STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 20.12.2021
Date of final hearing: 04.09.2024
Date of pronouncement: 13.11.2024
CONSUMER COMPLAINT NO. 49 of 2021
IN THE MATTER OF: -
1. M.L. Gupta S/o Sh. Kishori Lal Guta, R/o 423, Sector-15, Faridabad-121007.
2. Kamla Gupta wife of M.L. Gupta, R/o 423, Sector-15, Faridabad-121007.
3. Dr. Aarti Gupta wife of Dr. Ravi Gupta, R/o 423, Sector-15, Faridabad. …..Complainants
Versus
- State Bank of India, Mini Secretariat, Sector-12, Faridabad (Branch Code- 04457), Address; Block-B, Sector-12, Faridabad, Haryana, Pincode-121007.
- State Bank of India, RACPC, Faridabad, Sector-16, Faridabad (Branch Code-11528), Address: SCO No.98, Ist & IInd Floor, Sector-16, Faridabad.
- Dr. Ravi Gupta, Cardiologist, Workhardt Hospital, Police Station, 1877, Doctor Anand Rao Nair Marg, near Agripada, Mumbai Central, Mumbai Maharashtra-400011.
…..Opposite Parties
CORAM: Sh. Naresh Katyal, Judicial Member
Sh. S.C. Kaushik, Member
Argued by:- Mr. Sanjeet Sahay, Advocate with Ms. Meenakshi Dogra, counsel for complainants.
None for opposite parties No.1 & 2 (defence closed vide order dated 14.05.2024)
Opposite party No.3 already ex-parte and defence also struck of vide order dated 27.04.2023.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Facts are: Complainant No.1-M.L. Gupta along with his wife (Kamla Gupta) daughter (Dr. Aarti Gupta) and son-in-law (Dr. Ravi Gupta-OP No.3) purchased property No.808, Sector-15, Faridabad. Complainants made payment of Rs.13,39,000/- towards sale consideration. OP No.3 (Dr. Ravi Gupta) paid Rs.11,000/- only towards sale consideration. Balance sale consideration was arranged by loans. Property was jointly owned by complainants and OP No.3. Their share being: complainant No.1-18%; complainant No.2-18%; complainant No.3-32% and OP No.3-32%. Sale deed was registered in names of all four persons by specifically providing percentage of ownership of each person. Complainants along with OP No.3 jointly applied for home loan from State Bank of India, Mini Secretariat Branch, Faridabad for Rs.80,00,000/-.
2. As per plea, in said property; two loans were taken. (a) Construction loan and (b) Home loan for payment of sale consideration of Rs.90,00,000/-. Complainants No.1 & 2 paid Rs.32,39,300/- of their share, while complainant No.3 paid Rs.27,67,000/-. After purchase of property; marital dispute arose between complainant No.3 and OP No.3. OP No.3 deserted complainant No.3 and her children who were forced to take shelter with complainants No.1 & 2. OP No.3 stopped paying EMI towards purchase of property. It was not possible for complainants to pay EMI. As EMIs were not being paid regularly so property was declared as NPA by OPs No.1 & 2 (SBI). OP No.3 being aware of this fact did not take any action to make payments of EMI.
3. OP No.3 filed divorce petition against complainant No.3. It was dismissed by Family Court, Faridabad vide judgment dated 15.09.2015. Appeal preferred by OP No.3 in Hon’ble High Court of Punjab & Haryana was also dismissed vide order dated 31.08.2018 which attained finality. Since then, as per plea, OP No.3 has not contacted complainants. OP No.3 also filed Civil Suit titled as “Ravi Gupta Vs. Mukandi Lal Gupta & others” with respect to said property for declaration that he is sole owner of it. This suit was dismissed vide order dated 29.10.2018 which was not further challenged/appealed by OP No.3. There was default in repayment of construction loan. OP No.3 did not pay EMI and construction loan was also declared NPA. Construction loan was repaid by appropriation of surplus funds received after auction of Flat No.31-A, Pocket-A, Sukhdev Vihar, Delhi.
