National Consumer Disputes Redressal
Bank Of India vs Anil Raveendran on 3 March, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4502 OF 2013 (Against the Order dated 24/07/2013 in Appeal No. 917/2012 of the State Commission Kerala) 1. BANK OF INDIA R/BY ITS AUTHORIZED OFFICER, SRI MURUGANANDAN-AGM, THIRUVANANTHAPURAM ...........Petitioner(s) Versus 1. ANIL RAVEENDRAN SANKARAM, CMC - 17 CHERTHALA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : MR. VIPIN JAI For the Respondent : MS. PREETHA ANIL RAVINDRAN Dated : 03 Mar 2015 ORDER PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
1. This revision is directed against the order of the State Commission Kerala dated 24.07.2013 whereby the State Commission dismissed the appeal no. 917 of 2012 of the petitioner opposite party.
2. Briefly stated, the facts relevant for the disposal of this revision petition are that respondent complainant filed a consumer complaint in Distirct Forum Alappuzha alleging that he had taken cash credit limit on Rs.6 Lakh against his Cash Credit Account No.105 in the year 2007. The complainant executed a power of attorney in favour of the Branch Manager of the Bank and also mortgaged the immovable property belonging to his parents as security. It is the case of the complainant that as per the power of attorney Branch Manager of the complainant was authorized to collect payments due to the complainant from M/s Cochin Port Trust, Ernakulum and give credit of the said payment in the Cash Credit Account. It is further alleged that the petitioner bank received three cheques for Rs.3,47,947/-, Rs.1,76,264/- and Rs.1,63,829/- respectively dated 31.3.1998, 19.6.1998 and 8.5.2001 from Cochin Port Trust in respect of payment due for the work executed by the complainant but did not give credit of the cheque amounts in the Cash Credit Account No.105. It is the case of the complainant that had the credit of those cheques been given against C.C. account, there would not have been any outstanding dues against the petitioner. On the said allegations, the respondent had prayed for the following reliefs:
"A. To credit cheque no. 750230 dtd. 31.3.1998 for Rs.347947/- and Cheque No.395864 dtd 19.06.1998 for Rs.176264/- on the date of receipt of payment itself and prepare the statement correctly till March 1999.
B. To pay the amount received by the O.P. in excess ie. more that the amount needed to close the loan in March 1999 to the complainant with 18% interest per annum from 1.4.1999 till payment to the complainant.
C. To pay Rs.163829/- to the complainant together with 18% interest per annum from the date of receipt of cheque amount till payment to the complainant.
D. To return the Title Deeds of the mortgaged properties belonged to the guarantors deposited by the complainant.
E. To pay Rs. Three lakhs towards compensation for the damages, injury, mental agony and sufferings caused to the complainant.
F. To pay cost of the proceedings."
3. The petitioner Bank in its written version took the preliminary objection that consumer complaint filed by the respondent is barred by limitation and also not maintainable in view of Section 34 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( in short, the SARFAESI Act.) On merits the opposite party Bank denied having received the above noted cheques of Rs. 347947/-, 176264/- and 1,63,829/ from Cochin Port Trust in the C.C. account of the complainant. The opposite party thus prayed for dismissal of the complaint.
4. It may be noted that the District Forum vide its initial order dated 22.09.2010 dismissed the complaint as barred by limitation. The State Commission, however, in appeal set aside the said order and remanded the matter back to the District forum to readjudicate the matter on the basis of evidence.
5. The District Forum in the second round on consideration of the record vide its order dated 22.09.2012 allowed the complaint and directed thus:
"In the result, we hereby directing the opposite party to prepare a detailed statement of A/c, by crediting the amounts on the date of receipt of payments as per cheque No.750230 dt. 31.3.1998 for Rs.3,47,947/- paid on 7.4.1998, cheque No.395864 dt. 19.6.1998 for Rs.1,76,264/- paid on 25.6.1998 and cheque No.751983 dt. 7.8.1998 for Rs.1,37,515/- paid on 14.8.1998 and find out the amount in the balance collection as on 18.1.1999, and we further directed the opposite party to pay the said balance amount in the account with interest @ 18% per annum from 18.1.1999 to till payment to the complainant and further pay the amount of Rs.55,162/- towards the 4th and final cheque (cheque No.651868 dt. 8.5.2001 for Rs.55,162/- paid on 16.5.2001 with interest @ 18% per annum from 16.5.2001 to till payment to the complainant. After complying the above, we hereby direct the opposite party to return the title deeds and other documents of the mortgaged properties deposited by the complainant and the surety with the opposite party earlier. Since there is grossest deficiency in service, culpable negligence, unfair trade practice, misappropriation of amounts and cheating on the side of the opposite party, due to the purposeful refusal to give credit of the above said amounts in the a/c of the complainant in time, and committed fraud nature, misappropriation of amounts, illegal and unauthorized acts, the complainant is fully entitled to get compensation from the opposite party. So we direct the opposite party to pay an amount of Rs.10,000/- (Rupees ten thousand only) to the complainant for his mental agony, pain, sufferings, harassment and loss due to the above said acts of the opposite party. We further direct the opposite party to pay a sum of Rs.2000/- (Rupees two thousand only) as costs of this proceedings. Considering the facts and circumstances of this case, we are of the strong view that the opposite party is liable to pay punitive costs to the complainant. So we direct the opposite party to pay a sum of Rs.1000/- (Rupees one thousand only) as punitive costs to the complainant, and direct the opposite party to comply with this order within 30 days from the date of receipt of this order."
