UTPAL KUMAR BHATTACHARYA, PRESIDING MEMBER
Instant Revision Petition u/S 17 ( 1) (2) has been preferred by the Revisionists/OPs challenging the order dated 12.07.2017 passed by the Ld. District Forum in CC No. 162/2017 dismissing the petition dt. 15.06.17 filed by the Revisionists /OPs challenging the maintainability of the complaint.
The brief fact of the case was that the Respondent/Complainant No.1 took financial assistance of the nature of educational loan from the Revisionists/OPs for pursuing a 6 month carrier pilot training course from Pan Am International Flight Academy , USA. A loan amount to the tune of Rs. 7,50,000/- was received by the Respondent/Complainant keeping his father, being the Respondent /Complainant No.2 as co-obligant on agreed terms and conditions detailed in the sanction letter of the loan . The Respondent /Complainant No.1 , according to the said terms and conditions , was supposed to initiate repayment after one year of completion of the said training course or after 6 months from getting employment whichever was earlier.
The Respondent /Complainant No.1 , however, could not initiate repayment because of his not getting any employment after completion of the said training course. The Respondents/Complainants , thereafter, acknowledging the debt and liability of them towards the Revisionists/OPs , executed a supplementary education loan agreement for an amount of Rs. 10,87,649.78 .
In spite of being given to him number of relaxation as per his requirements and prayers from time to time , the Respondents /Complainants failed to show desired initiative to repay the loan amount which , with the passing of days , due to poor repayment , grew to a bigger amount of Rs. 13,29,484 .58 . To ensure that the Revisionist’s /OPs’ Bank does not sustained any financial loss , the Revisionists /OPs filed an application bearing O.A. No. 129 of 2017 before the Debts Recovery Tribunal -1 , Kolkata on 16.03.2017 for recovery of the aforesaid amount.
The Respondents /Complainants , on the other side , filed the complaint case before the Ld. District Forum on 04/05/2017 during pendency of the aforesaid O.A. before the DRT , Kolkata -1 with the prayers emphasizing especially upon :-
1 . Downsizing the interest rates which , according to the complaint , was being charged in excess and not in sync with rate of interest on educational loan as per circular to that effect issued from time to time.
2. Lengthening the period of repayment .
3. Refund of the amount paid in excess due to arbitrary fixation of higher rate of interest together with cost and compensation .
The impugned order arises out of the said complaint case.
Heard Ld. Advocates appearing on behalf of either side. The Ld. Advocate appearing on behalf of the Appellant focused on the definition of debt as envisaged u/s 2( g) of the Recovery of debts and bankruptcy Act , 1993 and contradicted the observation of the Ld. District Forum in the impugned order at last para of running page 29 where it was viewed that the instant outstanding educational loan, which involved no mortgag , should not be treated as debt in view of the fact, as interpreted in the said para, that the debt was an essential ingredient of mortgage.
The Ld. Advocate’s contradiction was that it had been mentioned in the definition of the debt that any dues in cash or otherwise, whether secured or unsecured, should also be considered as debt . Therefore, debt being an essential ingredient of mortgage, as observed in the impugned order, in the last para of the running page 29, seems to have no applicability on the instant occasion.
As submitted , the Complaint before the Ld. Debt Recovery Tribunal was filed on 16.03.2017 ( running page 176) and the Ld. DTR in its order dt. 20.03.1017 ( running page 178) directed for issuing summons / notice to the defendants by post with direction laid down therein and summons were accordingly issued ( running page 180) .
As further submitted , the complaint case was filed before the Ld. District Forum on 04.05.2017 , WV was filed on 17.06.2017 ( running page 92) and the maintainability of the complaint case was challenged on 15.06.2017 in view of the pendency of the aforesaid O.A No. 129 of 2017 before the Ld. DRT .
Ld. Advocate drew notice of the Bench upon Section 17 (1) of the recovery of debts and bankruptcy Act , 1993 defining the jurisdiction , powers and authority of the tribunal which read, “A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions……………”
Notice was also drawn on Section 18 ibid defining bar of jurisdiction which envisaged , “ On and from the appointed day, no court or other authority shall have , or be entitled to exercise, any jurisdiction, powers or authority ( except the Supreme Court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to the matters specified in section 17…………..”
