State Consumer Disputes Redressal Commission
M/S Gopi Krishna Polymers vs Andhra Bank And Others on 30 April, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL
COMMISSION AT HYDERABAD
CCSR NO.1863 OF
2013
Between:
M/s Gopi Krishna Polymers,
Rep. by its Proprietrix Smt
Naga Venkata Lakshmi
W/o Rammurthy Reddy, Age 51 years, Business
Block No.20, Phase-IV, Auto Nagar,
Plot Nos.11,12, 17 & 18, Guntur
Complainant
A N D
Andhra Bank
rep. by the Chairman and Managing Director
Dr.Pattabhi Bhavan
5-9-11, Saifabad
Hyderabad-004
Chief General Manager,
Customer Service Department,
Dr.Pattabhi Bhavan
5-9-11,
Saifabad, Hyderabad
Deputy General Manager
Andhra Bank, Zonal Office
Guntur
Chief Manager
Andhra Bank, Kannavari Thota
Branch
Guntur
Opposite parties
Counsel for the Appellant M/s Mangena Sree Rama Rao
Counsel for the Respondent Admission
Stage
QUORUM:
SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI S.BHUJANGA RAO, HONBLE MEMBER TUESDAY THE THIRTIETH DAY OF APRIL TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The complainant, a proprietary concern filed complaint claiming for settlement of its loan account by the respondentbank and claimed a sum of `15 lakh withdrawn by the officials of the respondent-bank and `5 lakh towards compensation, An amount of `5,00,000/- towards compensation, `10,00,000/-
towards loss of business, a sum of `10,00,000/- towards damages and `5,00,000/- towards expenses.
2. The averments of the complaint are that applied for sanction of loan and the fourth respondent sanctioned 22.08.2011 a sum of Rs.31.50 lakh towards term loan and `15 lakh towards open cash and credit loan facility on the complainant-firm furnishing three guarantors who executed guarantee deed in favour of the bank. The complainant-firm availed term loan for purchase of machinery and she had not availed the open cash credit facility .The husband of the proprietor of the complainant-firm verified the complainant-firms statement of account and found that the amount towards cash credit facility of the complainant-firm was availed on different dates by the official of the bank in the name of P.V.Surendra Kumar, Sri Satyasai Plastics etc., by forging the signature of the proprietor of the complainant-firm.
3. The complainant submitted that on complaint filed by it before the higher authorities of the respondent-bank , the then chief manager of the respondent no.4-bank executed undertaking on 9.02.2012 agreeing to pay the amount of Rs.15 lakh to the credit of the complainant-firm. The signature in the vouchers was not found to be that of the proprietor of the complainant-firm by CFSL to whom the signatures admitted and disputed were sent by the respondent-bank. The official of the respondent-bank committed fraud, forgery, mischief on the complainant-firm and issued notice on 2.04.2012 and published the notice on 28.04.2012 under Section 13(2) of Securitization and reconstruction of financial assets and enforcement of security interest act, for recovery of total loan amount. The respondent did not accept to withdraw the notice.
4. The complainant-firm approached banking ombudsman and thereafter filed S.A.No. 230 of 2012 before the Debt Recovery Tribunal, Visakhapatnam which stayed the proceedings initiated by the respondent-bank under the provisions of SERFASI Act. The complainant-firm lodged complaint against the official of the respondent-bank with the police, Nagarapalem and the police are investigating the case. The respondent bank informed the complainant that the retirement of the then manager, Keshavulu were stopped from being paid to him and promised the complainant-firm that the retirement benefits benefit would be adjusted to the loan account of the complainant-firm. The complainant-firm got issued notice dated 18.01.2013 and filed the complaint.
5. Heard the learned counsel for the complainant-firm.
6. The point for consideration is whether this Commission has jurisdiction to entertain the complaint?
7. The complainant-firm is claiming a sum of `15,00,000/- besides the other amounts under various heads which are repeated on the premise that the official of the respondent bank had forged the signature of the proprietor of the complainant-firm. The complaint involves matter relating to plea of forgery, fraud and mischief said to have been committed by the official of the respondent bank on the complainant firm and the matter requires determination of questions of fact and law.
8. The Honbe Supreme Court in Synco Industries v. State Bank of Bikaner and Jaipur & Ors. I (2002) CPJ 16 (SC)=I (2002) SLT 214=(2002) 2 SCC 1, a three-Judges Bench of the Supreme Court observed as under :
Given the nature of the claim in the complaint and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is an appropriate claim for a Civil Court to decide and, obviously, was not filed before a Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay Court-fees . This, in that sense, is an abuse of the process of the Consumer Forum.
9. The Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Muni Mahesh Patel reported in (2006) 7 Supreme Court Cases page 655 held Proceedings before the commission are essentially summary in nature and issues which involve disputed factual questions should not be adjudicated by the Commission. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done. It was further required to examine whether in view of the disputed facts it should exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of law and not the commission.
10. Apart from pleading fraud, forgery and mischief, the averments of the complaint would show that the respondent-bank initiated proceedings for recovery of loan amount under SARFESI Act and to the effect the respondent bank issued notice u/s 13(2) of the Act for enforcement of security interest. As also the complainant firm initiated proceedings under Debt Relief Act by filing SA No.231 of 2012 before the Debt Recovery Tribunal and obtained stay of further proceedings initiated by the respondent- bank under SARFESI Act.
11. The National Commission as also the Honble Supreme Court in several decisions held that once the complainant approached a forum or tribunal constituted under special law, the complaint filed subsequently before forum constituted under the provisions of C.P. Act is not maintainable.
12. In Bank of Baroda Vs. Ranjeet Singh, RP No. 2119 of 2012 decided on 13.09.2012 the National Commission held that:
It is an admitted case that execution proceedings against petitioner were filed before the DRT. As per findings of the State Commission, proceedings before the DRT are still pending as apparent from the following observations made by it ;
Admittedly the amount paid by the Respondent has been credited to his loan account. Since the DCP No. 3123 is still pending before DRT for recovery of dues, the complainant/Respondent cannot maintain this complaint before the DF, the DF is not right in directing the OP/Appellant bank to close the loan account and to return the documents to the Respondent along with No Due Certificate.
In the light of the above facts, we are of the view that the complaint filed by the complainant is liable to be dismissed.
Even otherwise, as per decision of this Commission in Bank of Baroda (supra) Consumer Fora has no jurisdiction to entertain the complaint in view of the pendency of Original Application Proceedings before the DRT. This Commission in Bank of Baroda(supra) has observed;
8. Learned counsel for the petitioner then submitted that consumer fora had no jurisdiction to entertain the complaint in view of the pendency of the original application before the Debt Recovery Tribunal.
Counsel for the petitioner bank has invited our attention to the provisions of Section 18 and 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which is to the following effect;
18. Bar of Jurisdiction : On and from the appointed day, no Court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court and a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to the matters specified in Section 17.
34. Act to have over-riding effect - (1) Save as provided under sub- section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948 ), the State Financial Corporations Act, 1951 (63 of 1951 ), the Unit Trust of India Act, 1963 (52 of 1963 ), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984 ), and the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986 ) and the Small Industries Development Bank of India Act, 1989 ( 39 of 1989).
9. On the strength of the above provisions and the fact that original application seeking recovery of the debt in respect of the Deoli Branch outstanding dues was filed prior to the filing of the present complaint, learned counsel submits that the consumer fora had no jurisdiction to entertain the complaint raising the same controversy. He submits that original application is being defended by the respondent on the same plea on which the complaint was filed before the District Consumer Forum and if the complainant respondent thought that the withholding of the title deeds by the petitioner bank was illegal / unauthorised on the premise that bank had no lien over the same, the respondent complainant could have sought release of the said documents from the said Tribunal. We find force in this contention because the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 leave no manner of doubt that the Legislature has clearly forbidden any other Court or Authority to exercise any jurisdictional power or authority except the Supreme Court and High Court exercising their jurisdiction under Article 226 and 227 of the Constitution in relation to matters specified in Section 17. The provision is enacted with the clear object that such matters should not be considered and decided by any other Court or authority except the Tribunal constituted under the above Act.
13. In M/s M. I. Plywood Industries Vs Senior Branch Manager, Canara Bank, in R.P.No.3246 of 2011, the National Commission reiterated its earlier view that:
22. Since, Consumer Fora had no jurisdiction to entertain the said complaint, State Commission has rightly dismissed the complaint of the Petitioner. Decision of Sardar Associates (supra) is not applicable to the facts of present case. There is no ambiguity or infirmity in the impugned order passed by the State Commission.
14. In the circumstances, and in the light of facts pleaded by the complainant, we are of the opinion that it is a fit case where complaint could be returned for presentation before an appropriate Civil Court having jurisdiction in the matter.
15. In the result the complaint is returned with a direction to file the same before an appropriate Civil Court having jurisdiction in the matter. The Registry is directed to return the complaint to the learned advocate under proper acknowledgement.
Sd/-
MEMBER Sd/-
MEMBER DT.30.04.2013 కె.ఎం.కె*