National Consumer Disputes Redressal
M/S M. I. Plywood Industries, vs The Senior Branch Manager, on 5 December, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
REVISION
PETITION NO. 3246 of OF 2011
alongwith
(I. A. No. 1 of 2011)
( For delay)
(From order dated
26.7.2010 in Appeal No.
2863 of 2009
of Karnataka State Consumer Disputes Redressal Commission,
Bangalore)
M/s M. I.
Plywood Industries,
Near APMC
Yard, Bangarpet,
Kolar
District
Petitioner
Versus
The Senior
Branch Manager,
Canara
Bank,
Bangarpet
Town .Respondent
BEFORE:
HONBLE MR. JUSTICE V.B. GUPTA,
PRESIDING MEMBER
For the Petitioner : Ms.
Manjula Gandhi, Advocate
For the Respondent :
Mr. Rakesh Pathak, Advocate
Pronounced on: 5th
December, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Present revision petition has been filed by the petitioner challenging order dated 26.7.2010, passed by State Consumer Disputes Redressal Commission, Karnataka, Bangalore (for short, State Commission). Alongwith this petition, an application seeking condonation of delay has been filed. However, no period of delay has been mentioned.
2. Petitioner/complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short, Act) before District Consumer Disputes Redressal Forum, Kolar (for short, District Forum), with regard to the repayment of loan amount due to respondent/OP. It has been alleged in the complaint that despite entire payment of the loan amount being paid to the respondent under One Time Settlement Scheme, respondent has failed to hand over the original documents of the title in relation to the properties which were mortgaged in faovur of the respondent. Moreover, respondent has failed to issue No Objection Certificate to the petitioner after having received the amount and has failed to act further in the process of settlement. Alleging deficiency in service on the part of the respondent, petitioner made the following prayers in its complaint ;
(i) Hold that there is deficiency in service on the part of the Opposite Party towards the Complainant.
(ii) Direct the Opposite Party to close the loan account of the complainant with the Opposite Party.
(iii) Direct the Opposite Party to release/return the documents of title relating to properties mortgaged in favour of the Opposite party.
(iv) Direct the Opposite Party to issue no due certificate to the Complainant.
(v) Direct the Opposite Party a sum of Rs.2,00,000/- as compensation for the hardship caused to the Complainant on account of the trade practice and deficiency in service on the part of the Opposite party.
(vi) Direct the Opposite party to return Rs.25,000/- which is deposited in Non-Lien account in the Opposite Party Bank by them since; the Opposite Party has not complied with the Legal Notice dated 30/04/2008.
3. Case of respondent as per its written statement is that, petitioner has availed loan facility upto the limit of Rupees Thirty Lakh from it. Petitioner had also mortgaged the properties and also hypothecated the raw materials and goods. Since beginning, petitioner is irregular in making the payment of the loan amounts and installments to the respondent. Accordingly, petitioner filed a case before the Debt Recovery Tribunal (for short, DRT) O. A. Case No. 139/2000 for recovery of the balance loan amount. On 16.1.2004 after contest, the DRT has passed an award for Rs.,42,70,000/-, plus interest in favour of the respondent and against the petitioner. Inspite of award, petitioner did not make any attempt to repay the decreetal amount, for which respondent has also filed Execution Petition in the DRT. Under these circumstances, present complaint is not maintainable.
4. District Forum, vide order dated 11.8.2009, allowed the complaint and passed the following directions ;
The OP shall close Open Cash Credit Account No. 226 relating to the complainant as fully settled, after crediting Rs. 25,000/- deposited on 09.06.2008 by complainant and further OP shall return the documents of title deeds and as such other securities that may be now available with it to complainant and shall issue No Due Certificate to complainant if required to redeem any mortgage or other encumbrances.
5. Aggrieved by the order of District Forum, respondent filed an appeal before the State Commission, which allowed the same.
