National Consumer Disputes Redressal
M/S. Citi Communications, vs The Bank Of Rajasthan Limited on 7 May, 2014
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.1572 OF 2011
(Against the order dated
23.2.2011 in Appeal No.1625/2007 of the State Commission, Rajasthan)
1. M/s. Citi Communications,
S.C. Road, Jaipur
2. Shri Arvind Kumar Bhatnagar,
4/221, Mansarovar,
Distt- Jaipur
3. Shri S.C. Verma,
S/o Shri F.C. Verma, Guarantor
M/s. Citi Communications, Jaipur Petitioners
Versus
1. The Bank of Rajasthan Limited
Merged in ICICI Bank,
Regional Manager
Sanjay Gupta Ahinsa Circle, C-Scheme, Jaipur
Through Shri Ramjilal Vijay, Manager
The
Bank of Rajasthan Ltd.
Sindhu
Camp, Jaipur
R/o House No.53/16, Mansarover,
Jaipur
2. Shri B.D. Vijay
S/o Shri Prabhudayal Vijay,
Manager, The Bank
of Rajasthan
Limited, Sindhu
Camp, Jaipur
R/o House No.F-16, Major
Shatan Singh
Colony, Jaipur
3, Shri Surenra Chelawat
D.G.M., The Bank
of Rajasthan Limited,
Stock Exchane
Building,
Malviya Nagar,
Jaipur
R/o H. No.55, Malap
Nagar,
Tonk Road,
Jaipur Respondents
BEFORE:
HON'BLE
MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE
MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mr. Suresh Chandra Verma,
Petitioner No.3 in person and on
behalf of Petitioner
No.2,
For the Respondent(s): Mr.
K. Bhatnagar, Advocate
Pronounced on: 7th May,
2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition, there is challenge to order dated 23.2.2011 passed by State Consumer Disputes Redressal Commisison, Circuit Bench Jaipur, Rajasthan (For Short State Commission) in (Appeal No.1625 of 2007).
2. Brief facts are that Arvind Kumar Bhatnagar-
Petitioner no.2/Complainant No.2 had obtained loan for self-employment to procure one EPABX Unit from the Respondent-Bank in which Petitioner No.3-S.C. Verma/Complainant No.3 was a Guarantor. It is alleged that Bank did not credit the amount in their loan A/c which was paid to the Bank by the Principal Debtor. Respondent mortgaged the Title Deed valued at Rs.4,00,000/-(Rupees Four lacs only) for the loan. Petitioner No.2/Complainant No.2 instructed the Respondent-Bank to sell the EPABX Unit to repay the loan amount completely. Thus, Petitioner no.2 had to incur huge expenditure for the upkeeping & maintenance of EPABX unit. It is further stated that Respondent-Bank had recovered Rs.3,38,055/- from Petitioner No.3 on 14.12.2004 when no amount payable was ever outstanding against the loan dues. The loan dues were finally paid as per agreement by surrendering the loan security of Rs.2,75,000/- to the Respondent-Bank on 9.10.2000. Even then the Respondent-Bank recovered Rs.3,38,055/- from Petitioner no.3 by coersion and force on 14.12.2004. However, Respondent Bank did not return the Title Deed. Therefore, interest @ 14% on Rs.3,38,055/- may be given being the loss sustained for not selling the EPABX Unit, incurring expenditure for its maintenance & upkeeping, Godown rent etc. may be allowed to be given by the Respondent Bank and Rs.10,000/- may also be ordered to be given for litigation expenses plus loss to the petitioner.
3. Respondents in their written statement asserted that petitioners are not consumers. Therefore, they are not entitled to file complaint in the consumer court. It is further stated that respondent had filed recovery suit in the Court of Additional District Judge. This fact has been suppressed by the petitioners. When the recovery suit was pending in Civil Court, the respondent had filed suit before the Debt Recovery Tribunal (D.R.T.) under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is stated that D.R.T. had ordered on 17.11.2004 to take possession of the Guarantors property. The petitioner no.3 as a compromise in writing paid the amount of Rs.3,38,000/- on 14.12.2004 to Respondent Bank. Thereafter, respondent had withdrawn the Recovery Suit. Thus, petitioners have suppressed all such facts.
4. District Consumer Disputes Redressal Forum, Jaipur dismissed the complaint of the petitioners on 25.8.2007.
5. Aggrieved by order of the District Forum, petitioners filed an appeal before the State Commission, which dismissed the same vide its impugned order.
6. Hence, the present revision petition.
7. We have heard the Petitioner No.3 who had appeared in person and also on behalf of Petitioner No.2 as well as learned counsel for the respondent. We have also gone through the written arguments submitted by the petitioners.
8. Petitioners in the entire complaint have nowhere mentioned about the litigation pending before the Civil Court. Nor they have mentioned anything about the proceeding initiated against them, under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
9. District Forum in its order has held;
The Bank has filed a civil suit in the ADJ Court to recover its dues. This fact has been suppressed by the complainant. The bank during the pendency of civil suit in ADJ Court had filed one new case under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 was filed in the Tribunal. Order was passed on 17/11/2004 by the Tribunal to take possession of the hypothecated property and land and building of the non applicant. When the bank was taking possession of the hypothecated property, the Guarantor paid Rs.3,38,055/- demanded by the bank at that point of time. Therefore, the bank had withdrawn the recovery suit Under Order 23 Rule 1 of CPC. The ADJ Court allowed the request of the Bank and dismissed the recovery suit by withdrawal on 14/4/2005. Thereafter, Title deeds were returned to the guarantor. All these facts are suppressed in the complaint filed before the District Forum on 4/5/2005. Therefore, there is no deficiency in service of the Bank parties.
10. The State Commission while dismissing the appeal, in its impugned order observed;
It is clear that the factual dispute is for repayment of the loan which had been decided before on 14.4.2005 by withdrawal order of ADJ Court. The Bank has not recovered the amount by force. The appellant have not been able to prove the deficiency in service of the Bank, therefore appeal is dismissed.
11. Hence, it is apparent from the record, that the petitioners had suppressed the material facts from the District Forum since they did not mention in their complaint that Respondent-Bank had filed a recovery suit against them in the Civil Court. Further, Petitioners had also not mentioned this fact that they had entered into a compromise in writing with the respondents and respondents had withdrawn the recovery suit.
12. It is well settled, that any litigant while approaching any judicial fora has to mention the true and correct facts. Suppression of the material facts will lead to the dismissal of the petition at the threshold itself. Both the fora below have given a finding of fact that petitioners had suppressed the material facts about the earlier litigations pending between the parties. Moreover, as per the facts and circumstances of the case, petitioners do not fall within the meaning of Consumer as defined under the Consumer Protection Act, 1986 (for short, Act).
13. It is well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
14. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 has observed;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.
15. Therefore, we hold that the present revision petition is most bogus and frivolous one, which has been filed just to waste the time of this Commission. Accordingly, present revision petition stand dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
16. Petitioners are directed to deposit the cost by way of demand draft in the name Consumer Legal Aid Account of this Commission, within six weeks from today.
17. In case, petitioner fails to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a., till realization.
18. List for compliance on 4.7.2014.
.J (V.B. GUPTA) PRESIDING MEMBER (REKHA GUPTA) Sg. MEMBER