IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 27th day of February, 2016
Filed on 06.05.2013
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.374/2010
between
Complainant:- Opposite Party:-
Sri. Peethambaran South Indian Bank Branch
Vathikadu Veedu P.B. No.13, S.D. Pharmacy
Komalapuram Building, First Floor, Alappuzha
Avalookkunnu P.O. Represented by its Manager
(By Adv. K.C. Sudheer) (By Adv. P.K. Mathew)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
This is a remanded matter. The case was once heard and the President of the then Forum passed an order on 30.04.2011 dismissing the complaint. Since there was no detailed order, Hon’ble State Commission suomoto taken up the matter and remanded the case for hearing for the purpose of passing a speaking order. After remanded, notices were issued to both parties for hearing the matter. 2. The case of the complainant is as follows:-
The complainant availed a housing loan for Rs.10 lakhs from the opposite party on 6.8.2007. In spite of the repeated requests the opposite party failed to furnish the statement of account to the complainant. When the complainant went to remit the loan amount with the opposite party the bank Manager of the bank has torn away the passbook of the complainant and issued a duplicate passbook without mentioning the installment amount and the interest rate that he already remitted. Due to the misappropriation in the loan account by the opposite party the complainant had to pay excess amount. Alleging deficiency in service on the part of the opposite party the complaint is filed.
3. The version of the opposite party is as follows:-
The complaint is not maintainable. The complainant along with his wife availed a housing loan of Rs.10 lakhs on 6.8.2007 and executed loan agreement, agreeing the terms and conditions. The rate of interest to the loan facility is at floating. The complainant committed default in repayment of the installments as agreed and the account is classified as Non Performing Asset incompliance of RBI guidelines. The Authorized Officer of the bank issued notice u/s 13 of SARFAESI Act to borrower/ co-obligant and they approached the Hon’ble High Court of Kerala and the Hon’ble Court allowed to clear the over dues in installments. A copy of the order is produced herewith. They did not comply with the High Corut order. The Chief Judicial Magistrate Court, Alappuzha has passed an order u/s 14 of SARFAESI Act in CMP No. 1850/2009. The Bank has also filed a suit before the DRT, Ernakulam numbered as OA No. 284/2010 on 14.7.2010 for recover of the dues and the petitioner herein appeared before the said Forum also. The petitioner has the opportunity to seek all the reliefs and take up all the contentions before the DRT., Ernakulam and without resorting to that the petitioner filed separate complaint before this Hon’ble Forum is abuse of the process. This also amounts to multiplicity of proceedings. The allegations that there is misappropriation in the loan account and that he paid excess amount are false. The allegation that the bank has committed fraud is also not correct. The bank has demanded the money due to which the bank is entitled to pay.
4. Complainant was examined as PW1. The documents marked as Exts.A1 to A9. Opposite
party was examined as RW1. Documents marked as Exts.B1 to B4.
5. Whether the complaint is maintainable?
6. It is admitted fact that complainant availed a loan for Rs.10,000/- from the opposite party. According to the complainant he was remitting the installments regularly, but the opposite party committed fraud by claiming execs amount from him. According to the opposite party, the complaint is not maintainable, since the dispute falls within the purview of the SAFAESI Act. In order to substantiate this contention opposite party produced Ext.B1 the original application No.284/10 filed u/s 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. On perusing the said document, we came to see that it was filed on 14.7.2010. The complaint filed before the Forum was on 28.12.2010. Complainant had suppressed material facts in the complaint since they did not mention that opposite party bank had filed application before the Debt Recovery Tribunal, Ernakulam. According to the opposite party the complainant committed default in repayment of the installments as agreed and the account is classified as Non Performing Asset. Thereafter u/s 13 of SARFAESI Act was issued to the complainant and complainant approached the Hon’ble High Court, and Hon’ble High Court allowed to clear the over dues in installments. But the complainant did not comply with the Hon’ble High Court Order. The Chief Judicial Magistrate Court of Alappuzha has also passed an order u/s 14 of SARFAESI Act in CMP No.1850/2009. Ext.B4 is the copy of the petition filed before the Hon’ble Chief Judicial Magistrate Corut, Alappuzha u/s 14 of the SARFAESI Act. The complaint before this Forum was filed on 28.12.2010. From the records produced it is evident that securitization application was moved by the opposite party before the Debt Recovery Tribunal in respect of the same subject matter prior to filing of this complaint. An application u/s 14 of SARFAESI Act 2002 was also moved by the opposite party bank in the Chief Judicial Magistrate Court, Alappuzha for taking possession of the mortgage properties of the complainant. In a decision reported in 2013 CPJ Volume 1 page No. 31 B it is held that: “Recovery of Debt – Under SARFAESI Act Special Tribunal has been created to exercise, on and from the appointed day, the jurisdiction, power of authority to decide applications from Banks and Financial Institutions for recovery of Debts due to such Banks and Financial Institutions. As per Section 18 of SARFAESI Act, complaint filed under CP Act not maintainable.” In view of the above decision, we are of the view that the complaint itself was not maintainable.
Hence complaint is dismissed.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 27th day of February, 2016.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Peethambaran (Witness)
Ext.A1 - Copy of the loan passbook
Ext.A2 - True copy of the statement of account for the period from 6.8.2007 to 29.8.2009
Ext.A3 - True copy of the letter dated 3.6.2008
Ext.A4 - Registered notice dated 24.7.2008
Ext.A5 - True copy of the credit with intimation dated 9.9.2010
Ext.A6 - True copy of the credit with intimation dated 13.10.2010
Ext.A7 - True copy of the credit with intimation dated 2.11.2010
Ext.A8 - True copy of the credit with intimation dated 25.11.2010
Ext.A9 - True copy of the order WA. No.2047/2010
Evidence of the opposite parties:-
RW1 - C.G. Jayaram (Witness)
Ext.B1 - Original application u/s 19 of the Recovery of debts due to banks and financial
Institutions Act, 1993
Ext.B2 - Registered letter dated 5.3.2011
Ext.B3 - Copy of the order of High Court of Kerala No.WP(C) 24375/2010(V)
Ext.B4 - Copy of the complaint before the Chief Judicial Magistrate, Alappuzha
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
