In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-700087.
CDF/Unit-I/Case No.203/2008.
1) Sri Chanchal Kumal Ghosh,
2) Smt. Dipa Ghosh,
Both of Premises No.23 (Old No.7),
Nalta School Road, Kolkata-28. ------------ Complainant
---Versus---
1) Allahabad Bank service through the Chairman,
2) Allahabad Bank, Jawaharlal Nehru Road, Branch,
service through the Senior Manager
of the Branch, Kolkata-13, P.S. Park Street.
3) The Senior Manager, Allahabad Bank,
Jawaharlal Nehru Road Branch, Kolkata-13. ---------- Opposite Parties
Present : Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 46 Dated 26-09-2013.
The case of the complainants in short is that complainants took a loan from the o.ps. under “All Property Loan Scheme” by way of over draft against the property premises no.23 (old no.7), Nalta School Road, Kolkata-28 under over draft account no.46031 with o.p. nos.2 and 3. Accordingly, the loan was sanctioned on 17.12.2004 in the name of the complainant no.1 and complainant no.2 was the guarantor. As per said loan the overdraft limit was 50% of the valuation of the property or 4 times of annual net income (calculated on the basis of average net annual income of last 3 years), whichever is less. The value of the loan property was 16.5 lakhs, so the overdraft limit was Rs.8.25 lakhs. But o.p. nos.2 and 3 disbursed Rs.5.80 lakhs. Complainant no.1 was informed about the sanction limit of Rs.5.80 lakhs by o.p. nos.2 and 3 by their letter dt.28.6.07. Complainants entrusted wth the words of o.p. nos.2 and 3 and on good faith signed the blank sanction advice.
Therefore o.p. nos.2 and 3 with criminal breach of trust and malafide intention filled up the papers which were signed by the complainants. O.p. nos.2 and 3 sent the advocate’s letter to the complainant informing overdraft limit and asked the complainants to pay an amount of Rs.7,99,804/- with interest calculated on 31.1.08 within 15 days from the date of receipt of the letter. The complainants denied all allegation and asked o.p. nos.3 for statement of account of overdraft account no.46031, confirmation of loan limit of Rs.5.80 lakhs, sanctioned terms and conditions. But o.p. nos.2 and 3 did not give any reply. Hence the instant application with prayer (i) directing the o.p. nos.2 and 3 to provide statement of account of overdraft account no.46031 under “All Bank Property Loan Scheme” from 26.7.06 and not to raise any claim against the complainants, (ii) directing the o.p. nos.2 and 3 to give confirmation to the effect that the loan limit was Rs.5.80 lakhs, (iii) sanction terms and conditions, (iv) to give the confirmation by the o.ps. that loan documents which were signed by the complainants in blank were not filled up by bank officers and also prayed for compensation for mental agony and harassment.
O.ps. had entered their appearance in this case by filing w/v and denied all material allegations labeled against them and prayed for dismissal of the case. O.ps. have demanded that complainants have approached before the o.ps. for “All Property Scheme” and that was duly sanctioned by the bank for a limit of Rs.5.80 lakhs on 17.12.04 being O.D. A/C no.46031 in which complainant no.2 was the guarantor and accordingly complainants duly signed the acknowledgement of sanctioned letter on 18.12.04. Thereafter complainants on 18.12.04 signed on Demand Promissory note of Rs.5.80 lakhs with regard to the charging of interest @ 11% PLR with monthly rate. Upon disbursement of said loan amount it was noticed by o.ps. that after few months the O.D. A/C no.46031 became irregular as the complainants failed and/or neglected to make payments in time or at all gave credit to the aforesaid account. Notices dt.28.6.07 and 24.7.07 were issued to the complainants, but the complainant no.1 expressed his inability to accept the overdraft account balance by letters dt.30.6.07 and 20.7.07. Thereafter bank issued the legal notice on 29.2.08 and on 19.6.08. O.ps. issued a notice u/s 13(2) of the Securitization And Reconstruction of Finance Assests and Enforcement of Security Interest Act, 2002 (hereinafter referred as SARFAESI Act) for failing and/or neglecting to repay the outstanding due in spite of repeated requests. Complainants did not comply the terms and conditions of the said notice. Complainants have willfully and deliberately suppressed the material fact of issuance of such notice. Other objection made by complainants were completely denied by the o.ps. Ld. Lawyer for the o.ps. argued that instant case is not maintainable before the Consumer Forum. Therefore, o.ps. prayed for dismissal of the instant case.
Decision with reasons:
We have gone through the record, evidence by both parties and the hand writing expert report. Earlier o.ps. have filed a petition challenging the maintainability of the case. The petition filed by o.ps. on 15.5.12 was disposed of on contest at that stage with a view that ‘Forum is not in a position to appreciate the contention of the party in its proper perspective to this case without recourse to evidence’. Though the handwriting report is not conclusive the moot question for consideration at this stage is whether the case is maintainable or not. Complainants have demanded Rs.8.50 lakhs for loan amount. Bank has disbursed Rs.5.80 lakhs on the mortgage of property in question, the value of which is Rs.11,46,000/-. Bank has given the loan according to the distress sale value not upon the market value. Complainants have signed on the DP Note which shows that bank has disbursed Rs.5.80 lakhs and the sum was accepted by the complainants. O.ps. initiated proceeding against the complainants under SARFAESI Act and complainant no.1 gave his reply u/s 13(3A) . Against the illegal acts of the bank complainants preferred an appeal u/s 17(1) of SARFAESI Act bearing S.A. no.381 of 2009 before the Hon’ble Debts Recovery Tribunal II, Kolkata. The Hon’ble Tribunal on 21.4.11 passed an interim order of statusquo subject to payment of Rs.2 lakhs on or before 20.5.11. Complainants did not comply the said order and consequently Hon’ble Tribunal dismissed the appeal. The application for restoration filed by complainants was also dismissed by Hon’ble Tribunal. Against the order passed by the Hon’ble DRT-II, Kolkata in S.A. No. 381/2009, the complainant filed an appeal being appeal no. 128/2012 before the Hon’ble Debts Recovery Appellate Treibunal, Kolkata. Complainants have argued that they have deposited Rs. 2,06,000/- in the above appeal and the said appeal is still pending.
We have relied upon the decision of Hon’ble Kerala High Court published in AIR 2012 Kerala 8 and AIR 2012 Kerela 16. As per Sec. 34 of SARFAESI Act the case is not maintainable before the Consumer Forum.
Accordingly, the case of the complainant fails.
Hence, ordered,
That the case no.203 of 2008 be and same is dismissed on contest without cost.
