Per MRS. JAYSHREE YENGAL, Hon’ble Member.
1. The original opposite party No.5 Bank of Maharashtra through its Manager, Hanuman Nagar Branch, Nagpur has preferred the present appeal challenging the order dated 17/12/2011 passed by the District Consumer Forum Nagpur, partly allowing the consumer complaint bearing No.514/2010 with directions to the opposite parties.
2. The challenge in this appeal is restricted to the directions issued by the Forum below to original opposite party No.5/appellant herein. The said directions are opposite party No.5 to pay Rs.75,000/- as punitive damages, of which Rs.50,000/- to be paid to the complainant and the balance Rs.25,000/- to be deposited in the legal aid account of the Forum and the opposite party No.5 to jointly with opposite party Nos.1 to 4 to pay Rs.5000/- towards litigation expenses and the aforesaid directions to be complied within a 30 days of the receipt of the order.
3. Respondent No.1 Shri Naresh Raman Rangari is referred as complainant. Appellant/Bank of Maharashtra, through its Manager Nagpur is referred as opposite party No.5. Respondent Nos.2 to 5 who are original opposite party Nos.1 to 4 are already deleted in this appeal.
4. The facts in brief as set out by the complainant in his complaint are as under.
- Complainant Naresh Raman Rangari alleging deficiency in service had filed a consumer complaint against the opposite party Nos.1 to 5 on the fact that the complainant had executed an agreement on 01/02/2006 with the opposite party Nos.1 to 4 for purchase of a bungalow bearing No.34 on the lay out developed by the opposite parties Nos.1 to 4 for valuable consideration of Rs.11,80,000/-. As per the agreement the possession of the complete constructed bungalow was to be handed over to the complainant within 18 months i.e.by June 2007.
- The complainant availed loan of Rs.10,00,000/- from opposite party No.5/Bank. The opposite party No.5 disbursed an amount of Rs.9,50,000/- to opposite party Nos.1 to 4 without verifying or enquiring in to the progress in the construction work.
- The opposite party No.1 to 4 failed to hand over the possession of the bungalow even after receiving Rs.10,00,000/- from the opposite party No.5/Bank. Thus opposite party Nos.1 to 4 and 5 have rendered deficiency in service. As a result of which the complainant was subjected to severe mental and physical harassment and economical loss. Therefore the complainant was unable to repay the loan availed by him from opposite party No.5.
- Opposite party No.5 initiated recovery proceeding against the complainant before the Debts Recovery Tribunal. The Debts Recovery Tribunal issued a recovery certificate against the complainant. Therefore the consumer complaint was filed and sought for reliefs as under.
- The opposite party Nos. 1 to 4 to refund Rs.9,50,000/- to opposite party No.5 with interest.
- The opposite party Nos.1 to 4 to pay Rs.50,000/- with 18% P.A. interest to the complainant, which they received at the time of executing the agreement.
- The opposite party Nos. 1 to 4 to pay the complainant Rs.50,000/- which he paid pay to opposite party No.5 as processing fee at the time of availing loan.
- The opposite party Nos.1 to 4 to pay Rs.50,000/- with interest @ 18% P.A. to the complainant towards the stamp duty paid by him and litigation expenses.
- The opposite party Nos.1 to 4 to pay Rs.25,000/- to the complainant towards the expenses incurred by him to contest the recovery proceeding, before the Debts Recovery Tribunal.
- The opposite party Nos.1 to 4 to pay the amount of monthly installments which the complainant had paid to opposite party No.5 by way of repayment of loan with 18% p.a. interest @ Rs.10,900/- per month from the month of June 2006 till 31/03/2007.
- The opposite party No.1 to 5 jointly and severally to pay the complainant Rs.5,00,000/- as compensation for deficiency in service rendered and unfair trade practice adopted by them.
- The opposite party Nos.1 to 5 to pay Rs.25,000/- to the complainant towards litigation charges.
4. The opposite party Nos.1 and 2 were proceeded without their written version. The opposite party Nos.3, 4 and 5 resisted the complaint by filing their written version and they denied all the adverse allegations of the complainant.
5. The Forum below after hearing both the sides and considering the evidence adduced by both the parties, partly allowed the complaint with directions as aforesaid.
6. As this appeal is preferred by opposite party No.5/Bank of Maharashtra only, the challenge to the impugned order is restricted to the findings and the directions given to the opposite party No.5/appellant herein.
7. The opposite party No.5 has specifically submitted in its written version that the complainant had availed loan from opposite party No.5. As the complainant failed to repay the same, the opposite party No.5 initiated recovery proceedings before the Debts Recovery Tribunal on 28/08/2009 by filing an Original Application bearing No.59/2009. The Debts Recovery Tribunal passed a final order on 09/04/2010. As the complainant did not prefer to challenge the said order, the Debts Recovery Tribunal issued a recovery certificate on 13/05/2010.
8. The opposite party No.5 also specifically submitted that the complaint deserves to be dismissed as time barred as the cause of action arose on 05/09/2006 and the consumer complaint was filed on 23/08/2010. The bank had sanctioned loan of Rs.10,00,000/-. It disbursed the loan to the extent of Rs.9,50,000/- as demanded by the complainant. However the bank did not disburse the remaining loan of Rs.50,000/-. As on 05/09/2006 when the inspection was carried out by the Branch Manager of the Bank it came to know that the layout plan was not sanctioned by competent authority.
