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Judgment
Rekha Gupta, Member
[1] Revision Petition no. 3708 of 2012 has been filed against the order dated 23.07.2012 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (''the State Commission'') in Appeal no. 12 of 2012.
[2] The facts of the case as per the petitioner/ complainant are that on 23.05.2002 a loan of Rs.3,42,000/- was granted by the Respondent/ opposite party Surguja District Cooperative Agriculture and Rural Development Bank, to the petitioner / complainant for the purpose of purchase of tractor, trolley, case wheel and cultivator. The said loan was to be repaid in a period of 9 years and the annual instalments were of Rs.67,893/-, which was payable up to 31st January every year. It was also not in dispute that the petitioner paid Rs.87,346/- as down payment for the purchase of tractor and trolley bearing Nos.CG-15-A-0954 and CG-15-A-0956, respectively along with case-wheel and cultivator. The said tractor and trolley were seized by the respondent on 31.03.2006 and thereafter were returned to the petitioner on 11.02.2006, when the petitioner deposited Rs.25,000/- with the appellant Bank. On 15.05.2006, again the tractor and trolley were seized and were ultimately sold on 28.06.2006 in auction sale for Rs.1,75,000/-.
[3] Allegation of the petitioner against the respondent Bank was that he was paying regular instalments to the respondent Bank, which were accepted by the Bank, but even then without any reason, the tractor and trolley were seized and sold by the Bank. This comes in the category of deficiency in service and unfair trade practice. Complaint was made by the petitioner to the Collector Surguja Ambikapur in this regard and the said Collector after holding inquiry directed the Bank to return the tractor and trolley on 11.02.2006, on payment of Rs.25,000/- and it was then returned. As the tyres, tubes and some other parts of the tractor and trolley were rusted and had become waste, the petitioner had to spent Rs.1,00,000/- on repairs of the tractor, he also suffered a loss of Rs.50,000/- in his agricultural operations. The respondent, however, again seized the tractor and trolley and sold it. It is further alleged that even thereafter the respondent was trying to recover Rs.2,00,000/- more from the petitioner, which again comes in the category of deficiency in service and unfair trade practice. The recovery notice was sent one week before the date of filing of complaint before District Forum, i.e., 04.03.2009, so the cause of action accrued on that date and so the complaint was filed before District Forum.
[4] The petitioner, therefore, prayed for following reliefs: (a) The respondent may be directed to return back the tractor, trolley, battery to the complainant;
(b) The loan amount which was said to be pending by the respondent may be forgiven;
(c ) If the respondent will not return the tractor, trolley, battery then to return the amount of Rs.3,98,726/- and 18% interest from 22.06.2002, i.e., date of purchase from the respondent;
(d) Because of the illegal seizure and sale the petitioner was unable to do the work of agriculture for 3 years the compensation of Rs.50,000/- per year total of Rs.1,50,000/- compensation may be directed to the respondent to pay to the petitioner;
(e) Any other relief which the District Forum deems fit in the circumstances of the case may also be awarded; and
(f) Cost and help.
[5] The complaint was resisted by the respondent/ opposite party/ Bank by making averments that the petitioner was a chronic defaulter and had failed to pay instalments in time, so as per the provisions of the Chhattisgarh Cooperative Agriculture and Rural Development Bank Act 1999, Section 23, the tractor and trolley were seized and were sold as per the provisions of law. In the sale the provisions of law were followed and so, no deficiency in service has been committed. It has also been averred that the matter of dispute was between the Cooperative Society and its Member, so it was not trial able by the District Forum.
[6] The District Consumer Disputes Redressal Forum, Ambikarpur, Surguja (''the District Forum'') vide order dated 12.12.2010 while allowing the complaint observed as under: "xxxxxxxxxxxxxxxxxxxxx After discussing the considerable issue no. 2 it is found that the complainant has deposited the amount of Rs.2,48,346/- by the complainant along with down payment then in this condition the price of Rs.3,98,726/- doesn''t seems to be legally correct and in the present case looking to the deficiency in service and unfair trade practice the amount of Rs.2,48,346/- seems to be justified and the complainant is entitled for the said amount from the opposite party.
