BANK OF BARODA vs RAJ KUMAR SINGH

PRESENT revision petition has been filed by petitioners/opposite parties challenging the ex parte order dated 11.7.2011 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (for short, ''State Commission''). Respondents/Complainants filed a complaint under Sections 11/12 of the Consumer Protection Act, 1986 (for short, ''Act'') before the State Commission praying for following reliefs: "(i) Direct the opposite parties to refund amount of Rs. 1,56,575 along with interest at the rate of 24% with effect from the date of deposit till the date of refund charged in excess in construction loan account number 26680600007659.

(ii) Quash the possession notice dated 19.7.2010 issued by the opposite parties in contravention of the provisions. of the Securitisation Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

(iii) Direct the opposite parties to reschedule their instalments charging rate of interest @ 8% per annum in view of the agreed terms and conditions and to refund the excess amounts along with interest @ 18% in the loan accounts numbers 26680600007659 and 26680400005073.

(iv) Direct the opposite parties to pay a sum of Rs. 5,00,000 (Rupees five lacs only) towards the Damages on account of the Unfair Trade Practice adopted by the opposite parties.

(v) Direct the opposite parties to pay a sum of Rs. 50,000 (Rupees fifty thousand only) as expenses incurred in litigations."

THE petitioners did not appear before the State Commission. On 11.7.2011, it passed an interim order which states: "This complaint has been filed by the complainant Raj Kumar Singh and another against the opposite party Bank of Baroda and another alleging that the complainant had taken a house loan of Rs. 25 lakh from the opposite party Bank on 19.6.2007 for construction of a building, in payment of which by instalments the opposite party bank till 17.7.2010 has been paid Rs. 96,92,700 which is confirmed by the bank statement placed on page numbers 36 to 48. The opposite party bank on 19.7.2010 issued a bank demand notice to the complainant saying that the complainant owes a sum of Rs. 39,60,153 to Bank of Baroda including interest which the complainant should pay on receipt of the notice. Against this notice the complainant has filed the present complaint before the State Commission. The complainant''s learned Counsel Mr. S.K. Sharma has been heard and on the basis of the evidence available on the file, the opposite party bank is directed that till the disposal of the complaint no recovery of the loan shall be made from the complainants and a registered notice be issued to the opposite parties Bank.

Complaint be listed on 19.10.2011 for hearing."

Being aggrieved by the impugned order, petitioners have filed this petition.

NOTICE of this petition was issued to the respondents. Both respondents were duly served but they did not appear. As such they have been proceeded ex parte.

IT has been contended by the learned Counsel for the petitioners that State Commission wrongly exercised it jurisdiction in the complaint, inasmuch as the respondents were seeking at best a total relief not more than Rs. 7,06,575 which is not within the pecuniary jurisdiction of the State Commission and it granted relief even that was not prayed for. Further, State Commission cited no reasons for passing ex parte order and particularly failed to notice that the complainant had been filed on or about 30.7.2010 while the order was being passed on 11.7.2011, that is, after almost a year. The urgency for passing the impugned order was absolutely missing. Another plea is that the respondents have concealed from the State Commission with regard to the proceedings pending before the ''Debts Recovery Tribunal, Lucknow'' (for short, ''DRT'') and as such complaint is not maintainable. Therefore, impugned order is liable to be set aside.

AS per prayer made in the complaint as reproduced above, respondents have sought a refund of Rs. 1,56,575 along with interest and have also sought damages of Rs. 5 lacs and Rs. 50,000 towards litigation expenses. By no stretch of imagination, the amount claimed by the respondents will exceed Rs. 20 lacs. Under these circumstances, State Commission had wrongly entertained the complaint, as it had no pecuniary jurisdiction.

FURTHER , as per documents placed on record by the petitioners, respondents have been issued show cause notice by ''DRT'' in Securitization Application No. 333 of 2010. Since, matter had been pending before the ''DRT'' on the date of filing of the complaint, State Commission had no jurisdiction to entertain this complaint, in view of the decision of this Commission in Bank of Baroda v. Ranjit Singh, RP No. 2119 of 2012, decided on 13.9.2012, wherein it was 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 Debts Recovery Tribunal. Counsel for the petitioner bank has invited our attention to the provisions of Sections 18 and 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which is to the following effect - -

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.

Act to have overriding 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).''

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 Articles 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." 9. Under these circumstances, the State Commission had no jurisdiction to entertain the complaint of the respondents at all. Consequently, the impugned order passed by the State Commission is not sustainable and same is hereby set aside. Accordingly, the present revision petition stands allowed.