State Consumer Disputes Redressal Commission
The General Manager,Sbt vs Manikatan Nair, on 5 May, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Complaint Case No. CC/10/13 1. Manikandan Nair ...........Complainant(s) Versus 1. State bank of Travancore ............Opp.Party(s) BEFORE: HON'ABLE MR. JUSTICE JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT PRESENT: ORDER
KERALA STATE CONSUMER DISPUTED REDRESSAL COMMISSION VAZHUTHACAD, THIURVANANTHAPURAM
IA.1312/11 in CC.13/2010
ORDER DATED : 5..5..2012
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
1. The General Manager, : PETITIONERS
State Bank of Travancore,
Poojappura Branch, Trivandrum.
2. The Branch Manager,
NAC Branch, State Bank of Travancore,
Poojappura, Thiruvananthapuram.
(By Adv.R.S.Kalkura)
Vs.
Manikatan Nair, : RESPONDENT
S/o Sukumaran Nair,
Proprietor, M/s Paliyodu Kasthuri Farms,
Vilappilsalai,
Thiruvananthapuram.
(By Adv.Vembayam A.A.Hakkim)
ORDER
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The application filed by the opposite parties/State Bank of Travancore contending that the complaint is not maintainable before this Commission. The affidavit filed in support of the application it is mentioned that the complainant cannot be treated as a consumer as he has availed loan/financial service for establishing a commercial livestock farm which has to be conducted with tipper lorry, jeap and several workers. It is also contended that the opposite party has already initiated proceedings before the DRT, Ernakulam as OA 140/10 for realisaiton of an amount of Rs.61.22 lakhs on 12.3.10. The present complaint has been filed only to defeat and delay the recovery proceedings initiated by the bank. The date of complaint is 17.5.10 which is subsequent to the date for filing of the complaint before the DRT. The complainant cannot claim disbursement of the balance loan amount after the expiry of the project period and after the loan account has become NPA. The opposite party cannot disburse the loan after part of the loan has been classified as NPA. The complainant can raise his contentions by way of counter claim before the DRT.
2. The respondent/complainant has filed objection pointing out that the Commissioner appointed by this Commission has already visited the farm and filed report. It is also contended that the complaint is with respect to the non disbursement of the balance amount of the loan and hence complaint is maintainable. The opposite parties has withheld the balance loan amount on the ground of the alleged non utilization of the funds disbursed and also on the ground illegal sand mining at the site. The question in issue is whether the opposite party functioned as per the provisions of the facility as agreed between the complainant and the opposite party. The subject matter in DRT, Ernakulam and the question in issue before this Commission is entirely different. The opposite party has transferred the loan account into NPA without any valid reason. It is also contended that a similar petition filed earlier has been rejected by this Commission.
3. We find that in the version filed itself opposite parties have contended that the complainant is not a consumer within the meaning of the Consumer Protection Act as the loan has been provided for establishing a commercial livestock farm which has to be conducted with tipper lorry, jeep and several workers. What is sought to be established is the integrated commercial live stock farm. We find that in the complaint also what has been mentioned is that the above said agro farm with echo tourism project was commenced by the petitioner under the financial assistance of the opposite parties. The sanctioned agricultural loan is a sum of Rs.86 lakhs with the agricultural credit limit of Rs.10 lakh totally amounting to Rs.96 lakhs. Rs.43,48,000/- has been disbursed with the last disbursement on 18.2.08.
4. The counsel for the complainant has relied on the decision in Supreme Court in MD, Maharashtra Financial Corporaiton Vs. Sanjay Shankarasa Mamrade AIR 2010 SC 3534. We find that the issue of the maintainability as to whether the complainant is a consumer was not at all considered in the above matter. Therein also the matter involved a loan for a commercial enterprise. Therein the question as to whether the complainant was a consumer was not raised. Further the matter before the Supreme Court was in civil appeal in the year 2002 which is prior to the 2002 amendment to the CP Act which came into effect on 15.3.03. Another decision relied ie Standard Chartered Bank Ltd. vs. Dr.B.N.Raman 2006 5 SCC 727. We find that therein the complainant was a non resident Indian and the question of commercial purposes was not considered.
5. On the otherhand on behalf of the petitioner/opposite party the decision in Shushma Goel Vs. Punjab National Bank 2011 STPL (CL) 797 NC was relied . Therein the National Commission has held that the current account maintained by a commercial organization for commercial purpose would not attract the provisions of the CP Act. Evidently in the instant case the complainant cannot be treated as a consumer attracting the explanation to Section 2(1)(d) that commercial purposes does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. It has to be noted that the complainant has described the project as an agro farm with echo tourism project. The Amendment Act 62/02 which came into effect on 15.3.03 has expressly excluded from the definition of consumer a person who avails such services for commercial purposes. In the light of the above we find that the complainant cannot be treated as a consumer.
6. Further more admittedly the matter is pending before the DRT vide the SARFAESI Act. The counsel for the petitioner has relied on the decision in Punjab National Bank vs CDRF 2011 (3) KLT 616 wherein the High Court has made it clear that the jurisdiction of the CDRF to deal with the matters provided for in the SARFAESI Act is expressly excluded and that the same is hit by Section 34 of the Financial Assets and Enforcement of Security Interest Act 2002(SARFAESI Act.). The High Court has relied on the earlier decision of the High Court and Supreme Court in this regard viz Mardia Communications Ltd and others Vs. Union of India and others 2004 IV SCC 311, Transcore Vs.Union of India and another 2008 I SCC 125, Union Bank of India vs. Satyawati Tendon and others, 2010 (8 )SCC 110. In this regard also we find that the complaint is not maintainable. Ofcourse the complainant has contended that the issues involves are different. But we find that a discussion on the point does not arise as the matter can be considered in the proceedings before the DRT which has been filed earlier to the present complaint filed before this Commission.
7. It was also to be noted that there is no considered order in any petition in the present proceedings with respect to maintainability.
In the result the petition is allowed. We find that the complaint is not maintainable before this Commission. The period of pendency of the present proceedings is not to be counted towards the period of limitation in case the complainant initiate any civil proceedings in this regard. In the result petition is allowed. The complainant may take back the complaint for filing before the competent court.
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT ps [HON'ABLE MR. JUSTICE JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT