State Consumer Disputes Redressal Commission
Housing Development Finance ... vs Shweta Subhash Naik on 25 January, 2018
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 80/2017
Housing Development Finance
Corporation Limited,
Panaji Branch, with its Regional
Office at HDFC House,
No. 51, Kasturba Road,
Bangalore 560 001, through
its duly constituted attorney
Mr. Shridhar Chinni
Assistant Manager,
Credit Risk Management-Legal at present
serving at Regional Office, Bangalore. ... Appellant
v/s
Smt. Shweta Subhash Naik,
d/o Mr. Subhash Naik,
major in age
R/o Flat no. 6
Mantri Venture,
Bangur Nagar,
Goregen (W) Mumbai 400090
and Flat no. C-2/S-3
Serrao Residency at Flat no. C-2/S-3,
Serrao Residency Aman Co-op.
Housing Society,
Gaulembhat, Chimbel, Tiswadi Goa. ... Respondent
Adv. Mr. S. M. Singbal for the Appellant.
Respondent in person.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 25/01/2018
ORDER
[Per Justice Shri. U. V. Bakre, President] This Appeal is directed against the Judgment and Order dated 16/08/2017 passed by the Consumer Disputes Redressal Forum, 2 North-Goa in Complaint No. 57/2013. The Appellant was the Opposite Party (OP, for short) and Respondent was the Complainant in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
2. The Complainant had availed a financial loan of Rs. 2,70,000/- from the OP on 10/08/2001, for purchasing a flat. The said loan was to be re-paid in 240 months with monthly EMI of Rs. 3108/-and the due date for the payment of first EMI was on 30th September 2001. According to the Complainant he was regularly paying the said EMIs. The Complainant had approached the Forum alleging deficiency in service by the OP and praying to direct the OP to produce detailed statement of account with respect to the said loan along with documents and to pay an amount of Rs. 6,00,000/- along with the interest as compensation towards harassment, mental tension and agony caused to the Complainant and her family members. It appears that during the course of proceedings before the Forum the Complainant paid the outstanding loan amount out of Court. However, the Complainant amended the Complaint and added para 35 G stating that the OP vide letter dated 12/11/2013 informed the Complainant that they have received Rs. 3,15,680/- towards full payment of her loan on 12/11/2013 and that the Complainant should get in touch with the operation department of the OP for collecting the relevant documents pertaining to the loan on 10/12/2013 along with the photo ID and that the documents will be released subject to the withdrawal of case filed in consumer complaint. The Complainant alleged that the OP adopted the tactics of cheating, fraud, carelessness, ignorance, mental torturing, harassment and threatening as against her. It appears that the Complainant was furnished with detail statement of accounts as prayed for by her in the original prayer (A) of the Complaint and prayer (f) of the amended Complaint. However, by way of amendment, the Complainant prayed for various other reliefs such 3 as directing the OP to refund to the Complainant Rs. 87,544/- recovered by service demand notice dated 27/05/2008 along with interest at the rate of 15% as from 17/08/2008 till the date of payment, to direct the OP to pay Rs. 1,50,000/- towards the expenses occurred on various visits, travelling, preparation of files, total correspondence including Xerox, notarization, fees, postage, stationery and the time spent from 05/10/2011 till 12/11/2013 and further costs and expenses incurred till the disposal of the proceedings, to direct the OP to refund the amount of Rs. 4,64,294/- which is paid extra by the Complainant to the OP, to direct the OP to pay an additional amount of Rs. 5,00,000/- along with interest at the rate of 15% as compensation towards cheating, fraud, harassment, mental torture and agony caused to the Complainant and her old mother and father who are Senior Citizens, to direct the OP to hand over the loan documents and release certificate, sale deed, etc. The Complainant disputed the calculation of interest done by the OP by way of said amendment.
3. The OP filed the written version alleging that the OP had already furnished the statement of account as demanded by the Complainant vide letter dated 10/02/2010 and hence there was no cause of action to the Complainant. The OP alleged that the father of the Complainant had no locus standi to raise any issues with the OP, without having power of attorney. The OP denied all the allegations made by the Complainant. In the additional written version, the OP alleged that the Forum did not have jurisdiction to entertain the Complaint since the OP had initiated proceedings under the Securitisation And Re-Construction Of Financial Assets And Enforcement Of Security, Interest, Act, 2002 (SARFAESI Act) against the Complainant since the Complainant had defaulted in the payment of installments.
44. Both the parties had filed affidavit-in-evidence as also written arguments before the Forum. The Forum vide the impugned judgment and order partly allowed the Complaint.