6. Both the parties approached the State Commission in appeal and the State Commission vide the impugned order dismissed the appeals preferred by the petitioner opposite party as also the respondent complainant.
7. Learned Shri Vipin Jai, Advocate for the petitioner besides arguments on merits has contended that the order of the State Commission is not sustainable for the reason that State Commission has failed to address the plea of the petitioner that consumer complaint is not maintainable in view of Section 34 of SARFAESI Act which bars the jurisdiction of other Courts and Tribunals.
8., Learned counsel for the respondent on the contrary has argued in support of the impugned order and contended that the State Commission has rightly appreciated the facts and dismissed the appeal. It is also submitted that the revisional jurisdiction of the National Commission is limited to the extent of jurisdictional error and material irregularity. Thus, ordinarily, revisional court is not expected to reappreciate the facts particularly when both the foras below have returned concurrent finding of fact.
9. We have considered the rival contentions. On careful perusal of record, it is evident that petitioner opposite party had initiated proceedings under SARFAESI Act against the respondent complainant prior to filing of the consumer complaint. In the aforesaid context, it is to be seen whether in view of Section 34 of the SARFAESI Act, the consumer courts had jurisdiction to entertain the complaint filed after the initiation of the recovery proceedings under SARFAESI Act. This issue is no more resintegra. The issue came up before the Coordinate Bench of this Commission in RP No. 995 of 2012 titled Harianandan Prasad Vs. State Bank of India decided on 31.05.2012 wherein the coordinate Bench has held thus:
"Even then we have heard learned counsel for the petitioner on merits and have considered his submissions. From a conspectus of the facts and circumstances of the case and material obtaining on record, there cannot be denial of the factual position that faced with the recovery proceedings initiated by the Bank, the complainant had filed consumer complaint alleging deficiency in service on the part of the Opposite Party Bank. The District Forum unmindful of the provisions of section 34 of the said Act had passed an adinterim order directing the opposite party bank not to take any steps for recovery of the loan dues from the complainant by taking coercive measures. In our view, to say the least, such an order was clearly without jurisdiction and amounted to the usurping of the jurisdiction which was legally vested in another statutory tribunal under a particular statute. The State Commission has done well in setting aside the said order and dismissing the complaint because once it is found that the complainant had already approached the Appropriate Tribunal which was ceased of the entire gamut of controversy. The complainant could not agitate the said question before a consumer fora established under the Consumer Protection Act, 1986. Various tribunals constituted under the statute are expected to exercise their jurisdiction in accordance with the provisions of the Act under which they have been constituted. There is a clear cut demarcation of the jurisdiction and powers amongst various tribunals and no attempt should be made by one Tribunal to usurp the powers and jurisdiction of other either directly or indirectly. Such a situation may lead to anomalous situation because the orders passed by the two or more tribunals on the same controversy may vary. The question would then arise as to which of the order is binding and valid on the parties. Such a situation has to be avoided in all circumstances. In the case in hand, what we have found is that the District Forum has exercised a jurisdiction which was not vested in it. Rather such a jurisdiction was specifically taken away from any other Court / Tribunal / Forum under section 34 of the Act, 2002."
10. Similarly view was taken by another Bench of this Commission in Consumer Complaint No. 302 of 2012 tiled Yashwant G Ghaisas & Ors. Versus Bank of Maharashtra decided on 06.12.2012. An appeal against the said order was filed in the Supreme Court and Civil Appeal No. 1359 of 2013 was dismissed by the Hon'ble Supreme Court with following observations:
"It is clear that this case is covered under the Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002. Section 34 of the said Act is reproduced as hereunder:-
34. Civil court not to have jurisdiction. - No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)".
The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debt Recovery Tribunals. This matter is purely covered within the jurisdiction of DRT or DRAT. If there is any grievance against the notice under Section 13 (2) of the SARFAESI Act that should be brought to the notice of the concerned authority. It is well settled that main creditor and the guarantors are equally responsible. There lies no rub for the bank to take action against the guarantor directly. It cannot be alleged that he is adopting the policy of pick and choose. From the allegations stated above, there appears to be no deficiency on the part of the opposite party. In case the bankers are working within the ambit of SARFAESI Act, it cannot be said to be deficiency on the part of the bank. It must be established that there is deficiency on the part of the bank. In that case this commission can take action. For the reasons stated above, the complaint is dismissed at the stage of its admission. Nothing will preclude the complainants from approaching the appropriate Forum as per law."
11. In view of the above settled position in law, we are of the view that foras below have no jurisdiction to entertain the complaint in view of Section 34 of SARFAESI Act. Thus, it is obvious that both the foras below have exceeded their jurisdiction in entertaining and allowing the complaint.
12. We, therefore, allow the revision petition, set aside the orders of the foras below and dismiss the complaint. Parties are left to bear their own costs.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER