National Consumer Disputes Redressal
Anuraag Kaul vs Kotak Mahindra Bank Ltd. & Anr. on 1 July, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 233 OF 2019 (Against the Order dated 30/11/2018 in Appeal No. 275/2016 of the State Commission Delhi) 1. ANURAAG KAUL D-11/63, KAKA NAGAR, DR. ZAKIR HUSSAIN MARG, NEW DELHI-110003 ...........Petitioner(s) Versus 1. KOTAK MAHINDRA BANK LTD. & ANR. EARLIER ITS WAS ING VYSYA BANK LTD. CFD,871, EAST PARK ROAD, KAROL BAGH, NEW DELHI-110005 2. SANGWAN HEIGHTS PVT. LTD. EARLIER KNOWN AS M/S. SHREYA DEVELOPWELL PVT. LTD. 210 & 211, 2ND FLOOR, HARSHA CORNER COMPLEX, DDA L.S.C. GAZIPUR DELHI-110096 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER For the Petitioner : Mr. Naveen Kumar Chaudhary, Advocate For the Respondent :
Dated : 01 Jul 2019 ORDER HON'BLE MR. DINESH SINGH, MEMBER
1. We heard learned counsel for the revision petitioner, and perused the material on record.
2. The District Forum vide its Order dated 29.08.2016 had dismissed the complaint as not maintainable against the O.P. no. 2 bank i.e. the ING Vysya Bank Ltd. (now the Kotak Mahindra Bank Ltd.):
Complainant himself alleged in his complaint that OP2 had filed original application before the DRT Delhi against the complainant. Hence admittedly, original application of the OP2 is pending before the DRT at Delhi under the provision of Recovery of Debts Due to Bank and Financial Institutions Act 1993, as, section 18 of the aforementioned act bars of jurisdiction of this forum regarding the recovery of loan amount due against complainant, therefore in our considered opinion this complaint is not maintainable against OP2.
(para 4 of the District Forum's Order) (emphasis supplied by us)
3. The revision petition filed under section 17(1)(b) of the Act 1986 against the Order dated 29.08.2016 of the District Forum was dismissed by the State Commission vide its Order dated 30.11.2018:
9. We have heard counsel for the parties and perused the material on record.
10. Order dated 15.07.2016 passed by DRT shows that OA of respondent No. 1 / OP No. 2 bank has been allowed and the petitioner / complainant as well as respondent No. 2 / OP No. 1 i.e. builder have been directed as under:
1) I hereby allow this OA of the applicant Bank and direct the defendant No. 1 and 2 to pay jointly or severally to the applicant bank within 30 days, a sum of Rs. 29,55,095/- (Rupees Twenty Nine Lacs Fifty Five Thousand and Ninety Five only) alongwith cost, incidental expenses and interest @12% compounded with monthly rests from the date of filing of this OA till the date of realization.
2) The defendant No. 2 is directed to pay the aforesaid amount within 30 days, failing which the same shall be recovered first from sale of the mortgage immoveable property being residential flat bearing No.01, Ground Floor, Jasmine -4, Hindon Heights, NH -58, Noor Nagar, Opposite Raj Nagar, Ghaziabad, UP.
3) In case, there is any shortfall, the same shall be recovered from the sale of personal moveable or immoveable assets/properties of the defendant No.1.
4) Recovery certificate be issued forthwith and be sent to Recovery Officer, Debts Recovery Tribunal -III, Delhi.
5) The Registry of this Tribunal is hereby directed to issue the free copy of the order and sent to all the parties.
6) Parties are directed to appear before the Recovery Office, DRT-III, Delhi on 26.08.2016."
11. Subsequent thereto the aforesaid order was challenged by the petitioner / complainant before the DRAT by filing an appeal i.e. Appeal No. 363 / 2016, wherein following orders have been passed:
"Counsel for the respondent has today submitted that there has been a settlement with the builder as was being claimed by the appellant. However, the terms and conditions of the settlement are not with him today.
Counsel for the appellant submits that since the bank has accepted the settlement with the builder and if that settlement finally fructifull, the appellant will also get benefitted and therefore this appeal can be dismissed today no as not entertainable for the reason of non-compliance of the condition of pre-deposit, but liberty may be given to the appellant to have the appeal revived in case the settlement between the bank and the builder does not get materialized for any reason and at that time the appellant will comply with the condition of pre-deposit under Section 21 of the RDDBFI Act, which as on date he is not in a position to comply with.
The appeal is accordingly dismissed as not entertainable for the aforesaid reason and liberty as prayed for is granted."
