Punjab

StateCommission

A/11/1563

M/s Dina Nath Gupta - Complainant(s)

Versus

SBI - Opp.Party(s)

Arunjeet Singh Kakkar

25 May 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1563 of 2011

 

                                                          Date of Institution: 28.10.2011                                                              Date of Decision:  25.05.2015

 

M/s Dina Nath Gupta and Company through its Partner Ashwani Gupta aged about 37 years son of Sh. Brij Bhushan Gupta, resident of Gupta Street, Kotkapura, Tehsil and District Faridkot.                                                                                                                                                                                                                                                                                                                    …..Appellant/Complainant

         

                                      Versus

 

State Bank of India through its Branch Manager, Main Branch, Kotkapura, District Faridkot.

         

                                                          …..Respondent /Opposite Party

 

First Appeal against order dated 30.08.2011 passed by the District Consumer Disputes Redressal Forum, Faridkot

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri.Vinod Kumar Gupta, Member

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                       :         None

          For the respondent                    :         Sh.A.K.Khunger Advocate.

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondent of this appeal (the opposite party in the complaint), challenging order dated 30.08.2011 of District Consumer Disputes Redressal Forum Faridkot, dismissing the  complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that complainant is a partnership concern and availed two loans facilities from OP out of which one was Cash Credit Limit for Rs.30 lac and other was the Term Loan for Rs.10 lac after pledging the title deeds with OP, as set out in the complaint. The limits of the complainant firm were functioning absolutely properly, but due to some business problem, and non-payments from the railway department, the complainant firm could not deposit the installments with the OP and the account of the complainant was declared as NPA by the OP. The complainant received notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 on 11.11.2006 for depositing the amount of Rs.16 lac. The OP took physical possession of the property of the complainant without serving any notice. Writ Petition was also filed by the complainant in the Punjab & Haryana High Court and order was passed on 24.04.2009. In compliance of the order of High Court the complainant have been making payments and subsequently the OP sent a letter offering One Time Settlement to the complainant and minimum amount to be paid was Rs.33,30,039.58 being outstanding balance in account as it was categorized as doubtful NPA less discount wherever applicable. After receipt of OTS letter, the complainant moved an application to the Branch Manager State Bank of India for processing of the application under OTS-10 Scheme, which was duly acknowledged by the OP. The complainant in terms of the One Time Settlement letter deposited whole amount as per OTS Scheme floated by the OP and payments are recorded below:

Sr. No.	Amount	Dated
1.	Rs.30,000/-	01.10.2007
2.	Rs.85,000/-	24.10.2007
3.	Rs.25,000/-	21.12.2007
4.	Rs.25,000/-	04.02.2008
5.	Rs.75,000/-	31.03.2008
6.	Rs.50,000/-	06.06.2008
7.	Rs.30,000/-	09.07.2008
8.	Rs.30,000/-	10.09.2008
9.	Rs.70,000/-	01.10.2008
10.	Rs.50,000/-	06.10.2008
11.	Rs.1,00,000/-	24.10.2008
12.	Rs.50,000/-	19.12.2008
13.	Rs.40,000/-	23.01.2009
14.	Rs.40,000/-	29.01.2009
15.	Rs.2,00,000/-	12.02.2009
16.	Rs.50,000/-	25.03.2009
17.	Rs.5,00,000/-	06.05.2009
18.	Rs.2,00,000/-	12.08.2009
19.	Rs.1,00,000/-	31.10.2009
20.	Rs.1,00,000/-	20.11.2009
21.	Rs.1,00,000/-	05.12.2009
22.	Rs.3,00,000/-	31.12.2009
23.	Rs.1,70,000/-	25.05.2010
24	Rs.1,15,000/-	29.05.2010
25.	Rs.2,85,000	31.05.2010
26.	Rs.13,800/-	26.06.2010
Total	Rs.28,38,800/-

 

The complainant made entire payments against Cash Credit Limit and the Term Loan facility availed by it. The OP has not released the title deeds and No Due Certificate to the complainant despite the fact that as per OTS Scheme, no single penny is due from the complainant.  The complainant has, thus, filed the complaint against OP by directing them to release the title deed of the property of the complainant along with No Due Certificate  regarding the Cash Credit Limit and Term Loan availed by the complainant and further to pay Rs.4,50,000/- as compensation for mental harassment to the complainant.

3.      Upon notice, OP appeared and filed written reply raising preliminary objections that complainant has no locus standi to file the complaint. The complaint is not maintainable. The complainant is not a registered firm with the Registrar of Firms. The complainant has not liquidated/paid the entire due amount of the bank till date and still an amount of Rs.9,07,350.09 in the Cash Credit Limit Account and a sum of Rs.2144.57 in the Term Loan Account of the complainant inclusive interest up to 10.04.2011 is still due from the complainant to OP. The OP admitted this fact that complainant availed Cash Credit Limit of Rs.30 lac and a Term Loan of Rs.10 lac, as pleaded in the complaint. It was further averred that accounts of the complainant were not running satisfactorily. It was further averred that notice was served upon the complainant under the provision of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act.  As the complainant firm failed to liquidate the accounts and after complying with the provisions of SARFAESI Act, the OP took the possession of the property of the complainant. The matter was agitated before High Court by the complainant in Writ Petition and there was one time settlement of NPAs in SME (SBI OTS-SME, 2010) and the OP sent letters to all the NPA account holders of SME. It was further averred that even despite one time settlement arrived at in the High Court, the amount of Rs.9,07,350.09 is still due in the Cash Credit Limit and Rs.2144.57 is due in the Term Loan Account of the complainant to the OP on 10.04.2011. The OP denied any deficiency in service on their part. It was further averred that unless and until complainant cleared the amount of Rs. 9,07,350.09 in Cash Credit Limit and Rs.2144.57 in the Term Loan Account as due on 10.04.2011,  no due certificate and not title deed could be issued to him and OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence the affidavit Ex.C-1 of Ashwani Kumar partner of the complainant/firm, copy of notice dated 11.11.2006 Ex.C-2 and Ex.C-3, notice U/s 13 of SARFAESI Act Ex.C-4, copy of order dated 20.10.2009 Ex.C-5, copy of order dated 11.8.2009 Ex.C-6, copy of order dated 7.5.09 Ex.C-7, copy of letter dated 25.5.2011 Ex.C-8, copy of letter addressed by Chief Manager SBI Ex.C-9, copy of legal notice Ex.C-10, copy of account statements Ex.C-11 to Ex.C-14, copies of receipts of payment from Ex.C-15 to Ex.C-17, account statements Ex.C-18 to Ex.C-20. As against it, OP tendered in evidence affidavit of Vijay Garg Branch Manager Ex.R-1, copy of account statement of complainant Ex.R-2, copy of account statement Ex.R-3, copy of letter dated 1.10.2010 Ex.R-4, copy of letter dated 5.6.2010 Ex.R-5, copy of circular dated 5.3.2010 Ex.R-6, additional affidavit of Vijay Garg Branch Manager SBI Ex.R-7. On conclusion of evidence and arguments, the District Forum, Faridkot, dismissed the complaint of the complainant by virtue of order dated 30.08.2011. Dissatisfied with the order of the District Forum Faridkot dated 30.08.2011, the complainant now appellant has preferred this appeal against the same.   

5.      We have heard learned counsel for the respondent in this appeal, as none has appeared for appellant in this case since 21.05.2014. We propose to decide the case on the basis of its merits with the aid of evidence on the record and as nobody has been puting appearance on behalf of the appellant. Admittedly, the complainant is a Firm dealing in business and the complainant firm availed Cash Credit Limit of Rs.30 lac from the OP and Rs.10 lac under Term Loan Account from the OP by pledging title deed as  detailed in the complaint. Admittedly, loan of the complainant became NPA and notice was issued to complainant under Section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 and his property was seized by the OP for non-payment of the arrears due. The matter was agitated before High Court and with the intervention of the Hon'ble High Court, one Time Settlement was arrived at between the parties. The complainant has alleged that he has cleared the entire payment, whereas the OP had categorically took stand that the amount of Rs.9,07,350.09 is still outstanding in the Cash Credit  Account of the complainant to OP and amount of Rs.2144.57 is still outstanding in the Term Loan Account of the complainant due to OP inclusive interest up till 10.04.2011. Undisputedly, One Time Settlement was arrived at between the parties in Writ Petition preferred by the complainant before High Court. Pursuant to notice sent to the complainant by the OP under Section 13(2) of the Act 2002 for possessing the property of the complainant for non-payment of the account, the copies of Securitization notice under Section 13(2) of the above Act are Ex.C-2 dated 11 November 11.11.2006, Ex.C-3 dated 11.11.2006, Ex.C-4 dated 11.11.2006. Civil Writ Petition No. 5637 of 2009 was preferred by the complainant in the Hon'ble High Court challenging the above-referred notices issued by the OP under Section 13(2) of the above Act 2002. High Court passed order from time to time in the above referred Writ Petitions and some of the orders are Ex.C-6 and Ex.C-7 on the record. Copy of letter dated 25.5.2010 addressed to Branch Manager State Bank of India from complainant Firm Ex.C-8, copy of notice Ex.C-9 on the record. Legal notice was served by the complainant, which is Ex.C-10 to OP before filing the complaint. Statement of account Ex.C-11 to Ex.C-14 on the record. Receipt Ex.C-15 to Ex.C-17. Another statement of account Ex.C-18 to Ex.C-21. On the basis of the above-referred evidence, submission of the complainant now appellant is that since the entire loan amount has been paid by the complainant to OP, therefore, the title deed pledged by the OP be returned to complainant along with No Due Certificate for clearance of loan.

