Uttarakhand

StateCommission

A/147/2020

HDFC Ltd. - Complainant(s)

Versus

Smt. Sudesh Devi - Opp.Party(s)

Mr. Ms. Anupama Gautam

12 Oct 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND

DEHRADUN

 

FIRST APPEAL NO. 147 / 2020

 

HDFC Limited

34, Civil Lines, Jadugar Road

Near Narayan Homeopathic Hospital, Roorkee

District Haridwar through its Senior Officer (CRM-Legal)

…… Appellant / Opposite Party

 

Versus

 

Smt. Sudesh Devi W/o late Sh. Madan Singh

R/o 157, Sunehra, Saraswati Vihar

Ramnagar, Roorkee, District Haridwar

…… Respondent / Complainant

 

Ms. Aanupamaa Gautam, Learned Counsel for the Appellant

Sh. Shree Gopal Narsan, Learned Counsel for Respondent

 

Coram: Hon’ble Mr. Justice D.S. Tripathi, President

               Mr. Udai Singh Tolia,                         Member-II

                                   

Dated: 12/10/2022

ORDER

(Per: Justice D.S. Tripathi, President):

 

This appeal under Section 41 of the Consumer Protection Act, 2019 has been preferred against the impugned judgment and order dated 29.09.2020 passed by the District Consumer Disputes Redressal Commission, Haridwar (in short “The District Commission”) in consumer complaint No. 52 of 2019; Smt. Sudesh Devi Vs. HDFC Limited, by which the consumer complaint was allowed and the appellant – opposite party was directed to recover balance outstanding amount of Rs. 8,92,545/- pertaining to loan account No. 612925011; balance outstanding amount of Rs. 2,11,114/- pertaining to loan account No. 612953096 and balance outstanding amount of             Rs. 8,62,145/- pertaining to loan account No. 612931179, in all,      Rs. 19,65,804/- from the concerned insurance company and deposit the same in the loan accounts and also to pay Rs. 10,000/- towards litigation expenses and counsel fee.

 

2.       Facts giving rise to this appeal, in brief, are that according to the consumer complaint, Sh. Madan Singh, the deceased – husband of the complainant – Smt. Sudesh Devi, was serving on the post of Assistant Teacher from Government Inter College, Chidderwala, District Dehradun, who had taken a housing loan of Rs. 8,90,000/- from the appellant – opposite party in his own name as well as in the name of the complainant on 16.09.2014 for construction of residential house, under loan account No. 612925011.  Further loan of              Rs. 8,90,000/- and Rs. 2,20,000/- was taken under loan account     Nos. 612931179 & 612953096 on 26.09.2014.  The rate of interest payable on loan of Rs. 8,90,000/- taken on 16.09.2014 and on loan of Rs. 8,90,000/- taken on 26.09.2014, was 10.15% p.a., whereas the rate of interest payable on loan of Rs. 2,20,000/- taken on 26.09.2014, was 12.65% p.a.  The loan installments were regularly deducted from bank account No. 4105052702 of complainant’s husband maintained with Uttaranchal Gramin Bank, Chidderwala.  Some of the loan installments were also deposited with the appellant by way of demand draft.  A Loan Agreement dated 26.09.2014 was executed between the complainant as well as her husband and the appellant.  As per condition No. 4 of the loan agreement, the appellant was obliged to get the loan secured by obtaining insurance policy.  However, the appellant did not get the loan amount insured, which amounts to gross deficiency in service on their part.  The husband of the complainant breathed his last on 08.04.2018.  If the appellant would have got the loan secured by obtaining the insurance policy, the outstanding loan amount would have been adjusted from the insurance claim.  On account of death of her husband, the complainant has got no source of income.  A demand notice dated 12.11.2018 was issued by the appellant, thereby demanding the outstanding loan amount.  The complainant is undergoing mental; physical and financial agony.  With the above allegations, consumer complaint was filed before the District Commission.

 

3.       The appellant filed written statement before the District Commission, wherein it was pleaded that the loanee (late Sh. Madan Singh as well as the complainant) did not deposit the loan installments in time and the cheques issued by them got dishonoured.  The condition No. 4 of the Loan Agreement dated 16.09.2014 is directory in nature and not mandatory.  The complainant as well as her deceased husband were clearly told that they can get the loan insured.  The appellant has telephonically informed the complainant on several occasions that she should claim the amount from insurance company.  The insurance company has not been impleaded as party to the consumer complaint.  The appellant has issued notice to the complainant under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, which was replied on incorrect grounds.  Since the appellant has initiated the proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, hence the Civil Court or Consumer Fora has no jurisdiction in the matter.  There has not been any deficiency in service on the part of the appellant and the consumer complaint is liable to be dismissed.

 

4.       After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 29.09.2020, thereby allowing the consumer complaint in the above terms.  Feeling aggrieved, the appellant has preferred the instant appeal.     

