ORDER

Order No.                 .

Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

             On detailed study of the complaint and written version it appears that undisputed fact is that the complainant purchased one house after taking loan from the OP.  Thereafter time to time complainant paid some EMIs but ultimately figure of the outstanding dues was high and finding no other alternative complainant surrendered the mortgaged property in favour of OP for its disposal on 07-07-2005 but on the other hand continue to pay EMIs to OP @13,000/- month by month and subsequently finding no other alternative for financial stringency virtually complainant surrendered the property on 07-07-2005 and subsequently on 16-08-2007 complainant requested the OP for adjustment of the entire loan amount after selling or disposing of the mortgage property but almost after two years of surrender of mortgaged property by complainant for its disposal the OP issued a notice dated 10-07-2007 u/s.13(2) of Sarfaesi Act, 2002 and started recovery process as per the said Act and OP took physical possession of the mortgaged property with effect from 07-12-2007.  But even after that OP Bank agents recovered more amount from the complainant forcibly and threatened the complainant to face dire consequences if balance loan amount would not be paid.  But in fact, complainant was illegally forced to pay further amount when the said property had already been sold by the banking authority for realization of outstanding dues and such an act on the part of the OP is no doubt unfair trade practice and at the same time negligent manner of service for which complainant by filing this complaint has prayed for to decide that there is no outstanding dues and prayed for relief.

            On the contrary, OP by filing written statement submitted that complainant took loan time to time by mortgaging property in favour of the complainant and complainant executed acknowledgement deeds dated 16-12-2009 admitting its balance outstanding liability to the debt in favour of the OP Bank for sum of Rs.13,38,570/- upto 16-12-2009.  And in fact, complainant during continuation of the transaction took several amount of loan and OP sanctioned and disposed it but for non-payment of outstanding loan the said loan amount was declared as another performing assessed on 31-03-2007.  Finally, OP issued notice u/s.13(2) of Sarfaesi Act on 10-09-2007 for payment of outstanding amount of Rs.12,61,391-86/- within 6 days from the date of this notice but in spite of complainant’s failure to repay the outstanding loan, accordingly by selling out the mortgaged property at a price of Rs.13,05,000/- and by handing over the same to the successful purchaser Smt. Mala Devi Agarwal vide letter dated 20-05-2011 said dues were recovered and further it was submitted that OP is entitled to Rs.5,99,106-86 p from 16-04-2012 and further this case is not maintainable in the eye of law for which the complaint should be dismissed.

Decision with Reasons

On proper consideration of the entire materials on record including the fact of taking action as per provision of Sarfaesi Act and also the written version of the OP Bank it is clear that for  outstanding dues of Rs.12,61,391-86 the mortgaged property was sold at a sum of Rs.13,05,000/-.  So, considering that fact and after calculation it is found that after sale of the property a sum of Rs.43,609/- was found excess which was in the custody of the Bank and fact remains that the possession of the property was taken by the OP on 07-07-2005 but it was shown that physical possession of the mortgaged property was taken with effect from 07-12-2007.  So, apparently it is found that there is no outstanding dues at all when OP took possession of the property as per Sarfaesi Act on 07-123-2007 and fact remains that the property was handed by the OP admittedly on 20-05-2011.  Then it is clear that OP Bank even after taking possession of the property on 07-12-2007, did not sale the property forthwith but waited about for four years and it was completely laches on the part of the OP Bank but even then after calculation of the entire outstanding amount and the sale price of the sold out mortgaged property it is clear that balance amount of Rs.43,609/- was in the hand of the OP Bank. So, apparently it is proved that OP has been claiming much amount by showing outstanding but it is not at all valid in view of the fact that laches was on the part of the OP for selling the same forthwith after taking possession of the mortgage property on 07-12-2007 and for such laches invariably the complainant shall not have to pay further interest.  But on the other hand, it is proved that in respect of present loan account entire claim of the OP in fact is satisfied after sale of the property at a market price of Rs.13,05,000/-.  So, anyhow the Bank cannot claim any further amount from the complainant but fact remains in the hands of the OP an excess amount of Rs.43,609/- is still in their custody and invariably complainant is entitled to get back the same.  And anyhow the complainant is not liable to pay any further amount to the OP Bank when Sarfaesi proceeding is closed finally.  So, the claim of the OP Bank that further outstanding is not at all legal and valid and for which we are of opinion that the OP Bank should not disturb the complainant by any means or to harass by any means  because on the basis of Sarfaesi Act present entire decretal amount of Rs.12,61,391-86p had been recovered after selling the property at a sale price of Rs.13,05,000/- and for which further claim of the complainant is completely uncalled for and for which the present case should be disposed of finally.

            Fact remains Sarfaesi Proceeding has been disposed of.  Then there is no question of claiming further amount from the OP and such an act on the part of the OP is completely bad in law and another factor is that when as per Sarfaesi Act the action has already been taken and property had already been sold and excess amount of Rs.43,609/- is in the hand of the OP, OP cannot claim any further interest after delivery of the possession of the property to the auction purchaser and outstanding amount had already been satisfied.

            In this case, it was argued by the Ld. Lawyer of the OP when proceeding under Sarfaesi Act was started against complainant this court has no jurisdiction.  But it is to be mentioned that Sarfaesi proceeding had already been completed in the year 2011.  So, after disposal of the Sarfaesi proceeding the present OP cannot claim any further interest over the said amount and when the entire amount up to taking delivery of the possession of property had been satisfied.  In the result we are allowing the present complaint in part.

Hence,

Ordered

That the complaint be and the same is allowed on contest but without any cost against OP and it is ordered further that OP Bank has no legal right to realise any further amount from the complainant but excess amount of Rs.43,609/-(Rupees Forty three thousand six hundred nine only) is in the hand of the OP.  As per law OP is bound to refund the same to the complainant with interest with effect from 20-05-2011.

            Both parties shall be guided by the order of this Forum in respect of future perspective and both parties shall have to comply this order very strictly and if it is not complied in that penal action shall be taken against OP Bank.