Ghasiram Saraka filed a consumer case on 21 Jun 2018 against Suresh Chandra Saraka in the Rayagada Consumer Court. The case no is CC/79/2016 and the judgment uploaded on 08 Aug 2018.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, RAYAGADA,
STATE: ODISHA.
C.C. Case No. 79 / 2016. Date. 21 . 6 . 2018
P R E S E N T .
Dr. Aswini Kumar Mohapatra, President.
Sri GadadharaSahu, Member.
Smt. Padmalaya Mishra, Member.
Sri Ghasiram Saraka, S/O: Late Basana Sarka, Rivalkana, Gadiseskhal, Dist:Rayagada (Odisha). …. Complainant.
Versus.
1.Sri Suresh Chandra Saraka, S/O: Ghasiram Saraka , Rivolkona, Gadiseskhal, Dist:Rayagada (Odisha).
2.The Branch Manager, State Bank of India, A.D.B, Po/ Dist: Rayagada. .…..Opp.Parties
Counsel for the parties:
For the complainant: - Sri Biswanath Gantayat, Advocate, Rayagada.
For the O.Ps :- Sri N.N.Panda, Advocate, Rayagada.
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JUDGMENT
The curx of the case is that the above named complainant alleging deficiency in service against afore mentioned O.Ps for non closing the loan account under One Time Scheme inter alia without imposing penal interest for which the complainant sought compensation for redressal of the grievances raised by the complainant.
On being noticed the O.P No.1 neither entering in to appear before the forum nor filed their written version though availing of more than 25 adjournments. Complainant consequently filed his memo and prayed to set exparte of the O.P No.1. Observing lapses of around two years for which the objectives of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant. Hence after hearing from the complainant set the case exparte against the O.P No.1. The action of the O.Ps is against the principles of natural justice as envisaged under section 13(2) (b)(ii) of the Act. Hence the O.P No.1 was set exparte as the statutory period for filing of written version was over to close the case with in the time frame permitted by the C.P. Act.
On being noticed the O.P No.2 appeared through their learned counsel and filed written version refuting allegation made against them. The O.P No. 2 taking one and another pleas in the written version sought to dismiss the complaint as it is not maintainable under the C.P. Act, 1986. The facts which are not specifically admitted may be treated as denial of the O.P. No.2. Hence the O.P No .2 prays the forum to dismiss the case against them to meet the ends of justice.
Heard arguments from the learned counsel for the O.P No.2 and from the complainant. Perused the record, documents, written version filed by the parties.
This forum examined the entire material on record and given a thoughtful consideration to the arguments advanced before us by the parties touching the points both on the facts as well as on law.
FINDINGS.
Undisputedly the complainant is the father of the O.P. No.1 and he was nominated as Guarantor towards loan availed by the O.P. No.1 a sum of Rs. 4,70,000/- from the bank on Dt. 20.3.2006 for his agricultural purpose for living in the society and purchased one Tractor bearing Regd. No. OR-18A-4026 and Trolley No. OR-18A-4027. Admittedly the O.P. No.1 was a defaulter for payment of E.M.I. to the O.P. No.2 (bank) in time.
The main grievance of the complainant is that the O.P. No.2 (Bank) has imposed interest and penal interest against the above loan and the O.P. No.2(Bank) has exaggerated the claim. So the complainant asked the O.P. No.2 (Bank) to make a One time settlement of his claim leaving the penal interest, and also to reduce the interest claimed by the O.P, No. 2 (Bank) so that one time settlement may not cause any financial burden to the complainant.
The O.P. No.2 (bank) in their written version asserted that the O.P. No.1 was made an application to purchase a Tractor and the same was sanctioned on Dt. 20.3.2006. The No.1 was executed a loan agreement and hypothecation agreement and the complainant Sri Ghasiram Saraka executed guarantee agreement in favour of the bank of the O.P. No.1 had taken a sum of Rs. 4,70,000/- towards purchase of Tractor in the name O.P. No. 1 and the same was registered OR-18A-4026 and Trolley No. OR-18A-4027.
