complainant to pay Rs.31,20,608/- and lastly offered to compromise the matter below Rs.1,00,000/-. It is further stated that the loan was also insured by OP number 2 and if there is any alleged outstanding against the complainant, then the same could be recovered from the insurance company.  It is further stated that nothing is due towards the complainant. Accordingly, alleging deficiency in service on the part of the OPs, the complainant has prayed that the OPs be directed to quash the demand of Rs.1,00,000/- and to issue No due certificate to the complainant and further claimed compensation and litigation expenses.

 

2.             After admitting the complaint, notice was issued to the opposite parties.

 

 

3.             The learned counsel for OP number 1 through its counsel on 15.01.2015 has filed an application for dismissal of the complaint being not maintainable as the same is barred by section  34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI ACT in short), wherein it is mentioned that in the present complaint, the complainant and her husband Shri Jagdish Ram had obtained the loan from ICICI Bank Limited. The complainant being the owner mortgaged his house inter alia created security interest in respect of the property by way of deposit of title deeds and thus created security interest in favour of ICICI Bank Limited. It is further averred that after getting the house loan, the complainant and her husband defaulted in making the payment and consequently to the default committed by the complainant and her husband, their loan account has been classified as non performing assets under the SARFAESI Act, 2002 and inspite of repeated requests and demands, they failed and neglect to pay the loan amount and other dues to ICICI Bank.  It is further averred that ICICI Bank vide a deed of assignment dated 31.12.2007 assigned to in favour of Kotak Mahindra Bank i.e. OP number 1 inter alia all its rights title, interest, benefits, dues receivable under the loan agreement along with  under lying security and security interest created in respect of immovable property for the payment of the same.  Thereafter on 15.1.2009 OP number 1 issued notice under section 13(2) of SARFAESI Act to the complainant through registered post to deposit an amount of Rs.3,43,589/- due as on 2.12.2008 within 60 days from the date of notice, but the complainant did not make the payment.  It is further stated that the proceedings under the SARFAESI Act have already been initiated, so the complaint before this Forum is not maintainable. Further it is stated that Section 34 of the said Act bars the jurisdiction of all the courts except DRT, therefore, the complainant has absolutely no right to file the complaint before this Forum.   The complainant has opposed the application of the OP number 1. In the reply, it is admitted that the complainant had taken the loan in the year 2003 and deposited the original sale deed as security with the ICICI Bank. It is stated that since the loan was insured and Jagdish Ram died accidentally, so the complainant is not liable to pay anything to the bank.  It is stated that no intimation by ICICI Bank was given to the complainant regard taking over the loan by Kotak Bank. No notice under SARFAESI act was served upon the complainant.  However, the other allegations in the application have been denied by the complainant.  

 

4.             We have heard the arguments of the learned counsel for the parties on the application dated 15.01.2015 filed by Op number 1 for dismissal of the complaint.

 

5.             Since OP number 1 has already initiated the proceedings under the SARFAESI Act against the complainant vide notice dated 15.01.2009 demanding a sum of Rs.3,43,589/-, but no payment has been made by the complainant, we are of the opinion that  after issuing the notice under the SARFASEI Act, this Forum has no jurisdiction to hear and decide the present complaint. The same view has also been taken by the Hon’ble National Commission in Shiv Shankar Lal Gupta versus Kotak Mahindra Bank and others 2013(1) CLT  531 (NC), wherein it is held that under the Consumer Protection Act, 1986 and SARFASEI Act 2002, Section 13(2), 34, where a dispute is pending under the SARFAESI Act, 2002, the complaint is not maintainable before the Consumer Forum. The law puts a crimp in invoking the jurisdiction of Consumer Commission. Word Civil Court mentioned in Section 34 of Act, 2002, also includes Tribunals and Commissions dealing with Civil matters. Complaint dismissed with costs in the sum of Rs.10,000/-.”  Further the Haryana State Commission in Canara Bank versus Bhagwati Electronics 2014 CPJ Vol.I  page 225, it has been held that once proceedings have been initiated against the complainant under the SARFAESI Act, 2002 for recovery of the loan amount, the same cannot be challenged before the Consumer Fora.  Remedy lies with the Debt Recovery Tribunal by way of appeal.   As such, we find that the present complaint is not maintainable before this Forum and the remedy only lies with the Debt Recovery Tribunal by way of appeal.

 

6.             In view of our discussion and legal position explained above, we find that the complaint before this Forum is not maintainable. As such, the application of the OP is allowed and the complaint is dismissed. However, the complainant is at liberty to approach the competent court of law, if so desired.  A copy of this order be issued to the parties free of charge. File be consigned to records.

                Pronounced.

                February 24, 2015.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

               

                                                                (Sarita Garg)

                                                                    Member