4. It is pleaded that on 24.09.2018, property was auctioned for Rs.3,02,04,000/- (Rs. Three crores two lacs and four thousand only) by OPs No.1 & 2, for recovery of bank dues, without knowledge of complainants. On 17.07.2019, OP No.1 (SBI) sent intimation letter to complainants after ten months of auction. OPs No.1 & 2/Bank kept entire money with them for seven months and ten days before putting it in term deposit. OP No.1 & 2 (Bank) informed that after appropriating amount towards home loan; residual amount of Rs.2,31,79,551/- was put in term deposit of 180 days w.e.f. 02.05.2019. OPs No.1 & 2 should have made term deposit in four names as per title deed of property as documents clearly show that property is owned by four persons in definite proportions. As per plea, this act of OPs No.1 & 2-State Bank of India of putting money in term deposit or in one name is deficiency of its service. On 26.08.2019, complainants sent letter to OPs No.1 & 2 for release of money in four names in proportionate with share mentioned in sale deed. On 31.08.2019, while filing ITR (Income Tax Return) complainant No.3 discovered that she is liable to pay tax for the interest amount on STDR which is illegal as State Bank of India is/was well aware that money is four names. Complainants made representation that money held by OPs No.1 & 2 should be released individually. OPs No.1 & 2 (Bank) deliberately took wrong stand that all four co-borrowers need to make joint application to collect their residual amount. Same is/was not possible due to dispute with OP No.3. OPs No.1 & 2 were aware that property had four owners. Loan was raised by four co-borrowers. Sale deed indicates the share of each, so there was no difficulty for OPs No.1 & 2 to release money in four individual names. Due to inaction on the part of OPs No.1 & 2; complainants are facing financial crises. OP No.3 who is financially well off, has no concern with his wife (Complainant No.3) and daughters and hence he would never come and let the amount lying with OPs No.1 & 2. He is not giving consent for release of money.
5. On 21.10.2019, E-mail was sent by complainant to OPs No.1 & 2 (Bank) for converting the STDR in four individual names till matter is resolved so that complainant No.3 does not end up paying tax on interest which she was not even receiving. There was no response; so complaint was escalated to Chairman, State Bank of India. On 10.01.2020, after complainant had sent multiple reminders and exchanged number of mails with OPs No.1 & 2; two legal opinion reports dated 26.12.2019 and 03.01.2020 were sent to them. The report acknowledges the share of four people in property as mentioned in sale deed but it did not provide solution of distribution of amount. Complaints (three in number) were made separately by complainants to Banking Ombudsman. No action was taken on it by Banking Ombudsman and all three complaints were closed.
6. OP No.1 & 2 (Bank) is committing financial oppression on complainant No.3 by imposing all tax liabilities on her. Tax ought to be paid by all co-owners of said property in terms of their ownership. Until now, tax liability upon complainant No.3 is more than Rs.9,00,000/- out of which she has paid Rs.5,00,000/- Tax amount should have been divided between four owners of property in terms of their share.
7. As per further plea, OPs No.1 & 2 (Bank) is not releasing money to complainants after property has been auctioned and all bank dues have been settled. There is no reason why money cannot be released in individual names, when OPs No.1 & 2 were aware of fact that money has to be distributed between four persons. Thus, by alleging deficiency in service; complaint has been filed for issuance of directions to OPs No.1 & 2 (Bank): (i) to release Rs.2,31,79,551/- along with interest accrued thereupon in favour of complainants in proportionate to the share as mentioned in sale deed; (ii) appropriate tax liability on all four owners of property in terms of shares they held in it and credit excess TDS attributable to complainants in their tax credit statement or alternative refund it; (iii) pay Rs.24% interest on amount held by OPs No.1 & 2-Bank from date of auction till date of payment; (iv) pay Rs.5,00,000/- to complainants on account of mental agony caused to them. Entire text of complaint is supported with affidavit of M.L. Gupta (Complainant No.1).