6. Hence, this revision petition.
7. I have heard the learned counsel for the parties and gone through the record.
8. As far as for condonation of delay is concerned, no period of delay has been mentioned at all. However, the grounds on which condonaton has been sought are reproduced as under ;
2. The petitioner had earlier challenged the impugned order and filed a writ petition being W. P. No. 29255 of 2010 before the Honble Kanataka High Court upon the legal advice so rendered by its counsel. The Honble High Court vide order dated 10.2.2011, was pleased to dispose off the Writ Petition, holding therein, that the Petitioner has an efficacious, alternative remedy under the provisions of Consumer Protection Act, 1986. The relevant portion of the said order as against the aforesaid order dated 26.7.2010, the petitioner herein has an efficacious, alternative remedy under the provisions of the Consumer Protection Act, 1986. We therefore, hereby relegate the petitioner to his aforesaid remedy.
3. That the Petitioner bonafidely trusted the legal advice given to it by its counsel and pursued the Writ Petition before the Honble High Court.
4. That the time spent by the Petitioner in pursuing the said Writ Petition before the Honble High Court was neither intentional nor deliberate, but was upon the legal advice so rendered by its counsel.
5. That the Petitioner herein craves the leave of this Honble Commission herein submits and states that the time spent by it in bonafidely pursuing a remedy before the wrong Forum may kindly be condoned.
6. The petitioner in this case is a senior citizen aged about 68 years and is suffering from various ailments, diabetes and had a massive heart attack after the disposal of the Writ Petition and has also undergone angioplasty.
7. Even otherwise, the old age and other ailments of the petitioner together with the heart problem have restricted the movement of the petitioner substantially. The medical records in this regard are annexed herewith.
8. The petitioner respectfully states that due to the aforesaid facts and circumstances his accompanying Revision Petition has got delayed considerably, as he could not contact any lawyer in Delhi. After having recovered from such ailments the petitioner contacted the present lawyer and briefed them about the facts of the case for filing the accompanying revision petition. The delay has been caused, is not deliberate but only valid, bonafide, unintentional and due to facts and circumstances mentioned above, which was beyond the control of the petitioner.
9. Above pleas taken by petitioner are not sustainable in view of decision of Honble Supreme Court in M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under;
. We are further of the view that the petitioners venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction.
10. Assuming for the sake of arguments that petitioner was pursuing the remedy by way of Writ Petition before the High Court, even then present petition which has been filed on 28.09.2011 against order dated 26.7.2010, is hopelessly barred by limitation. The plea taken by the petitioner is that he is an old man, ill and not able to move, but there is no documentary evidence to prove that during the period in question, petitioner was confined to bed and was unable to move.
11. It is well settled that sufficient cause with regard to condonation of delay in each case, is a question of fact.
12. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant .
13. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
14. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed ;
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
15. Further, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) laid down that;
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.
16. Under these circumstances, no sufficient cause is made out for condoning the delay of 140 days in filing the present revision petition. Thus, present petition is hopelessly barred by limitation.
17. Even on merits, petitioner has got no case at all. Main limb of the petitioners argument is that respondent had obtained recovery certificate from the DRT by playing fraud as DRT was never apprised of the fact that during the pendency of the Original Application proceedings, respondent had compromised the matter with the petitioner and in lieu thereof, petitioner had already paid a sum of Rs.35 lacs approximately upto 2003. Thus, the said recovery certificate was void and non-est in the eyes of law. Under these circumstances, impugned order is liable to be set aside.
18. In support, learned counsel for the petitioner has relied upon a decision of the Apex court, Sardar Associates and others Vs. Punjab & Sind Bank & others, (2009) 8 Supreme Court Cases 257.
19. On the other hand, it is contended by learned counsel for the respondent that execution proceedings before the DRT are still pending. The Consumer Fora, under these circumstances has no jurisdiction to entertain the complaint. In support, learned counsel for the respondent has relied upon a decision of this Commission in Bank of Baroda Vs. Ranjeet Singh, RP No. 2119 of 2012 decided on 13.09.2012.
20. 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.
21. 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.
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.
23. Consequently, present revision petition stand dismissed firstly, on the point of limitation and secondly, on merits also with cost of Rs.5,000/- (Rupees Five Thousand only) for wasting the precious time of this Commission.
24. Petitioner is directed to deposit the aforesaid cost by way of demand draft, in the name of Consumer Legal Aid Account of this Commission, within eight weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
25. List on 08.02.2013 for compliance.
J. (V.B. GUPTA) PRESIDING MEMBER SSB