BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.437 of 2016

Date of Instt. 18.10.2016

Date of Decision: 15.05.2018

Ashvini Kumar S/o Sh. Baldev Raj R/o 40, Jaswant Nagar, Jalandhar.

..........Complainant

Versus

The Manager Punjab & Sind Bank Village Jamsher, Distt. Jalandhar.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Ashutosh Sharma, Adv Counsel for the Complainant.

Sh. JS Sodhi, Adv Counsel for the OP.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant, wherein alleged that the complainant has taken a loan for dairy farming from Punjab & Sind Bank, Jamsher, Jalandhar and the complainant got mortgaged land situated at Village Chachowal, Jalandhar and the complainant has also taken a loan for a Car bearing No.PB-08-CG-7577. The complainant did his best to run the dairy, but unfortunately cattles died due to unknown reason and the complainant suffered a huge loss. The complainant being a gentleman paid number of installments as per agreement and also reported the matter to the bank. The official of the bank assured the complainant that they will consider the matter and assured that they will refer the matter to higher authority for sympathetic consideration, but all the assurance made on verbal basis. The complainant under compelling circumstances and threat from the bank to dispose of the property in auction, the complainant paid all the interest and penal interest to the bank and the bank further settled the account of loan for the car. The complainant paid Rs.37,50,000/- to the bank and the bank official gave assurance that both the cases have been settled i.e. one for the Dairy Farming and other for Car Loan. It is worth mentioning here that the accounts were at Jamsher Branch, whereas the bank official has taken the amount at Punjab & Sind Bank, Main Branch, Model Town, Jalandhar and on the next day, from the deposit of the amount, one NOC was released regarding the Dairy Farm from Jamsher Branch. The concerned bank official told that the procedure to settle the account of car loan require some period, so they will send the NOC of the Car Loan account to the complainant later on.

2. That it is worth mentioning here that when the complainant suffered losses in the year 2013, the complainant approached the bank and requested to allow him to dispose of the project and at that time, the complainant having a prospective buyer of the project of Rs.57 Lacs, but the bank authorities refused the proposal and not allowed to sell the property and when in the year 2015, when the entire project completely demolished and at that time, the said project was sold only for Rs.18 Lacs and the complainant paid the entire remaining amount from his pocket i.e. Rs.19,50,000/-. Now illegally and against the spirit of the settlement, bank officials are threatening to take the possession of the Car bearing No.PB-08-CG-7577 from the complainant and for the reason they have appointed one agency namely A. K. Associates. The complainant had disclosed all the above said explanation, but the bank refused to listen the genuine request and adamant to take the law in their own hands. The applicant sent a representation to the bank under registered cover, copy of the same is attached herewith. The bank has responded the said representation on 14.06.2014 and further denied to issue NOC of the Car. The bank having no right and authority to take the possession of the Car illegally as the complainant has already paid Rs.37,50,000/- in both the account in settlement. The OP acted negligently, provided deficient service. The complainant got harassment in the hands of the OP. The OP acted negligently, because firstly the bank has settled the matter and received the amount of Rs.37,50,000/- in the year 2015 and after one year has been again started demanding amount on account of Car loan. The bank remain mum from year 2015, till June 2016 and now demand is illegal, which is clear cut negligence and deficiency in service on the part of the OP and as such, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OP be directed to make the payment of Rs.1,00,000/- on account of deficient and negligent services and further OP be directed to not recover the possession of the Car illegally and be also directed to pay cost to the complainant, to the tune of Rs.5000/-.

3. Notice of the complaint was given to the OP and accordingly, OP appeared and filed reply, whereby contested the complaint by taking preliminary objections that the present complaint has been filed only to harass the bank officials as they have not towed the line of the complainant and further averred that neither there is any deficiency nor any unfair trade practice as alleged in this complaint and even the complainant is guilty of concealing the material facts from the Forum and further alleged that the complainant does not fall in the category of consumer and thus no such complaint is maintainable and further submitted that any action taken or initiated by Bank under SARFAESI Act cannot be questioned in any proceeding or Court and this complaint is barred under law. On merits, it is admitted that the complainant has obtained two loans, one for dairy and other for purchase of car and further submitted that both loans were independent transactions and given at different times. The installments paid by the complainant were duly reflected in the accounts statement. When the loan became NPA, the OP as per law issued the SARFAESI Notice and also made repeated requests to the complainant to clear the dues, but all in vain and thereafter, the bank had no option, but to proceed under SARFAESI Act and issued notice to complainant and others that in case the dues are not cleared their property would be put to auction. There is no question of any threat issued by officials. On receipt of the said notice the complainant cleared and adjusted his entire due in the dairy loan i.e. the Term Loan and the working capital loan. The complainant paid the total due of Rs.37,00,000/- to the OP and the bank closed the dairy term loan. The complainant paid Rs.19,00,000/- on 17.03.2015 and Rs.18,00,000/- on 18.03.2015. But the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex.C-1 and Ex.C-2 and closed the evidence.

5. Similarly, counsel for the OP tendered into evidence affidavit Ex.OP/A alongwith some documents Ex.O-1 to Ex.O-9 and closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. From the over all circumstances as put before us by the learned counsel for the parties, which shows that the complainant alleged that he has obtained two loans from the OP, one for dairy farming and second for purchase of car, bearing No.PB-08-CG-7577 and further alleged that he has paid the total amount of both the loans i.e. Rs.37,50,000/- and at the time of making aforesaid payment, the bank officials gave assurance that both the cases have been settled i.e. one for dairy farming and other for car loan and then the OP issued only one NOC regarding the dairy farm loan, but NOC of the car loan was not issued to the complainant, despite repeated request rather the officials make a pretext that the same will be issued later on, but inspite of issuing the said NOC of the car loan, the OP demanding remaining loan amount of the car loan and failing which the OP is threatening to take the possession of the car bearing No.PB-08-CG-7577 and further alleged that the bank has no right and authority to take the possession of the car illegally as the complainant has paid the entire loan of both cases i.e. Rs.37,50,000/- and in order to prove the case, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA and one letter sent by the complainant to the OP Ex.C-1 and thereof reply given by the OP is Ex.C-2.

8. On the other hand, the case of the complainant has been refuted by the OP on the ground that there is no deficiency or unfair trade practice on the part of the OP and as such, the complaint of the complainant is not maintainable even the bank has already initiated an action against the complainant under SARFAESI Act and when action under the aforesaid act has been initiated, then the same cannot be challenged in any Court rather the same is barred under the law and further alleged that whatsoever payment has been made by the complainant was duly entered in the loan account and complainant has paid Rs.37,00,000/- not Rs.37,50,000/- and the same is duly account for in the dairy loan account and the same was settled, whereas the car loan is still alive against the complainant and as such, the NOC of the car loan cannot be issued until the remaining loan amount is not paid and as such, the instant complaint is not maintainable.

9. First of all, we like to discuss the legal aspect raised by the OP that whenever action against SARFAESI Act initiated, then the proceeding of the same is barred under the law, but in order to give strength to this submission, the learned counsel for the OP could not able to show any Law even the Act, wherein the proceeding before any Court or Forum is barred and moreover, the proceeding before the Consumer Forum is an additional remedy to the complainant as per Section-3 of the 'Consumer Protection Act' and as such, we do not find any force in the argument of the learned counsel for the OP on this aspect.

10. Furthermore, we have also considered the submission of learned counsel for the complainant and find that the complainant has not brought on the file any receipts, where from we can ascertain that the complainant has also paid the balance amount of the car loan, in the absence of any receipts/documents, it is not possible to accept the oral version of the complainant that he has already paid the car loan amount as well as dairy farming loan, the OP has admitted that the dairy farm loan has been settled as the complainant has paid the outstanding amount and NOC of that loan account has been already issued, whereas some amount is still due in regard to car loan. So, in the absence of any evidence, which is required to produce on the file by the complainant that he has paid the car loan also, but there is no documentary evidence. So, with these observations, we are of the opinion that the complainant could not able to establish the allegation as made in the complaint. So, accordingly, we do not find any force in the argument put forth by learned counsel for the complainant. Therefore, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

15.05.2018 Member President