9. The opposite party No.5 has specifically submitted that the complainant has not challenged the order dated 09/04/2010 passed by the Debts Recovery Tribunal in the recovery proceeding bearing No.13/2010. Therefore the said order has attained finality and therefore the consumer complaint filed by the complainant is not tenable and deserves to be dismissed as frivolous and vexatious.
10. The Forum has specifically held that opposite party No.5 has adopted unfair trade practice as it failed to carry out the title verification and also failed to inspect the stage wise status of the construction done by opposite party Nos.1 to 4. The opposite party No.5 in connivance with the other opposite parties disbursed the loan of Rs.9,50,000/-. The Forum below drew an adverse inference against the opposite party No.5 as it failed to file any document in the nature of loan agreement, title verification report, inspection report etc. Holding accordingly the Forum below imposed compensation of Rs.75,000/- towards mental and physical harassment and economic loss.
11. The directions issued against the opposite party No.5 are under clause No.4 of the impugned order by which the opposite party No.5 is saddled with Rs.75,000/- as punitive damages of which Rs.50,000/- to be paid to the complainant and Rs.25,000/- to be deposited in the Legal Aid Account of the Forum. The opposite party No.5 to further directed to pay Rs.5000/- jointly and severally with other opposite parties, to the complainant towards litigation expenses.
12. As already mentioned this appeal is preferred by opposite party No.5 only. The challenge to the impugned order therefore is restricted to above directions given in clause Nos.4 and 5 of the operative part of the impugned order.
13. The appellant has preferred this appeal challenging the aforesaid directions mainly on the ground that the directions issued by the Forum below cannot be sustained in law as the Debts Recovery Tribunal has already issued recovery certificate for Rs.13,03,703/- against the complainant on 13/05/2010 which has attained finality as the complainant/judgement debtor has not challenged the said order passed by the Debts Recovery Tribunal, by preferring an appeal. The complainant has filed the consumer complaint bearing No.CC/514/2010 on 23/08/2010 i.e. after the lapse of almost more than three months, from issuance of said recovery certificate.
14. We heard the counsel for the appellant and perused the written notes of arguments filed the appellant and respondent No.1. Respondent Nos.2 to 5 are already deleted. We also perused the copies of the complaint, the written version filed by original opposite party No.5/appellant herein Bank of Maharashtra, through its Manager, Nagpur and the relevant documents. We also perused the original record of the consumer complaint bearing No.514/2010, as called for and placed before us.
15. The issues that survive for our consideration is whether the appellant/Bank of Maharashtra can be held to have adopted unfair trade practice and therefore liable to pay Rs.75,000/- as punitive damages and whether an order passed by the Debts Recovery Tribunal has attained finality by issuance of recovery certificate can be interfered or altered by issuing directions by District Consumer Forum.
16. It is not disputed that the respondent No.1/complainant had made a request to appellant for granting credit facility and accordingly loan of Rs.10,00,000/- was sanctioned by the appellant. The total loan of Rs.9,50,000/- was credited in favour of M/s.Kalinda Infrastructures from time to time i.e. on 14/02/2006, 09/03/2006 and 02/05/2006.
17. The application for recovery of debt under Section 19 of the Recovery of Debts Due To Banks and Financial Institutions Act, 1993 was filed before the Debts Recovery Tribunal at Nagpur by the appellant against the complainant Naresh s/o Raman Rangari on 28/08/2009. The certificate of recovery was issued against the complainant/ judgment debtor on 13/05/2010.
18. It is not disputed that Bank of Maharashtra/appellant herein had filed an original application bearing No.59/2009 before the Debts Recovery Tribunal Nagpur under Section 19 (22) of Recovery of Debts Due To Bank And Financial Institutions Act, 1993 against the complainant/respondent No.1 Mr.Naresh Raman Rangari and Bhayalal Raghunath Prasad Shrivastav.
19. The consumer complaint was filed before the District Forum Nagpur on 23/08/2010. The complainant has sought for directions against the opposite party No.5 with the other opposite parties to the complaint in respect of the loan being availed by the complainant, its repayment to the appellant and such other reliefs pertaining to the loan availed by the complainant.
20. For the reason undisputedly the complainant has availed loan from the appellant which is the subject matter of the recovery proceeding before the Debts Recovery Tribunal, Nagpur, and after due contest the recovery certificate is issued against the complainant which has attained finality on 13/05/2010. No interference with the order passed by the competent statutory authority can be warranted by passing an order in the consumer complaint which is filed subsequent to the recovery certificate issued against the complainant. It can not be said that appellant adopted unfair trade practice by disbursing loan of Rs.50,000/- to O.P.Nos.1 to 4 as per request of complainant. Hence the directions given under clause Nos.4 and 5 of the impugned order pertaining to the appellant/ original opposite party No.5 deserves to be quashed and set aside.
21. For the forgoing reasons the appeal deserves to be allowed. We proceed to pass the following order.
// ORDER //
i. Appeal is allowed.
ii. Directions issued in clause Nos.4 and 5 of the operative part of the order dated 17/12/2011 passed by the District Consumer Forum Nagpur in consumer No.514/2010 pertaining to opposite party No.5/appellant herein are quashed and set aside
iii. The original record of the consumer complaint No.CC/514/2010 be returned to the District Consumer Forum Nagpur forthwith.
iv. No order as to cost in appeal.
v. The copy of this order be furnished to both parties, free of
cost.