6.      As against it, OP relied upon the affidavit Ex.R-1 of Sh. Vijay Garg Branch Manager Principal Officer of State Bank of India of OP. He has stated that complainant availed the benefit of Cash Credit Limit of Rs.30 lac and Term Loan of Account of Rs.10 lac from the OP. He further stated that till date, the amount of Rs. 9,07,350.09  is due  from the complainant in Cash Credit Limit and amount of Rs.2144.57 is due from the complainant to OP. In the Term Loan Account inclusive of interest up to 10.04.2011. The OP placed on record statement of account of complainant Ex.R-2 to Ex.R-3. Ex.R-4 is notice in NPA Management and Ex.R-5 is letter from Regional Manager to Branch Manager State  Bank of India for NPA Manager similarly other correspondence ensued by Ex.R-6 on the record. Supplement affidavit of Sh. Vijay Kumar Ex.R-7 is on the record.

7.      From appraisal of the above-referred evidence on the record and hearing submissions of counsel for respondent in this appeal, we have come to conclusion that the District Forum has wrongly held  the complainant firm to be a Consumer. Undisputedly, complainant firm is dealing in business and availed the Cash Credit Limit of Rs.30 lac and Term Loan Account of Rs.10 lac from the OP. Such a large amount cannot be taken by firm for the purpose of earning livelihood by means of self-employment by its partner. Even as per averments of the complainant contained in the complaint, the complainant/firm deals in business activity and took Cash Credit Limit and Term  Loan Account by pledging title deed for expansion of business. The complainant/firm deals in commercial activity and in view of Section 2(d) of Consumer Protection Act 1986, the complainant/firm has not availed such a huge amount for earning its livelihood by means of any self-employment. It is evident that complainant/firm availed Cash Credit Limit of Rs.30 lac and Term Loan Account of Rs.10 lac for business purposes, which is certainly commercial activity with the sole aim of earning profit only. The District Forum went wrong in holding the complainant to be Consumer. The finding of the District Forum is not sustainable and this Commission is competent to reverse the finding of the District Forum in view of the spirit of Order 41 Rule 33 of Code of Civil Procedure. Consequently, the finding of the District Forum holding complainant to be a Consumer is overturned in this appeal by us. The complaint filed by the complainant is held to be not maintainable.

8.      Even on merits, we find that there is no merit in the case of the complainant. One Term Settlement pursuant to notices sent to complainant under Section 13(2) of the Securitization Act was arrived between the parties, with the intervention of the High Court in some Writ Petition. The complainant has not honoured the same. As per categorical stand of the OP, the amount of Rs.30 lac in Cash Credit Limit and Rs.10 lac in Term Loan is due from the complainant to OP, despite the fact that concession was granted to the complainant by the OP under special Scheme. Unless and until the complainant cleared the entire loan amount, title deed pledged by the OP cannot released to complainant. Similarly, No Due Certificate cannot be released to the complainant. We find substance in the submission of the OP that title deed and No Due Certificate cannot be released to complainant till entire amount is cleared by the complainant despite availing the benefit of OTS Scheme by the complainant. We find no illegality or material infirmity in the order of the District Forum under challenge in this case in dismissing the complaint of the complainant.

9.      As a result of our above discussion, there is no merit in the appeal and same is hereby dismissed.

10     Arguments in this appeal were heard on 19.05.2015 and the order was reserved. Now the order be communicated to the parties.

11     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

           

                                                                          (J. S. KLAR)

                                                              PRESIDING JUDICIAL MEMBER

                       

                                               

                                                                    (VINOD KUMAR GUPTA)

                                                                             MEMBER

 

 

                                                               (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

May 25  2015.                                                                

(ravi)