State Consumer Disputes Redressal Commission
Punjab National Bank vs Dalip Bishnoi on 5 May, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.391 of 2012.
Date of institution : 02.04.2012.
Date of decision : 05.05.2014.
1. Punjab National Bank, through its Chief Manager, Circle Office,
Kikar Bazar, Bathinda, Punjab.
2. B.N. Dhingra, Branch Manager, Branch Office Punjab National
Bank, Gaushala Road, Abohar, District Ferozepur, Punjab.
.......Appellant- Opposite Parties.
Versus
Dalip Bishnoi, aged 47 years, S/o S.R. Bishnoi, Resident of
"Hyderabad House", Convent Avenue, Sito Road, Abohar, Tehsil
Abohar, District Ferozepur, Punjab.
......Respondent-Complainant
First Appeal against the order dated
05.10.2011 passed by the District
Consumer Disputes Redressal Forum,
Faridkot.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Smt. Surinder Pal Kaur, Member.
Shri Harcharan Singh Guram, Member.
Present:-
For the appellants : Sh. R.S. Bhatia, Advocate. For the respondent : Sh. Dalip Bishnoi, in person. First Appeal No.391 of 2012 2 JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellants/opposite parties against the order dated 05.10.2011 passed by District Consumer Disputes Redressal Forum, Faridkot (in short, "District Forum"), vide which the complaint filed by Dalip Bishnoi, respondent/complainant, under section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was partly allowed and the opposite parties were directed to withdraw the notice dated 01.12.2009, whereby they had threatened to take possession of his property; to disclose the loan payment schedule and rate of interest;
to accept the post dated cheques of the amount due from him after disclosing the prevalent rate of interest and calculating the instalments due from the date of advancement of the loan without any penalty amount; and to pay Rs.20,000/- as compensation for the mental tension and harassment suffered by him. At the same time, complainant was directed was directed to keep sufficient balance in his saving account, so that the cheques to be issued by him might not be dishonoured.
2. As per the allegations made by the complainant, in his complaint, he was having saving account in opposite party No.1 Bank. He took House Loan of Rs.9,60,000/- on 29.05.2006 and Loan Account was opened in his name. At the time of advancement of loan, no rate of interest nor instalment schedule was disclosed to him by the opposite parties. When he asked them to disclose the same, they replied that he being the valuable customer of the Bank, the interest would not be charged in excess and that the same would First Appeal No.391 of 2012 3 be charged at the prevalent rate on the date of advancement of the loan. He had always sufficient amount in his saving account and there was no chance of his becoming defaulter. At the time of advancement of the loan, some blank documents/papers were got signed from him by the bank officials, saying that those documents were just formality for the advancement of the loan. Opposite party No.2, after taking charge of this Bank, started harassing him as he refused to fulfil some of his illegal demands, upon which he threatened him with dire consequences. The opposite parties kept on withdrawing amount from his saving account without his knowledge or signatures and inspite of the issuance of letters for not withdrawing the amounts. In fact, all this was done in order to conceal the fault of opposite party No.2. He had been approaching the opposite parties for providing him the actual repayment schedule, but the same was not given to him. He was surprised to receive a notice in the month of September, 2009 from the opposite parties, in which it was mentioned that due to default in the payment of instalments in respect of the Home Loan, the same has been recalled and he was asked to clear the entire amount of Rs.10,26,984/- and failing that, his secured assets were to be sold. When he met the opposite parties, he was told that the matter would be sorted out in two or three days. On 16.12.2009, he received notice dated 01.12.2009 from the opposite parties, vide which he was asked to deliver possession of the mortgaged house and it was also mentioned therein that in case he failed to deliver the possession, the same would be taken with the help of the police. If First Appeal No.391 of 2012 4 there was any irregularity in the payment of instalments, the same was due to the fault of the opposite parties, who failed to disclose the exact amount of half yearly instalments and kept on withdrawing the amounts from his account as per their whims and fancies. The notice dated 01.12.2009, so served upon him, is illegal, null and void, ineffective and inoperative upon his rights. The opposite parties are guilty of causing harassment, mental agony, defamation, inconvenience, financial loss and damage to him; which amounts to deficiency in service and adopting unfair trade practice on their part. He prayed for the issuance of the following directions to them:-
i) to withdraw the notice dated 01.12.2009; ii) to disclose the loan repayment schedule and the rate of
interest applicable on the loan from the date of advancement thereof;
iii) not to withdraw the amount from his saving account without informing him and to take post dated payee cheques from him after disclosing all the prevailing rate of interest as on the date of advancement of the loan, without any penalty;
iv) to pay Rs.20,000/- as damages for causing unnecessary harassment, inconvenience and financial loss to him, by rendering deficient service and adopting unfair trade practice; and
v) to pay Rs.2,200/- as counsel fee and Rs.2,000/- as costs of the complaint.
3. The complaint was contested by the opposite parties, who filed joint written reply, in which they admitted the advancement First Appeal No.391 of 2012 5 of the housing loan of Rs.9.60 lacs to the complainant and that he was liable to repay the same along with interest and that the notices, as mentioned in the complaint, were issued to him. While denying the other allegations made in the complaint, they pleaded that the complainant along with Dr. Sudhir Pathak, guarantor, approached them for the said loan, by moving an Application-cum- Appraisal/Sanction Form and other relevant documents. They voluntarily executed an agreement in their favour after going through the same and understanding the contents thereof; as both of them are educated and prudent persons. All the documents were duly executed by the complainant in his full senses and he had put his signatures thereon after going through the minute details thereof and admitting those to be correct. He is bound by the contents of the documents so executed by him. The loan amount was to be repaid along with interest @ 8.75% per annum with monthly rests and the same was floating and subject to the change according to the instructions issued by the RBI from time to time. The complainant had agreed to pay additional interest @ 2% per annum with monthly rests in the case of default or his account becoming irregular. He agreed to repay this loan in half yearly instalments of Rs.58,073/-, each, along with interest w.e.f. June, 2006. The said guarantor had executed Agreement of Guarantee on 29.05.2006, agreeing to repay the loan amount along with interest jointly and severally with the complainant. In order to further secure the loan, the complainant mortgaged his immovable, consisting of the house, in favour of the Bank, by way of equitable mortgage by depositing the Title Deed First Appeal No.391 of 2012 6 thereof. The complainant as well the guarantor miserably failed to fulfil their commitment and did not keep the account regular. The instalments were not paid regularly inspite of the repeated requests, reminders and legal notices. On that account, the facility availed of by the complainant was withdrawn. After taking into account all the amounts paid by the complainant towards this loan, a sum of Rs.10,26,984/- was outstanding as on 18.05.2009 and the account was identified as "Non Performing Asset". After it was so declared, no interest was charged, as per the guidelines of the Reserve Bank of India. A sum of Rs.8,346/- accrued by way of interest, costs and other charges and, as such, a sum of Rs.10,35,330/- was recoverable. The transaction with the Bank was commercial transaction and, as such, it was entitled to recover the interest at the agreed rate of interest i.e. 11.50% per annum with monthly rests. The interest was being charged at that rate. A number of notices were sent to the complainant, reminding him of his commitment, but to no effect and ultimately, as per provisions of law and under compelling circumstances, they approached the Debt Recovery Tribunal (in short, "the Tribunal"), Chandigarh, for the recovery of the above said amount from the complainant as well as his guarantor. That application was fixed for 24.02.2010 and the complainant and his guarantor are intentionally avoiding their service to linger on the matter. The complainant started the parallel proceedings by way of this complaint, which is not permissible and the District forum has no jurisdiction to proceed with the same. This complaint is nothing else, but a counter-blast to the above said legal proceedings pending First Appeal No.391 of 2012 7 before the Tribunal and amounts to abuse of the process of law. The complainant is not a consumer. There was no deficiency in service or unfair trade practice on their part and the complaint filed by him is liable to be dismissed.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel for both the sides, allowed the complaint, vide aforesaid order.
5. We have heard learned counsel of the opposite parties as well as the complainant in person and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the opposite parties that the opposite parties had already approached the Tribunal for the recovery of the balance loan amount along with interest from the complainant, before the filing of the present complaint. Once the matter in dispute was before the Tribunal, the complaint was not maintainable and the jurisdiction of the District Forum to entertain the same was specifically barred. In support of his submissions, he relied upon the judgment of the Hon'ble National Commission reported in 2013 (2) CPC 191 (Hari Prasad Kabra Vs. Dena Bank & Ors.) and another judgment of the Hon'ble National Commission rendered in Revision Petition No.3246 of 2011 decided on 15.12.2012 (M/s M.I. Plywood Industries Vs. Senior Branch Manager, Canara Bank).
7. On the other hand, it was submitted by the complainant in person that this very point was raised by the opposite parties First Appeal No.391 of 2012 8 before the District Forum and was decided against them, by referring to a number of judgments. In view of the law laid down in those judgments, it cannot be said that there is any merit in submission of the counsel for the opposite parties. Remedy under the Consumer Protection Act, 1986 is the additional remedy and the pendency of the application filed by the opposite parties for the recovery of the loan amount and the interest, was not a bar for maintaining the present complaint.
8. It was not disputed at the time of arguments that the opposite parties had already filed the application for the recovery of the house loan in question and other dues against the complainant before the Tribunal before filing of the present complaint. No doubt, according to Section 3 of the Consumer Protection Act, 1986, the provisions of the Act are in addition to and not in derogation to the provisions of any other law for the time being in force, but this provision is subject to the provisions of the other special Acts. The District Forum, while deciding this very point in favour of the complainant, referred to the following judgments:-
i) II (1991) CPJ 639 (Punjab National Bank, Bombay Vs. K.B. Shetty);
ii) 2006 Vol. II CPJ 269 (NCDRC) (Powerware India Pvt. Ltd.
Vs. Economic Transport Organization);
iii) II (2003) CPJ 497 (R.K. Agarwal Vs. Manager, United Commercial Bank); and
iv) 2011 (2) CLT 543 (Vivek Agarwal & Anr. Vs. Indian Overseas Bank & Anr.).
First Appeal No.391 of 2012 9
9. In all those cases, pendency of criminal proceedings before the Judicial Magistrates were held not as a bar for maintaining the complaint under the Consumer Protection Act. The District Forum totally ignored the law on the point where the proceedings are pending before the Tribunal, which is the creation of the Special Act. In M.I. Plywood Industries's case (supra), similar question was involved. After taking into consideration Section 18 and 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, it was held by the Hon'ble National Commission that the provisions of this Act leaves no manner of doubt that the Legislature has clearly forbidden any other Court or Authority to exercise jurisdictional power or authority, except the Hon'ble Supreme Court and the High Court, exercising their jurisdiction under Article 226 & 227 of the Constitution in relation to the matters specified in Section 17 of that Act. It was further held that the provision is enacted with that clear object that such matters should not be considered and decided by any other court or authority, except the Tribunal constituted under the Act. In that case also, the complaint was filed regarding the repayment of the loan amount and it was observed by the Hon'ble National Commission that the Consumer Fora had no jurisdiction to entertain the complaint.
10. In view of the law laid down by the Hon'ble National Commission, it is to be held that after the application was filed before the Tribunal regarding the housing loan in dispute itself, the First Appeal No.391 of 2012 10 complaint by the complainant was not maintainable before the District Forum.
11. Accordingly, the appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.
12. The sum of Rs.10,000/- deposited by the appellants/ opposite parties at the time of filing of the appeal, along with interest which has accrued thereon, if any, shall be remitted by the registry to appellant no.2 by way of a crossed cheque/demand draft after the expiry of 45 days.
13. The arguments in this case were heard on 22.04.2014 and the order was reserved. Now the parties be communicated about the same.
14. The appeal could not be decided within the statutory period due to heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (SURINDER PAL KAUR) MEMBER (HARCHARAN SINGH GURAM) MEMBER May 05, 2014 (Gurmeet S)