12. Aforesaid order shows that there is settlement between the builder i.e. respondent No. 2 / OP No. 1 and respondent No. 1 / OP No. 2 i.e. bank. Petitioner/complainant had made a statement before DRAT that since respondent No.1 / OP No. 2 bank has accepted the settlement with the builder and if that settlement finally fructiful the petitioner/complainant will also be benefitted, therefore, he had prayed for dismissal of the appeal as not entertainable for the reasons of non-compliance of condition of pre-deposit. On his request, DRAT has dismissed the appeal as not entertainable. Though, liberty for revival of the appeal has been granted but till today no such liberty has been availed. More than one year and ten months have already passed, the petitioner / complainant has not approached for revival of appeal. It may also be mentioned that petitioner / complainant had contested the OA before the DRT.
13. In view of the peculiar facts and circumstances emerging above, no interference in the impugned order is required. It may also be mentioned that even the judgment relied upon by the Ld. counsel for the petitioner/complainant is not applicable to the facts and circumstances of the case. Accordingly, the revision petition stands dismissed.
(paras 9, 10, 11, 12 and 13 of the State Commission's Order) (emphasis supplied by us)
4. The instant revision petition has been filed before this Commission under section 21(b) of the Act 1986 against the said Order dated 30.11.2018 of the State Commission.
5. We find the State Commission's impugned Order dated 30.11.2018 to be well-appraised and well-reasoned. The State Commission has upheld the Order dated 29.08.2016 of the District Forum. We find no jurisdictional error, or legal principle ignored, or miscarriage of justice.
6. We note that in the complaint filed before the District Forum the builder co. was the O.P. no. 1 and the bank was the O.P. no. 2.
The substantive dispute was between the complainant and the builder co.
The bank had provided loan to facilitate the transaction between the complainant and the builder co. apropos a residential flat from the builder co. to the complainant.
As is the normal wont in such finance, a tripartite agreement was executed between the complainant and the builder co. and the bank.
In proceedings before the DRT, the complainant and the builder co. were directed to pay jointly or severally a specified amount [Rs.29,55,095/- plus interest @12% compounded monthly] to the bank.
In appeal before the DRAT, the complainant submitted that the bank has accepted a settlement with the builder co. and, if that settlement finally fructifies, he (the complainant) would also be benefited. On his (the complainant's) submission, the DRAT dismissed the appeal as not entertainable. Liberty for revival of the appeal if the settlement between the bank and the builder co. did not finally fructify was granted to the complainant. The liberty so granted was not availed of by the complainant till the State Commission passed its impugned Order of 30.11.2018.
7. We may note, in general, that banks / financial institutions function ( / are required to function) as per their rules and norms, and as per the law, they provide finance in the normal wont of their functioning, and should not be unnecessarily and unjustifiedly put to trouble or difficulty in a consumer dispute that is substantively between the buyer and the builder / developer / etc.
8. In the instant case, here, we note that the complainant has, on the one hand, made a submission before the DRAT of a settlement between the bank and the builder co., which would also benefit him, and which led to the appeal being dismissed by the DRAT, and, on the other hand, not availed the liberty granted to him to revive the appeal in case the settlement between the bank and the builder co. does not finally fructify.
In parallel proceedings before the consumer protection fora, however, he is concomitantly agitating for the bank to be necessarily arrayed as an opposite party (O.P. no. 2).
9. The fundamentals that emerge in this case are that, one, the substantive dispute is between the complainant and the builder co., two, the bank but only provided finance in the normal wont of its functioning, three, the bank is (lawfully) entitle to recover its loan with interest as per the applicable rules, four, the dispute regarding the loan was decided by the DRT in favour of the bank and against the complainant and the builder co., five, the appeal before the DRAT was dismissed on the complainant's submission of a settlement between the bank and the builder co. that would also benefit him, and, six, the liberty granted to the complainant by the DRAT to revive the appeal if the settlement between the bank and the builder co. does not finally fructify was not availed of by the complainant.
10. The complaint case was filed by the complainant before the District Forum in 2015. The builder co. is the O.P. no. 1. Between 2015 to 2019 the complainant is (only) agitating that the bank be the O.P. no. 2.
11. In the overall facts and holistic situation of the matter, as brought out in the discussion above, the complainant's attempts to unnecessarily and unwarrantedly array the bank as an opposite party (O.P. no. 2) in the complaint case before the District Forum is not viewed favourably.
Consumer protection fora are not meant for such expeditions.
12. The revision petition filed before this Commission is dismissed with stern advice of caution to the complainant through imposition of a cost of Rs.10,000/- to be deposited in the Consumer Legal Aid Account of the District Forum within four weeks of the pronouncement of this Order.
13. Needless to add that the complaint case in the District Forum against the O.P. no. 1 builder co. shall (continue to) proceed further as per the law.
14. Let a copy each of this Order be sent to the District Forum and to the O.P no. 2 bank by the Registry within ten days of its pronouncement.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER