DATE OF FILING : 19.08.2014.
DATE OF S/R : 22.09.2014.
DATE OF FINAL ORDER : 10.02.2016.
1. Asit Samanta,
son of late Ram Kirshna Samanta,
residing at 36/1, Bhattacharjee Para Lane, P.S. Shibpur,
District Howrah,
PIN 711104.
2. Anjana Samanta,
wife of Asit Samanta,
residing at 36/1, Bhattacharjee Para Lane, P.S. Shibpur,
District Howrah,
PIN 711104. ………………………………………………… COMPLAINANTS.
Standard Chartered Bank,
Having its place of business at
19, Netaji Subhas Road,
Kolkata 700001. …..…………………………………………………OPPOSITE PARTY.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- This is an application filed by the petitioners, Asit Samanta and Anjana Samanta, against the o.p., Standard Chartered Bank, having its place of business of 19th N.S. Road, Kolkata, praying for direction against the o.p. to pay compensation to the tune of Rs. 10 lakhs for harassment and mental agony and to pay Rs. 5,000/- as litigation costs.
- The case of the petitioner is that the petitioner is a customer of the bank and availed of a housing loan to the tune of Rs. 10,14,800/- which was sanctioned by the bank and as per terms of agreement the petitioner was to repay the said amount to the o.p. bank in 129 equal monthly installments of Rs. 8,946/- inclusive of principal as well as interest. The petitioner paid the monthly installments since 18.10.2004 to 18.01.2010 and paid about Rs. 4,94,436/- and thereafter the o.p. started charging interest at an exceeded and enhanced rate which was beyond the terms of agreement and also the o.p. resorted to Sarfaesi Act issuing notice U/S 13(2) of the said Act and also 13(4) and the petitioner preferred a statutory appeal agitating and protesting against the acts of the o.p. There was clear deficiency in service on the part of the o.p. as they deviated from the terms and conditions of the agreement. There was talk of settlement between the partes in the year 2009 as the petitioner approached the o.p. bank but later on the o.p. bank did not respond to such settlement and in the year 2012 after a lapse of four years pressed on the petitioner to pay huge interest as the matter could not be settled and the bank on 04.03.2013 sent a letter to the petitioner shifting all the blames on the petitioner. The home loan account of the petitioner being A/c. no. 43231753. On 29.6.2009 the complainant wrote to the petitioner for settlement of loan but the petitioner was indifferent and later on the petitioner tendered a sum of Rs. 1,75,000/- by way of a demand draft proposing to settle the due loan amount but the o.p. did not accept the same. The petitioner wrote so many letters but the o.p. on 04.3.2013 declined such proposal of settlement and pressed for huge amount of interest which simply caused mental agony and sufferings to the petitioners due to negligence on the part of the o.p. who dragged the matters for the last four years and later on claiming huge interest and thus compelling the petitioner to file the case.
- The o.p. bank contested the case by filing a written version denying the allegations made against them and submitted that the petitioner stopped payment of installments resulting the o.p. to take the recourse of the Sarfaesi Act of 2002 by sending notices U/Ss 13(2) and 13(4) and took symbolic possession of the schedule mentioned property. They further submitted that the petitioner is not entitled to agitate the matter before this Consumer Forum because the matter has been taken up by the Tribunal under the Sarfaesi Act and U/S 34 of the said Act it is clearly stated that the jurisdiction of the civil court or any other authority is barred.
- The o.p. further submitted that they admitted that the petitioner took a loan but due to non payment of loan from 2009 the matter became sticky as the petitioner defaulted in payment as per terms and conditions of the agreement and thus the petition being baseless and malafide be rejected and dismissed with costs.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.P.?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of their case the petitioner filed affidavit as well as documents which proved the facts that the petitioner took a loan of Rs. 10,14,800/- from the o.p., Standard Chartered Bank, in the year 2004 and he made payments till 18.01.2009 as is noticed from the statement of account and the case of the petitioner that there was non payment of installment by him resulting the account became sticky even though he made payment of Rs. 4,94,436/-. There was talk of settlement between the petitioner and the o.p. but the o.p. though took time for four years yet lastly on 04.3.2013 declined the proposal of settlement of the petitioner claiming huge interest from him and the same compelled the petitioner to file this case.
- This Forum heard the ld. counsel for the petitioner as well as the o.p. and also keeping in mind the facts as averred in the petition of complaint as well as in the written version and also in keeping in mind the present position of law, finds that in the instant case the o.p. bank submitted before the Forum that this case is barred by Section 34 of the Sarfaesi Act, 2002 wherein is laid down that the jurisdiction of the Civil Court is barred when the matter comes under the Sarfaesi Act before the Debt Recovery Tribunal. U/S 34 of the said Act it is laid down that “No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ( 51 of 1993 ).”
- Thus it is clear from the Section itselfthat the jurisdiction of the Civil Court is bar in case the matter comes under the purview of the jurisdiction of the Sarfaesi Act. In the instant case the petitioner submitted in his petition that he received notice U/S 13(2) of the Sarfaesi Act from the o.p. and thus this Forum though not clearly a civil court yet it supplantthe Civil Court and thusForum has civil jurisdiction in certain matters being a court of competent civil jurisdiction. It is submitted by the petitioner in his petition of complaint para 3 that he had chosen to prefer a statutory appeal agitating and protesting the measures adopted by the bank sending notices U/S 13(2) and 13(4) of the Sarfaesi Act and that was the correct course of action because the matter came under the Sarfaesi Act on 07.5.2009 when the notice U/S 13(2) was issued on the petitioner and thus after a long gap of about five years the petitioner came before this Forum to agitate the matter again which was against the very provision of law as our Hon’ble HighCourt in 2010 (1) CHN page 86 opined clearly that the jurisdiction of civil court is bar when the matter comes under the purview of the Sarfaesi Act and the petitioner ought to have preferred an appeal against the activity of thebank before the Debt Recovery Tribunal and not before the CivilCourt which was not the proper forum for the petitioner to campaign his grievances.
- Our National Commission in 2013 NCJ page 57 opined that since the matter was subjected before the Debt Recovery Tribunal. So the Consumer Forum has no jurisdiction to entertain the complaint and in the instant case notices U/Ss 13(2) and 13(4) issued against the petitioner under the Sarfaesi Act.
In view of above discussion this Forum has no reason to discuss the other issues further and in our opinion that the petitioner failed to prove their case and thus the claim case fails.
Hence,
O R D E R E D
That the C. C. Case No. 458 of 2014 ( HDF 458 of 2014 ) be and the same is dismissed on contest.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
