IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 9th day of February, 2022.
Filed on: 16.03.2020
Present
1. Sri.S.Santhosh Kumar BSc.,LL.B (President )
. Smt.P.R Sholy, B.A.L, LLB (Member)
In
CC/No.76/2020
Between
Complainant:- Opposite parties:-
1. Sri.Devarajan,S/o Vasu, 1. M/s.Muthoot Housing Finance Company,
Marethukunnel House, Reptd.by its Branch Manager.
Erezha south, Chettikulangara P.O., Branch Office, Bhadra Complex, Near
Mavelikara, Alappuzha. Chettikulangara De4vi Temple,
Chettikulangara P.O.,
2. Smt.Geetha, W/o Devarajan, Mavelikara, Alappuzha.
Marethukunnel House,
Erezha south, Chettikulangara P.O., 2. The Branch Manager,
Mavelikara, Alappuzha M/s.Muthoot Housing Finance Co.Ltd.,
1st floor, Haleyon Building,CC.54/17434,
(Rep.by Advs.M/s.Jyothi Gopinathan &) Main Avenue, Near Passport Office,
U.Sreedev) Panampally Nagar, Ernakulam-682 036.
3. The General Manager,
M/s.Muthoot Housing Finance Co.Ltd.,
TC No.14/2074/7, Muthoot Centre,
Punnen Road, Trivandrum.
(Rep.by Adv.Sri.Vinoy Varghese)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly discussed are as follows: -
Complainants are husband and wife. On 27.06.2013 complainants availed a housing loan of Rs.9,38,774/- from the Kottayam branch of opposite parties. It was to be repaid as 84 equal monthly installments @ Rs.18,646/-. Complainants paid the loan installments regularly till December 2018. There after due to some unexpected circumstances complainants could not remit the installments. Opposite parties initiated recovery steps and they filed a petition before the Chief Judicial Magistrate Court, Alappuzha as MC.236/18. A Commissioner was deputed and intimated the matter of recovery steps. Knowing this complainant remitted an amount of Rs.50,000/- on 30-3-18, Rs.80,000/- each on 30-04-19, 08.08.19 and on 17.09.19 in the loan account. Thereafter the complainants remitted the loan account regularly till February 2020. Till February complainant had remitted an amount of Rs.9,99,889/-. Now the opposite parties are demanding Rs.8,37,020/- as loan dues.
2. On enquiry it was revealed that opposite parties have dropped the recovery proceedings after remitting Rs.2,90,000/-. While so on 29.02.2020 a group of people trespassed in the property and threatened to take possession. This has caused much mental agony to the complainants. Hence the complaint is filed to direct the opposite parties to stop all the recovery proceedings and to produce all the documents related to the housing loan. Complainant is also claiming an amount of Rs.1 lakh as compensation.
3. Opposite parties filed a joint version mainly contenting as follows:-
The complaint is not maintainable, since the alleged transaction is a commercial one. Complainants availed a loan from the opposite parties but the repayment was not prompt. Thereafter the account was declared as Non Performing Assets and opposite parties initiated proceedings under the SARFAESI Act. Complainants approached the Hon’ble High Court of Kerala and filed a writ petition limiting their prior to permit them to repay the overdue amount and thereby regularize their account. Though the Hon’ble High Court granted installments complainants failed to comply the same. Complainants again approached the Hon’ble High Court by filing a review petition and though installments were granted complainants did not pay the amount. These facts were deliberately suppressed. In view of judgment in WP (C) No.7904/2019 the complainants are foreclosed from challenging the proceedings initiated by this opposite parties under the SARFAESI Act before any alternative Forum/ Courts.
4. The averments that MC 236/2018 filed before the CJM Court was closed is misleading. Since Hon’ble High Court granted time to regularize the account MC was dismissed on 20.07.19 by the CJM Court, Alappuzha. The allegation that certain people trespassed into the property and threatened to take forcible possession is false. Complainants are not entitled for any relief and hence the complaint may be dismissed with cost.
