Haryana

Ambala

CC/27/2022

Balvinder Kaur - Complainant(s)

Versus

Punjab and Sind Bank - Opp.Party(s)

02 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	27 of 2022
Date of Institution	:	01.02.2022
Date of decision	:	02.11.2023

Balvinder Kaur age about 27 years Daughter of Late of Sh. Gurmukh Singh son of Sh. Gopal Singh w/o Sh.Darshan Singh resident of Village Ishar Heri Tehsil and Distt. Patiala, Punjab.

          ……. Complainant.

Versus

1. Punjab & Sind Bank VPO Barara Tehsil Barara Distt. Ambala.
2. Punjab & Sind Bank FGM Office, SCO 84-91, Second Floor, Bank Square, sector 17-B, Chandigarh.

                                                                                   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Jabar Chaudhary, Advocate, counsel for the complainant.

                   Shri Anil Singla, Advocate, counsel for the OPs                    

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To release FDR amount of Rs.5,66,299/- with up to date interest.
2. To pay a sum of Rs.1,00,000/- on account of compensation for mental agony, torture and physical harassment and inconvenience suffered by the complainant.
3. To pay Rs.1,00,000/- on account of the deficiency in services
4. To pay Rs.25,000/- as litigation expenses.
5. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.            Brief facts of the case are that the father of the complainant namely Gurmukh Singh son of Sh. Gopal Singh who had died on 15-5-2021, during his life time deposited Rs.5,00,000/- in Fixed Deposit for a period of one year from 5-7-2019 to 5-7-2020 with OP No.1 vide Fixed Deposit receipt NTSP/A 720584  no. 1114100000710. Upon maturity, he was to receive the amount of Rs.5,35,930/-. The complainant stood as nominee in the above mentioned FDR. OP No.1 renewed fixed deposit receipt for further 12 months from 5-7-2020 to 5-7-2021 and maturity amount was Rs.5,66,299/-. After the death of Gurmukh Singh, the complainant being nominee approached OP No.1 and requested to release the FDR amount, but OP No.1 always postponed the matter on one pretext or other. In the month of June 2021, the complainant received a notice dated 10-6-2021 which was served upon the complainant by Sh. Navneet Singh Malhotra, Advocate on behalf of OPs. The complainant was surprised to know that the OPs marked lien on the above mentioned FDR as deceased Gurmukh Singh stood guarantor of the loan account of Shiv Raj Singh. Thereafter, the complainant replied the notice through her counsel, which was again replied by the OPs. On 25.08.2021, complainant also sent a reply. Thereafter, the complainant gave a complaint against the OPs but OP No.2 flatly refused to entertain the complaint of the complainant. The OPs alleged that deceased Gurmukh Singh stood guarantor/surety for Shiv Raj Singh who availed financial assistance of Kisan Credit Card (KCC) and he mortgaged his land measuring 81 kanal 15 marla situated within revenue estate of Village Subhri Tehsil Barara Distt. Ambala against the above mentioned loan facility and the said Shiv Raj Singh failed to repay the loan amount and that due to his failure the complainant being legal heirs of deceased Gurmukh Singh is liable to repay the loan amount of the said borrower- Shiv Raj Singh. The said contention of the OPs is arbitrary, illegal and unethical. Deceased Gurmukh Singh son of Sh. Gopal Singh simply stood as a personal guarantor of the loan account of Shiv Raj Singh and the deceased did not give his FDR as security for the loan account of Shiv Raj Singh. The deceased had not pledged nor has the FDR been attached by the court in the loan against Shiv Raj Singh in which the deceased stood guarantor. The OPs have no right to withheld the FDR amount in respect of the above said loan availed by Shiv Raj Singh. Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version wherein numerous preliminary objections were taken to the effect that the complaint is not maintainable as one civil suit is pending in the Civil Court, Ambala on the same subject matter;  the complaint filed by the complainant is false and frivolous and is not maintainable; the complaint is without any cause of action; the complainant has suppressed true and material facts from this Commission and has not come to the court with clean hands etc. On merits, it has been stated that one Shiv Raj Singh son of Sh. Jagmal Singh resident of Janak Puri Colony Barara Tehsil Barara District Ambala has availed KCC limit of Rs.15,00,000/- on 06.10.2016 from the OPs against the security of land measuring 81 Kanal 15 Marla situated at village Subhri, Tehsil Barara, District Ambala and Late Sh. Gurmukh Singh son of Sh. Gopal Singh (father of the complainant) stood guarantor to the loan in question and he executed a guarantee deed dated 06.10.2016 in favour of OP No.1. The loan amount is repayable strictly as per repayment schedule agreed between the parties but the loan amount has not been repaid by the borrower-Shiv Raj Singh as per repayment schedule and accordingly his account become irregular and classified NPA on 9.1.2017. As Shri Gurmukh Singh stood guarantor to the KCC loan facility availed by Shiv Raj Singh therefore the loan amount is repayable by the borrower Shiv Raj Singh as well as guarantor Gurmukh Singh jointly and severally. Now guarantor Gurmukh Singh died on 15.5.2021 leaving behind the complainant and others as his legal heirs who have stepped into the shoes of Late Sh. Gurmukh Singh. As per the guarantee deed executed by Sh. Gurmukh Singh in favour of OPs, they are having lien on any or all accounts, current, saving bank, fixed deposit or account of any nature whatsoever or any money in the name of guarantor lying deposited with the OPs. Gurmukh Singh was having FDR Account no. 11141400000710 amounting to Rs.5,66,299/- (inclusive interest) with  OP No.1 and as already stated OPs having lien on all the moneys lying deposited with them in the name of Gurmukh Singh-Guarantor, therefore the OPs have marked lien over the above referred FDR. As the KCC account of Sh. Shiv Raj Singh has become irregular therefore the OPs demanded the outstanding amount from the borrower as well as guarantor-Gurmukh Singh number of times but the same has not been repaid by them and constrained