PER MR PREM NARAIN, PRESIDING MEMBER

                The present consumer complaint has been filed by Venkatesh Kumar Jayakumr against the opposite party Federal Bank.

2.     Heard the complainant in person at the admission stage. Complainant has stated that he had applied for SME loan from the Bank on 18.07.2014 and the said loan was sanctioned after a delay of four months. It was argued that under the SME loan, the complainant was entitled to exemption for stamp duty, however, the Bank did not agree for the same for the project and the Bank refused to give the appraisal report, therefore, the complainant could not get the Central Government and State Government subsidies. This has resulted into bad financial condition of the complainant. Therefore, the complainant has filed the present complaint. It has been prayed in the complaint that on account of deficiency in service on the part of the opposite party Bank, the complainant be compensated for an amount of Rs.53,52,805/- along with 14.5% compound interest from 18.07.2015 till payment, in addition to a compensation of Rs.20 lakh.

3.     Complainant has further stated that there is a delay of 1580 days in filing the present complaint. Complainant has stated that an application for condonation of delay has been filed mentioning the circumstances under which the delay has happened. In fact, the complainant had approached the Debt Recovery Tribunal (DRT) on 15.07.2017 where the application of the complainant was dismissed on 31.10.2017. The complainant then approached the Civil Court on 18.12.2017 however, the civil suit was dismissed on 11.12.2019. The father of the complainant had also filed a complaint case before the State Consumer Disputes Redressal Commission, Maharashtra on 11.03.2016 however the same was also dismissed on 15.01.2018. Being aggrieved, the complainant has preferred the present complaint against the opposite party. The complainant also mentioned that there was death in his family and therefore, he could not file the complaint in time. It was prayed that the delay in filing the complaint be condoned and the complaint be decided on merits.

4.     We have carefully considered the arguments advanced by the complainant and have examined record. Though the complainant in his application for condonation of delay has requested only for condoning the delay of 725 days but the complainant has filled the proforma prescribed by the Registry of this Commission wherein the complainant has mentioned that there is a delay of 1580 days from the date of cause of action. From the complaint of the complainant also, it is brought out that the cause of action arose when the Bank did not give the appraisal letter to the complainant and allegedly the complainant could not get the subsidy from the Central as well as from the State Government and this was in the year 2014. In the application for condonation of delay, the following main points are mentioned by the complainant:

• Complainant filed an application before DRT on 15.07.2016 well before the limitation as per section 17 (1) of the Sarfasei Act 2002. The said application was dismissed on 31.10.2017;

• The application filed before the Civil Court Kalyan on 18^th December 2017and this was also dismissed on account of Sarfasei Act 2002 on 11.12.2019 and till today the complainant has not received the copy of judgment of the suit no.330 of 2017;

• The father of the complainant filed a complaint before the Maharashtra State Consumer Disputes Redressal Commission on 11.03.2016, being no.CC/198 of 2016 which was dismissed for non-prosecution on 15.01.2018;

• Complainant has stated that his mother was suffering from various life threatening diseases as mentioned below. She was constant under treatment from 29.01.2015 when she was admitted as she had gone into coma. But by god’s grace she came back to senses within ten days. But however, cause of her going in coma was not detected till 07.02.2015. She remained in Apex Hospital, Kalyan. She was suffering from Diabetes. Further Hip replacement was done in July 2012 and 2013 so she is handicapped and her movement is difficult.

• Further, the bank was conducting recovery proceedings for which I had to attend the court had made remark that I should engage proper lawyer to defend the case. But it was impossible as I had no means of raising finance as my cibil records and that of my son was destroyed due to bank’s action. No humanitarian attitude was shown and bank refused to accept its error.

• The complainant also attended to civil suit against the bank to get stay order to stop the bank from selling my properties. The suit was not heard properly and was delayed till August 2019 when suddenly in just 4 sitting the judge came to final argument and final judgment on December 11, 2019. Later on we came to know that the said judge was transferred in the same court but to another Bench so she had hurried up to complete the judgment which is questionable”.

5.     It is seen from the above that the complainant had already approached the different available forums for redressal of his grievances against the bank. The complainant had already approached the DRT on 15.07.2016 and his application was dismissed on 31.10.2017. The complainant then approached the Civil Court on 18.12.2017 and the suit was dismissed on 11.12.2019 due to proceeding under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI). The complaint’s father had filed a consumer complaint before the Maharashtra State Consumer Disputes Redressal Commission on 11.03.2016 which was also dismissed for non-prosecution on 15.01.2018. The appeal filed against this order was also withdrawn, therefore, the order of dismissal has become final.