The O.P. No.2 Bank) in their written version in para No. 2 contended that the complainant is the father of the O.P. No.1. The Guarantor is equally liable with the borrower to pay the loan dues. After getting the service benefits the complainant has not cleared the dues knowingly only to grab money of the bank. Neither the complainant nor the O.P. No.1 has not approached the bank for One time settlement. Rather the bank has written letters to the barrower and Guarantor to settle the loan dues under O.T.S scheme of the bank. The O.T.S. scheme is still in force till June, 2016 so the forum may direct the complainant to settle the loan dues under O.T.S scheme.
The O.P. No.2(Bank) in their written version in para No. 3 contended that the complainant had executed the loan document as a Guarantor and taken the loan by the O.P. No.1 for his cultivation purpose and paid some of the installments but not regularly as per the norms of the bank. For the balance amount the bank filed a suit before the court of Civil Judge, Sr. Division, Rayagada against the O.P. No.1 and the complainant and it is pending.
The O.P. No.2 (bank) in their written version in para No. 4 contended that the complainant is not a consumer the Debtor and Creditor relationship shall not create the status of the consumer held in CPR- 1992(1) page No. 86, State commission, Rajastan. Further this forum has no jurisdiction to try the case.
The O.P. No.2 (bank) in their written version in para No. 8 contended that parallel proceeding before Civil Court and before the District Consumer Forum on the same subject matter can not go together. In other wards, if the fact of two cases one pending before the Civil Court and other before the Consumer Forum are the same, the latter should not exercise jurisdiction as the matter is subjudice C.P.R-447 (N.C) New Delhi 1991, CPJ-23(NC) New Delhi.
For the above case this the forum relied citation of the Hon’ble National Commisision, State Commission.
It is held and reported in CPR 2015(1) page No. 228 where in the hon’ble National Commission observed “A matter which is pending before Civil Court, should not be raised before Consumer Forum”. When the matter is pending at Civil Court on the same cause of action, this forum can not and will not entertain any claim in respect of the identical subject matter in the present case.
Further It is well settled that the matter can not be decided by Consumer Forum wnen the civil suit is pending in the civil court in same of cause action L.T. Coal A.J. AnandVrs. The Manager, Indian Bank, Chandigarh and others 1991 CPJ Page No. 157 Delhi State C.D.R.Commission.
Again The Hon’ble State C.D.R.Commission, Odisha, Cuttack in Mrs. Jayasri Mishra Vrs. SBI in which it is held that the same having been sub-judice at the Civil Court, It is not permissible to enter in to the same issue by the Consumer Forum. Held 1995-CLT –OSC-14 which is decided 5.9.1995.
Further Section 2(1)©- Complaint- no complaint where the matter has been sub-judice at Civil court, can not reagitated.. Held in M/S. Kishsangarh Marbles Pvt. Ltd. Vrs. Gujarat State Financial Corp. in 1991 CPJ 103 (NCDRC),New Delhi.
Again it is held and reported in CPJ 1991 (1) page No.78 where in the Hon’ble National Commission observed “As a matter of policy and principle that where in the subject matter of a complaint is sub-judice before the Civil Court, a concurrent adjudication in respect of the same will not be conducted by the commission under the Act, the objection is not really on the ground of lack of jurisdiction but one based on consideration of propriety and prudence keeping in view of the necessity for avoidance of conflicting decisions and multiplicity of proceeding” .
This forum have gone through the documents submitted by the O.P. No.2 (Bank) in respect of the case being taken up by the Hon’ble Civil Court, Sr. Division, Rayagada. Since the matter is sub-judice, it is beyond our jurisdiction to adjudicate upon the merits of the complaint petition. So the complaint petition is liable to be dismissed.
In the light of the aforesaid judgements, it becomes clear that complaint petition is not maintainable before the forum.
We are not going to the merits of the matter and express no opinion in respect of the same for deciding the points raised by the complainant.
ORDER.
In resultant the complaint petition stands dismissed but without cost.
The interim order passed by this forum on Dt. 20.05.2016 made final with the above observation. Serve the copies of the above order to the parties free of cost.
Dictated and corrected by me. Pronounced on this 21st. day of June, 2018.
Member Member. President
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