The complainant has claim the amount of Rs.1,50,000/- has compensation but the said amount is excessive. In the present case the opposite party has committed deficiency in service and unfair trade practices for which the complainant has suffered financial, mental and physical problem for which the amount of Rs.5000/- as compensation seems to be regionable. The complainant is entitled for the said amount. Therefore, the observation for considerable issue no. 4 the complainant will receive the amount of Rs.2,48,346/- for the opposite party and Rs.5000/- for mental, physical and financial loss.
In this way, after discussing the considerable issue no. 1 to 4 and after observing it is found that the complainant is successful partly in this claim and as per section 12 of the Consumer Protection Act, 1986 the complaint filed by the complainant is partly admitted and following orders is being passed:-
The opposite party will pay the amount of Rs.2,48,36/- to the complainant within one month and 6% interest from the date of complaint 04.03.2009 upto the date of payment;
The opposite party will also pay Rs.5000/- as compensation for mental, physical and financial loss; and
The opposite party will also pay the amount of Rs.1000/- for the cost of suit which will include advocate fees also".
[7] Aggrieved by the order of the District Forum the respondent filed an appeal before the State Commission. The State Commission vide its order dated 23.07.2012 while allowing the appeal has observed that from the report of the District Forum, it was clear that the property in question was attached under the orders of the Competent Court having jurisdiction under the provisions of the Chhattisgarh Cooperative Societies Act, 1960. It further observed that: "9. Thus, it is clear that the Bank was competent for making an application under section 23 of the aforesaid Act and so the case was prepared against the respondent / complainant for making such application. Photocopies of orders recorded by the Bank Officers, show that from time to time notices were issued to the complainant, then some amount were deposited by him, which were credited in his account and then again notices were issued and ultimately application was moved before the Registrar of Societies which was allowed and Sale Officer was appointed. Said Sale Officer conducted proceedings of sale of the tractor and trolley by issuing proclamation, document D-8, of date of auction sale and thereafter, after selling that tractor, sale certificate was also issued, copy of which has been filed by the complainant himself as document Annexure A-30. Thus, it is clear that the tractor was sold in auction sale by a competent Sale Officer under the orders of a competent Court of Registrar of Societies and if the complainant is having any grievance against any of such proceedings, then there were provisions of appeal and revision under section 77 and 78 of the Chhattisgarh Cooperative Societies Act 1960. So, that remedy was available with the complainant if he was feeling aggrieved by the proceedings of sale or by the orders passed by Registrar of Cooperative Societies.
The complainant has not adopted that legal course by challenging the order of Registrar of Cooperative Societies before a competent Appellate Court or challenging the orders of Sale Officer before a competent Authority and at the place of doing that, the complainant remained silent for many years thereafter. Though, the sale was completed in the year 2006 and sale certificate was issued on 18.07.06, but thereafter no action was taken by the complainant. If he was having some grievance, then the course available to him was of filing appeal or revision.
The present complaint was also filed by him before District Forum on 04.03.09 i.e. after around two years and eight months from the date of sale and so the complaint itself was hopelessly barred by limitation and was not required to be entertained by the District Forum being barred by limitation.
Thus, neither the complaint was maintainable before District Forum as it was in respect of proceedings and orders of another competent Forum, nor it was within the period of limitation, as the same has been filed after two years eight months from the date of sale of the questioned tractor and trolley.
In the complaint, it has been stated that the appellant Bank is trying to recover Rs.2,00,000/- more from the complainant and thus, it has committed unfair trade practice. This appears to be a matter of settlement of account, regarding which a competent Forum was already approached by the Bank and the remedy available to the complainant was also to pray before the same Forum, which had ordered auction sale of the tractor and trolley. Subsequent notices for recovery of any amount and for sale of the movable property has got no connection with the sale of the tractor, which has been questioned by the complainant in the complaint and regarding which the impugned order has been passed.