8. As observed above; OP No.3 was initially represented by Shri Amit Singla, Advocate who filed power of attorney on his behalf on 20.10.2022. Subsequently, Shri Amit Singla neither appeared nor any written version was filed on behalf of OP No.3. Accordingly, OP No.3 was proceeded against ex-parte vide order dated 27.04.2023 and his defense was also struck off through same order.
9. Mr. Alankrit Bhardwaj, Advocate appeared on behalf of OPs No.1 & 2 (Bank) and tendered bank’s defence. It is pleaded therein that this consumer complaint is not maintainable as complainants are seeking relief pursuant to sale of mortgaged property by Bank under SARFAESI Act, 2002. Remedy if any, for complainant lie under said Act. Provision in relation to release of amount is provided under Section 13 of SARFAESI Act, 2002. Further it is pleaded that Section 34 of SARFAESI Act, 2002 bars jurisdiction of Civil Court in all matters. Hence, Consumer Complaint is not maintainable. Bank never refused to release the amount available after recovering its dues from sale of mortgaged property under SARFAESI Act, 2002. Bank only requested complainants to come together with OP No.3 to get discharge from it and take their money. However, complainants are insisting on receiving their payments without OP No.3.
10. It is pleaded that complainants No.1 to 3 (Father, Mother & Daughter) and OP No.3 (Husband of complainant No.3) had jointly applied for and taken housing loan from bank by executing loan documents jointly by jointly mortgaging property No.808, Sector-15, Faridabad in year, 2011. Above Housing Loan was classified as NPA (Non Performing Assets) w.e.f. 31.01.2018 after complainants and OP No.3 defaulted in loan repayment. Bank issued demand notice under Section 13 (2) of SARFAESI Act, 2002 but complainants did not make payment of outstanding amount. Resultantly, bank issued possession notice under Section 13 (2) of SARFAESI Act, 2002 and also sent notifications to complainants apart from newspaper publication but still they did not come forward to make payment of outstanding amount and were fully aware of SARFAESI proceedings. Before proceedings of auction of mortgaged property; bank filed application under Section 14 of SARFAESI Act, 2002 in which complainants were also parties, but they never appeared before the court of Magistrate. Section 14 proceedings were culminated into order dated 29.08.2018, ultimately leading to sale of mortgaged property on 24.10.2018. Immovable property was sold in auction on 24.10.2018 for Rs.3.02 crores. Complainants and OP No.3 did not approach bank either before or after auction for release of remaining amount i.e. amount left after adjusting recovery of loan amount, so, bank issued STDR for remaining amount of Rs.2,21,79,564/- in joint names of four borrowers. After waiting enough; bank vide letter dated 17.07.2019 called upon complainants and OP No.3 to take delivery of STDR and it was specifically mentioned that presence of all four borrowers is required. It is pleaded that bank is not aware of any litigation between complainant No.3 and OP No.3. As per plea, there is no decree of divorce which means that complainant No.3 and OP No.3 are still legally wife and husband. So far as prayer for release of 64% share to complainants is concerned; it is pleaded by OPs No.1 & 2 (Bank) that: firstly housing loan was joint; secondly execution of loan documents were joint; thirdly disbursal of housing loan amount was joint and fourthly even STDR is joint. So, in these circumstance parties have to present and collect STDR or seek cancellation of STDR and payments by their mutual consent in the presence and consent of all. Bank is not concerned with any inter-se dispute with all four borrowers. Mainly on these please dismissal of complaint has been prayed.
11. Complainants led evidence and tendered affidavit Ex.CW-1/A of M.L. Gupta towards oral statement on oath. Complainants also relied upon documents Ex.CW-1/1 to Ex.CW-1/24. Ultimately, complainants closed their evidence on 14.09.2023. As already observed above, evidence of OPs No.1 & 2 was closed by this Commission vide order dated 14.05.2024.
12. We have heard learned counsel for complainants at length and with his assistance also examined the material brought on record.
13. Undisputed facts are that: qua property bearing No. 808, Sector-15, Faridabad all three complainants along with opposite party No. 3 jointly raised loan from OP No. 1 & 2/Bank. They have jointly applied for taking housing loan and jointly executed loan documents to avail loan amount by mortgaging property No. 808, Sector-15, Faridabad. Further undisputed fact is that there had been default with regard to repayment of loan amount which led OP No. 1 & 2 bank to initiate proceedings under SARFAESI Act, 2002 for realization of the loan given by it by auctioning the mortgaged property. Further admitted fact is that after obtaining permission from court of law; sale of mortgage property was materialized through auction. Realized auction money was Rs.3,02,04,000/- and from that auction money; bank had set-off its outstanding dues towards housing loan which was pending jointly against complainants and OP No. 3. Residual amount, after setting off the housing loan liability was Rs.2,31,79,551/- and admittedly this amount (Rs.2,31,79,551/-) has been put by OP No. 1 & 2 /Bank in form of STDR, so created jointly in names of all four borrowers viz: three complainant and OP No. 3. Needless to say that this amount of Rs.2,31,79,551/- with interest accrued thereon, now jointly belongs to all three complainant and OP No. 3 as bank has already satisfied its liability by setting off the housing loan amount from auction money.
14. When sale deed of property No. 808, Sector-15, Faridabad was executed and registered jointly in favour of complainants and OP No. 3 on 07.10.2010, then specific shares of complainants and OP No. 3 were mentioned therein. As per text of this sale deed; M.L. Gupta (complainant No. 1) has 18% share; Kamla Gupta (complainant No. 2) has also 18% share; Dr. Ravi Gupta (now OP No. 3) has 32% share and Dr. Aarti Gupta (complainant No. 3) has 32% share. This sale deed is also lying in record of the housing loan papers with OP No. 1 & 2/Bank and there is no denying fact qua this on the part of OP No. 1 & 2/Bank. There should not have been any legal impediment before OP No. 1 & 2/Bank in order to liquidate the proceeds of the STDR to the extent of 68% share as claimed by claimants to it, through their request. Instead, OP No. 1 & 2/Bank should, rather, have adopted a reasonable pragmatic and realistic approach to this quality request made to it by complainants instead of making them to file this complaint. It appears that the approach of OP No. 1 & 2/Bank was of an over cautious nature and apprehensive too, which otherwise not called for in considered opinion of this Commission. No doubt, the total amount of STDR was more than Rs.2.00 crores, yet 68% thereof would be less then Rs.2.00 crores and hence this Commission has pecuniary jurisdiction to legally adjudicate upon the controversy involved in this complaint. This being so; this complaint is allowed and following direction is issued to OP No. 1 & 2/Bank:-
(a) OP No. 1 & 2/Bank would liquidate the STDR of the amount of Rs.2,21,79,554/- with updated interest accrued on it, presently lying with it in joint names of three complainants and OP No. 3. Thereafter, 68% share of the liquidated amount with update interest accrued thereon would be released to three complainants viz-a-viz their respective shares as per sale deed i.e. 18% share of M.L. Gupta (complainant No. 1); 18% share of Kamla Gupta (complainant No. 2) and 32% share of Dr. Aarti Gupta (complainant No. 3) after their due identification. For residual share of 32% from the liquidated amount of STDR amount with interest, which belongs to OP No. 3-Dr. Ravi Gupta; OP No. 1 & 2/Bank would inform OP No. 3- Dr. Ravi Gupta so as to enable him to claim his share.
15. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
16. Copy of this judgment be provided to parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
17. File be consigned to record room.
Date of pronouncement: 13th November, 2024.
S.C. Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
