Punjab

StateCommission

FA/676/2014

Pardeep Singh - Complainant(s)

Versus

State Bank of India - Opp.Party(s)

Harpreet S. Rakhra

09 Jun 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.676 of 2014

 

                                                          Date of Institution: 05.06.2014  

                                                          Date of Decision:  09.06.2015

 

 

Pardeep Singh son of Sh. Surjit Singh resident of VPO Bazidpur, Tehsil Chamkaur Sahib, District Rupnagar, sole proprietor of M/s Pardeep Furniture House, Ludhiana Road, Morinda

                                                                                                                                                                   …..Appellant/Complainant

         

                                      Versus

 

State Bank of India ADB Morinda, Tehsil Chamkaur Sahib, District Rupnagar through its Manager.

 

 

                                                          …..Respondent /Opposite party

 

         

First Appeal against order dated 31.03.2014 passed by the District Consumer Disputes Redressal Forum, Ropar.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                       :         Sh.H.S. Rakhra, Advocate

          For the respondent                    :         Sh.Amit Bhanot, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondent of this appeal (the opposite party in the complaint), challenging order dated 31.03.2014 of District Consumer Disputes Redressal Forum Ropar, dismissing the  complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant.

2.      The complainant Pardeep Singh has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the allegations that he has been running a furniture house under the name and style of M/s Pardeep Furniture House Ludhiana Road Morinda to earn his livelihood. In the year 2008, the complainant availed two loan facilities from OP i.e building term loan of Rs.10 lac and cash credit limit sanctioned amount of Rs.7,32,000/-  and released of Rs.6,85,000/-. The details of the payment is as under :-

Building Term Loan Account : Account No.30314785069

Date                              Amount

22.01.2008                            1,07,500-00

22.02.2008                            1,00,000-00

23.02.2008                            0,62,500-00

11.04.2008                            4,00,000-00

Total                             6,70,000-00

 

Cash Credit Limit : Account No.30314874062

Date                              Amount

18.12.2008                            0,50,000-00

                                      1,00,000-00 transferred to building loan

23.12.2008                            0,10,000-00

26.12.2008                            0,25,000-00

01.01.2009                            0,40,000-00

07.01.2009                            0,13,000-00

24.01.2009                            1,00,000-00

27.01.2009                            1,50,000-00

28.01.2009                            1,97,000-00

 The complainant has also paid a sum of Rs.3,15,193/-  on different dates and Rs.2,00,000/- for getting the interim relief. The OP filed a petition before the District Magistrate for getting possession of the property of the complainant and took possession thereof from the complainant on 1.08.2012. The complainant came to know about the illegalities of the OP. The complainant approached the Debt Recovery Tribunal at Chandigarh and got interim relief by paying a sum of Rs.2,00,000/-. The complainant remained unsuccessful before the Debt Recovery Tribunal at Chandigarh and ultimately  under the forced circumstances, the complainant had to deposit Rs.23,67,000/- as claimed by the OP. The OP had received a sum of Rs.32,09,074/- in both accounts against a sum of Rs.14,02,000/- advanced by the OP to the complainant. The Op received amount of Rs.19 lac in excess from the complainant. The complainant has, thus, filed the complaint directing the OP to render the updated account of the complainant  and to refund the excess amount charged by them from the complainant along with sum of Rs. 70,000/- as compensation and Rs.20,000/- as costs of litigation.

3.      Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is not maintainable, in as much complex question facts and law are involved in this case, which cannot be adjudicated in summary proceedings. The Consumer Forum has no jurisdiction to try the complaint, because the complainant had already availed of his remedy from the Debt Recovery Tribunal Chandigarh, which had adjudicated the matter against the complainant. The OP denied any deficiency in service on their part. It was further pleaded that even at the time of filing the complaint, the complainant was aware of this fact that OP lawfully charged compound interest. As per fabricated statement from his CA by getting calculated simple interest, it was done by the complainant  contrary to the terms and conditions of the loan agreement. The Debt Recovery Tribunal Second Bench Chandigarh dismissed the complaint of the complainant on the point of accounts settled by the complainant with OP. On merits, it was further averred that complainant failed to pay the loan amount as per terms and conditions agreed upon and compelled the OP to approach the District Magistrate under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short SERFAESI Act). The Debt Recovery Tribunal Second Bench Chandigarh had already dismissed the complaint of the complaint and OP, thus, prayed for dismissal of the complaint.

4.      The complainant tendered in evidence the affidavit of Pardeep Singh complainant Ex.C-1, copy of order of Debts Recovery Tribunal Chandigarh Ex.C-2, copy of Punjab Khadi and Village Industries Board Ex.C-3, copy of demand draft Ex.C-4 and Ex.C-5 , copy of letter addressed to complainant dated 9.1.2013 Ex.C-6, statement of accounts of complainant Ex.C-7 to Ex.C-21,copy of letter dated 22.8.2013 Ex.C-22, copy of receipt of deposits Ex.C-23 to Ex.C-25, copy of quotation Ex.C-26, copy of certificate from State Bank of India Ex.C-27, calculation sheet of complainant Ex.C-28, copy of letter addressed to Manager State Bank of India from complainant Ex.C-29, copy of registered letter addressed to Pardeep Singh complainant  from State Bank of India Ex.C-30, application form cum receipt for claiming Margin Money Ex.C-31, copy of letter addressed to Manager State Bank of India Ex.C-32, copy of letter of RTI dated 27.2.2013 Ex.C-33, copy of possession notice Ex.C-34, copy of letter dated 22.7.2010 addressed to complainant from State Bank of India Ex.C-35, copy of order of Court of District Magistrate Ropar Ex.C-37, copy of application form for obtaining loan under Margin Money Scheme Ex.C-38, application form Ex.C-39, copy of letter of arrangement Ex.C-40, copy of document Ex.C-41, copy of newspaper cuttings Ex.C-42 to Ex.C-44, copy of invoice dated 31.8.2012 Ex.C-45,  copy of certificate of Backward Class Ex.C-46, copy of jamabandi for the year 2008-2009 Ex.C-47 to Ex.C-48, copy of repayment detail with subsidy Ex.C-49. As against it, OP tendered in evidence affidavit copy of statement of accounts Ex.OP-2 to Ex.OP-4, copy of letter of arrangement Ex.OP-5, copy of order of District Consumer Disputes Redressal Forum U.T Chandigarh Ex.OP-6. On conclusion of evidence and arguments, the District Forum, Ropar, dismissed the complaint of the complainant by virtue of order dated 31.03.2014. Dissatisfied with the order dated 31.3.2014 of District Forum, Ropar, the complainant now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case.

6.      As per the admitted case of the complainant, he availed loan of the Cash Credit Limit sanctioned loan amount of Rs. 7,32,000/-  from OP and was released the amount of Rs. 6,85,000/-. The complainant also availed the loan facility for building term loan of Rs.10 lac. The details thereof are detailed in the complaint. The complainant approached Debt Recovery Tribunal Chandigarh, because possession of his property was taken by the bank under the SERFAESI Act. The complaint of the complainant was dismissed there. OP submitted that only additional remedy has been provided to the Consumer Forum under Section 3 of the CP Act.  We have examined the order of the Debts Recovery Tribunal Second Bench Chandigarh, vide Ex.C-2 dated 31.7.2013 in S.A No.256 of 2012. From perusal of this order of Debts Recovery Tribunal Chandigarh, we find that the complainant himself filed a complaint before the Debts Recovery Tribunal on the same cause of action, which is alleged in this case by him. The case was dismissed by the Debt Recovery Tribunal on 31.07.2013 on merits. After dismissing his case by the Debts Recovery Tribunal on 31.07.2013, vide Ex.C-2, the complainant filed this complaint under Section 12 of the Consumer Protection Act 1986 before District Forum Ropar. The complainant has alleged that OP has charged the extra amount from him and be directed to render the true account of the debt. We have already examined this matter and found no merit in the case of the complainant. There is nothing on the record to prove any excess recovery of the amount by the OP from the complainant. Our attention has been drawn to Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which is reproduced as under :-

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 this Act or under the Recovery of Debts.

          Section 35 of the Act further makes it clear that the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. Section 35 makes it clear that its provisions to have overriding effect. Section 34 of the Act is non-obstante clause. We have, thus, found that Section 3 of the Consumer Protection Act provides only additional remedy to the Consumer Forum but not in derogation of any other law. On the other hand, Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 excludes the jurisdiction of the other authority in the matters cognizable by Debts Recovery Tribunal under the Act. Once the competent Tribunal has already decided this matter, it cannot be reopened again before the Consumer Forum on the same cause of action.

7.      Even on merits, we find that it is for the complainant to prove that OP has overcharged the amount from him. OP submitted that there is provision for compound interest in the loan documents and they have charged correctly in accordance therewith, it is for the complainant to prove that OP unauthorizedly and illegally charged the amounts from the complainant. We have examined the statements of account on record.  We have after perusal of the documents on the record, vide letter of arrangement Ex.C-40 that limit was sanctioned by the bank with floating interest 0.75  to 13.25% p.a. Various statements of accounts placed on the record have been examined by us. The amount has been calculated by the OP as per the terms and conditions of the loan documents. The calculation sheet Ex.C-28 has also not demolished the case of the OP in any manner. We find that complainant could not prove that OP charged any excess amount from the complainant, more so when there was an agreement between the parties for compound interest and complainant committed default in making the payment of the amount and his loan term NPA and on account of above reasons, the proceedings under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 were resorted to by the OP against the complainant.

8.      As a result of our above discussion, we find no illegality or material infirmity in the order of the District Forum under challenge in this appeal and the same is hereby affirmed. Finding no merit in the appeal, same is hereby dismissed.

9.      As a result of our above discussion, there is no merit in the appeal and same is hereby dismissed.

10.     Arguments in this appeal were heard on 08.06.2015 and the order was reserved. Now the order be communicated to the parties.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                            MEMBER

 

 

                                                          (HARCHARAN SINGH GURAM)

                                                                          MEMBER

June 9  2015.                                                                 

(ravi)