6.     Though section 3 of the Consumer Protection Act, 1986 provides alternative remedy but if a person has already availed the remedy under the relevant Act, he cannot again come to a consumer forum and seek redressal of the same grievances for which he had earlier gone under the relevant Act.  We are taking this view on the basis of the decision of this Commission in case of M/s Manas Constructions vs L & T Finance Ltd., and Anr., decided on 10^th October 2017 in FA no. 1621 of 2016, wherein the following has been observed:

I fully agree with the observation of the State Commission that the complainant cannot proceed under two Acts for the same grievance. It is true that Section 3 of the Consumer Protection Act envisages proceedings under the Consumer Protection Act as an additional remedy but it is clear that a person cannot proceed under two legal authorities under two different Acts for the same relief. Both the judgments relied upon by the learned counsel for the appellant seem to be inapplicable in the circumstances of the present case, as in those judgments, the arbitration proceedings, was not initiated whereas in the present case, the complaint has been filed during the pendency of the arbitration proceedings. Both the  referred judgments only provide that in spite of the arbitration clause in the agreement, the proceedings under the Consumer Protection Act, 1986 are maintainable.  As the proceedings under Arbitration Act are already going on, the proceedings under Consumer Protection Act, 1986 cannot proceed simultaneously. This Commission has already decided this issue in number of judgments as mentioned below:

(i)   M/S. Magma Fincorp Ltd Vs Gulzar Ali, RP 3835 of 2013 decided on 17.04.2015,this Commission held as follows:-

 “It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred”.

(ii)   Similar view has been taken by this Commission in the following other cases:

1. Beverly Park Maintenance Services Ltd Vs Kashmir Fab Styles Pvt. Ltd., II (2014) CPJ 109 (NC);
2. T. Srinivas & Anr Vs Srija Constructions, I (2016) CPJ 552 (NC) and
3. Vishnu Chandra Sharma Vs Sriram finance company ltd. & Anr, III (2017) CPJ 211 (NC).

7.     From the complaint and from the application for condonation of delay, it is clear that the Bank has already taken the possession of the house of the complainant under the SARFAESI Act and the suit for restraining the Bank from selling this house has also been decided. Once the proceedings under the SARFAESI Act have been started, this Commission does not have the jurisdiction to entertain the complaint against the Bank as observed by this Commission in RP no.4196 of 2014 – Chief Manager, Bank of Baroda vs Prabir Chaki and Anr., decided on 20^th July 2015 (NC) as under:

This is a case where the account of the Respondents/ complainants Mr. Prabir Chaki and his wife Mrs. Suparna Chaki, was declared N.P.A. in accordance with the guidelines of the R.B.I. and the notice was issued under the SARFAESI Act on 10.11.2006.  This is well settled that the Consumer Fora have got no jurisdiction wherever the SARFAESI Act is applicable.  The Hon’ble Supreme Court while affirming the observation of this Commission in case of “Yashwant G. Ghaisas & Ors. Versus Bank of Maharashtra” in Civil Appeal No. 1359 of 2013 decided on 01.03.2013, was pleased to hold:-

“The appellants challenged the action of the bank by filing a complaint under Section 21 of the Consumer Protection Act, 1986 (for short, the 1986 Act).  The National Commission referred to Section 34 of the 2002 Act whereby jurisdiction of all Courts and authorities to entertain challenge to the action taken by the bank has been ousted and dismissed the complaint by recording the following observations:

 “19.   The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of debt recovery tribunals.  This matter is purely covered within the jurisdiction of DRT or DRAT.  If there is any grievance against the notice under Section 13(2) of the SARFAESI Act that should be brought to the notice of the concerned authority.  It is well settled that main creditor and the guarantors are equally responsible.  There lies no rub for the bank to take action against the guarantor directly.  It cannot be alleged that he is adopting the policy of pick and choose.  From the allegations stated above, there appears to be no deficiency on the part of the opposite party.  In case the bankers are working within the ambit of SARFAESI Act, it cannot be said to be deficiency on the part of the bank.  It must be established that there is deficiency on the part of the bank.  In that case this commission can take action. For the reasons stated, the complaint is dismissed at the stage of its admission. Nothing will preclude the complainants from approaching appropriate forum as per Law.”

           (reported from the SLP paper book)”

8.     Thus, we find that the complaint filed by the complainant cannot be admitted on three counts. The first is that the complaint is highly time barred as the cause of action arose in the year 2014 and the complaint has been filed on 17.02.2020. From the application for condonation of delay, it is also clear that the DRT rejected application of the complainant on 31.10.2017, and the civil court dismissed the suit on 11.12.2019 whereas the State Commission also dismissed the complaint filed by the father of the complainant on 15.01.2018. It is not the case of the complainant that he approached the wrong forums for the remedy of his grievances as in that case, the time taken in other forums could have been condoned under section 14 of the Limitation Act. After dismissal of his complaints filed before the DRT and the State Commission as well as the Civil Suit, the complainant is searching another forum for redressal of his grievances. Thus, such a huge delay cannot be condoned.

9.     Another reason for not admitting the complaint is that the complainant has already availed the other legal provisions available for redressal of his grievances and when he did not succeed there, he is trying to avail the benefit of section 3 of the Consumer Protection Act, 1986. In this regard, we rely on the decision of this Commission in M/s Manas Constructions vs L & T Finance Ltd., and Anr., (Supra). Moreover, when the matter has been decided by the Civil Court, decision of the Civil Court between the parties will operate as res judicata for the present complaint.

10.   The third reason for not accepting the present complaint is that the complaint is not maintainable before this Commission as the complainant has already availed the remedy by approaching the DRT and as the opposite party has already resorted to action against the complainant under the SARFAESI Act and as held by this Commission in Chief Manager, Bank of Baroda vs Prabir Chaki and Anr  (Supra) that this Commission does not have jurisdiction to entertain the complaint on the same set of facts for similar reliefs against the opposite party.

11.   Based on the above discussion, we are of the view that the present complaint cannot be admitted. Accordingly, CC no. 251 of 2020 is dismissed in limine.