State Consumer Disputes Redressal Commission
Jila Sahkari Krishi & Grameen vs Gyani on 23 July, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.FA/12/12
Instituted on 11.01.12
Jila Sahkari Krishi & Grameen
Vikas Bank Ltd., Ambikapur,
Branch - Pratappur,
Dist. AMBIKAPUR (C.G.) ... Appellant.
Vs.
Gyani, S/o: Shri Indal,
R/o: Village - Kerta, Tah. Pratappur,
Dist. SURGUJA (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Rakesh Shukla, for appellant.
Shri Sanjay Dadsena, for respondent.
ORDER
Dated: 23/07/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 12.12.2011, passed by District Consumer Disputes Redressal Forum, Surguja - Ambikapur (hereinafter called "District Forum" for short) in complaint case No.36/2009, whereby the complaint of the respondent against the appellant Bank alleging deficiency in service and unfair trade practice and claiming Rs.3,98,726/- as cost of tractor and trolley which were seized by the appellant was allowed in part and the appellant herein has been directed to pay Rs.2,48,346/- to the respondent along with interest @6% p.a., compensation for mental agony Rs.5,000/- and cost of litigation Rs.1,000/-.
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2. Indisputably on 23.05.02 a loan of Rs.3,42,000/- was granted by the appellant Surguja District Cooperative Agriculture and Rural Development Bank, to the respondent / complainant for the purpose of purchase of tractor, trolley, casewheel and cultivator. The loan was to be repaid in a period of 9 years and the annual installments were of Rs.67,893/-, which was payable up to 31st January every year. It is also not in dispute that the complainant paid Rs.87,346/- as down payment for purchase of tractor and trolley bearing Nos.CG-15-A-0954 and CG- 15-A-0956, respectively along with case-wheel and cultivator. Such tractor and trolley were seized by the appellant on 31.03.06 and thereafter were returned to the complainant on 11.02.06, when he deposited Rs.25,000/- with the appellant Bank. But on 15.05.06, again the tractor and trolley were seized and were ultimately sold on 28.06.06 in auction sale at the cost of Rs.1,75,000/-.
3. Allegation of the complainant against the appellant Bank was that he was paying regular installments to the appellant Bank, which were accepted by the Bank, but even then without any reason, the tractor and trolley were seized and sold by the Bank, which comes in the category of deficiency in service and unfair trade practice. Complaint was made by the appellant to the Collector Surguja- Ambikapur in this regard and the said Collector after holding inquiry directed the Bank to return the tractor and trolley on 11.02.2006, so on // 3 // payment of Rs.25,000/- it was returned. As the tyres, tubes and some other parts of the tractor and trolley were rusted and became waste, so the complainant was required to spent Rs.1,00,000/- on repairs of the tractor and also he was to suffer loss of Rs.50,000/- in his agricultural operations, but even then the appellant again seized the tractor and trolley and sold it. It has also been averred that even thereafter the appellant is trying to recover Rs.2,00,000/- more from the complainant, which again comes in the category of deficiency in service and unfair trade practice. It has been averred that the recovery notice was sent one week before the date of filing of complaint before District Forum i.e. 04.03.2009, so the cause of action accrued on that date and so the complaint was filed before District Forum.
4. The complaint was resisted by the appellant Bank by making averments that the complainant was a chronic defaulter and had failed to pay installments in time, so as per the provisions of the Chhattisgarh Cooperative Agriculture and Rural Development Bank Act 1999, Section 23, the tractor and trolley were seized and were sold as per the provisions of law. In such sale the provisions of law were followed and so, no deficiency in service has been committed. It has also been averred that the matter of dispute is between the Cooperative Society and its Member, so is not trialable by the District Forum.
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5. Learned District Forum by the impugned order found that the complainant is a 'consumer' of the appellant Bank and the District Forum was having jurisdiction to entertain and decide the complaint. It has also been held that the appellant Bank committed deficiency in service and unfair trade practice in seizing and selling the tractor and trolley in question and therefore by the impugned order directions were passed for payment of compensation.
6. We have heard arguments advanced by both parties and perused the record of the District Forum.
7. From the record of the District Forum, it appears that the appellant Bank made an application Annexure D-7 before the District Registrar of Cooperative Societies, Ambikapur, which is a Court constituted under the provisions of Chhattisgarh Cooperative Societies Act 1960. In that application, prayer was made for issuance of distraint order in respect of property of the complainant, which was mortgaged with the appellant Bank. This document bears seal impression and signature of the District Registrar of Societies and there is printed order in which the Sub-registrar has passed order regarding attachment of the property and their sale for recovery of amount of Rs.54,333/- as prayed by the Bank. Overleaf entries of the order shows that the order was passed on 15.01.04 and Sale Officer was appointed, // 5 // who issued letter of demand to the complainant and directed to pay the demanded amount along with interest and expenses for attachment within 10 days from the date of issuance of notice and it bears signature of the complainant. Thus, from this document it is clear that the property in question was attached under the orders of a competent Court having jurisdiction under the provisions of Chhattisgarh Cooperative Societies Act 1960. Section 64 of the Act of 1960 confers jurisdiction with the Registrar in respect of disputes between the Society and its Members for recovery of amount and between Creditors and Debtors of the Society etc. and a dispute shall include "a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not."
8. From the aforesaid provision, it is clear that the Court of the Registrar of Cooperative Societies was having jurisdiction to entertain and decide the disputes between the member of the Society and Cooperative Society as well as the Bank. Document D-6 is a photocopy of the case prepared under section 23 of the Chhattisgarh Cooperative Agriculture and Rural Development Bank Act 1999. This section is in respect of 'distraint when to make'. Section 24 is in respect of 'distraint how to make' and thereafter section 26 is in respect of sale of property etc. Section 23 provides that "if any instalment or any part // 6 // thereof payable under the security furnished in favour of the State Development Bank or a District Development Bank has remained unpaid for more than one month from the date on which it fell due, the State Development Bank or the District Development Bank may in addition to any other remedy available to it, apply to the Registrar for recovery of such instalment or part thereof by distraint and sale of the produce of the land or products to which the security relates, including standing crops thereon and other movable property of the defaulter".
9. Thus, it is clear that the Bank was competent for making an application under section 23 of the aforesaid Act and so the case was prepared against the respondent / complainant for making such application. Photocopies of orders recorded by the Bank Officers, show that from time to time notices were issued to the complainant, then some amount were deposited by him, which were credited in his account and then again notices were issued and ultimately application was moved before the Registrar of Societies which was allowed and Sale Officer was appointed. Said Sale Officer conducted proceedings of sale of the tractor and trolley by issuing proclamation, document D- 8, of date of auction sale and thereafter, after selling that tractor, sale certificate was also issued, copy of which has been filed by the complainant himself as document Annexure A-30. Thus, it is clear that the tractor was sold in auction sale by a competent Sale Officer under // 7 // the orders of a competent Court of Registrar of Societies and if the complainant is having any grievance against any of such proceedings, then there were provisions of appeal and revision under section 77 and 78 of the Chhattisgarh Cooperative Societies Act 1960. So, that remedy was available with the complainant if he was feeling aggrieved by the proceedings of sale or by the orders passed by Registrar of Cooperative Societies.
10. The complainant has not adopted that legal course by challenging the order of Registrar of Cooperative Societies before a competent Appellate Court or challenging the orders of Sale Officer before a competent Authority and at the place of doing that, the complainant remained silent for many years thereafter. Though, the sale was completed in the year 2006 and sale certificate was issued on 18.07.06, but thereafter no action was taken by the complainant. If he was having some grievance, then the course available to him was of filing appeal or revision.
11. The present complaint was also filed by him before District Forum on 04.03.09 i.e. after around two years and eight months from the date of sale and so the complaint itself was hopelessly barred by limitation and was not required to be entertained by the District Forum being barred by limitation.
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12. Thus, neither the complaint was maintainable before District Forum as it was in respect of proceedings and orders of another competent Forum, nor it was within the period of limitation, as the same has been filed after two years eight months from the date of sale of the questioned tractor and trolley.
13. In the complaint, it has been stated that the appellant Bank is trying to recover Rs.2,00,000/- more from the complainant and thus, it has committed unfair trade practice. This appears to be a matter of settlement of account, regarding which a competent Forum was already approached by the Bank and the remedy available to the complainant was also to pray before the same Forum, which had ordered auction sale of the tractor and trolley. Subsequent notices for recovery of any amount and for sale of the movable property has got no connection with the sale of the tractor, which has been questioned by the complainant in the complaint and regarding which the impugned order has been passed.
14. Apart from it, the agreement which was executed between the complainant and the Bank is a mortgage deed and by that document, the complainant and the co-borrowers have mortgaged the tractor and trolley and other property with the Bank and in paragraph No.11 of the Mortgage Deed, it has been agreed between the parties that in the // 9 // event of default of any instalment of principal amount or interest or its part on the appointed date, the Bank would be having authority to sale the mortgaged property, as per the provisions of Law for the purpose of recovery of the amount and the remaining amount will further be payable by the borrower.
15. In view of this clause in the agreement of mortgage of property against loan, we do not find much substance in the contention of the complainant that the actions taken by the appellant Bank were contrary to the Law.
16. Thus, considering the matter from all angles, we find that the District Forum has not properly considered the document which were brought before it and most of which have also been relied by the complainant. This question has not at all been considered by the District Forum that the matter was earlier dealt with a Court having competent jurisdiction i.e. the Court of Registrar of Cooperative Societies and therefore when that jurisdiction was already exercised by a competent Court, then the matter was not maintainable by the District Forum and apart from it, the complaint was also barred by limitation.
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17. Learned counsel for the respondent has relied upon decision of Hon'ble National Commission in the case of Chhattisgarh Rajya Awas Sangh Ltd. Vs. Bhaskar Vasant Naolekar & anr., Revision Petition No.851 of 2006, decided on 02.02.2010; Chhattisgarh Rajya Awas Sangh Ltd. Vs. Dharam Kumar Agrawal & anr., Revision Petition No.1653 of 2006, decided on 19.08.2008 and earlier order passed by the this Commission in the case of Gopinath Maal Vs. Kshetriya Adhikari C.G. Rajya Sahkari Awas Sangh Maryadit, appeal No.228/2011, order dated 05.01.2012. All the aforesaid cases, were of housing finance and the amount of loan was fully repaid by the borrower, but the Society was denying to return the title deeds deposited as security of loan. There was also no event of any order passed by any other competent Court, so the facts being different in all those cases, they are not applicable in the facts of the present case.
18. In view of the aforesaid, the appeal succeeds and is allowed. The impugned order is set aside and the complaint of the respondent / complainant is dismissed with liberty to the complainant to approach a competent Forum regarding his grievances against the Bank. The period spent by the complainant in contesting consumer complaint and this appeal may be claimed as setoff in such proceedings, if the Law permits so. No order as to cost of this appeal.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/07/2012 /07/2012