Orissa

Jagatsinghapur

CC/144/2022

SK.Aphajal - Complainant(s)

Versus

The Branch Manager Canara Bank - Opp.Party(s)

Mr.J.Mishra

12 Aug 2022

ORDER

                                                                                         JUDGMENT

 

            Complainants have filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs;

            “Direct the opposite party to settle the claim loan amount under OTS and fixed easy installments to clear of the loan and further not to take any coercive action like dispossessing the complainant from the schedule mortgaged landed property and pay Rs.20,000/- towards mental agony and harassment and Rs.5,000/- towards litigation fees”.

            The brief fact of the case is that the opposite party bank is previously known as Syndicate bank, Jagatsinghpur having its financial business at Jagatsinghpur Town whereas the complainant No.1 had its business unit in the name and style as Odisha Car & care Service located at Gopalsagar, Jagatsinghpur for extension of his business asked to the opposite party for financial assistance to the extent of Rs.5,00,000/-. The complainant No.2 being the father of the complainant No.1 was the owner in possession of the property situated at village Kansha vide Khata No578, plot No.1367, area A0.16dec (Homestead) has stood as guarantor for the loan sanctioned against the complainant No.1 and mortgaged the same before the opposite party. After sanction of loan the complainant No.1 had his business running smoothly and he was paying monthly installments regularly. He being an uneducated person and only knows his signature and does not know English doing transaction with bank on good faith.

            In the year 2016 there was a firing incident in the business site of the complainant No.1 wherein the complainant No.1 sustained gun shot on his head and he undergone medical treatment and unable to work efficiently due to mental disorder and shock. So the business unit of the complainant No.1 presumed to be closed and then he failed to pay the EMIs regularly. The opposite party assured to refinance of an amount of Rs.3,00,000/- to restart the business and to stand in the market as the complainant No.1 previously was a sincere and vigilant in repayment of EMIs. But after amalgamation of the Syndicate Bank with Canara Bank, the present opposite party did not agree to refinance and time to time compelling the complainant No.1 to repay the loan dues and threatening to take possession of the mortgaged land which is the only ancestral joint holding and dwelling house of the complainants and their family 22 members are residing without having any alternative shelter. On 17.6.2022 the opposite party over phone threatened to the complainants to vacate the schedule property from their possession and on reply the complainant No.1 submitted that he is ready and willing to pay Rs.50,000/- instantly and also agreed to repay all the loan dues on OTS with quarterly installments of Rs.1,00,000/-.

            Opposite party has filed objection in misc case stating as under;

            The complainant by suppressing the real fact i.e. operation of SARAFAESI Act in the aforesaid case, has managed to snatch away a restrain order which has been prohibited by the Hon’ble High Court of Orissa vide W.P(C) No.688/2011. The complainant filed an application on 20.7.2015 for availing a credit facility of Rs.25,00,000/- before the opposite party (the then Syndicate Bank, Jagatsinghpur Branch) now Canara Bank due to merger by operation of law vide gazette notification No.GSR 155(E) on 04.3.2020. After scrutiny of documents and eligibility criteria of the complainant bank has agreed to sanction loan to the tune of Rs.9,75,000/- as credit facility. The complainant entered into an agreement with the bank with details of terms and conditions and gave the property of his father measuring an area of A0.16dec (Gharabari) bearing Plot No.1367, under Khata No.578 of Mouza Kansa as equitable mortgage. The complainant only after 10 months did not pay the interest of the loan amount which he had availed as a result of which the loan account became NPA.

            The complainant has filed this consumer complaint suppressing the fact regarding the proceeding U/s.13 of SARFAESI Act. The complainant objected and stated that no notice U/s.13(2) has been served upon the complainant and filed a petition seeking opposite party to produce the service of notice U/s.13(2) SARFAESI Act. The counsel for opposite party objected and submitted that the notice was duly served and the complainant has given his reply to the notice and the petition has been filed with an intention to cause delay. The complainant filed this consumer complainant on 20.6.2022 suppressing the fact regarding the proceeding U/s.13 of SARFAESI Act for which this Commission vide order dt.20.6.2022 passed following order “Heard the Advocate for complainants on the petition filed U/s.38 (8). Perused the documents available on record supported with affidavit.  It is found that the complainants have a primafacie case against the opposite party. Issue notice to the opposite party to file objection if any. However considering the facts and circumstances of the case the opposite party is directed to receipt Rs.50,000/- (Rupees fifty thousand only) from the complainants within 15 days from the date of this order and not to take any coercive step against the complainants in respect of Khata No.578, Plot no.1367, Area A0.16dec of Mouza Kansha till dt.07.7.2022.” The complainant has filed a petition on 04.8.2022 to prove the service of notice U/s.13(2) of SARFAESI Act. The advocate for the opposite party vehemently objected and submitted that the complainant has received all the notices and given reply and under took to file document and accordingly submitted the document regarding service of notice U/s.13(2) SARFAESI Act. It is revealed that not only notice was duly served but also the conducting counsel has given the reply.

            It is well settled law of the land is that Consumer Commission has no jurisdiction to entertain any application where the proceeding U/s.13 of SARFAESI Act is initiated. The remedy lies with DRT/DRAT and this Commission has no jurisdiction to entertain this application.

            As such this consumer complaint and misc case is dismissed. We would/could have impose heavy cost for suppression of material facts and obtaining the interim order but considering the financial condition and series of litigation we are taking a lenient view and not imposing any cost.

            Pronounced in the open Commission on this 12^th August, 2022