Apart from it, the agreement which was executed between the complainant and the Bank is a mortgage deed and by that document, the complainant and the co-borrowers have mortgaged the tractor and trolley and other property with the Bank and in paragraph No.11 of the Mortgage Deed, it has been agreed between the parties that in the event of default of any instalment of principal amount or interest or its part on the appointed date, the Bank would be having authority to sale the mortgaged property, as per the provisions of Law for the purpose of recovery of the amount and the remaining amount will further be payable by the borrower.
In view of this clause in the agreement of mortgage of property against loan, we do not find much substance in the contention of the complainant that the actions taken by the appellant Bank were contrary to the Law.
Thus, considering the matter from all angles, we find that the District Forum has not properly considered the document which were brought before it and most of which have also been relied by the complainant. This question has not at all been considered by the District Forum that the matter was earlier dealt with a Court having competent jurisdiction i.e., the Court of Registrar of Cooperative Societies and therefore when that jurisdiction was already exercised by a competent Court, then the matter was not maintainable by the District Forum and apart from it, the complaint was also barred by limitation.
Learned counsel for the respondent has relied upon decision of Hon ble National Commission in the case of Chhattisgarh Rajya Awas Sangh Ltd. Vs. Bhaskar Vasant Naolekar & anr., Revision Petition No.851 of 2006, decided on 02.02.2010; Chhattisgarh Rajya Awas Sangh Ltd. Vs. Dharam Kumar Agrawal & anr., Revision Petition No.1653 of 2006, decided on 19.08.2008 and earlier order passed by the this Commission in the case of Gopinath Maal Vs. Kshetriya Adhikari C.G. Rajya Sahkari Awas Sangh Maryadit, appeal No.228/2011, order dated 05.01.2012. All the aforesaid cases, were of housing finance and the amount of loan was fully repaid by the borrower, but the Society was denying to return the title deeds deposited as security of loan. There was also no event of any order passed by any other competent Court, so the facts being different in all those cases, they are not applicable in the facts of the present case.
In view of the aforesaid, the appeal succeeds and is allowed. The impugned order is set aside and the complaint of the respondent / complainant is dismissed with liberty to the complainant to approach a competent Forum regarding his grievances against the Bank. The period spent by the complainant in contesting consumer complaint and this appeal may be claimed as setoff in such proceedings, if the Law permits so. No order as to cost of this appeal".
[8] Hence the present revision petition.
[9] We have heard the learned counsel for the petitioner and have carefully gone through the record. None appeared on behalf of the respondent on 6th August 2015 hence, respondent was proceeded ex parte. The only point agitated by the learned counsel for the petitioner was that the tractor had been seized without any notice. The detailed order of the State Commission given above clearly shows that the contention of the learned counsel for the petitioner is not borne out by the record. It is an undisputed fact that the said vehicle was attached by the order of the Sub-Registrar of the Office of the District Registrar of Cooperative Societies, Ambikapur, which passed the order regarding the attachment of the property and their sale for recovery of amount of Rs.54,333/- as prayed by the Bank. Thereafter due procedure was followed and Sale Officer was appointed who issued letter of demand to the petitioner/complainant directing him to pay the demanded amount along with interest and expenses for attachment within ten days from the date of issuance of notice and it bears the signature of the petitioner/complainant. Thus, it is clear from the documents that the property in question was attached under the orders of the competent court having jurisdiction under the provisions of the Chhattisgarh Cooperative Societies Act, 1960. The said Sale Officer conducted the proceedings of sale of tractor and trolley by issuing a proclamation, document D - 8, the date of auction sale and thereafter, selling the tractor, sale certificate was also issued. Copy of which has been filed by the petitioner himself as document as Annexure A-30. Thus, it is clear that the tractor was sold in auction by the competent Sale Officer under the orders of the Competent Court of Registrar of Societies.
[10] The Hon''ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 3 Scale 654 has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."
[11] In view of the above, we find that the State Commission has given a detailed and well-reasoned order for accepting the appeal of the respondent and dismissing the complaint.
[12] Thus, we find that no jurisdictional or legal error has been shown to us in the impugned order to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed.