DATE OF DISPOSAL: 18.11.2024

PER:  SRI SATISH KUMAR PANIGRAHI, PRESIDENT (I/C)

The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 35 of the Consumer Protection Act, 2019, alleging deficiency in service against the Opposite Party (in short the O.P.) and for redressal of his  grievance before this Commission.

      2. The complainant for livelihood and self employment purpose had started one small industry in the name and style M/s Sri Venkateswar Body work situated at Haladiapadara, Auto Nagar, Ganjam. The complainant applied a small industry loan for the above purpose in the office of the O.P.No.1 and the O.P.No.1 has agreed to sanction small business secured loan in favour of the complainant. On 31.10.2019 the O.P.No.1 allow/sanction the SBSL loan in the name of the complainant vide A/C No. 018758ML00930 with mortgage security of sale deed document along with ROR of complainant which is recorded in the name of complainant vide khata No. 1407/788, Plot No. 2088/2952 of Mouza: Golanthara, KanisiTahasil, Dist: Ganjam. The complainant has deposited the EMI in every month of Rs.17013.00 per month in 52 EMI of Rs.8,84,676/- out of 84 EMI in the office of the O.P.No.1. There was Covid-19 pandemic during the period for 2020 and 2021 when the normal livelihood of common man was totally stopped and there was no transaction but the complainant has deposited the EMI without fail during that time also. The complainant has deposited the EMI on 5^th day of every succeeding month but the O.P. No.1 intentionally depositedthe said cheque on 10^th day of every month and deduction the cheque bounce amount of Rs.472/- from the account of the complainant. The O.P.No.1 during the time of sanction the loan said to the complainant that interest has been charged @ 17% per annum but the O.P.No.1 has charged @ 23.51 per annum fixed rates without consent of the complainant and violated the general principle of law which is beyond the agreement. On 28.12.2023 the O.P.No.1 affix a public notice in the house wall of the complainant without consent of the complainant that the property is mortgaged to VISTAAR Finance (P) ltd. for which the complainant is facing harassment and mental agony by the O.P.No.1. The aforesaid notice dated 28.12.2023 is unjust, illegal and unlawful devoid of merit since the complainant has not opted the complaint for “one time settlement” of the dues but the O.P.No.1 is threatening for attachment of the property unilaterally. Hence the letter dated 28.12.2023 is liable to be struck down in allowing the complainant for ‘one time settlement’ of the dues. The complainant suffer from harassment, causing mental agony for which he is entitled for exemplary compensation for harassment and mental agony and for unfair trade practice along with deficiency in service by the O.Ps. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps for allowing the complaint for the “One Time Settlement” of the dues, issue direction to the O.P.No.1 not to attach the property of the complainant and not to take any coercive action during pendency of the dispute, compensation of Rs.50,000/- and litigation costs of Rs.20,000/- in the best interest of justice.

3. The Commission admitted the case and issued notice to the Opposite Parties.

4. The O.Ps did not appear in the case since notice is sufficient and not filed any steps in any point of time. On the date of hearing, the advocate for the complainant is present and submitted the argument accordingly. The Commission pursued the complaint petition, evidence on affidavit and documents available in the case record.

Though the opposite party did not challenge the complaint after duly acknowledge the notice, the Commission taken up the sole testimony dated: 13.08.2024 of Sri Y. Srinivas Rao the Complainant into consideration for just and proper adjudication in the instant case.

On analyzing the documents filed under Annexure 3 by the Complainant, the Opposite Parties sanctioned the loan with interest rate @ 23.05% pa wmr-fixed rate for loan amounting of Rs.7Lakhs. There is no loan sanctioned with interest rate @ 17% pa and no corroborative documents filed by the complainant to that effect. Prior to this complaint, the complainant has not drawn the attention of the OP by issuing of self-demand notice.The complainant has not claimed any redressal about it in his prayer.

The complainant also not substantiated about deposit of cheque on 10^th day of every month by the OP and there was deduction of cheque bounce charges of Rs.472/- from the account of the complainant. The complainant has also not protested before the OP about this issue prior to filling of the present case by issuing of the notice and not contended it in prayer to redress in his complaint.

In view of Annexure 4, it is no doubt that, the opposite parties have been initiated a proceeding under SARFAESI Act, 2002 against the Complainant. The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (“SARFEASI Act”), is a legislation, which enables a bank or a financial institution (“Lender”) to enforce its rights against defaulting borrowers. If a borrower’s account is classified as a non-performing asset (NPA), a Lender can recover its dues through the sale of secured assets of the borrower under Section 13 of SARFAESI Act. Why the opposite parties have taken such steps,if the borrower fails to discharge their liabilities in full within the 60 days’ notice period. Accordingly, Sec. 13 (4) of the Sarfeasi Act is critical component that empowers secured creditors to enforce their security interest and the primary actions permitted under said section including-

i. Taking possession of the secured assets of the borrower.

ii. Taking over the management of the secured assets.

iii. Appointing any person to manage the secured assets.

Considering the above factual aspects, the Commission has no jurisdiction under SARFAESI Act, 2002 to adjudicate in the present complaint. Hence, the Commission dismissed the complaint summarily against both the opposite parties. No Cost.

However, the complainant is at liberty to approach the appropriate Tribunal having competent jurisdiction for redressal of the grievance and he may avail the benefits under Section 14 of the Limitation Act, 1963 in the interest of justice.

This case is disposed of accordingly.

All the interim orders disposed of with the above order.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.

The file is to be consigned to the record room along with a copy of this Judgment.

Pronounced on 18.11.2024.