Punjab

Ludhiana

CC/15/419

Ranjit Singh - Complainant(s)

Versus

State Bank of India - Opp.Party(s)

Damandeep Singh Adv.

06 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 419 of 13.07.2015

Date of Decision            :   06.01.2017

 

Ranjit Singh aged about 48 years son of Sh. Om Parkash resident of St. No.3, Paramjit Nagar, Mundian Khurd, P.O.Sahabana, District Ludhiana.

 

….. Complainant

                                                         Versus

 

1.State Bank of India, Stressed Assets Resolution Branch, 3^rd Floor, Zonal Office, Fountain Chowk, Civil Lines, Ludhiana through its Chief Manager.

2.State Bank of India, State Bank Bhavan, Central Office, 8^th Floor, Madame Cama Marg, Mumbai, Maharashtra-400021 through its Chairman.

3.ARMS(ARCIL) (A division on Assets Reconstruction Co.India (Ltd.), 668-A, Second Floor, New Lajpat Nagar, Near Corporation Bank, Pakhowal Road, Ludhiana, through its Chief Manager.

…Opposite parties

 

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

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH. PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.Gaurav Gupta, Advocate   

For OP1 and OP2          :        Sh.Girish Anmol Sood, Advocate

For OP3                         :         Sh.Rahul Rajput, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant purchased one plot measuring 125 sq.yards, comprised in Khasra No.22//19 and Khata No.95/119 as per jamabandi for the year 2001-2002 situate at Paramjit Nagar, Mundian Khurd, Tehsil and District Ludhiana, vide sale deed bearing Wasika No.2487 dated 7.5.2004. As complainant was intended to raise construction over this plot and as such, he took home loan of Rs.2,60,000/- in 2004 from State Bank of India by depositing the sale deed. The said loan account bears a/c No.10765394262. That loan was for a period of 10 years. Complainant had been paying the installments regularly, but due to some financial constraints, some installments not paid in time. As per statement of account, a sum of Rs.62,143.42P was outstanding as on 9.6.2014, but thereafter, another payment was deposited in July, 2014. However, in August 2014, the officials of State Bank of India informed the complainant that his account has been transferred with OP3 in July, 2014. Complainant was called upon by OP3 and accordingly, he contacted the Chief Manager of OP3 for knowing about the status of the account. Chief Manager of OP3 admitted about transfer of account of the complainant, but claimed that complainant will have to pay huge amount in lacs for clearing the loan account and getting the sale deed released. Complainant called upon the officials of OP3 to provide the details of outstanding amount and its break up, but they refused to disclose about the same. Rather, those officials threatened that in case, the entire amount not paid, then the property of the complainant will be sold. Complainant requested for settlement of his account and the amount was settled at Rs.1,10,000/- towards full and final payment. As per that settlement, first installment of Rs.60,000/- to be paid in September 2014, but the remaining amount of Rs.50,000/- paid in October, 2014. Accordingly, the complainant paid Rs.60,000/- on 17.9.2014 through cheque and receipt in that respect was issued. Likewise, Rs.50,000/- paid by the complainant through cheque on 14.10.2014 and receipt in that respect was issued in favour of the complainant. Then complainant called upon the concerned officials to give         NOC and return the sale deed, but they claimed as if some formalities regarding closure of the account and issuance of NOC to be carried out. Complainant believed those assertions of officials of OP3. Complainant contacted Ops number of times, but they kept on delaying the matter on one pretext or the other. Rather, the officials of OP3 started mis-behaving with the complainant and as such, by pleading deficiency in service on the part of Ops and after serving registered notice dated 27.5.2015 through counsel, this complaint filed for issuance of directions to Ops to issue NOC with regard to the loan account of the complainant and to return the original sale deed. Besides, compensation for mental harassment and agony of Rs.2 lac and litigation expenses of Rs.22,000/- claimed.

2.                In joint written statement filed by OP1 and OP2, 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. Admittedly, loan was contracted by the complainant. In view of the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act, 2002,(hereinafter in short referred as SARFAESI Act), the jurisdiction of this Fora is alleged to be barred. Loan account of the complainant was specified as Non-Performing Asset and the same was transferred to OP3 for recovery of due amount along with interest and costs as is provided in section 5 of the SARFAESI Act. It is claimed that there is no deficiency in service on the part of Ops. Advancement of housing loan of Rs.2,60,000/- in 2004 on asking of the complainant is admitted. It is claimed that OP1 and OP2 called upon the complainant time and again to regularize the account, but the complainant failed to do so and that is why, account was specified as NPA on 1.6.2010. Even thereafter, the officials of the bank continued to accommodate the complainant. Complainant did not avail the benefit of leniency of the bank, but paid some amounts on different dates as an eye wash. Admittedly, the officials of State Bank of India informed the complainant about transfer of his account to OP3 in July 2014. As per the policy of the government, non-performing assets/bad debts to be transferred to OP3. After such transfer, OP1 and OP2 have no concern with the account of the complainant. It is claimed that fault lies with the complainant in not caring for the requests sent by OP1 and OP2 to adjust the account even after declaration of the account as NPA. Each and every other averment of the complaint denied by claiming that false and frivolous complaint is filed.

3.                In separate written statement filed by OP3, it is pleaded interalia as if the complaint is not maintainable; complainant has not approached this Forum with clean hands and Civil Courts alone has jurisdiction in view of the intricate and complicate points involved in this case. Same pleas regarding SARFAESI Act and Non-performing Assets taken in this written statement as are taken in the written statement of OP1 and OP2 and those are not repeated for avoiding repetition. Even it is claimed that the account of the complainant was declared as NPA and as such, bank has absolute right to assign the agreement to anyone including Securitisation Company or Reconstruction Company under the SARFAESI Act. On such assignment, complainant will be liable to assignee in the same manner as to Bank/Lender. Op3 after promulgation of SARFAESI Act, got certificate of  registration from competent authority. Assignment agreement dated 8.4.2015 was executed between   Op1 and OP2 on one hand and OP3 on other hand and as such, all rights, title and interest in the financing documents vests in Op3. It is claimed that Rs.2,71,635.37P is outstanding in loan account against the complainant as on 22.12.2015. It is denied that an amount of Rs.62,143.42P was outstanding in the loan account as on 9.6.2014. Complainant was supplied with copy of loan statement by OP3. It is denied that loan account of the complainant was settled for Rs.1,10,000/- and he deposited that amount. Rather it is claimed that OP3 never settled the account of the complainant for amount of Rs.1,10,000/-. As complainant has not paid the outstanding loan amount and as such, question of issue of NOC does not arise. Each and every other averment of the complaint denied.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C10 and then closed the evidence.

5.                On the other hand, counsel for OP1 and OP2 tendered in evidence affidavit Ex.RA of Sh.Jaswinder Singh, Deputy Manager of OP1 along with document Ex.R1 and then closed the evidence.

6.                Counsel for OP3 tendered in evidence affidavit Ex.RA/3 of Sh.Sanjeev Kumar, Manager of OP3 along with documents Ex.R1/3 to Ex.R3/3 and thereafter, counsel for OP3 closed the evidence.

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

8.                It is vehemently contended by Sh.Gaurav Gupta, Advocate representing complainant that oral settlement was arrived at and in pursuance of that compromise, Rs.1,10,000/- deposited by the complainant with Ops through receipts Ex.C3 and Ex.C4 of dates 17.9.2014 and 14.10.2014 respectively. The banking transactions qua settlement always arrived at under a policy through issue of written letters and not orally and as such, in absence of production on record any copy of settlement, it has to be held that plea of arriving at oral settlement of Rs.1,10,000/- not sustainable at all, particularly when arrival of such settlement denied by Ops not only in the filed written statement, but through affidavits of officials of Ops also. If such settlement not arrived at, then certainly the complainant liable to pay the balance outstanding amount.

9.       In statement of account Ex.R1/3 of Home Loan account of complainant, though mention made regarding deposit of amount of Rs.60,000/- by the complainant, but mention regarding deposit of Rs.50,000/- by the complainant through receipt Ex.C4 is not at all made and as such, it is vehemently contended by counsel for complainant that reliance on statement of account Ex.R3/1 can’t be placed. Receipt Ex.C3 of payment of amount of Rs.60,000/- is of date 17.9.2014, whereas, receipt Ex.C4 of payment of Rs.50,000/- is of date 14.10.2014. However, copy of statement of account Ex.R1/3 reflects the transaction w.e.f.1.3.2015 to 30.11.2015 and as such, it is obvious that payments made through Ex.C3 and Ex.C4 pertains to the period prior to 1.3.2015 to 30.11.2015 and that is why reflection of the same may not have been there in Ex.R1/3 is the submission of counsel for Ops. However, that submission of counsel for Ops has no force because crediting of amount of Rs.60,000/- pertains to transaction of date 18.9.2014 is a fact borne from the contents of Ex.R1/3. Receipt Ex.C3 is of date 17.9.2014 and as such, it is obvious that crediting for amount of Rs.60,000/- given in Home Loan account of the complainant against date 18.9.2014. However, despite payment of Rs.50,000/- by the complainant through receipt Ex.C4 dated 14.10.2014, credit of this amount of Rs.50,000/- not given in this statement of account Ex.R1/3 and as such, certainly reliance on this statement Ex.R1/3 cannot be placed for finding that actually amount of Rs.2,71,635.3&P is due from the complainant to Ops. So, there is deficiency in service on the part of OP3 to this extent because statement of account Ex.R1/3 issued by OP3 and even receipts Ex.C3 and Ex.C4 issued by OP3.

10.              If in statement of account Ex.R1/3, amount of Rs.60,000/- adjusted towards the amount of accrued interest, then no illegality committed by Ops in that respect because case of the complainant not proved that he paid the amount of Rs.60,000/- for adjustment towards the principal amount only. When such directions not issued, then lender has right to adjust the amount received towards interest first legally.

11.              If in statement of account Ex.C2 of complainant issued by officials of OP1 and OP2, it is mentioned that on account of transfer of account discharge given with respect to amount of Rs.78,000/- as on 1.7.2014 and the account was closed, but at the same time, mention also made of AIRCIL against the last entry of Ex.C2, which means that discharge given by OP1 and OP2 on account of transfer of loan amount of Rs.78,000/- to assignee. This assignment took place as per Assignment Agreement Ex.R2/3=Ex.R1 placed on record. So, virtually contents of Ex.C2 establishes that amount of Rs.78,000/- was due to OP1 and OP2 from the complainant as on 1.7.2014. So, if in statement of account Ex.R1/3, principal outstanding shown of Rs.83,143/- as on 1.3.2015, then some ambiguity exist qua actual due amount as on 1.3.2015. It is so because the total outstanding amount shown as Rs.3,15,197/- in statement of account Ex.R1/3 as on 1.3.2015. How such difference of amount of Rs.78,000/- and amount of Rs.3,15,197/- as total outstanding amount occurred, qua that the complainant has right to know. So OP3, assignee required to furnish the copy of statement of account of loan of complainant afresh by adjusting the amount of Rs.50,000/- referred above and also for clearing the discrepancy with respect to the outstanding amount of Rs.78,000/- and Rs.3,15,197/- as referred above. Complainant has right to know the actual due amount from him and as such, this direction required to be issued.

12.              Though, it is vehemently contended by counsel for Ops that Ops have right to initiate the proceedings under the SARFAESI Act, despite that no document has been produced to show that any such proceedings has been initiated. Enforcement of the security interest credited in favour of the secured creditor to take place as per section 13 of the SARFAESI Act. Notice has to be issued to the borrower in writing for calling upon him to discharge his full liability to the secured creditor within 60 days and thereafter, only the secured creditor can approach the Debt Recovery Tribunal or Authority under the SARFAESI Act. Such notice not shown to be issued and as such, certainly submissions advanced by counsel for the complainant has force that the proceedings under the SARFAESI Act has not been yet initiated. In view of the non start of the proceedings under the SARFAESI Act till date, this Forum has jurisdiction to grant relief to the complainant to the extent of deficiency in the service provided by the Ops. One of that deficiency is qua non supply of the correct statement of account as discussed above.

13.              It is vehemently contended by counsel for the complainant that amount of Rs.50,000/- and Rs.60,000/- were deposited on 17.9.2014 and 14.10.2014 through receipts Ex.C3 and Ex.C4 under settlement. No copy of that settlement has been produced on the record. Had really the said amounts been paid in full and final satisfaction of the alleged settlement, then certainly, Ops would have issued a    letter or would have executed the agreement in that respect. It is so because concern of the Ops is subject to regular internal departmental audits. As and when internal banking companies are subject to regular audits, then they are to arrive at settlement through written agreement or by issue of letter. Nothing of such sort alleged to be done by the Ops and as such, virtually the plea taken qua deposit of Rs.60,000/- and Rs.50,000/- in full and final settlement is a false plea or a plea not proved by any documentary evidence.

14.              However, NOC cannot be ordered to be issued because still the loan amounts is recoverable by Ops from the complainant. Return of the original sale deed also can take place only on full payment of the contracted loan amount by the complainant to the Ops, which is not proved to be paid till date and as such, the complaint in that respect certainly is not maintainable. Outstanding amount of Rs.74,143.42P mentioned in un-exhibited copy of statement of account from the period w.e.f.5.8.2014 to 25.5.2015 is brought forwarded in copy of statement of account Ex.C2 referred above. Notice Ex.C5 served by the complainant to Ops through postal receipts Ex.C6 to Ex.C9 has been replied by counsel of OP1 and OP2 through reply Ex.C10, wherein, specifically it is mentioned that deficiency in service on the part of Ops is not there because the full loan amount is not repaid till date. Ex.R2/3 is assignment agreement along with annexure which shows as if the loan of the complainant assigned by OP1 and OP2 in favour of OP3 and that assignment is permissible in favour of OP3, a Securitisation or Reconstruction Company in whose favour certificate of registration exist as disclosed by the contents of Ex.R2/3 itself and also by the certificate Ex.R3/3 and also by Ex.R1 along with produced copy of assignment agreement by OP1 and OP2.

15.              It is vehemently contended by Sh.Girish Anmol Sood, Advocate representing OP1 and OP2 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 OP1 and OP2 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 OP1 and OP2 in favour of OP3. 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 Ops have 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 Ops to recover the outstanding amount. Recovery of outstanding amount is prerogative of Ops because of the provisions of 5,13 and 18 of the SARFAESI Act, but in view of the deficiency in service referred above, this Forum has jurisdiction only to the extent of deficiency pointed above and is to the extent that complainant denied right of knowing as to how the outstanding amount calculated or the paid amount adjusted.                                             

16.              As a sequel of the above discussion, complaint disposed of in terms that Ops will give due copy of statement of account to the complainant within 30 days from the date of receipt of copy of this order by showing as to how and when amount of Rs.50,000/- paid through Ex.C4 adjusted. Besides, Ops will furnish this copy of statement of account in such a way, so that complainant may know as to how the discrepancy in the outstanding amounts of Rs.78,000/- shown in Ex.C2 and Rs.2,71,635.37P as shown in Ex.R1/3 reconciled by it. Complainant is entitled to copy of statement of accounts in this respect only and not to any other relief. In view of non supply the due copy of statement of accounts to the complainant, he suffered mental agony and as such, compensation for mental harassment of Rs.3000/-(Rupees Three thousand only) and Rs.2000/-(Rupees Two thousand only) as litigation expenses also allowed. These amounts allowed in favour of complainant and against OP3 only because after assignment of the loan amount by OP1 and OP2 to OP3, all the documents bound to be with OP3. Payment of compensation amount and litigation expenses be made by OP3 to the complainant within 30 days from the date of receipt of copy of this order.  Copies of order be supplied to parties free of costs as per rules.

17.              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.