Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P Act, 1986 has been filed challenging the judgment and order No. 37 dated 24.01.2017 passed by the Ld. District Forum Kolkata Unit—I (North) in Complaint Case No. CC/10/426 dismissing the complaint on contest without cost.
The fact, in brief of the complaint was that the Appellant/Complainant, with a view to purchasing a flat, obtained a loan of Rs. 3,00,000/- from the Respondents/Ops, repayment of which was to be made in 240 monthly instalments each of Rs. 2821/-. Further, as alleged, the repayment was to be made through ECS mode and the Appellant/Complainant had to submit some signed documents along with some signed, undated blank cheques to the Respondent/OP Bank. Subsequently, it came to the knowledge of the Appellant/Complainant that the Respondent/OP Bank Authority was deducting instalments at the rate of Rs. 3182/- instead of Rs. 2821/- from her Bank Account. The Appellant/Complainant objected to the deduction of an enhanced amount of monthly instalment and instructed the Respondent/OP Bank not to place any comment for deducting ECS for instalments in excess of Rs. 2821/- and not to deposit any of the remaining signed, undated blank cheques towards the recovery of Bank dues.
The Respondent/OP Bank, however, in spite of being persuaded by the Appellant/Complainant for many a times, did not furnish any Bank statement in respect of the said loan and stopped collecting the monthly instalments, allegedly, with an ulterior motive of increasing the financial burden of the Appellant/Complainant and thereby reaping more benefit for their institution. There being no way apparently visible to be bailed out from the prevailing impasse, the Appellant/Complainant chose to file first before the Ld. District Forum 24 Parganas (North) a Complaint Case under No. 137 of 2009 praying for a direction upon the Respondent/OP No. 2 to start collecting EMIs at the rate of Rs. 2821/- immediately.
At this critical juncture, when the Ld. District Forum had already issued notices to the Respondents, The Appellant/Complainant came to know from a written communication dated 31.05.2009 of the Respondent/OP Bank, received by him on 10.09.2009 through one Mr. Saptarshi Banerjee who claimed himself to be the authorized representative of the Respondent/OP No. 3 that the said Bank had already assigned through right/obligation in favour of Respondent No. 3. It was advised therein that thenceforward the Appellant/Complainant should pay all the dues directly to the Respondent/OP No. 3.
Instant Complaint was accordingly filed before the Ld. District Forum Kolkata Unit—I making the Respondent/OP No. 3 a necessary party with the 10 point prayers as it would reveal from the prayer part of the complaint.
The dismissal order of the said complaint which had been put under challenge in the instant Appeal originated from the said Complaint Case.
Heard Ld. Advocates appearing on behalf of all sides.
The Ld. Advocate appearing on behalf of the Appellant/Complainant, briefing the subject matter of the complaint, drew the notice of the Bench to running pages 25 and 26 to substantiate his statement about the fact that the issue was related to a home loan for Rs. 3,00,000/-repayable in 240 instalments within a span of 20 years. It was also contended that the rate of interest of the subject loan was a fixed one of 10.25%. Unfortunately the Respondent/OP Bank without giving due regards to the agreed rate of interest, applied a higher rate while deducting EMI which was enhanced to Rs. 3182/- from that scheduled primarily at Rs. 2821/-. As he continued, the Respondent/OP Bank did not hand over to her the agreement for sanction of the loan, nor did it deliver the receipt of acknowledgment of the cheques and Title Deed, she deposited with the Respondent/OP Bank.
As he maintained, knowing the fact that the Respondent No. 3 had taken over the liabilities of the Respondent/OP Bank in respect of bad debt through the communication made by the Respondent/OP Bank dated 10.09.2009, the Appellant/Complainant, started repayment through cheques to the Respondent No. 3 as communicated in the said letter. As he continued, this was the reason behind the fact for making the Respondent No. 3 a party to the Appeal although it was not a party to the Complaint Case.
It was informed that altogether 18 repayment cheques were handed over to the Respondent No. 3 out of which only 12 cheques were encashed. It was, therefore, apparent that the incompetence of the O.P No. 3 towards realizing the loan through encashment of cheque actually stood in the way of her steady repayment.
It was unfortunate, as the Ld. Advocate continued, that the Respondent/OP without appreciating the fact of the Appellant/Complainant’s positive approach for repayment of the loan amount, declared the loan as NPA and proceeded against the Appellant/Complainant under SARFAESI Act, 2002.
The Ld. Advocate concluded with his prayer for allowing the Appeal setting aside the impugned judgment and order.
