Orissa

Dhenkanal

CC/56/2018

Satrughan Behera - Complainant(s)

Versus

The Brabch Manager, Central Bank of India , Dhenkanal Branch And Others - Opp.Party(s)

21 Dec 2018

ORDER

 

                                                               

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                C.C.Case No. 56 of 2018

Satrughan Behera, aged about 72 years

S/o late Benudhara Behera,

Vill:/PO: Mangalpur, P.S: Sadar,

Dist: Dhenkanal                                                            ……..Complainant

                                                                Versus

1.Central Bank of India, represented through its

Branch Manager, Dhenkanal Branch,

At:  Chock Bazar, P.S: Town, PO/Dist: Dhenkanal

2.Regional Manager, Central Bank of India, 108 B Surya Nagar,

1^st Floor, Unit-8, Near Gopabandhu Square,

Bhubaneswar-71003                                                   ……..Opp. Parties

 

Present: Sri Badal Bihari Pattanaik, President,

                 Miss Bijayalaxmi Satapathy, Member

                   Sri Purna Chandra Mishra, Member

Counsel: For the complainant:  Durga Prasad Panda

                   For the Opp. Parties:  S.P.Tripathy & Associates

Date of hearing argument:  18.12.2018

Date of order: 21.12.2018

 

JUDGMENT

Sri Badal Bihari Pattanaik, President

                In the matter of an application U/s 12 of Consumer Protection Act, 1986 filed by the complainant against the Opp. Parties          alleging deficiency in service.

1. Very briefly, the case of the complainant stated is  that he is in inhabitant of Dhenkanal Town and stood as guarantor for one Fly Ash Unit namely M/s Shaktri Fly Ash Bricks owned by one Antaryami Behera of Mangalpur , Dist: Dhenkanal as the Opp. Parties Bank have financed to the said unit.  The said unit was constructed and financed by the O.P.Bank under the Prime Minister’s Employment guarantee program on the request of the  loanee the petitioner stood as a formal guarantor for the said loan.At the time of sanctioning loan the complainant requested the O.P.No.1 to fill up the blank form but the O.P.No.1 posing to be very busy on the said date requested the petitioner to put his signature in blank loan agreement form .The Opp. Parties have never sent any intimation to the petitioner regarding the position of the loanee, status of repaymentor positionof default committed bythe loanee at any point of time.Suddenly on 2.8.2018 Opp. Party Bank arrived in the house of the complainantand forced him to vacate the house immediately.The Opp. Parties by abusing the complainant forcibly dragged him and his wife from the house by use of criminal force andthrew away the household articlesand locked up the house and left the place. On the next day the complainant moved to the Bank and wanted to know the reason for such unlawful action.The O.P.No.1 intimated that his house has been sealed as it was mortgaged in favour of the Bank against the loan granted to M/s Shakti Fly Ash Brickswho has defaulted in paying the installments to the tune of Rs. 16,00,000/- and claimed the amount from the petitionerto get the house released from the Bank.It is further stated that the complainant is only a guarantor and not the principal loanee and in the even of defaultin repayment the financing Bank without exhausting all the remedies available to them for recovery of the loan dues have take action against the complainant who is a guarantor which is not tenable under law.The house of the complainant has been forcibly occupied by the O.P.Bank without prior notice and without following due procedure of law which amounts to unfair trade practice and non-supply of the documents amounts to deficiency in service.Therefore, the complainant hascome up before this Forum seeking for a direction to the O.Psnot to sale the house of the complainant standing over plot No. 5553/5472 corresponding to Khatian No.3470/1961 in mouza Dhenkanal Townand to open the lock of the house.Besides the complainant claims compensation of Rs. 20,000/- towards deficiency in service and unfair trade practice and Rs. 50,000/- for causing unnecessary mental, physical and financial harassment along with a sum of Rs. 15,000/- towards cost of the litigation.The contents of the petition are supported by affidavit.

 

2. The Opp. Parties appeared and filed their written version jointly.  It is stated in the written version that the case is not maintainable before this Forum and there is no cause of action.  The petitioner is not only stood as guarantor for the loan obtained by his son

Sri Antaryami Behera to establish M/s Shakti Fly Ash Bricks unit but also asmortgagor who has been transferred his landed property bearing Khata No.3470/1961 Plot No.5553/6472

