A Rajesh, President.
The case of the complainant is as follows:
The complainants are husband and wife. They availed themselves of a housing loan from the opposite parties for an amount of Rs. 4,25,000/- on 05-11-2006. As per the loan agreement the loan was to be repaid by EMI within 15 years on floating rate of interest. Since there occurred some default in the EMI, the opposite parties initiated proceedings under the provision of (SERFAESI Act 2002.) Immediately, thereafter the complainants remitted a total sum of Rs. 2,40,000/- in the loan account. Moreover the opposite parties debited a sum of Rs. 41,000/- from the loan account and credit towards deposit on 03-02-2008 under the head loan upload by the opposite parties. The amounts remitted by the complainants are higher than the total amounts of EMI which need to have been paid till date. Thus the EMI up to this date is calculated with interest up to date and there is no default on the part of the complainants. However the opposite parties are threatening the complainants to close the loan account. Thus the complainants are before us seeking direction against the opposite parties to permit the complainants to repay the loan by EMI within the stipulated period of 15 years and to pay costs of the proceedings.
2. Defense of the opposite parties.
The 1st opposite party initiated proceedings under the provisions of SARFAESI Act 2002 for the realization of the amounts outstanding in the loan account. Complainants were not regular in paying the instalments as per the loan agreement. Meanwhile the 2nd complainant transferred the mortgaged property to one Mr. T.M. Sasidharan vide sale deed No. 1657/2007 of SRO Koothattukulam without closing the loan account. In furtherance of the notice under Section 13 (2) of the SARAFAESI Act the complainants remitted an amount of Rs. 1,50,000/-. However huge amounts were still outstanding in the loan account. Thus the 1st opposite party took symbolic possession of the property under Section 13(4) of the Act. Since the loan has already been recalled the complainants have no right to get the loan account regularized by paying outstanding EMIS. There is no deficiency in service on the part of the 1st opposite party. The complainants ought to have filed appeal before the Debt Recovery Tribunal instead of filing this complaint. This complaint is devoid of any merit and liable to be dismissed.
3. No oral evidence was adduced by the complainants. Exts. A1 and A2 series were marked on their side. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the counsel for the parties.
4. The points that emanated for consideration are.
i. Whether the complaint is maintainable in this forum?
ii. Whether the complainants are entitled to repay the loan by EMI within the stipulated period of 15 years ?
iii. Costs of the proceedings.
5. Point No. i. During the proceedings vide order in I.A. 201/2010 dated 13-04-2010 this Forum directed the opposite parties to refrain from further proceedings in pursuance of Ext. A1 notice till disposal of the I.A. Ext. A1 possession notice dated 24-11-2009 goes to show that the opposite parties have issued the same under the Securitization and Reconstitution of Financial Assets and Enforcement of Security, Interest Act, 2002 SERFAESI Act 2002. The Hon’ble Kerala High Court in HDFC Bank Ltd. Vs. Consumer Disputes Redressal Forum (2011 (2) KLT 132 (cited by the opposite parties ) held in para 5 as under.
“I am of the view of that considering settled the legal position as held by the Hon’ble Supreme court in Mardia Chemicals V. Union of India (2004 (2) KLT 273 (SC) = AIR 2004 SC 2371) and in a series of subsequent decisions, as evident in S.34 of the SARFAESI Act there is an express bar of jurisdiction of Civil Courts and other authorities from granting injunction with respect to any action taken under the SARFAESI Act. Further, under S.35 of the Act it is clear that the provisions shall have an overriding effect with respect to any other law for the time being in force, notwithstanding nothing inconsistent contained therein. Under such circumstances, interference made by the first respondent Forum against steps initiated under the SARAFAESI Act, through Ext. P8 interim order, is without jurisdiction and the said order is unsustainable under law”.
6. In view of the judicial procurement we are of the firm view that the remedy sought for by the complainants’ lies elsewhere than this Forum.
7. Resultantly, we close the proceedings in this Forum with liberty to the complainants to approach the proper Authority if so advised. The order in IA 201/2010 dated 13-04-2010 is hereby vacated.
Pronounced in the open Forum on this the 24th day of June 2011.
