ORDER

DR. S. M. KANTIKAR, MEMBER

1.      This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1985 against the order dated 19.3.2014 passed in F.A. No. 8 of 2014 by Goa State Consumer Disputes Redressal Commission, Panaji (in short, ‘the State Commission’) whereby the State Commission allowed the appeal of the complainant.

2.      The brief facts are that on 14.5.2004, the complainant, Rajendra Fallari obtained a term loan for a sum of Rs.16 lakh from the petitioner/Corporation Bank for his business by offering security of a plot by equitable mortgage in favour of Bank in respect of plot No. 3 of survey No. 43/0 of Village Aquem Baixo with the house situated thereon.   On 29.2.2008, a sum of Rs.11,14,268/- was due and payable by the complainant to the petitioner/Bank.  Thereafter, Mr. Jaiwant Gaitonde/OP 2, the builder came forward  to develop the mortgaged plot of the complainant.  Accordingly, on 29.2.2008, a tri-partite agreement was executed between the complainant, the bank/OP-1 and Mr. Jaiwant Gaitonde/OP2.    As the entire dues were not paid by the complainant as well as the builder, the opposite party took over the possession of the said plot and auctioned it on 1.12.2009 for  a sum of Rs.39 lakhs.  As per the complainant, the opposite party-Bank recovered the entire dues, which the complainant was liable to pay under the said term loan amounting to Rs.11,19,842/-.  According to the complainant, the OP/Bank ought to have paid to the complainant the entire amount after deducting his loan liability; however, the OP/Bank did not comply with the instructions of the complainant and withheld a sum of Rs.10,06,852/- and committed breach of trust and deficiency in service.  Being aggrieved, the complainant filed a complaint before the District Forum, South Goa for the release of said amount of Rs.10,06,852/- alongwith interest, also Rs.5,00,000/- towards deficiency in service and Rs. 2 lakh towards mental agony. 

3.      The OP/bank filed their written version and submitted that Mr. Jaiwant Gaitonde/OP2 was a proper party to the present complaint because he had paid a sum of Rs.6,85,000/- in the loan account and also incurred expenses of Rs.2,92,000/- towards development of plot; therefore, he was entitled to receive it.  It was further submitted that OP had decided to retain a sum of Rs.10,06,852/- in view of counter claim of Mr. Jaiwant Gaitonde.

4.      The District Forum dismissed the complaint on the ground that a Civil Suit in Margao Civil Court is pending between the OP/Bank and Jaiwant Gaitonde/OP-2.  The District Forum also observed that the loan taken by the complainant from the OP/Bank was for commercial purpose.  Being aggrieved, the complainant filed first appeal before the Goa State Commission.  The appeal was allowed and the State Commission directed the Bank to release a sum of Rs.10,06,852/- alongwith 9% interest from 20.12.2010 till the payment, also awarded Rs. 50,000/- towards compensation and mental agony.  It was further directed to pay Rs. 5,000/- towards cost of litigation and Rs.10,000/- towards cost of appeal, jointly and severally by the Bank and OP-2 to the complainant.

5.      Being aggrieved by the order of State Commission, the OP/Bank filed the instant revision petition.

6.      We have heard the learned counsel for both the parties.  None appeared for respondent No. 2.  He was proceeded against ex parte.  Learned counsel for the complainant submitted that in terms of the Tripartite Agreement, which had also been cancelled w.e.f. 1.12.2008 by Jaiwant Gaitonde/OP-2 himself, there was no obligation on the OP/Bank to pay any amount to OP-2 in any circumstances.  Therefore, withholding such huge amount over Rs. 10 lakhs of the complainant from 20.2.2010 is not justified.  Thus, it was a deficiency in service of the OP/Bank.  Learned counsel for the petitioner/Bank submitted that the OP/Bank was ready to refund the said amount to the complainant, but in view of the counter claim made by OP-2, the bank had decided to retain the amount of Rs.10,06,852/-.  Therefore, there was no deficiency on the part of Bank. 

7.      We have given thoughtful consideration to the arguments advanced by both the parties.  The dispute between the complainant and the OP/Bank was that the OP/Bank retained an amount of Rs.10,06,852/-, out of Rs.27,78,815/-, which was due and payable to the complainant after the complainant’s loan was settled whereas admittedly, OP-2/Jaiwant Gaitonde has made a payment of Rs.6,00,000/- towards the loan account, so also according to him an amount of Rs. 2,92,000/- has been spent by him after the Tripartitte agreement was executed between him, the complainant and the opposite party.  Opposite party has, after deducting the loan liability from the amount received after the auction was completed, deposited the remaining amount in the account of the complainant, except for the amount which is claimed by the said Shri Gaitonde. 

8.      It is not disputed that the civil suit filed by OP-2 in respect of the amount deposited by him in the loan account was pending adjudication before the civil court.  Therefore, in view of the pending civil suit, the District Forum decided correctly that the direction to the complainant to pay a sum of Rs.8,92,000/- to said Gaitonde, does not arise.  Thus, the complaint is not maintainable.  Therefore, in such circumstances, petitioner bank has not committed any error in retaining the amount in question.  The State Commission committed an error in allowing the appeal.  Consequently, the revision petition filed by the OP/Bank is allowed and the impugned order of State Commission is set aside. There shall be no order as to costs.