measuing an area of Ac. 0.070 decimals under mouza Dhenkanal town in favour of Central Bank of India, Dhenkanal Branch by way of equitable mortgage.  It is further stated that  after non-payment of the Bank dues by the loanee and after classified the loan account as Non Performing Assets, the O.Ps had constrained to send demand notice U/s 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI  Act, 2002) for possessing the secured assets as per law.  The notice was sent by Registered  with A.D on 24.5.2016 in favour of petitioner  which was acknowledged.  After expiry of the stipulated period given in the Demand notice, as per SARFAESI Act, 2002, possession notice was sent U/s 13(4) to the petitioner by Regd. Post with A.D on 14.9.2016 which was acknowledged.  Therefore, lawful action has been taken and the complainant has no case.  It is further stated that after receiving the demand notice U/s 13 (2) of SARFAESI Act, 2002 the son of the complainant being aggrieved had challenged the notice and preferred to file W.P ( C ) No.1790 of 2017 before the Hon’ble High Court of Odisha for stay operation which was disposed of on 21.2.2017   and in the said Writ Petition  it has been directed to the petitioner to deposit the overdue amount before the Bank within a period of four weeks for availing OTS failing which it will open to the Bank to take appropriate steps in accordance with law.  Despite direction in the Writ Petition the petitioner did not deposit the over due amount before the Bank and did not avail OTS as per the order of the Hon’ble High Court.  In pursuance of the direction of Hon’ble High Court of Odisha, the Opp. Parties bank took appropriate steps in accordance with SARFAESI Act, 2002  and published Possession notice on 5.8.2018 in the daily News paper namely “PRAGATBADI” AND Orissa post’ for auction sale.  It is further stated that since the Bank has invoked the power under the provision of the SARFAESI Act, 2002, the Dist. Consumer Forum has no jurisdiction to entertain the petition and pass interim order.  It is also stated that the provisions contained in Section 34 of  SARFAESI Act, 2002, “No Civil Court 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 the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.   On 3.12.2018 the learned counsel appearing on behalf of the Opp. Parties Bank filed a memo along with a copy of  the petition  W.P ( C ) No.16941/2018 filed by the petitioner Satrughana Behera before the Hon’ble High Court of Odisha, Cuttack in the same matter and same cause of action .  The copy of the same was also served on the complainant but the complainant did not dispute the said fact.    Accordingly, it is pleaded to dismiss the complaint as there is no deficiency in service.

3)             On the aforesaid pleadings of the respective parties the main and pivotal   issue before us to be determined at the outset as to whether the case is maintainable before this Forum?

4)                On the date of hearing neither the petitioner nor  the conducting advocate was present.  The learned counsel appearing on behalf of the Opp. Parties was present and  argued before us that the case is not maintainable and this Forum has no jurisdiction to adjudicate upon the dispute on the ground  that  son of the complainant  who is the loanee has preferred W.P. ( C ) No. 1790 of 2017 before the Hon’ble High Court of Odisha for stay of operation being aggrieved on the demand notice U/s 13 ( 2 ) of SARFAESI Act, 2002 which has been suppressed before this Forum.  Further  it is argued that since   notice under  section 13 (2 ) of SARFAESI Act, 2002 has already been served on the petitioner this Forum has no jurisdiction to adjudicate upon the dispute.  Besides, it is pleaded that  despite order of the  of the Hon’ble High Court  of Odisha in W.P.   (C )No. 1790 of 2017  dated 21.2.2017 the loane   did not deposit the over due amount before the Bank and did not availed OTS even after expiry of the stipulated time as has been fixed by the High Court. The learned counsel appearing on behalf of the Opp. Parties Bank  during the course of hearing submitted that the  complainant in the present case has filed a W.P. © No.16941/2018  before the Hon’ble High Court of Odisha, Cuttack in the same matter and same cause of action which has filed before this Forum  in the present case .   Accordingly, on the above grounds the learned counsel appearing on behalf of the Opp. Parties pleaded to dismiss the complaint. 

5)               On our careful consideration of the documents filed by the Opp. Parties we find that  a demand notice U/s 13 ( 2 ) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was issued  by the Opp. Parties Bank to the complainant  on 24.5.2016 and the copy of acknowledgement is also filed.  U/s 13 ( 4 ) SARFAESI Act, 2002 and under Rule 8 of Enforcement of Security Interest Reules 2002 was also issued to the complainant.  A copy of order dated 21.2.2017 in  W P ( C ) No. 1790 of 2017 of the Hon’ble High Court, Odisha  is available on record  and on our perusal of the said order we find that   the Hon’ble High Court  disposed of the writ petition without going into the merits of the case with an observation that in case the petitioner deposits the overdue amount before the Opp. Party bank within a period of four weeks from today and files an application for Settlement of the loan amount, the same shall be considered by the Opp. Party Bank within a period of two weeks from the date of filing of such application and the decision be communicated to the petitioner accordingly.  In case of default on the part of the petitioner to comply the aforesaid direction, it will be open to the Opp. Party Bank to take appropriate step in accordance with law.

6)                 Now taking into consideration of the pleadings of the respective parties and the arguments advanced by the learned counsel appearing on behalf of the Opp. Parties and the documents as discussed  in details  in the preceding paragraphs and more particularly after careful perusal of the decision of the Hon’ble High Court, Odisha in W.P   ( C ) No. 1790 of 2017 vide order dated 21.2.2017, Copy of petition in W.P ( C ) No. 16941 of 2018  filed by the complainant before the High Court of Odisha  and   the citation filed by the learned counsel for the Opp. Parties reported in II (2012) BC 311 (DB) of Orisha High Court in case of Central Bank of India & Anr versus Ram Chandra Sahoo & Ors  wherein it has been held that District Consumer Forum has no jurisdiction to interfere with proceedings initiated under SARFAESI Act and pass interim order, we  are of the view that the complaint is liable to be dismissed for suppression of material facts and on the point of maintainability as this Forum has no jurisdiction to interfere with the proceedings  initiated under SARFAESI Act, 2002.  Hence ordered.

                                                                         ORDER

                             In view of the above observations the complaint  stands dismissed

            on contest. Parties are left to bear their own cost.

 

    (Sri Purna Chandra Mishra) (Miss Bijayalaxmi Satapathy)  ( Sri Badal Bihari Pattanaik)

                      Member                                 Member                                  President