10.11.2014.

MRIDULA ROY, MEMBER.

The instant appeal is directed against judgment and order dated 09.04.2013 in Complaint Case being No. 197/2012 passed by Ld. District Forum, South 24 Pgs. allowing the same on contest with cost of Rs.15,000/- against the O.Ps, directing the O.Ps to settle the loan account of the Complainant as full and final settlement after receiving the sum of Rs.1,52,023/- from the Complainant within 15 days, further directing the O.Ps to pay compensation to the tune of Rs. 50,000/- towards harassment and mental agony and the cost of Rs.15,000/- within 15 days from the date of the order failing which the total amount of Rs.65,000/- would carry an interest @ 10% per annum from the date of default till realization, fixing liability upon the O.Ps jointly and severally.

Being aggrieved by the impugned order the O.Ps have preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum has no jurisdiction to try the case since the Appellants/O.Ps had issued demand notice under Section 13(2) of the SARFAESI Act, 2002 on 10.06.2006 to the Respondent/Complainant who admittedly defaulted in making repayment of the loan.  The Appellant/O.P. also intimated Parnashree Police Station about issuance of notice under Section 13(4) of the SARFAESI Act, 2002 on 02.02.2012.

Case of the Complainant (Respondent herein), in brief, is that he availed himself of a house building loan sanctioned and issued by the O.Ps to the tune of Rs.4,20,000/- for purchasing a flat which was repayable by Equated Monthly Instalments @ Rs.4,182/- for a period of 18 years.  The Complainant paid the instalments on regular basis but in 2006 failed to pay the instalments due to financial problem for which the O.Ps served a Demand Notice demanding total amount from the Complainant.  Receiving the said Demand Notice the Complainant met the O.Ps and thereafter the parties settled the matter amicably and as per direction of the O.Ps the Complainant paid Rs.50,000/- on 26.03.2008 and, further Rs.50,000/- on 27.03.2008 towards repayment of the loan and thereafter going on making payment of EMI @ Rs.5,113/- regularly.  The Complainant has further stated that all on a sudden on 15.09.2010 the O.Ps over telephone asked the Complainant to pay the EMI @ Rs.10,000/- and the Complainant paid the same since then.

The Complainant met the Branch Manager of the O.P. – Bank on several occasions and demanded the foreclosure statement as he desired to close the loan.  But the Branch Manager did not do the same.  The Complainant subsequently sent two notices to the O.Ps and another notice to the RBI Ombudsmen through his Ld. Advocate.  After receiving the said notices the O.Ps sent a foreclosure notice demanding Rs.1,50,000/- but when the Complainant met the O.P – Branch Manager for depositing the said amount he demanded Rs.10,00,000/- for full and final settlement.  Hence the Complainant filed the petition of complaint praying for directions upon the O.Ps to settle the loan account as full and final, to pay a sum of Rs.20,000/- as litigation cost and other expenses and to pay a sum of Rs.1,00,000/- for mental agony and harassment. 

The O.Ps contested the case and filed W. V. denying and disputing all material allegations stating, inter alia, that the loan, obtained by the Complainant, was scheduled to be repaid by 240 instalments but the Complainant did not pay the instalments as per schedule and, therefore, defaulted in making payment of the same.  However, no decision was arrived at between the parties regarding full and final settlement of the loan although the statement of foreclosure of the loan was supplied to the Complainant on his request and hence, there was no deficiency in service on the part of the O.Ps and for which the petition of complaint should be dismissed. 

In course of hearing of the appeal the Ld. Advocate for the Appellants has submitted that the Complainant obtained the house building loan but defaulted in making repayment of the same and the fact is admitted by the Complainant in his petition of complaint.  Ld. Advocate for the Appellants has further submitted that a demand notice under Section 13(2) of the SERFAESI Act was issued in 2006 and thereafter a letter to the Parnashree P. S. was served regarding the procedure of initiating the action 13(4) of the SERFAESI Act.  In support of his contention Ld. Advocate for the Appellants has filed the copy of demand notice dated 10.10.2006 under Section 13(2) of the SERFAESI Act, 2002 and a copy of the letter dated 02.02.2012 to the Officer-in-Charge, Parnashree Police Station from the Appellants – Bank regarding procedure to be implemented under Section 13(4) of the SERFAESI Act, 2002 which was received by the said P.S.

None was present on behalf of the Respondent.

Now, the moot point is whether the Ld. District Forum was justified in passing the impugned order awarding relief to the Complainant/Respondent. 

Admittedly, the Complainant defaulted in making payment of the scheduled instalments.  To determine the moot point we rely upon the decision of the Hon’ble National Commission reported in 2014 (3) CPR 155 (NC) [Rajasthan Housing Board through Secretary – vs. – Smt. Gyanwati Jain (since deceased) through L.Rs and others] wherein it has been held that the defaulter cannot maintain consumer complaint.  It has been admitted in the petition of complaint that due to financial problem the Complainant failed to pay instalments.  The O.P. – Bank also denied about the alleged settlement between the parties.  The Complainant could not substantiate that both sides arrived at a settlement towards the outstanding dues.  Since the Complainants defaulted there was consequent increase in the outstanding dues.  Moreover, the O.P. – Bank precluded under the provisions of SARFAESI Act. In such view of the matter, we are also opinion that the Complainant – Respondent cannot maintain a consumer complaint.

Moreover, Section 34 of the SERFAESI Act, 2002 provides that “no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellant 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 Institutions Act, 1993 (51 of 1993)” and thus the Consumer Redressal Agencies are barred to try the instant complaint case.

Under the circumstances, we are of opinion that Ld. District Forum was not justified in passing the impugned order.

In the result, the appeal succeeds.

Hence, ORDERED that the appeal is allowed without cost.  The impugned order is set aside.  The petition of complaint is dismissed.