Punjab

Ludhiana

CC/15/333

Arvind Kumar - Complainant(s)

Versus

State Bank of India - Opp.Party(s)

Manoj Kumar

06 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 333 of 19.05.2015

Date of Decision            :   06.01.2017 

 

Arvind Kumar aged 41 years son of Sh.Satya Narayan resident of Plot No.44, Anandpur Colony, Rahon Road, Ludhiana.

….. Complainant

                                                            Versus

 

State Bank of India, Stressed Assets Recovery Branch, Civil Lines, Ludhiana through its Branch Manager.

…Opposite party

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                        

SH.PARAM JIT SINGH BEWLI, MEMBMER

 

COUNSEL FOR THE PARTIES:

For complainant               :          Sh.M.K.Singh, Advocate

For OP                             :          Sh.Girish Anmol Sood, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                 Complainant availed housing loan of Rs.2,06,000/- through loan account No.10765395595 by deposit of original title deed of property measuring 71 square yards situate  at  village Meharban, District Ludhiana. Complainant claims to have paid installments regularly. Statement of account of this loan obtained from OP for the period from 23.6.2013 to 17.6.2014, in which, balance outstanding amount shown as Rs.1,33,127.90P. This balance amount is much higher because of addition of the higher interest and other charges. Complainant due to compelling circumstances, availed other housing loan of Rs.1,83,000/- vide loan account No.30095321191 against the same original title deed. Copy of statement of account for the period from 23.11.2006 to 29.6.2014 obtained from OP, which reflects as if an amount of Rs.1,33,800.33P is outstanding against the complainant, but that amount shown by adding higher rate of interest and other charges. Complainant approached OP bank in July, 2014 for depositing the installment of his loan amount, but they refused to accept the installment. At that time, the complainant got knowledge as if OP has sold the loan account of the complainant to ARCIL (Assets Reconstructions Company (India) Ltd, of New Lajpat Nagar, Pakhowal Road, Ludhiana). This assignment took place without knowledge and consent of the complainant. Complainant left with no other option except to deposit the installments with ARCIL. This amount was deposited for saving his property by the complainant. Terms and conditions of the agreement of assignment is not binding on the complainant in any manner because there is no privity of contract between the complainant and ARCIL. ARCIL was requested to supply the statement of account of loan account and even was requested to disclose the status of the title deed, but the latter refused to do the needful. Complainant claims to be ready to pay the actual amount to the OP for getting the title deed released. By pleading deficiency in service on the part of OP and after serving the notice dated 4.12.2014, complaint filed with request for issue of direction to OP to accept the actual loan amount and to release the original title deed. Compensation for mental harassment and agony of Rs.50,000/- even claimed.

2.                 In written statement filed by OP, it is pleaded interalia as if the complaint is not maintainable; complainant has not approached this Forum with clean hands because he has suppressed the material facts; in view of the intricate question of law and facts involved in this case, elaborate evidence required and as such, case can be decided by Civil Court of competent jurisdiction. Further, in view of the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act, 2002(hereinafter in short referred as ‘SARFAESI Act’), jurisdiction of this Forum is barred. Both accounts of the complainant were declared as Non-Performing Assets, in view of which, the loan account of the complainant was transferred to ARCIL for recovery of the due amount because those are to be transferred after 30.6.2014. By quoting Section 5 of the SARFAESI Act, it is claimed that there is no deficiency in service on the part of OP. OP bank never charged higher rate of interest and other charges as alleged. Whatever amounts shown in the statement of account, those are alleged to be correct one. Account of the complainant remained irregular, despite repeated requests made by the OP to the complainant. Statement of account obtained by the complainant qua two loan accounts in question is computer generated, which is prepared as per the terms and conditions of the loan documents. Each and every other averment of the complaint denied by claiming that the complainant is willful defaulter, due to which, transfer of the loan accounts took place to ARCIL as per the policy of the bank. Deposit of the amount by the complainant with ARCIL is not in the knowledge of OP. Only ARCIL is authorized to recover the due amount along with interest and costs as per the terms and conditions of the documents and agreement executed between the bank and ARCIL. All documents including the title deed have already been handed over to ARCIL. Notice dated 4.12.2014 served by the complainant was false and frivolous and the same was suitably replied. It is claimed that the complainant is not entitled to any compensation.

3.                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C9 and then his counsel closed the evidence.

4.                 On the other hand, counsel for OP tendered in evidence affidavit Ex.RA of Sh.Jaswinder Singh, Deputy Manager of OP along with documents Ex.R1 and Ex.R2 and then closed the evidence.

5                  Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through carefully.

6.                 First and foremost contention raised by counsel for the complainant is qua the assignment of loan accounts wrongly done by the OP in favour of ARCIL without consent and knowledge of the complainant and the same is alleged to be an illegality committed by the OP. That submission advanced by counsel for the complainant has no force because after going through the last page of Memorandum of Term Loan Agreement for Home Loan, Ex.R1, arrived at between the complainant and OP, it is made out that the Bank has absolute right to assign this agreement in favour of any person including securitisation company or reconstruction company under the SARAESI Act and on such assignment, complainant will be liable to such assignee or assignee bank/lender. That assignee will have all rights against the complainant. Even the assignee will have all rights over all the properties either given as security or otherwise to recover all debts/liabilities payable by the complainant under the agreement. This agreement Ex.R1 signed by the complainant because signatures of the complainant appears on each and every page of it. So, in view of this agreement arrived     at between the parties, certainly OP was having the right to assign the loan agreement in question in favour of any securitisation company or reconstruction company under the SARFAESI Act. That has been done by the OP by executing this assignment agreement Ex.R2 with ARCIL and as such, no violation of the terms and conditions of the loan agreement committed by OP by executing such assignment. Submissions advanced by counsel for the complainant in this respect are devoid of facts.

7.                 It is vehemently contended by Sh.Girish Anmol Sood, Advocate representing OP that acquisition of rights or interest in financial assets by any securitisation company or reconstruction company or any bank or financial institution permissible under Section 5 of the SARFAESI Act and the loanee has no right to question such assignment. That submission of counsel for OP has force in view of the law laid down in cases Rita Machine (India) Ltd. vs. Debt Recovery Appellate Tribunal and others-2014(1)PLR-692(Punjab & Haryana High Court); Kapil Cement Allied Products Private Limited and another vs. Punjab National Bank, Main Bazar, Sirsa Road, Hisar and others-2011(4)PLR-514(Punjab & Haryana High Court) and BPL and PSP Workers Union vs. BPL Limited and others-2011-AIR-(Kerala)-85(Kerala High Court). In view that complainant has no right to challenge the assignment of right by OP in favour of ARCIL. Jurisdiction of the Civil Court or any authority including Consumer Forum barred to entertain any matter regarding recovery of loan amount by the bank or financial institution in view of Section 18 of the SARFAESI Act is also the preposition of law laid down in cases Indo Pacific Housing Finance Limited and another vs. Gopala Shetty-2014(2)CPJ-638(N.C.) and Hira Nand Lall vs. Santosh Kumar Badhwani and others-2013(2)Banking Jugement-505(Patna High Court) as well as Central Bank of India and another vs. Ram Chandra Sahoo and others-2011-AIR-(Orissa)-164(Orissa High Court). However, jurisdiction of Civil Court or the Consumer Forum barred as and when the proceedings for recovery initiated after issue of notice under Section 13 of the SARFAESI Act. That notice not shown to be issued in this case before us and moreover, this Forum is of the view that Op has right to proceed under the SARFAESI Act qua the recovery for the outstanding loan amount and as such, keeping in view the bar of the Section 18 of the SARFAESI Act, this Forum not going to enter into the question qua right of Op to recover the outstanding amount. Recovery of outstanding amount is prerogative of Op because of the provisions of sections 5,13 and 18 of the SARFAESI Act. However, in case, deficiency in service found, only then this Forum will be having jurisdiction to redress the grievance to the extent of deficiency only. Assignment of loan is not a deficiency at all.

8.                 Perusal of receipts Ex.C5 to Ex.C9 reveals that the complainant has deposited certain installments of the loan with ARCIL and as such, complainant by depositing of these installments for the period from 25.7.2014 to 14.11.2014 has submitted to Jurisdiction of AIRCL in matter of enforcement of recovery rights by ARCIL against him(complainant). In view of that also the complainant estopped by his act and conduct from claiming that ARCIL has no right to recover the outstanding amount.

9.                 No oral or documentary evidence produced to show as to what outstanding amount is due against the complainant. Even no evidence produced to establish that what higher rate of interest charged by OP or the assignee qua the loan accounts in question. So, complainant failed to establish that actually the copy of statement of account handed over to him, shows the charging of higher rate of interest. If copy of statement of account received by the complainant, then it was the duty of the complainant to produce the same on record, but no such copy of statement of account produced on record and as such, complainant has withheld the best available evidence in that respect. Being so, deficiency in service on the part of OP is not proved at all.

10.               After assignment of the loan accounts in question in favour of ARCIL and after deposit of installments by the complainant with ARCIL, the ARCIL alone has right to enforce the recovery rights. Despite that ARCIL has not been impleaded as party and as such, complaint bad due to non-joinder  of necessary                     party. Rather, through complaint, relief is claimed against ARCIL and not against OP, but without impleadment of ARCIL as party in this case and as such,             complaint legally is not maintainable.

11.               As a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

12.                         File be indexed and consigned to record room.

         

                    (Param Jit Singh Bewli)                                 (G.K. Dhir)

                                                  Member                                                     President

Announced in Open Forum                                                                  Dated:06.01.2017

Gurpreet Sharma.