By. Sri. Jose. V. Thannikode, President:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to return back his land documents which is entrusted to opposite party while taking loan and to pay cost and compensation due to the deficiency of service.
2. Brief of the complaint:- The complainant availed a seasonal crop loan of Rs.5 lakh from the opposite party for cultivating ginger @ 8% interest and the cultivation is spoiled and even then the complainant repaid Rs.8,76,436/- to the opposite party. While so at the time of proclamation of debt waiver scheme by the central government, the opposite party has collected some signatures in the blank paper from the complainant stating that the loan amount will be waived as per the Central Government Scheme and thereafter also the complainant remitted some amount to opposite party and in the year 2014 also the complainant remitted Rs.1 lakh on the undertaking by the opposite party that he will write off all the remaining loan amount. Thereafter the complainant approached the opposite party to get back his documents, but the opposite party has not return back the document saying one or other lame excuses.
3. While so the complainant received a Summons from Debt Recovery Tribunal, Ernakulam, where it is demanding Rs.16,19,757 + 16% interest. Then the complainant perused the documents and understood that the opposite party has not taken any steps to write off the loan under Debt Waiver Scheme and misused the blank signed papers and not given the account statement also. The above act of the opposite party is unfair trade practice and deficiency of service. Due to this, complainant facing a court proceeding and there facing an additional burden or Rs.16,19,957/- and mental agony and difficulty. The complainant further says that he is entitled to get back his document, cost and compensation of Rs. 2 lakh due to the deficiency of service and prayed before the Forum to direct the opposite party to return back the document and to pay cost and compensation.
4. Notice served to opposite party and opposite party appeared and filed version stating that this complaint is not maintainable either in law or on facts of the case. The complaint which is addressed to a Forum other than the District Forum for Consumer Disputes Redressal ought not to have been received at all. The complainant is not a consumer as defined in the Consumer Protection Act. No specific and tenable case of deficiency in the service of the opposite party is made out in the complaint. Besides, the above complaint is bad for non jointer of necessary parties. The loan availed of from the bank was not by the complainant alone. It was a joint loan availed of by the complainant and another person by name Shanti Vinod. Therefore the said Shanti Vinod is also a necessary party in the above matter. In addition to the same the matter in dispute in the above complaint is now pending before the Honorable Debts Recovery Tribunal, Ernakulam as O.A.173/15. Therefore the above complaint is directly subjudice and the same is liable to be dismissed in limine. The complaint could have raised all the contentions raised in the complaint before the Honorable Debts Recovery Tribunal, it is a well settled principle that a Consumer Forum cannot entertain any claim for compensation when the same matter is subjudice before the ordinary civil courts of the land. Thus the above complaint is not maintainable and the same is liable to be dismissed at it's thresh hold. The opposite party craves leave of the Honorable Forum to consider the above as preliminary objections before proceeding with the mailer on merits.
5. Without prejudice to the above contentions the respondent also wishes to submit as hereunder. The respondent denies all allegations and averments contained in the complaint save those that are specifically admitted hereunder. It is true that the complaint along with Shanti Vinod availed of an agricultural cash credit accommodation of Rs.5,00,000/- from the bank on 12.10.2007. It is also true that during 2010 the borrowers have applied for enhancement of the loan limit to Rs.8,50,000/-, which was considered and granted by the Bank on 17.02.2010. But the remaining allegations are all false and devoid of truth and merits. It is an utter false hood to state that the bank offered credit facility to the complainant at the rate of 80,10 interest. The rate of interest at the time of availing the credit facility was 11 % as is clear from the documents executed by the complainant and co-borrower in favour the bank. it is totally false to allege that during 2010 the bank got the complainant to sign certain documents purported to be for the waiver of the loan etc. Equally false is the allegation that the bank promised the complainant that if he pays a sum of Rupees one lakh the remaining loan amount would be waived and that on the basis of the above promise the complainant paid a sum of Rs.1,00,000/- to the loan account and that when the complainant demanded back the title deeds, the bank stated lame excuses etc. The above allegations are false and untenable. Since the complainant is not an eligible borrower to claim the benefits of the loan waiver, the question of the bank promising the complainant of the waiver does not arise at all. The complainant never applied for copy of the loan account statements, lest the same would have been given. The bank never called upon the complainant and his co-borrower to sign any blank papers and it is not the practice of the bank to do so. All the credentials got signed by the complainant and his co-borrower are voluntarily done by them and for the purpose of availing credit facilities.
6. As submitted the complainant is not an eligible borrower to claim the benefits of the Agricultural Debt Waiver and Debt Relief Scheme 2008. As per the Scheme and circulars issued in connection with the same, only those direct agricultural loans which fulfill all the three conditions, ie., (a) disbursed between March 31, 1997 and March 31, 2007, (b) over due on December 31, 2007 and (c) remaining unpaid until February 29, 2008 will be eligible for debt relief. It is further reiterated that a short term production loan disbursed up to March 31, 2007 for raising crops with repayment period of 18 months will not be eligible for debt waiver/debt relief if it has not become over due on December 31, 2007. It is therefore crystal clear that the loan facility availed by the complainant is not an eligible loan for any relief as envisaged under the Scheme. It being so there is no deficiency in the service of the bank and the complainant is not entitled to get any benefits as claimed in the complaint. There is no unfair trade practice or deficiency in service on the part of the opposite party. The allegations as to forgery and falsification of documents etc. contained in the complaint are false and hence denied with the contempt it deserves. The complainant never asked for return of the documents as the loan was subsisting and the allegation to the contra are false and devoid of truth and merits. The complainant has not sustained any loss and damage as stated in the complaint. There is no cause of action for the complaint. The one alleged is false and baseless. There are no merits and bonafides in the complaint. The complainant is not entitled to get any reliefs in the complaint. The opposite party is not liable to pay any amount to the complainant. The complaint is false and vexatious, tiled with the sole motive to stall the recovery proceedings initiated by the opposite party bank and only an attempt made by the complainant to evade the payment of huge dues he owes to the bank. The complaint is liable to be dismissed with exemplary costs. It is therefore prayed that the Honorable court may be pleased to dismiss the above complaint with exemplary costs to the opposite party.
7. Thereafter the opposite party filed I.A.423/2015 challenging the maintainability before the Forum stating the complainant is not a consumer as defined in the Consumer Protection Act. The complaint filed by the complainant is not maintainable either in law, facts and circumstances of the case. Moreover no specific and tenable case of deficiency in the service of the opposite party is made out in the complaint. Besides, the above complaint is bad for non jointer of necessary parties. The loan availed of from the bank was not by the complainant alone. It was a joint loan availed of by the complainant and another person by name Shanti Vinod. Therefore the said Shanti Vinod is also a necessary party in the above matter. In addition to the same the matter in dispute in the above complaint is now pending before the Honorable Debts Recovery Tribunal, Ernakulam as OA 173/15. Therefore the above complaint is directly subjudice and the same is liable to be dismissed in limine. The complaint could have raised all the contentions raised in the complaint before the Honorable Debts Recovery Tribunal. It is a well settled principle that a Consumer Forum cannot entertain any claim for compensation when the same matter is subjudice before the ordinary civil courts of the land. Thus the above complaint is not maintainable and the same is liable to be dismissed at it's thresh hold. The opposite party craves leave of the Honorable Forum to consider the above as preliminary objections before proceeding with the matter on merits. In the circumstances these opposite parties submit that the maintainability of the complaint may be considered as a preliminary issue and orders may be passed accordingly before proceeding with the matter on merits.
8. Complainant filed counter stating that the above petition is filed by the opposite party challenging the maintainability of the complaint filed by the complainant is not maintainable. The grounds alleged in the petition are not tenable and sustainable. This Honorable court has already issued notice to the opposite party admitting the complaint on satisfaction that the complaint is maintainable before this Honorable Forum. The maintainability of the complaint is to be considered before admitting the complaint and issuing notice to the opposite party and not on the petition of the opposite party. The complainant has established a prima facie case before this Honorable Forum that he is a consumer of the opposite party and there is deficiency of service on the part of the opposite party and hence this Honorable Forum is having sufficient jurisdiction to try the above complaint. The pendency of the O.A.173/15 before the Debt Recovery Tribunal, Ernakulam and the non joinder of necessary parties as alleged in the petition is not at all a ground to challenge the maintainability of the complaint. Being a consumer the complainant has every right to approach this Honorable Forum against the service deficiency of the opposite party. Hence it is humbly prayed that this Honorable Forum may be pleased to receive this counter on file and the petition may be dismissed.
9. Heard both parties in detail and we are in the opinion that since the same matter in dispute is pending before the Honorable Debt Recovery Tribunal Ernakulam as OA 173/2015 and the complainant also admitted that the OA 173/2015 is pending before the Debt Recovery Tribunal Ernakulam. Therefore this complaint is directly subjudice and the complainant can raise all the contentions raised in this complainant before the Debt Recovery Tribunal. Hence we opine that this complaint is not maintainable before this Forum.
Hence I.A.423/2015 is allowed accordingly. Since the I.A. challenging the maintainability of the complaint before the Forum is allowed the complaint also dismissed.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 30th day of November 2015.
Date of Filing:-17.07.2015.
