KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:326/2010 JUDGMENT DATED:07..07..2010. PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI. M.V. VISWANATHAN : JUDICIAL MEMBER SRI.M.K. ABDULLA SONA : MEMBER Abraham Chacko, S/o Chacko, Valummel House, Kattappana South.P.O, Kattappana Village, : APPELLANT Udumbanchola Taluk, Idukki District. (By Adv:Sri. R.Murukan) Vs. Manager, State Bank of India, Agricultural Development Branch, Kattappana, Kattappana.P.O, : RESPONDENT Kattappana Village, Idukki District. JUDGMENT SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER The appellant is the complainant and respondent is the opposite party in CC.152/09 on the file of CDRF, Idukki. The complaint therein was filed alleging deficiency of service and unfair trade practice on the part of the opposite party State Bank of India in collecting Rs.25,000/- as enforcement agent charges and other charges. The opposite party/State Bank of India, Kattappana Branch entered appearance and filed written version denying the alleged deficiency of service and unfair trade practice. It was contended that the complainant availed house construction loan and he committed default in repaying the loan amount with interest accrued thereon. So, the Bank proceeded against the complainant as per the provisions of Securitization and Reconstruction of Finance Assets and Enforcement of Security Interest Act 2002 (SRFAEST) and in the said proceedings notice was issued to the complainant and he paid the amount due to the opposite party bank with principal amount and interest including enforcement agent charge of Rs.25,000/-. The opposite party also challenged the maintainability of the complaint in CC.152/09. Before the forum below the complainant was examined as PW1 and Exts.P1 to P9 documents were marked on his side. Exts.R1 to R3 documents were also marked on the side of the opposite party. On an appreciation of the facts, circumstances and evidence on record, the Forum below passed the impugned order dated:27th February 2010 dismissing the complaint in CC.152/09. Hence the present appeal. We heard the learned counsel for the appellant at the admission stage. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the proceeding initiated by the respondent/opposite party bank against the appellant/complainant under SRFAEST Act 2002 is unsustainable as the mortgaged property is an agricultural land. He also submitted that there occurred unfair trade practice in collecting Rs.25,000/- by way of enforcement agent charge. Thus, the appellant requested for admitting this appeal and to issue notice to the respondent/opposite party. There is no dispute that the appellant/complainant availed a loan of Rs.3.lakhs under housing loan and the said housing term loan was taken on 2/3/99. As per the term loan, the appellant/complainant agreed to remit the monthly instalments at the rate of Rs.4600/-. Admittedly the appellant/complainant defaulted in repaying the aforesaid housing term loan and thereby on 30/6/2006 the respondent/opposite party bank issued a notice by treating the term loan as a Non Performing Account (NPA).The aforesaid notice was issued as provided under section 13 of the SRFAEST Act, 2002. On getting the said notice (Ext.P3) the complainant/borrower failed to remit the amount covered by the said notice. It is thereafter the respondent/ opposite party (bank) issued another notice dated:10/6/2008 (P2) under the provisions of Sec.13 of the said Act. It is thereafter the appellant/complainant remitted the amount due to the opposite party/bank. It is to be noted that the opposite party, bank was compelled to proceed under SRFAEST Act, 2002 because of the failure on the part of the appellant/complainant to repay the loan amount with interest as agreed thereon. Thus, the appellant/complainant remitted the total amount of Rs.6,23,149/- inclusive of interest and other charges. It is true that a sum of Rs.25,000/- was collected from the complainant/borrower as enforcement agent charge. The aforesaid collection of enforcement agent charge can only be treated as permitted by provisions of SRFAEST Act, 2002. The complainant/borrower remitted the amount in the proceedings initiated by the respondent/opposite party, bank under SRFAEST Act, 2002. Even if the complainant/borrower had any objection to the said procedure followed by the respondent bank under the aforesaid SRFAEST Act, 2002, it is for the complainant/borrower to challenge the same as provided under the very same Act. Sec.17 of the SRFAEST Act, 2002 provides right to appeal against the action or procedure initiated under sub section 4 of sec.13 of the said act. The Debt Recovery Tribunal is having jurisdiction to entertain the said dispute by way of appeal. There is also provision under Sec.19 of the said act to award compensation and cost to the borrower, if it is found that the possession of the secured asset by the secured creditor was wrongful. Thus, it can be seen that there was efficacious remedy available to the appellant/complainant to challenge the procedure adopted by the respondent/opposite party under the SRFAEST Act, 2002. It is also to be noted that the so called excess amount was collected by the respondent/opposite party bank in a procedure initiated under the SRFAEST Act, 2002. Then, the complaint against the respondent/opposite party bank as provided under the Consumer Protection Act challenging the procedure adopted or initiated under the SRFAEST Act, 2002 cannot be entertained. The appellant/complainant has also got a case that the property mortgaged for availing the housing loan is an agricultural land and so the provisions of SRFAEST Act, 2002 cannot be made applicable. It is true that the provisions of Sec.31(i) of the SRFAEST Act, 2002 would show that the provisions of the said Act have no application as far as any security interest created in agricultural land. It is also admitted that the property was pledged by the complainant and security interest is created with respect to the said property. But there is nothing on record to show that the property which was given as security is an agricultural land. Admittedly, the complainant constructed a house in the said property having an extent of 1.59 acres. The very purpose of availing the loan was to construct the house in the said property. It is also come out in evidence that the building with car porch is constructed in the said property. The very description of the property would show that the said land was a house plot. More over, the complainant has not adduced any cogent evidence to establish that it was an agricultural land. The mere fact that the complainant/borrower is cultivating cardamom cannot be taken as a ground to hold that the property pledged was an agricultural land. The shed constructed in the said property for drying cardamom cannot be sufficient to hold that the said property with the residential building including car shed is an agricultural land. On the other hand, the very description of the property would show that it is a house plot. Even if the said property is an agricultural land and so the provisions of SRFAEST Act, 2002 cannot be made applicable; then it is for the complainant to approach the appellate authority or any other concerned authority constituted under the very same SRFAEST Act, 2002 to get the procedure initiated under the said act cancelled or quashed. Thus, in all respects, the Forum below is justified in dismissing the complaint in CC.152/09. There is no merit in the present appeal and the same is liable to be dismissed without admitting the same. In the result the present appeal is dismissed at the admission stage itself. The impugned order dated:27/2/2010 passed by CDRF, Idukki in CC.152/09 is confirmed. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER M.K. ABDULLA SONA: MEMBER VL. | 