5. The Forum held that as regards amended prayer (aa) and the prayer (f) of the amended Complaint, the same have been fulfilled as the complainant has been furnished with the detail statement of account. The Forum further held that as regards the other reliefs in the Complaint, the Forum will not have jurisdiction to deal with the same. According to the Forum the contentions of the Complainant as raised in the Complaint and disputed by the OP, such as, the quantum of repayment of the loan, unauthorized additional interest charged by the OP, the difference of the applicable rate of interest to the loan between the Complainant and the OP, the default committed or not by the Complainant, unlawful payment of the delayed payment charges, exerting force and giving threats to the Complainant and forcing the Complainant to pay Rs. 1,51,096/- and recovery of the entire amount in most unlawful manner and in violation of the RBI Guidelines, unjust categorization of the loan as non performing assets, unlawfully invoking the provisions of SARFAESI Act by the OP are all complex disputed questions of facts and law and will have to be dealt with by the appropriate forum and will have to be established by leading cogent and elaborate evidence. The Forum further observed that the proceedings before it are summary in nature and when there are complex disputed questions of fact and law, it will be fit and proper for the parties to approach the Civil Court or any other Forum with their grievances. The Forum relied upon the case of "Oriental Insurance Company Ltd. Vs. Munimashesh Patel", reported in 2006 (2) CPC 668 (SC), "Reliance Industries Ltd. Vs. United India Insurance Co. Ltd.,"
reported in I [(1998) CPJ 13] and "M/s Singhal Swaroop Ispat Ltd. Vs. United Commercial Bank"reported in III (1992) CPJ 50, wherein it was held that when there are allegations of forgery, fraud and 5 cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided by a Consumer Fora, proceedings before which, are summary in nature. However the Forum further held that the Complainant has been harassed by the OP and the documents were not released though the loan amount was cleared and a condition was put to withdraw the Complaint for releasing the original documents. The Forum further held that the statements of account and necessary documents were not given on time to the Complainant and thus the Complainant and her father was harassed. The Forum held that the act on the part of the OP was shameful and the OP is liable for negligent and deficient service to the extent of non furnishing of the documents and not releasing the documents inspite of the loan being paid and outing unreasonable condition for releasing documents.. The Forum therefore partly allowed the Complaint and directed the OP to pay to the Complainant an amount of Rs. 1,00,000/- as compensation for mental tension, agony and harassment caused by the OP to the Complainant within a period of 30 days from the date of the order failing which the same shall then be payable with interest at the rate of 12% per annum from the date of order till its actual payment. Liberty has been granted to the Complainant if she desires to initiate proper proceedings be it Civil or Criminal against the OP with regards to rest of her grievances in the Complaint before any other Forum or Civil Court and for that the Complainant can avail the benefit of Section 14 of the Limitation Act, to the extent applicable.
6. The Complainant has not challenged the judgment and order of the Forum. The OP is aggrieved with the above order and has filed the present Appeal. Both the parties have filed written arguments. Oral arguments were also heard. Mr. Singbal, Lr. Counsel argued on behalf of the OP whereas father of the Complainant argued on behalf of the Complainant.
67. Mr. Singbal submitted that though the Forum held that Civil Suit or other proceedings should be filed on account of complex disputed questions of fact and law, however the Complaint has been partly allowed to the extent of compensation and therefore the impugned order is faulty. He further submitted that the transaction falls under the SARFAESI Act and every dispute including the compensation will have to be decided by the Debt Recovery Tribunal in Mumbai. He relied upon the judgment of the Kerala High Court dated 29/07/2011 in Writ Petition (c) No. 5957 of the 2011 ("Punjab National Bank Vs. The Consumer Disputes Redressal Forum); "Shankar Tube Wells Vs. Branch Manager State Bank of India", reported in [1997 2 CPR (NC) 3]: and "Trai Foods Ltd. Vs. National Insurance Co. and Others", reported in [(2004) 13 SCC 656].
8. On the other hand, the father of the Complainant submitted that the written arguments have been filed by the Complainant in detail and the same be considered. He further alleged that OP has misused the SARFAESI Act which is not applicable and hence the consumer forum has jurisdiction. He urged that the alleged full and final settlement was not done willingly by the Complainant but on account of fear and threat tactics of the OP.
9. Records and proceedings of Complaint No. 57/2013 were called for. We have gone through the entire material on record.
10. We are in agreement with the Lr. Counsel for the OP that once the Forum had held that the contentions of the Complainant raised in the Complaint and disputed by the OP are all complex disputed questions of fact and law and will have to be dealt with by the appropriate Forum and will have to be established by elaborate and cogent evidence, the question of partly allowing the Complaint to the extent of grant of compensation for mental tension, agony and harassment does not arise. The claim of compensation for mental 7 tension, etc. is consequential to the proof of deficiency in service or the proof of other allegations. It should be kept in mind that the matter was actually settled by the Complainant during the pendency of the Complaint. Subsequently, the OP filed amendment to the Complainant alleging fraud, coercion, pressure threats and that the settlement was not done willingly and there was mistake in calculation interest, etc. The question of handing over the documents which were deposited as security does not arise unless the loan account is closed. Even otherwise, in the case of "M/s. Shankar Tube Wells" (supra), the Hon'ble National Commission has taken the view that the question of failure to returned the documents deposited by way of security by the bank on repayment of loan gives rise only to a Civil dispute and the Complainant cannot be said to be a consumer within the meaning of Consumer Protection Act. In the case of "Punjab National Bank"(supra), the Kerala High Court has held that going by the provisions of the Consumer Protection Act and SARFAESI Act, the jurisdiction of Consumer Dispute Redressal Forum to deal with matters provided for in the SARFAESI Act is expressly excluded. Admittedly, the OP had filed proceedings against the Complainant under the SARFAESI Act.
11. The Forum could not have directed payment of compensation to the Complainant and even the said point ought to have been kept open to be decided by the appropriate Forum subject to the provisions of SARFAESI Act.
12. In view of the above, the Appeal is partly allowed. The impugned order granting compensation of Rs. 1,00,000/- to the Complainant is quashed and set aside. No order as to costs in the facts and circumstances of the Appeal.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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