MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant Complaint under Section 17(1)(a)(i) of the C. P. Act, 1986 has been filed by the Complainants seeking redressal of grievances caused within him by the deficiencies in rendering services to him and practicing unlawful trade practice upon him by the O.Ps.
The Complainants in the instant complaint prayed for directions upon the O.Ps to
- Pay compensation of Rs.9,50,000/- only against loss of business which, as alleged, was his sole source of income.
- Pay to the Complainant Nos. 2 to 5 a compensation of Rs.35,00,000/- against loss of two house properties due to highhanded and illegal measures adopted by the O.Ps.
- Pay Rs.5,00,000/- as compensation to the Complainant Nos. 2 to 5 for trauma, mental agony and disruption of family lives that they had to undergo because of the illegal activities on the part of the O.Ps.
- A litigation cost of Rs.15,000/-.
The facts of the case, in a nutshell, was that the Complainant No. 1, a self-employed person, having his own business of medicines under the name and style “M/s. Barick Enterprise” of the address given in the cause title of the complaint, had to take a cash credit loan for an amount of Rs.30,00,000/- from the O.P. No. 1 so as to enable him to overcome the financial crisis due to weak performance in his business and other extraneous circumstances like labour unrest etc.
The O.P. No. 1 had sanctioned the desired amount as cash credit loan subject to the stipulation enunciated in the Agreement date 13.11.2006 by and between the parties.
The Complainant Nos. 2 to 5 who happened to be employees of the said business under Complainant No. 1 as employer, being very close to Complainant No. 1, volunteered to keep their two buildings of specifications detailed at para 4 of the complaint, under mortgage with O.P. No. 1 as collateral security to the loan.
The business which was running smoothly, again received sudden shock as more than 35 unemployed youth who used to help in smooth running of the business and sustain themselves through this business, suddenly started observing cease work pursuing their demands of permanency in employment, increase of wages, bonus etc. The situation came to such a pass that the Complainant had to suffer immense loss of business compelling him to skip repayment of loan instalments thenceforward.
The O.P. No. 1 then declared the loan as NPA due to purported outstanding of Rs.22,50,000/- and published advertisement in The Times of India for sale of the mortgaged properties. The Complainant No. 1’s contact with the O.Ps and commitment for repayment for entire dues did not work. The Complainant No. 1’s effort for payment in part first through the issuing of cheque for an amount of Rs.2,70,000/- against the outstanding loan which grew bigger with the passage of time to the tune of Rs.26,50,000/- and his subsequent effort of payment of a part amount of Rs.7,00,000/- against an even bigger outstanding amount of Rs.28,00,000/- for the same reason were refused to be accepted by the O.P. No. 1 who ultimately sold the mortgaged property to a third party.
The aggrieved Complainant then filed the instant complaint with the prayer for payment of cost and compensations as detailed hereinabove.
We have heard Ld. Advocates appearing on behalf of both sides.
Needless to say that the Ld. Advocate representing the participating sides, submitted protecting interests of their respective clients.
Ld. Advocate appearing on behalf of the Complainants, applying his best effort, tried to impress upon the Bench in the same lines narrated in the complaint, the unlawful trade practice that the O.P. – Insurance Company had resorted to for creating an absurd ground for repudiating the reimbursement of his lawful claim.
The Ld. Advocate for the O.Ps, per contra, denied all the allegations against his client by the Complainants. He went on to raise certain points in addition, apparently pertinent against the maintainability of the complaint.
Ld. Advocate submitted that in the complaint, the Complainant No. 1 had admitted that the subject loan was sanctioned on the petition to bail out his business from shambles it was facing due to acute financial crunch. The Complainant made it very clear through his averment in the complaint that his was the business which absorbed employees and casual labourers totaling to more than 35 person.
As contended further, the Complainant, since had become a defaulter in repayment of the loan and no persuasion could make him pay the faulted instalments, the O.P. Bank had no other way but to declare the loan a non-performing asset (NPA) and proceeding under SARFAESI Act, 2002 was initiated for realizing the outstanding dues by selling off the mortgaged properties. It appeared on perusal of record that steps under Section 13(2), 13(3A), 13(4) and 14(1) ibid were duly adopted before selling the mortgaged properties through open auction.
As he continued, it was a settled principle of law that the C. P. Act did not have jurisdiction to take cognizance of an issue already under proceedings of the SARFAESI Act.
Ld. Advocate, with his above submission, prayed for dismissal of the complaint as the same lacked maintainability.
Perused the papers on record and considered submissions of the Ld. Advocates appearing on behalf of both sides. It appeared in the very first line of para 1 of the complaint that there was averments to the effect that the Complainant was doing his business as a self-employed person for earning his livelihood. We also came to know from the same complaint that the Complainant had engaged employees on payment of wages. The Complainant admitted that five employees of his established who were very close to him had volunteered to keep their properties under mortgage to save the business of the Complainant from financial crisis. That apart, the complaint was very clear about the employees in the organization – 35 in number – resorted to cease work on the demand for their permanency, enhancement of wages, bonus etc. We found it difficult to accept the argument that proprietor of a company engaging at least 35 persons – employees and labourers taken together – was a self-employed youth.
Besides, the issue appeared to have been proceeded with under relevant provisions of SARFAESI Act. The mortgaged properties had already been sold and the proceeds adjusted against the loan outstanding with the O.P. – Institution. Section 34 of the SARFAESI Act, reads, “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 the Recovery of Debts Due to Banks and Financial Institutions Act, 1993” and thereby focuses on the ineligibility of the Complainants to claim themselves as consumers within the meaning of the Act.
In the light of the above provision of the Act, the Bench is of the considered view that the Consumer Fora lacked jurisdiction to adjudicate on the instant issue.
We are inclined to hold that the Complainant does not come within the meaning of consumer as enumerated under Section 2(1)(d) of the Consumer Protection Act, 1986. The complaint, therefore, is not maintainable.
The maintainability points raised by the O.Ps being decided against the Complainant, we abstained ourselves from discussion on any other points raised at the time of hearing by the Complainant.
Hence, ordered, that the complaint be and the same stands dismissed being not maintainable. No order as to costs.