by the circumstances the OPs got issued legal notice dated 10.6.2021 upon Shiv Raj Singh as well as legal heirs of Late Sh. Gurmukh Singh including the complainant demanding the outstanding loan amount and also disclosed the fact that the lien has been marked on the FDR in question lying deposited with OP No.1. The OPs are legally entitled to adjust the amount of FDR towards the outstanding loan amount. It is also pertinent to mention here that Late Shri Gurmukh Singh himself also availed the KCC loan facility from the OPs to the tune of Rs. 5,00,000/- vide loan account no. 11141600010138 and after the death of Gurmukh Singh his legal heirs including the complainant have denied to accept the liability and did not pay the outstanding loan amount of Gurmukh Singh and therefore the OPs were compelled to file the recovery suit against the complainant and other legal heirs of Gurmukh Singh which is pending in the civil court Ambala vide case no.1443/2021. The complainant is claiming the assets left by Gurmukh Singh but not owing and discharging the liabilities left by him and is adopting double standards as per her convenience and therefore the complaint is false and frivolous even to the knowledge of complainant and is liable to be dismissed with costs. The borrower Shiv Raj Singh and guarantor Late Sh. Gurmukh Singh are jointly and severally liable to pay the loan amount and now after the death of Gurmukh Singh, the complainant and other legal heirs of Gurmukh Singh have stepped into his shoes and therefore they are liable to repay the outstanding loan amount. Rest of the averments were denied by the OPs and prayer has been made to dismiss this complaint with costs.  
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-7 and closed the evidence on behalf of the complainant. Learned counsel for the OPs tendered affidavit of Amaninder Singh, Senior Manager, Punjab and Sind Bank Barara Branch, District Ambala as Annexure RW-1/A alongwith documents as Annexure R-1 to R-9 and closed the evidence on behalf of the OPs.
5.           We have heard the learned counsel for the parties and have carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OPs.
6.           Learned counsel for the complainant submitted that the deceased Gurmukh Singh son of Sh. Gopal Singh simply stood as a personal guarantor of the loan account of Shiv Raj Singh and the deceased did not give his FDR as security for the loan account of Shiv Raj Singh. He further submitted that the deceased neither pledged the subject FDR nor the same has been attached by the court in the loan against Shiv Raj Singh in which the deceased stood guarantor. Thus, OPs have no right to withheld the FDR amount in respect of the above said loan availed by Shiv Raj Singh.
7.           On the other hand, learned counsel for the OPs while reiterating all the objections taken in the written version submitted that since the matter is admittedly subjudice before the Civil Court as such the present case is not maintainable before this Commission. He further submitted that the borrower Shiv Raj Singh and guarantor Late Sh. Gurmukh Singh are jointly and severally liable to pay the loan amount and now after the death of Gurmukh Singh, the complainant and other legal heirs of Gurmukh Singh have stepped into his shoes and therefore they are liable to repay the outstanding loan amount. He further submitted that as per the guaranty agreement between Late Sh. Gurmukh Singh and OPs, all the amount lying deposited with the OPs in the name of Late Sh. Gurmukh Singh is under lien of the bank. He further submitted that the complainant should have waited in the matter, pending in the civil court but he filed this consumer complaint to gain undue enrichment by concealing that material fact. When a Civil suit is pending on the same subject matter then complainant has no jurisdiction to file this complaint before this Hon’ble Commission, as such, the complaint filed by her is liable to be dismissed being not maintainable.  In support of his contention, the learned counsel for the OPs has placed reliance on Dr. Dinesh Vs. Swastic Builders and Ors., (2002) 1CPC 198, decided by the Hon’ble National Consumer Commission, New Delhi and  Danish Grih Nirman Sahakari Samiti Versus Anurag Seth, (2006) 4 CPJ 393 decided by the Hon’ble State Consumer Disputes Rederssal Commission, Madhya Pradesh.
8.           The moot question which falls for consideration is, as to whether, the present complaint is maintainable before this Commission or not. It may be stated here that in the present case, it has not been disputed by the complainant that one civil suit no.1957/2021 titled as Punjab and Sind Bank Vs. Paramajeet Kaur and ors. is pending in the Civil Court, Ambala, in respect of the dispute in question, which had been filed on 10.09.2021 i.e. before filing of this consumer complaint (which was filed on 01.02.2022) and the next date of hearing is 17.11.2023, which fact is also evident from the case history of the said case, (downloaded from E-court website), placed before this Commission by the OPs, same is marked as ‘A’ wherefrom it is clearly coming out that complainant has been impleaded as respondent no.2 therein. In the case of Dr.Dinesh Vs. Swastic Builders and Ors. (Supra) the Hon’ble National Commission has held that when a civil suit is pending on the same subject matter, jurisdiction of consumer commission is barred, as jurisdiction of civil court is more comprehensive than the Consumer Commission.  Similar view was taken by the Hon’ble National Commission in Special Machines, Karnal v. Punjab National Bank & Ors., as reported in I (1991) CPJ 78 and also by the Hon’ble State Commission, Madhya Pradesh in Danish Grih Niram Sahakari Samiti Vs. Anurag Seth, (Supra).
9.           In view of the law laid down by the Hon’ble Superior Courts/Commissions, in the cases referred to above, we do not hesitate to hold that the complaint filed by the complainant before this Commission is not maintainable.  Consequently, we hereby dismiss the present complaint being not maintainable. Parties are left to bear their own costs.  Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room. 

        

Announced:- 02.11.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President