Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he had availed the housing loan as well as cash credit limit for his karyana shop which he was running under the name and style of M/s.J.K.Karyana Store on Main Rajpura Road, Ludhiana. Further alleges that housing loan was for Rs.4,37,096/- whereas the cash credit limit for the shop was for Rs.7,50,000/- approximately. On 06.02.2012 an agreement for hypothecation was executed between the complainant and Opposite Party and Opposite Party sanctioned Rs.7.50 lakhs as limit to the complainant and the son of the complainant was also co-borrower in the said loan agreement. The complainant was paying the installments of principal and interest from time to time and at the time of advancement of the loan, Sh.R.C.Tripathi was the Branch Manager of the Opposite Party bank and he fraudulently got signatures of the complainant on some guarantee papers alongwith the loan papers of the loan availed by the complainant with malafide intention and the said papers were never allowed to be seen or read over by the complainant at the time of appending his signatures on the same. At the time of hypothecation of the assets, sale deed bearing vasika No.9945 dated 07.07.1989 of house N. 21, Vivek Nagar, Ludhiana registered with Sub Registrar, Ludhiana was kept as security with the Opposite Party. About three years back, the complainant received a notice from the Opposite Party that an amount of Rs.25 lakhs is recoverable from M/s.Harjit Traders and the complainant is guarantor in the said loan agreement of M/s.Harjit Traders. After coming into knowledge of the same, the complainant was astonished and surprised as he never knew any Harjit Kaur or M/s.Harjit Traders nor the complainant ever stood guarantor for the repayment of the loan of M/s.Harjit Traders. At that time, R.C.Tripathi the then Manager of the bank was terminated from the services and the bank had moved an application with the police for registration of a case under section 420 IPC against M/s.Harjit Traders and the complainant and after inquiry the police came to the conclusion that the complainant was innocent and FIR bearing No. 101 dated 27.07.2016 under section 409/420/120-B IPC as registered against M/s.Harjit Traders and the ex manager of the Opposite Party bank namely R.C.Tripathi with P.S.Haibowal Kalan, Ludhiana. In the month of March, 2016 the complainant approached the Opposite Party and requested them to get the amount of housing loan and CC Limit deposit and release the sale deed as collateral security, but the Opposite Party flatly refused to admit the rightful claim of the complainant and told that until and unless the account of M/s.Harjit Traders is not settled, his sale deed would not be returned to him which is cleat cur deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Party may be directed to return the sale deed after depositing the loan amount of house lan and CC Limit and also to pay Rs.50,000/- as compensation for causing him mental tension and harassment or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that Opposite Party has filed three recovery suit against the complainant as under (i) civil suit for recovery of Rs.4,61,846/- with interest (ii) civil suit for recovery of Rs.8,6,343/- with interest and (iii) recovery proceedings before Hon’ble Debt Recovery Tribunal at Chandigarh for recovery in loan account of M/s.Harjit Traders. The above said cases have been filed by the Opposite Party for the recovery of its outstanding dues by sale of mortgage property, the sale deed of which is already mortgaged with the Opposite Party bank. Hence, being a secured creditor Opposite Party can not release the original title deed in question till the full and final payment of the outstanding dues of the op outstanding dues of the Opposite Party. The Opposite Party made so many requests to the complainant to make the due amount of the Opposite Party bank, but the complainant did not pay any heed to the request of the Opposite Party and ultimately, the Opposite Party bank has filed recovery suits before the ld.Civil Courts and before Hon’ble Debt Recovery Tribunal at Chandigarh for recvoery of its dues and hence, this District Consumer Commission has no jurisdiction to entertain the present complaint. On merits, Opposite Party took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the instant complaint is not maintainable and the same may be dismissed with costs.
