Advocate R.R.Gane for the Complainants

Advocate Nisha S.Ruikar for the Opponents

Per Hon’ble Shri. V.P. Utpat, President

                                     JUDGMENT

                                Dated 6^thJune 2014

                This complaint is filed by consumer against service provider for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-

[1]            Complainant Nos. 1 and 2 are husband and wife resident of Sadashiv Peth, Pune 411 030.  Opponent No.1 is the branch of State Bank of India which is situated at Dattawadi, Pune 411 030. Opponent No.2 is its regional office situated at Shanker Seth Road, Pune 411 037.  It is the case of complainant that they have opened saving account jointly in Opponent No.1 from 1/10/2002. They were intended to purchase a flat and therefore they have applied for housing loan to the Opponent No.1. Loan of Rs.7,20,000/- was sanctioned and disbursed on 30/09/2002. Complainants have executed the documents in favour of Opponent No.1 and deposited the title deed of flat No.10 at Surekha Height, Nimbalkar Talim Chowk, Pune 411 030.  The said scheme was developed by M/s. A.V.Bhat. The loan amount of Rs.7,20,000/- was taken by complainants for taking over the loan of Pune People’s Cooperative Bank Ltd. The rate of interest which was agreed between the parties was 10.50% p.a. and the duration was 15 yrs and the loan was to be repaid within 180 EMI’s @ of Rs.7956/- p.m. w.e.f. 10/10/2002 to 10/10/2007.  Brother of the complainant Shri. Suresh Narayan Barate acted as a guarantor for the said loan.  It is the case of complainants that they were regularly paying the loan installments and standing instructions were given to the Opponent No.1 for transferring the EMI from their joint saving account. Hence, there is no question of any default till the Opponents have issued notice to the complainants and informed that the account of  complainants which was Non Performing Asset-NPA.  It is further contention of the complainant that, even though they have instructed Opponent No.1 to transfer certain amount in the account of mutual fund, Opponent No.1 did not act as per the instructions. Hence, complainants have sustained loss. It is the case of complainants that due to the acts of Opponent, Complainants were defamed.  Hence, complainants have filed present complaint. Complainants have prayed that the notice issued under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is illegal and it should be dropped. Complainants have further asked for direction the Opponents to release the original documents of the flat on submission of NOC in their custody i.e. agreement, Index II and enclosures enclosed in the agreement including plan.  Complainant has further prayed that the account be classified as Standard Account. They have also asked for refund of Rs.1,79,301/- recovered by the Opponent No.1 from the Joint saving account of the complainants. They have further prayed for Rs.3,00,000/- as compensation on account of loss of mutual fund benefits and Rs.1,00,000/- towards compensation for mental and physical stress suffered by the complainant. They have further prayed for Rs.5,000/- as cost of the litigation.

[2]            Opponent Nos. 1 and 2 have resisted the complaint by filing written version in which they have denied the contentions of the complainant in toto. According to them the complainants have suppressed material facts. They have obtained two housing loan amounts from the Opponents. One is for Rs.7,20,000/- and another for Rs.5,00,000/-. Opponents have further contended that in SBI, Dattawadi Branch many housing loan accounts were seized for investigation in the year 2005 and in that fraud list name of the complainants was also included.  Complainants were not operating the account satisfactorily and they were defaulter from the year 2010, the account has become NPA.  Opponents have issued notice to the complainant under Securitization Act. The said notice is sent only to those borrowers /guarantors who are the defaulter and their account has become NPA.  It is further contended that this Forum has no jurisdiction to entertain the complaint. Complainant can seek recourse in the DRT.  Complainants have also approached the Banking Ombudsman on 28/09/2010 and made grievances and the same was closed under clause 13(a) of BOS-2006 by letter dated 6/10/2010. On that ground also complaint is not maintainable.  Opponents have prayed for dismissal of the complaint.

[3]            After scrutinizing the documentary evidence, pleadings, written argument and affidavits which are produced by both the parties and hearing the argument following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-

Reasons-

As to the Point Nos. 1 and 2-

[4]            It is not in dispute that the complainant has obtained housing loan from Opponent No.1. But it is not disclosed by the complainant that in fact they have obtained two housing loan amounts from the Opponents. One is for Rs.7,20,000/- and another for Rs.5,00,000/-. It is not in dispute that complainants have received notice u/s 13(2) of Securitization Act from the Opponents. Complainants have produced voluminous documents to establish that that the complainants were never defaulter and Opponents have wrongly converted the loan account of complainant in N.P.A.  They have also contended that they had given standing instruction to the Opponent for transferring balance from saving account to housing loan account regularly.  Complainants have produced extract of account and all documents to that extent.  But a mute question remains before the Forum as to whether the Complainants can challenge the notice u/s 13(2) of Securitization Act.  Eventhough u/s 3 of the Consumer Protection Act, 1986 a parallel remedy is provided to invoke the jurisdiction of Consumer Forum, it cannot be said that the statutory provisions of other statute can be by-passed. When there is a special Forum for challenging the notice under the Securitization Act, complainants have no right to challenge the notice before Consumer Forum.  The learned Advocate for the complainants argued that they are not challenging the said notice but they have deposited the amount in their loan account. It is significant to note that the complainants have suppressed that there were two housing loan accounts. If any one of them is a NPA, the Bank authorities have right to issue notice u/s 13(2) of Securitization Act. As regards the transfer of fund to mutual fund as per the instructions of complainants, no evidence is produced before this Forum. The order of DRT is always prevailing over the jurisdiction of Consumer Forum.  Complainants are trying to give by-pass to the procedure which is laid down in Securitization Act and that cannot be allowed under the garb of section 3 of the Consumer Protection Act, 1986. It is the opinion of the Forum that, it has no jurisdiction to entertain the complaint and it deserves to be dismissed.

                This Forum answers the points accordingly and pass following order-

                                        :- ORDER :-

1. Complaint is dismissed.
2. As per the peculiar circumstances there is no order as to costs.
3. Both parties are directed to collect the sets which are provided for the Hon’ble Members.

Copy of order be supplied to both the parties free of cost.