National Consumer Disputes Redressal
Shri Hari Prasad Kabra, vs Dena Bank & Ors. on 13 July, 2012
NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION
NEW DELHI
CONSUMER COMPLAINT NO. 141 OF 2012
Shri Hari Prasad Kabra,
A Senior Citizen, aged 71 years having
his permanent residential address at
Flat No. 24, Mangal
Karini CHS Ltd.,
17th Siddarth
Nagar Road, Goregaon
(West) Mumbai 400 062
Through his P.O.A.
Shri Shashikant J. Kabra
having his office address at
Shop No. D/19, Shanti Shopping
Centre, Opp. Railway Station
Mira Road (E) Dist. Thane 401107 Complainant
Versus
1.
Dena Bank,
2.
Shri Shashikant N. Shetty
3.
Shri Pradep Y. Dethe
4.
Shri K. V. Deodhar
5.
Shri S. T. Mirke
Having its Head Office at
Maker Towers (E), Cuffe
Parade,
Mumbai 0 400 005 and
Branch office amongst others at
Dena Bank,
Mazgaon Branch,
Nesbit Road,
Mazgaon, Mumbai
400 010 Opposite Parties
BEFORE:
HON'BLE
MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HONBLE MR.
VINAY KUMAR, MEMBER
For the Complainant : Mr. Shashikant J. Kabra, Auth. Rep.
Pronounced on : 13-07-2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The principal question is when the Debts Recovery Tribunal is seized of this matter and has passed few orders against the complainant, can this Commission interfere in this matter. Does those orders amount to deficiency on the part of the respondent-Bank.
2. Shortly stated, the facts of this case are these.
In the year 1999, Dena Bank granted loan to one M/s Silverstar Enterprises, a partnership firm, in the sum of Rs.7.75 lakh. Mr. Vijay D. Kabra is the Managing Partner of the firm (borrower). Another partner is Mrs. Nirmala V. Kabra. Mr. Vijay D. Kabra had mortgaged his residential flat as collateral security for the said loan. Shri Hari Prasad Kabra, the complainant in this complaint and Shri Avtar Singh stood guarantors for the said loan. It is alleged that Shri Avtar Singh and the complainant themselves signed the blank documents. Mr. Avtar Singh executed a letter of undertaking on stamp paper of Rs.50/- in favour of the Bank, whereby the said Avtar Singh declared, agreed, undertook and confirmed inter-alia that he is the Co-borrower and guarantor and responsible jointly for payment of loans sanctioned by the Bank.
3. According to the complainant, on 9.7.2002, Mr. Vijay D. Kabra wrote a letter to the Bank and informed the Bank that two flats of the said Co-borrower cum Guarantor were previously mortgaged with G.S.F.C. as collateral securities but now those two flats were lying idle with G.S.F.C. because the liabilities of the G.S.F.C. stood cleared.
The borrower called upon the Bank to take proper steps to take the possession of the said additional two flats, sell those and adjust their sale proceedings in its loan accounts. It appears that the bank did not pay heed to the said request because obviously those flats were not mortgaged with the bank.
4. Ultimately, the Bank filed a case before Honble Debts Recovery Tribunal-II, Mumbai. The Bank claimed a sum of Rs.14,26,484/- plus interest @16.83 %. On 2.4.2009, the DRT allowed a claim of Rs.14,26,484/- with interest @12% instead of 16.53%. Thereafter, recovery proceedings are still pending. Recovery Officer of Debts Recovery Tribunal-II, Mumbai sent a copy of Recovery Certificate to the DRT-II, Ahmedabad for sale of mortgaged flat of the borrower. The Bank also sent a letter to the complainant society calling upon the society not to allow sale or transfer of the said flat without permission of the bank.
5. On 27.10.2010, the recovery officer issued an Attachment Warrant for the complainants flat which was pasted on the door of the complainant flat. On 8.11.2011, opposite party No. 4, Mr. K.V. Deodhar, responsible officer of the Bank, moved an application with affidavit for appointment of opposite party No. 5, Shri S. T. Mirke, officer of the Bank as receiver for the complainants flat, which request was granted. The complainant filed an application against opposite party No. 2 for having committed the offence of giving false evidence in the judicial proceedings on 4.5.2012.
Thereafter, the present complaint was filed with the following reliefs:-
Therefore, the applicant, in view of the above, prays that, (1) this Honble Commission be pleased to hold and declare that the O.P. No. 1 to 5 are guilty of committing deficiencies & defects in the services individually &/or jointly and so this Honble Commission be further pleased to prosecute and punish them as per law, (2) This Honble Commission further be pleased:
(a) to declare that the Complainant is the sufferer because of defects & deficiencies in services committed by Opponents,
(b) to allow the compensation of Rs.1,50,00,000/- (Rupees One Crore Fifty Lacs only) to the complainant on account of such defects and deficiencies in services committed by the O.P. No. 1 to 5 and
(c) To hold and declare that the O.P. No. 1 to 5 are jointly and severally responsible and liable for the payment of compensation of Rs.1,50,00,000/-
(Rupees One Crore Fifty Lacs only ) to the complainant.
(3) Pending this application this Honble Court be pleased to restrain the O.P. No. 2 to 5 from dealing in any of their immovable properties in any manner whatsoever till the time this application is decided on merits or till the time this Honble Commission deems fit and proper, (4) Liberty to add, alter and/or amend this petition.
(5) Any other relief, this Honble Commission deems fit and proper in the interest of justice.
6. We have heard Mr. Shashikant J. Kabra, authorised representative of the complainant at the time of admission hearing of this complaint. As a matter of fact, the authorized representative could not point out any deficiency on the part of the opposite parties. Their performance is covered within the ambit of the provisions of Recovery of Debts due to Banks and Financial Institutions Act, 1993. If they have committed any illegality, the proper course is to file an appeal before the court of Debts Recovery Appellate Tribunal or Mumbai High Court, whatever the case may be. The above said Act is a Special Act and this Commission cannot interfere under the Consumer Protection Act, 1986. The complainant must ventilate his grievance before the appellate court. The Bank is not bound to sell those two additional flats, which have no concern with this case. Those flats are not mortgaged. Moreover, it is the choice of the Bank to recover the property from any of the mortgaged property. In case those flats are lying unencumbered those should be sold by the complainant himself or the borrower and the money of the Bank should be paid immediately. The bankers are proceedings in accordance with the orders passed by the learned DRT. Consequently, the question of deficiency of service on the part of the bankers does not arise.
The complaint is not maintainable, therefore, the same is dismissed.
..Sd/-..
(J.M. MALIK, J.) PRESIDING MEMBER Sd/-.
(VINAY KUMAR) MEMBER Naresh/19