5. On the above pleadings following points were raised for consideration:-
- Whether the complaint is maintainable?
- Whether there is any deficiency of service from the part of opposite parties as alleged?
- Whether the complainants are entitled to get a direction against the opposite parties to stop all the recovery proceedings initiated against them?
- Whether the complainants are entitled to get a direction against the opposite parties for production of documents are prayed for?
- Whether the complainants are entitled to get compensation of Rs.1,00,000/- as prayed for?
- Reliefs and cost?
6. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 & A2 from the side of the complainants and the oral evidence of RW1 and Ext.B1 to B5 from the side of opposite parties.
7. Point No.1 :-
In the version filed by the opposite parties it is contented that the complaint is filed suppressing material facts. It was pointed out that there was a writ petition before the Hon’ble High Court between the parties by which complainants were directed to pay the amount as installments. It was suppressed in the complaint. Further it was also contended that opposite parties had initiated proceedings under the SARFAESI Act and so a consumer complaint is not maintainable.
8. The case advanced by PW1, the 1st complainant is that he along with his wife availed a housing loan from the opposite parties and they were regularly repaying the installments. However due to some financial stringency the amount could not be repaid. Opposite parties initiated SARFAESI proceedings against them and filed MC 236/2018 for taking possession of his property. However later the loan was regularized and the proceedings before the CJM was closed. Now the henchmen of the opposite parties are threatening the complainants from dispossessing the property and hence the complaint was filed. The 2nd opposite party was examined as RW1 and he has produced Ext.B4 and B5. Ext.B4 is the judgment dated 20-3019 in WP (C) No.7904/2019 of the Hon’ble High Court and Ext.B5 is the order dated 02.07.2019 in RP No.575 of 2019 in WP (C) 7904/2019. Relying upon Ext.B4 and B5 the learned counsel appearing for the opposite parties contented that when opposite parties resorted to SARFAESI Act complainants rushed to the Hon’ble High Court of Kerala and filed Ext.B4 writ petition. By Ext.B4 writ petition the Hon’ble High Court was pleased to grant installments to the complainants for paying the balance amount. Again a review petition was filed and Ext.B5 is the order of the same. By Ext.B5 order the time for repayment was again extended. The learned counsel appearing for the opposite parties pointed out that in Ext.B4 judgment the Hon’ble High Court had prohibited the complainants from filing any other petition before any other Forum or court. The last sentence of Ext.B4 judgment is as follows:-
“I caution the petitioners that no further requests for extension or modification of this judgment, save in exceptional circumstances, will be permitted and that if the petitioners fail to comply with the directions herein, they will lose the benefit of this judgment and they will also be foreclosed from challenging the measures/ proceedings taken by the Bank under the SARFAESI Act and impugned in this writ petition before any other alternative Forum or Court.
9. Thereafter the Hon’ble High Court considered the review petition and as per Ext.B5 order time was again extended. Though the complainants were foreclosed from challenging the measures/ proceedings taken by the bank under SARFAESI Act suppressing Ext.B4 and B5 judgment this complaint is filed. As held by the
Hon’ble National Disputes Redressal Commission in Amrik Singh Vs. M/s United India Insurance Company Ltd. (1992 (2) CPR 203) – Consumer must come with clean hands. Suppression of material fact by the complainant disentitles him to relief in this jurisdiction. A consumer knocking at the door of the redressal agencies under the Act for relief of a consumer dispute must do so with clean hands.
10. There is yet another hurdle in this case. Admittedly opposite party had initiated SARFAESI proceedings against the complainant and challenging the same writ petition and review petition was filed before the Hon’ble High Court. Ext.A4 shows that the petition filed before the CJM Court was dismissed on 20-7-19 since no steps was taken. As held by the
Hon’ble High Court in Punjab National Bank Vs. Consumer Disputes Redressal Forum, Alappuzha and others (2011 3 KHC 511) – the result of the above discussion is that the Consumer Disputes Redressal Forum has no jurisdiction to entertain any complaint in respect of any measures taken by a Bank or a Financial Institution under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the CDRF has no jurisdiction to give any relief whatsoever against the same.
11. A division bench of the Hon’ble High Court in Reghu B and another V. State Bank of Travancore (2015 (3) KLT 645) held that consumer Redressal Commission has no jurisdiction to stay recovery proceedings under the SARFAESI Act. So it is crystal clear that once proceedings under the SARFAESI Act is initiated this Commission has no jurisdiction to entertain any complaint and the remedy available is to approach the debt recovery tribunal. It is true that as per Ext.A2 order the proceedings were closed for want of taking steps. However complainants had approached the Hon’ble High Court and obtained a favourable order for paying the amount by installments. Violating the said order this complaint is filed on an allegation that certain henchmen of the opposite parties are threatening dispossession. In the circumstances it can be seen that the complaint is not maintainable and so this point is found against the complainants.
12. Point Nos. 2 to 5:-
PW1 is the 1st complainant in this case. He filed an affidavit in tune with the complaint and marked Ext. A1 & A2.
13. RW1 is the 2nd opposite party. He filed an affidavit in tune with the version and marked Ext.B1 to B5.
14. The case of PW1 is that opposite parties are threatening to dispossess them and so they have filed this complaint directing them to stop all the recovery proceedings, to produce all documents and claiming an amount of Rs.1 lakh as compensation. Admittedly a debtor-creditor relationship is existing between the parties. Ext.B2 is the loan agreement entered between the parties on 30-7-13 and though the loan amount is to be repaid within 84 months still it is not paid. Ext.B3 is the statement of account which shows that 15-4-21 an amount of Rs.12,11,921.90/- is outstanding as running balance. As stated earlier though the Hon’ble High Court as per Ext.B4 judgment granted sufficient time for repayment it was not complied. By Ext.B5 order the time was again extended by Hon’ble High Court and it was also not complied. Ext.B5 order dated 02.07.19 will show that complainants were directed to pay the overdue amount of Rs.8,83,477/- along with all applicable charges and interest in 10 equal monthly installments commencing from 05-08-19. Without complying the same this complaint is filed alleging that there was a threat of dispossession. As discussed earlier in Ext.B4 judgment the Hon’ble High Court had stated that complainants will also be foreclosed from challenging the measures/proceedings taken by the bank under the SARFAESI Act and impugned in the writ petition before any other alternative Forum or Court. Suppressing the orders of the Hon’ble High Court this complaint is filed. Except the interested testimony of PW1 no other evidence is available regarding the threat or dispossession. The evidence on record shows that there was no regular repayment of the loan and even the direction of the Hon’ble High Court to regularize account was violated. Thereafter this complaint was filed alleging threat of dispossession. Since a debtor- creditor relationship is existing between the parties and so that amount is due to the opposite parties there cannot be any deficiency of service as alleged by the complainants. In such circumstances we are of the opinion that complainants are not entitled for any favourable order and so these points are found against them.
15. Point No.6:-
In the result complaint is dismissed with cost of Rs.3,000/-.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 09th day of February, 2022.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt.P.R Sholy (Member)
Appendix:-Evidence of the complainant:-
PW1 - Devarajan (Complainant)
Ext.A1 - Letter dt.24.2.2021 from the Muthoot Housing Finance Co.
Ext.A2 - Order in M.C.No.236/18 of JFCM Court, Alappuzha.
Ext.Evidence of the opposite parties:-
RW1 - Joby Raj Jose, All Kerala Regional Manager, Muthoot Housing
Finance Company.
Ext.B1 - Extract from the minutes of the Meeting of the Board of
Directors of Muthoot Housing Finance.
Ext.B2 - Copy of Loan Agreement.
Ext.B3 - Copy of Statement of Account.
Ext.B4 - Order in WP(c) No.7904 of 2019 of the Hon’ble High Court of
Kerala.
Ext.B5 - Order in RPNo.575 of 2019 in WP(c)7904/2019 of the Hon’ble
High Court of Kerala.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
