Complainant Smt.Bachan Kaur through the present complaint filed U/s 12 of the Consumer Protection Act 1986 (hereinafter, called the Act) has prayed for issuance of necessary directions to the opposite parties to withdraw illegal notice no.5 dated 9.5.2016 of Rs.1,18,201/- issued illegal without any due to deceased Gurmit Singh(husband of complainant), in the interest of justice.

2.       The case of the complainant in brief is that she obtained loan from opposite party for Rs.40,000/-. Her husband had deposited loan amount with interest till 2008 to opposite party. On 8.9.2012 opposite party issued a notice to deposit Rs.20,000/- to her husband Gurmit Singh. Her husband had challenged the notice in Consumer Forum Gurdaspur on 10.10.2012 which was allowed on 21.3.2013. She has further pleaded that till 9.5.2016 opposite party remained silent and now when opposite party come to know Gurmit Singh has died in an accident. So opposite party issued present notice of Rs.1,18,201/- illegally, when in fact loan transaction is relating to the period of 1998. She is widow of loanee. She has no capacity to fulfill illegal demand of opposite party of notice no.5 dated 9.5.2016 of Rs.1,18,201/-. Hence this complaint.

3.       The opposite parties upon notice appeared through their counsel and filed their joint written reply taking the preliminary objections that the present complaint is not maintainable. On merits, it was submitted that the deceased husband of complainant Gurmit Singh was member of the society and he borrowed Rs.40,000/- for house building in which complainant is residing but Gurmit Singh never returned this amount with interest to opposite party no.1. It was correct that Gurmit Singh filed a complaint and as per these orders the opposite party was restrained to recover the amount forcibly but with due course of law. The orders were exparte, even then opposite party deposited the cost of litigation as per orders. Infact the deceased Gurmit Singh had pledged his land with opposite party against the borrowed amount and opposite parties are legally authorized to attach the pledged land for recovery of the borrowed amount. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.  

4.       Complainant tendered into evidence her own affidavit Ex.C1 alongwith other documents Ex.C2 and Ex.C3 and closed the evidence.

5.       Sh.Sarabjit Singh Secretary of opposite parties tendered into evidence his own affidavit Ex.OP-1 alongwith other documents Ex.OP2 to Ex.OP4 and closed the evidence.

6.         We have carefully examined and thoroughly considered the evidence (along with the supporting documents) as available on records of the proceedings for its statutory merit, of course in the backdrop of the arguments as put forth by the learned counsels for the participating litigants and also the scope of ‘adverse inference’ that could be discretionarily drawn on account of the non-production of some vital documents ignored to be produced during the present course of proceedings. We find that the complainant has successfully proved through her deposition vide affidavit Ex.C1 duly supported by other documents (Ex.C2 & Ex.C3) that her late husband Sh.Gurmit Singh (since demised) during his life time had availed of a housing loan of Rs.40,000/- (from the opposite party 1) and that stood duly repaid in full (by him) up to the year 2008 as has been affirmed by the DCF, Gurdaspur vide its orders dated 21.03.2013 (Ex.C2); wherein, it is also observed in paragraph ‘6’ that, “As already pointed out above, neither of the opposite parties came forward to rebut or assail the evidence led by the complainant in the instant complaint. It is noted from so called notice, a copy whereof is Ex.C2 that neither any amount has been stated therein nor any date of issuance thereof is mentioned. In the absence of anything to the contrary from the opposite side, we believe that complainant has already repaid the loan amount in way back 2008. Otherwise also, till the filing of the instant complaint a period of more than three years has already elapsed and no amount can be recovered after three years from the date any installment of any loan having become due. In this view of the matter, complainant has been able to establish his case for appropriate relief. Consequently, the complaint filed by him is partly accepted exparte and opposite parties are restrained from recovering any amount from the complainant illegally and forcibly except in due course of law”. Thus, we find that vide its above orders the forum had observed that the then complainant has proved having repaid the ‘housing-loan’ in question by the year 2008 and even if not, the balance outstanding (if any) could not have been recovered after three years of its having fallen due for repayment. Finally, the above orders restrained the then opposite parties from recovering any amount from the complainant illegally and forcibly except in due course of law.    

