Sri Shyamal Gupta, Member
Aggrieved with the decision of the Ld. District Forum, North 24 Parganas dated 11-02-2016, passed in CC/504/2015, whereof the complaint case has been dismissed, this Appeal is moved by Md. Laisol Haque.
Case of the Complainant, in short, is that the Complainant availed of one house building loan from the OPs. In view of severe financial constraints, he could not liquidate the said loan in time and therefore, made several representations before the OPs to settle the loan on payment of Rs. 7,80,000/-. Finally, the OPs agreed to settle the matter against receipt of a sum of Rs. 8,00,000/- from the Complainant. Accordingly, the Complainant paid Rs. 1,55,000/- to the OP No. 1 and issued a letter on 21-01-2015. Another sum of Rs. 2,32,861/- was adjusted on 23-02-2015 through pre-mature encashment of a LIC policy. Thereafter, the Complainant paid further sum of Rs. 1,00,000/-, Rs. 1,00,000/-, Rs. 1,12,140/-, Rs. 40,000/- and Rs. 60,000/- on 24-03-2015, 25-03-2015, 18-04-2015, 20-04-2015, and 22-04-2015, respectively. In this way, the Complainant paid the settlement sum in full. Subsequently, the Complainant asked for returning all the pledged documents. However, allegedly, the OPs refused to hand-over the same to him. As numerous representations, reminders letters, legal notice did not yield any positive result, the complaint case was filed before the Ld. District Forum.
By filing a maintainability petition, the OPs submitted that as the Complainant failed to repay the loan, the said loan account became NPA. Thereafter, the OPs issued Demand Notice u/s 13(2) of the SARFAESI Act. The Complainant was allowed a compromise proposal by which he agreed to pay the settled amount within the specified period of time. But, as he did not act upon the same in letter and spirit, the settlement failed. It is finally submitted by the OPs that as they initiated due proceedings under the SARFAESI Act, Consumer Fora can no longer intervene in the matter. Moreover, before filing of the complaint case, the Complainant moved a Title Suit being no. 185/2015 before the Ld. Civil Judge (Sr. Division) at Bashirhat on receipt of the possession notice claiming himself to be the owner of said mortgaged property. Stating that parallel proceedings cannot be proceeded with before different Courts of Law, they prayed for dismissal of the complaint case.
Decision with reasons
On receipt of notice, one Advocate turned up on behalf of all the Respondents and undertook to file vakalatnama. Subsequently, however, no one turned up on their behalf before us. Therefore, the matter was heard ex parte.
We are fully appreciative of the fact that once proceeding under the SARFAESI Act is drawn up by a Bank, Consumer Fora cannot encroach in such matter.
However, there is a finer aspect to the matter that somehow escaped the notice of the Ld. District Forum.
The settlement offer, so formulated by the Respondent Bank, being independent/separate of the proceedings drawn up under the SARFAESI Act, we feel that there was no bar for the Forum below to examine the conduct of the Respondent Bank in respect of the allegation of the Appellant as made in the petition of complaint.
As regards pendency of Title Suit being no. TS/185/2015 before the Ld. Civil Judge (Sr. Division), Bashirhat, it is claimed by the Appellant that the same relates to a different plot of land. Although Appellant has furnished purported copy of the above Title Suit, in absence of requisite land papers, we are unable to decide this matter from this end and leave it to the Ld. District Forum to carefully examine the land papers and then take a firm/independent decision in the matter.
Accordingly, the matter is relegated to the Ld. District Forum for adjudicating the case purely on merit.
Hence,
O R D E R E D
The Appeal stands allowed ex parte against the Respondents in part. The impugned order is hereby set aside. Parties to appear before the Ld. District Forum on 07-03-2019 for fresh adjudication of the complaint case in accordance with law.