Ld. Advocate, referring further to Section 34 ibid , submitted that the said section had sufficiently explained how the civil court was barred from entertaining any suit or proceeding in respect of any matter which the Debts Recovery Tribunal or the Appellate Tribunal was empowered to entertain by or under the Act, .
Ld. Advocate for the Revisionists /OPs, in the above context , cited the decision of the Hon’ble National Commission in original Petition No. 138 of 2000 D/d. 10.12.2014 [ Ankur Export Pvt. Ltd. –vs- Bank of Baroda , International Business Branch], reported in 2015 ( 1 ) CPJ 216 , 2015 (1) CPR 350 and RCR (Civil) 322 wherein the Hon’ble National Commission was pleased to observe that the National Commission was not empowered to arrogate to itself the powers which came within the jurisdiction of the Debt Recovery Tribunals .
Observation of the Hon’ble National Commission in Revision Petition No. 4502 of 2013 [ Bank of India –vs- Anil Raveendran ] reported in 2015 (2) CPR 41 and 2015 (12 ) RCR ( Civil ) 546 appeared to be in the same line as referred to by the Ld. Advocate. It appeared that the Hon’ble National Commission, while dismissing the complaint, observed that the Fora below had no jurisdiction to entertain the complaint in view of Section 34 of the SARFAESI Act and both the Fora exceeded their jurisdictions in entertaining the complaint.
The Ld. Advocate concluded saying that the complaint case was not maintainable in the facts and circumstances narrated above and prayed for the Revision Petition to be allowed setting aside the impugned order with consequent dismissal of the complaint .
The Ld. Advocate appearing on behalf of the Respondent/Complainant , per contra , submitted that the Respondent / Complainant did not deny his liability for repayment of the debt with interest as applicable . His only contention , as further submitted , was against the irrational and arbitrary application of higher rate of interest which was not in conformity with the orders and circulars issued from time to time.
The Ld. Advocate continued that the Appellant/OP Bank, this way, had squeezed from the Respondent / Complainant money in excess which actually he wanted to get refunded together with litigation cost and compensation as prayed for due to the aforesaid deficiency on the part of the Appellant/OP.
As regards OA 129 of 2017 filed before the Ld. DRT -1 Kolkata , it was submitted that the Respondent /Complainant did not have any knowledge about the aforesaid OA No. It was only on getting notice of hearing of the petition challenging the maintainability of the complaint case that the Respondent /Complainant came to be aware of the aforesaid OA No. filed before the aforesaid Ld. D.R. Tribunal.
The Ld. Advocate prayed for the Revision /Petition to be dismissed in the above perspective .
Perused the papers on record . Considered the submissions of both sides.
The key point here to decide was whether a Consumer Forum should entertain any complaint on an issue during pendency of the same before the Ld. DRT.
We had gone through the record which was amply clear that the subject OA before the Ld. DRT was filed on an earlier date than the same on which the instant complaint was filed. In fact, the complaint case was filed before the Ld. District Forum much after the summons against the defendant in respect of the subject OA were issued .
The Hon’ble National Commission, in plethora of Judgments conclusively clarified that the Consumer Forum had no jurisdiction to entertain any complaint relating to an issue which is pending before the Ld. DRT. The citations put forward by the Ld. Advocate appearing on behalf of the Appellant/OP were two of the many .
We perused the impugned judgment and order wherein the Ld. District Forum appeared to have exercised more force to establish the jurisdiction and competence of the Consumer Fora to adjudicate similar nature of issues . It was not sufficiently explicit as to why the Ld. DRT had no jurisdiction to entertain and adjudicate the issue . More so, when the Consumer Fora were expressly barred to entertain any complaint during pendency of the same issue before the Ld. DRT where the parties had no less opportunity to place their respective submission.
Keeping reliance upon the said decisions of the Hon’ble National Commission, we held that the Ld. District Forum was erred in entertaining the complaint for adjudication.
Such, being the circumstances, we have no qualms to hold that the Revision Petition has merit to be favourably considered.
Hence,
Ordered
That the Revision Petition bearing No. 177 /2017 stands allowed setting aside the impugned order. Consequently, the compliant stands dismissed being not maintainable. No order as to costs.