7.       The titled opposite parties through their learned counsel has duly admitted the sanction of a housing loan of Rs.40,000/- in the year 1992 to the present complainant’s late husband Gurmit Singh who did built the ‘house’ (in which the complainant is presently residing) with the loan amount but did not repay the same back, in full, with interest. The filing of the first consumer complaint in the year 2012 (by Gurmit Singh) is also admitted along with the forum’s orders of 21.03.2013. Lastly, the opposite parties have pleaded that the forum’s orders restrained recovery of ‘amount’ forcibly and without due course of law whereas issuance of recovery notice (Ex.C3) to the present complainant amounts to due adoption of legal process to recover the borrowed amount from the legal heirs of deceased borrower Gurmit Singh. Somehow, we are not at all convinced and rather displeased with the above pleadings of the opposite parties. These do amount to absurd interpretation and non-compliance of the forum’s orders, however at the best, these can be said to have been put forth in gross ignorance of law and to an utter misplacement of the forum’s orders. However, taking a somewhat lenient view, we are presently inclined to pronounce only reformative orders, accordingly. 

8.       We find that the forum’s effective orders (dated 21.03.2013) were very much in the notice and knowledge of the then opposite parties since it has been duly stated/deposed in the last line of paragraph ‘1’ of the written statement/ affidavit Ex.OP1 that, “The orders were exparte, even then respondent deposited the cost of litigation as per orders”; but no other legal remedy (including that of appeal/revision etc) was ever availed of/preferred to, on records, and that bestowed ‘finality’ in law upon the orders (under reference) and that awarded/confirmed the legal statutory-status of ‘time-barred’ debt under the applicable laws of limitation, to the balance loan amount, even if, lying outstanding, as such. In order to remove all ambiguity, it shall be pertinent here to mention that ‘RECEIPT/ PAYMENT’ of time-barred debt is not legally barred in law but RECOVERY proceedings of time-barred debt is ‘legally’ barred under the Limitation Act, 1963. Thus, even recovery notice Ex.C3 shall not be termed as ‘legal’ and in due course of law. Let it be clarified, with principal debt having turned ‘time-barred’ recovery proceedings by way of ‘auction’ shall not be legal under any statute be it the CPC, Co-operative Laws, RDDBFI Act’ 1993, SARFAESI Act’ 2002. The first legal step towards recovery proceedings of time-barred debt shall be ‘revival’ of the debt through its ‘acknowledgement’ executed with free consent sans coercion and/or some other parallel legal remedy etc as available in law for revival purposes of time-barred debts. Although, going by the maxim in law, ignorance of law is no excuse, but the genuine absence of mens’rea in the present case equally negates the award of penalty, as prescribed in consumer laws.                             

9.       In the light of the all above, we find that the opposite parties have indeed bruised the consumer rights of the present complainant and that lines them up for an adverse award under the applicable statute. We, therefore, partly allow the present complaint and thus ORDER the OP1 Society to urgently withdraw the impugned notice Ex.C2, record the said Loan outstanding as time-barred debt for its appropriate write-off, release the mortgage of the House in question in favor of the present complainant besides to pay her Rs.5,000/- as compensation and Rs.3000/- as cost of litigation within 30 days of the receipt of the copy of these orders otherwise the award amount shall attract interest @ 9% PA from the date of orders till actual payment. Of course, the opposite parties shall be at liberty to avail of any legal remedy as available in law but pursued as per procedure prescribed in law and/or to take disciplinary action and/or to claim reimbursement or otherwise recover the award-amount from its delinquent staff as per its own discretionary prerogative. 

10.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.           

   (Naveen Puri)

                                                                        President     

ANNOUNCED:                                              (Jagdeep Kaur)

October, 27 2016.                                        Member.

*MK*