 

5.       We have heard rival arguments advanced by learned counsel for the parties and perused the record. 

 

6.       A number of arguments were advanced by learned counsel for the parties, particularly, as to it was whose responsibility to get the housing loan obtained by the deceased husband of the complainant as well as the complainant secured, by obtaining the insurance policy in that regard, but the most relevant point, which goes to the root of the matter was not argued by either of the learned counsel.  It was obviously not expected from learned counsel for respondent – complainant to bring the said fact into light and argue the said point, as the same goes against the respondent – complainant.  The said aspect of the matter is discussed hereinafter.

 

7.       In para 7 of the consumer complaint, it was stated that the appellant has issued a notice dated 12.11.2018, thereby demanding the outstanding loan amount.  In para 13 of the written statement filed by the appellant before the District Commission, it was specifically pleaded that the appellant has sent the notice under the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 to the complainant, hence the Civil Court or Consumer Fora has no jurisdiction in the matter in issue.

 

8.       The copy of the demand notice dated 12.11.2018 (Paper      Nos. 85 to 88) issued by the appellant to the complainant was filed on record by learned counsel for respondent – complainant through application dated 12.08.2022 (Paper No. 60).  By the aforesaid demand notice, the appellant has mentioned that sum of                   Rs. 8,92,545/-; Rs. 2,11,114/- and Rs. 8,62,145/- respectively is due against loan account Nos. 612925011; 612953096 and 612931179.  Since the copy of the said demand notice has been filed on behalf of respondent – complainant, hence there remains no dispute as to whether the same was served upon the complainant or not.  Even otherwise, as is stated above, in para 4 of the consumer complaint, the complainant has stated that the appellant has sent a notice dated 12.11.2018, demanding the outstanding loan amount.  The consumer complaint in question was filed by the complainant before the District Commission on 21.02.2019, i.e., after issuance of notice dated 12.11.2018 by the appellant under Section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002.  Thus, as per law, the consumer complaint filed by the complainant was not at all maintainable and ought to have been dismissed on the sole ground that the appellant has already initiated the proceedings under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, prior to filing of the consumer complaint.  A bare perusal of the impugned judgment and order passed by the District Commission shows that inspite of the appellant having taken a specific plea in the above regard in the written statement and the District Commission having quoted the same in the impugned judgment and order, failed to consider and record finding on such an important aspect of the matter.

 

9.       Hon’ble Apex Court in the case of Jagdish Singh Vs. Heeralal and others reported in 2013 STPL (Web) 895 SC, has held that the civil court jurisdiction is completely barred so far as the “measure” taken by a secured creditor under sub-section (4) of Section 13 of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal, to determine as to whether there has been any illegality in the “measures” taken.  Hon’ble National Commission in the case of Standard Chartered Bank Vs. Virendra Rai reported in II (2013) CPJ 337 (NC), has held that the Civil Court or Forum can not interfere in the proceeding initiated under Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002.  Hon’ble National Commission by judgment and order dated 25.11.2013 passed in Revision Petition    No. 1653 of 2013; M/s India Bulls Housing Finance Ltd. Vs. Hardayal Singh, has held that the case pertains to SARFAESI Act, 2002 and neither the District Forum nor the State Commission had jurisdiction to try the case.  In the said decision, Hon’ble National Commission has placed reliance upon a judgment of Hon’ble Supreme Court given in Civil Appeal No. 1359 of 2013; Yashwant G. Ghaisas and others Vs. Bank of Maharashtra, wherein Hon’ble Apex Court has held:

 

“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 with 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 concerned authority.  It is well settled that main creditor and the guarantors are equally responsible.”

 

10.     For the reasons aforesaid as well as in view of the above settled law, the consumer complaint filed by the complainant before the District Commission, was not at all maintainable.  Since the consumer complaint itself was barred by law, hence we need not enter into the merits of the case.  However, we feel it necessary to point out that the District Commission further fell in error by directing the appellant to recover the outstanding loan amount from the concerned insurance company, inspite of that no such insurance company was impleaded as party to the consumer complaint, nor has come into picture at any stage of the proceedings before the District Commission.

 

11.     For the foregoing reasons, we are of the considered opinion that the impugned judgment and order passed by learned District Commission suffers from material illegality, warranting interference by this Commission.  Consequently, the appeal deserves to be allowed and the impugned judgment and order passed by learned District Commission is liable to be set aside.

 

12.     Appeal is allowed.  Impugned judgment and order dated 29.09.2020 passed by the District Commission is set aside and consumer complaint No. 52 of 2019 is dismissed.  No order as to costs.  The amount deposited by the appellant with this Commission, be released in its favour.   

 

13.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.

 

 

(U.S. TOLIA)                            (JUSTICE D.S. TRIPATHI)

               Member-II                                                President

 

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