4. In order to prove his case, the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C21 (except Ex.C5) and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party also placed on record the affidavit and copies of other relevant documents to be relied upon by Opposite Party and closed their respective evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainants as well as ld.counsel for the Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the complainant is that complainant was paying the installments of principal and interest from time to time and at the time of advancement of the loan, Sh.R.C.Tripathi was the Branch Manager of the Opposite Party bank and he fraudulently got signatures of the complainant on some guarantee papers alongwith the loan papers of the loan availed by the complainant with malafide intention and the said papers were never allowed to be seen or read over by the complainant at the time of appending his signatures on the same. At the time of hypothecation of the assets, sale deed bearing vasika No.9945 dated 07.07.1989 of house N. 21, Vivek Nagar, Ludhiana registered with Sub Registrar, Ludhiana was kept as security with the Opposite Party. About three years back, the complainant received a notice from the Opposite Party that an amount of Rs.25 lakhs is recoverable from M/s.Harjit Traders and the complainant is guarantor in the said loan agreement of M/s.Harjit Traders. After coming into knowledge of the same, the complainant was astonished and surprised as he never knew any Harjit Kaur or M/s.Harjit Traders nor the complainant ever stood guarantor for the repayment of the loan of M/s.Harjit Traders. At that time, R.C.Tripathi the then Manager of the bank was terminated from the services and the bank had moved an application with the police for registration of a case under section 420 IPC against M/s.Harjit Traders and the complainant and after inquiry the police came to the conclusion that the complainant was innocent and FIR bearing No. 101 dated 27.07.2016 under section 409/420/120-B IPC as registered against M/s.Harjit Traders and the ex manager of the Opposite Party bank namely R.C.Tripathi with P.S.Haibowal Kalan, Ludhiana. In the month of March, 2016 the complainant approached the Opposite Party and requested them to get the amount of housing loan and CC Limit deposit and release the sale deed as collateral security, but the Opposite Party flatly refused to admit the rightful claim of the complainant and told that until and unless the account of M/s.Harjit Traders is not settled, his sale deed would not be returned to him which is cleat cur deficiency in service on the part of the Opposite Party. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that Opposite Party has filed three recovery suit against the complainant as under (i) civil suit for recovery of Rs.4,61,846/- with interest (ii) civil suit for recovery of Rs.8,6,343/- with interest and (iii) recovery proceedings before Hon’ble Debt Recovery Tribunal at Chandigarh for recovery in loan account of M/s.Harjit Traders. The above said cases have been filed by the Opposite Party for the recovery of its outstanding dues by sale of mortgage property, the sale deed of which is already mortgaged with the Opposite Party bank. Hence, being a secured creditor Opposite Party can not release the original title deed in question till the full and final payment of the outstanding dues of the op outstanding dues of the Opposite Party. The Opposite Party made so many requests to the complainant to make the due amount of the Opposite Party bank, but the complainant did not pay any heed to the request of the Opposite Party and ultimately, the Opposite Party bank has filed recovery suits before the ld.Civil Courts and before Hon’ble Debt Recovery Tribunal at Chandigarh for recvoery of its dues and hence, this District Consumer Commission has no jurisdiction to entertain the present complaint.
8. Perusal of the record shows that as per the version of the complainant that at the time of advancement of the loan, Sh.R.C.Tripathi was the Branch Manager of the Opposite Party bank and he fraudulently got signatures of the complainant on some guarantee papers alongwith the loan papers of the loan availed by the complainant with malafide intention and the said papers were never allowed to be seen or read over by the complainant at the time of appending his signatures on the same. In this regard, FIR bearing No. 101 dated 27.07.2016 under section 409/420/120-B IPC as registered against M/s.Harjit Traders and the ex manager of the Opposite Party bank namely R.C.Tripathi with P.S.Haibowal Kalan, Ludhiana. On the other hand, the Opposite Party has filed three recovery suit against the complainant as under (i) civil suit for recovery of Rs.4,61,846/- with interest (ii) civil suit for recovery of Rs.8,6,343/- with interest and (iii) recovery proceedings before Hon’ble Debt Recovery Tribunal at Chandigarh for recovery in loan account of M/s.Harjit Traders. The above said cases have been filed by the Opposite Party for the recovery of its outstanding dues by sale of mortgage property, the sale deed of which is already mortgaged with the Opposite Party bank. It clearly becomes a case replete with the elements of fraud, cheating and such disputes are certainly not adjudicable before the Consumer Disputes Redressal Agencies because the proceedings before the Consumer for a (now Commission) are summary in nature. In the case in hand extremely complicated questions of fact and law are involved, as has been discussed in an elaborate manner in the preceding paragraphs, as such the parties are required to take their dispute to the Civil Court of competent jurisdiction where the parties can lead elaborate oral and documentary evidence and where they will get an opportunity to examine their witnesses and cross examine the witnesses of other party in order to elicit the truth. Reliance in this regard is placed upon Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, wherein the Hon'ble Supreme Court has held that :-
Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”
Their lordships have further held that :-
“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”
9. The nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the Hon'ble Supreme Court in the judgement supra. A similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page 101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors. in para No.7 of the judgement which reads as under:-
“After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lacs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company.”
10. Keeping in view the aforesaid facts and circumstances of the case, the instant complaint is not maintainable in this District Consumer Commission for its proper adjudication and the same stands dismissed. However, the complainant can get redressal of his grievance from the Civil Court/ or any other competent authority, in accordance with law, for which the time spent before this District Commission shall stand excluded under Section 14 of the Limitation Act in the light of the judgment of the Hon'ble Supreme Court in case titled 'Lakshmi Engineering Works vs PSG Industrial Institute reported in 1995(3) SCC 583'. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
11. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same.
Announced in Open Commission at Camp Court, Ludhiana.