Ld. Advocate appearing on behalf of the Respondent/OP Nos. 1 and 2 submitted that the loan was sanctioned not solely in the name of the Appellant/Complainant. Drawing notice of the Bench to running pages 26 and 27, the Ld. Advocate submitted that there was a co-borrower namely, Sri Sudip Sarkar.
As he continued, running page 25 revealed further that the rate of interest was floating. The EMI amount, therefore, had every reason to vary and that was exactly what had happened on the instant occasion.
Contradicting the contents of the letter at running page 34, the Ld. Advocate pointed out that instruction for not deducting the EMI at a higher rate of interest as communicated in the said letter by the Appellant/Complainant was contrary to the loan agreement and, therefore, an unauthorized one.
The loan instalment, because of the above instruction of the Appellant/Complainant, could not be deducted and the Appellant/Complainant became defaulter for obvious reasons and the loan Account was classified accordingly as NPA.
The Ld. Advocate drew the notice of the Bench to running page 96 being the copy of the agreement executed between the Respondent/OP Bank and Asset Restructuring Company (India) Limited (ARCIL), the Respondent No. 3, by which the said company purchased all the liabilities of the bad loan in respect of the Respondent/OP Bank. As submitted, the Appellant/Complainant, in the light of the above, was no longer a consumer in respect of the Respondent/OP Bank. As she continued, the prayer part of the complaint also revealed that reliefs were claimed from the Respondent No. 3.
It was brought to the notice of the Bench that in all 16 number of cheques were issued to ARCIL and not 18 number of cheques as claimed. The case was also not maintainable in view of the fact that proceedings under SARFAESI Act, 2002 was already initiated against the Appellant/Complainant and symbolic possession of the property was taken over under Section 13 (4) of the said Act.
With the submission as above, the Ld. Advocate prayed for the Appeal to be dismissed.
Ld. Advocate for the Respondent No. 3 submitted that Respondent/OP Bank, through the agreement it had entered into with the Respondent No. 3, transferred its liability of the bad loan Accounts to the Respondent No. 3.
As submitted, a Complaint Case on the same issue was initiated at the Ld. District Forum North 24 Parganas, Barasat. The Appellant/Complainant did not divulge the matter while filing the instant Complaint before the Ld. District Forum, Unit—I Kolkata. The matter, admittedly, was communicated to the Appellant/Complainant.
The Ld. Advocate impressed upon the Bench about the Complaint having no merit on the point of its maintainability in view of the fact that the issue was being proceeded under SARFAESI Act, 2002.
In support of his pleadings, the Ld. Advocate went on to cite the decision of the Hon’ble National Commission in CC No. 74/2012 [Shivshankar Lal Gupta—Vs.—Kotak Mahidra Bank Ltd.] reported in MANU/CF/0046/2013 wherein the Hon’ble Commission dismissed the complaint on the ground that the proceeding under SARFAESI Act, 2002 was initiated against the issue.
He further cited the decision of the Commission in SC Case No. RP/162/2012 where this Commission had observed against entertaining a matter under C.P Act, 1986 which was already under proceeding of the SARFAESI Act, 2002.
Ld. Advocate concluded with the prayer for dismissal of the Appeal.
We have gone though papers on record and considered submissions of the Ld. Advocates appearing on behalf of all sides.
Before considering the other points highlighted by the Ld. Advocates on behalf of the parties, we intended to finalize the point on which the maintainability of the complaint was challenged.
It appeared from the case record that the Respondent No. 3, after the loan being classified as an NPA, had already resorted to the legal process initiating and proceeding against the Appellant/Complainant under SARFAESI Act, 2002.
It appeared further from the record that the notice under the said Act under Section 13 (2) was issued against the Appellant/Complainant. The said notice was treated with indifference as the Respondent/Complainant chose not to respond to it. Naturally, the notice under Section 13 (4) ibid was issued in connection with the matter.
We felt that the Appellant/Complainant might have better ventilated before the DRT her grievance against the alleged inactions on the part of the Appellant/OP Bank and the Respondent No. 3 what she had pointed out in the instant Complaint Petition. Section 34 of the SARFAESI Act, 2002 reads, “No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institution Act, 1993.”
Since there is legal bar to entertain any complaint already under proceedings of the SARFAESI Act, 2002, we felt that our hands are tied so far as the hearing and adjudication of the instant issue are concerned.
The maintainability point thus being gone against the complaint, we refrain from making any comment on other issues. It is accordingly felt that the impugned judgment and order should be left uninterferred with.
Hence,
Ordered
that the Appeal be and same stands dismissed. Impugned judgment and order stands affirmed. No order as to costs.
