Delhi

StateCommission

FA/12/385

JOHNY MATHEW - Complainant(s)

Versus

PNB HOUSING FINANCE LTD. - Opp.Party(s)

03 Apr 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:03.04.2019

                                                                                                              

                                                                   Date of decision:10.04.2019

 

 

First Appeal No. 385/2012

 

IN THE MATTER OF

 

Johny Matthew

A-9, First Floor, South City-II,

Gurgaon-1220018                                                                    ….Appellant

 

VERSUS

 

 

M/s PNB Housing Finance Ltd

8.  

16 Barakhamba Road,

New Delhi

 

M/s Unitech Limited

6, Community Centre,

Saket, New Delhi-110017....Respondent

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

               

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Appellant in person

                   Sh. Ashish Sarkar for the respondent-3

                   None for the Respondent-1 and 2

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Aggrieved by the orders dated 05.01.2012 passed by the District Consumers Disputes Redressal Forum-VII, Delhi in C-146/2008 in the matter of Mr. Johny Mathew versus M/s PNB Housing Finance Limited and others, holding that the complaint cannot be disposed of by the Consumer Forum in summary proceedings, as the issues contained in the case involve complicated question of law and facts, requiring examination and counter examination of the evidence led, Mr. Johny Mathew of Gurgaon has filed an appeal, for short appellant, before this Commission under Section 15 of the Consumer Protection Act 1986, against M/s PNB Housing Finance Limited, hereinafter referred to as respondents praying for setting aside the order passed and for the relief as contained in the complaint.
2.           Facts of the case necessary for the adjudication of the appeal are these.
3.           The complainant had booked a flat with the Unitech Limited after procuring the loan from the PNB Housing Finance Ltd. Since the possession was not handed over the within the time as agreed to the complaint was filed before District Forum which complaint was disposed of with the observation that the issue in the complaint cannot be disposed of in summary proceeding.
4.           Hence the appeal. The respondent were noticed and in response thereto the PNB Housing Finance Ltd. has filed the reply stating inter alia as under:

 

“That thereafter, the answering respondent company served the notices under Section 13 (2) of the Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 on dated 12.02.2004 and on dated 23.06.2004 respectively and the abovesaid borrowers/Mortgagors have failed to comply with the notice served upon them, thus the answering respondent had no course open but to take possession of the abovestated property under the provisions of the abovementioned Acts. The answering respondent company has also served a fresh notice dated 20.02.2007 upon the appellant and his wife being the borrowers of loan, which is duly served and acknowledged by the appellant herein, but even then they have not complied with the provisions of the notices.

That subsequently, the answering respondent company filed an application under Section 14 of the Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 before the Court of ld. Chief Metropolitan Magistrate, New Delhi for seeking appointment of receiver to take the possession of the Mortgage Property in question being NO. Flat (F) First Floor having total area of 200 sq. yds/sq. meters situated at plot no. F-009, Block-A Executive Floors, 1^st Floor, South City-II, Gurgaon, which has been allowed and the possession of the mortgage property was taken over the receiver.

 

The complainant has not refuted the averments contained above.

5.           From the above it is manifestly clear that the proceedings are pending before the DRT. Once the proceedings are pending before the DRT, the Consumer Forum relying on the judgment of the Hon’ble Supreme Court in Civil Appeal no. 1359/2013 in the matter of Yashwant G. Ghaisas & Ors. vs. Bank of Maharashtra, cannot proceed with. The extracts of the judgment of the Hon’ble Apex Court is indicated as under:

 

“The appellants challenged the action of the bank by filing a complaint under Section 21 of the Consumer Protection Act, 1986 (for short, ‘the 1986 Act’). The National Commission referred to Section 34 of the 2002 Act whereby jurisdiction of all courts and authorities to entertain challenge to the action taken by the bank has been ousted and dismissed the complaint by recording the following observations:

The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of debt recovery tribunals. This matter is purely covered within the jurisdiction of DRT or DRAT. If there is any grievance against the notice under Section 13 (2) of the SARFAESI ACT that should be brought to the notice of the covered authority. It is well settled that main creditor and the guarantors are equally responsible. There lies no rub for the bank to take action adopting the policy of pick and choose. From the allegations stated above, there appears to be no deficiency on the part of the OP. In case the bankers are working within ambit of SARFAESI Act, it cannot be said to be deficiency on the part of the bank. It must be established that there is deficiency on the part of the bank. In that case this Commission can take action. For the reasons stated above, the complaint is dismissed at the stage of its admission. Nothing will preclude the complainants from approaching appropriate forum as per law.”

 

6.           Having regard to these facts and the legal position explained above this appeal is disposed of as not maintainable before the Consumer Forum since the proceedings are pending under the Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002. Ordered accordingly.
7.           A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be sent to the District Forum for information. File be consigned to records.

 

 

 

(ANIL SRIVASTAVA)

                                                                              MEMBER