LT. CDR. T.H. CHOWFIN vs State Bank of India

THIS complaint is filed by the complainants against the opposite party State Bank of India claiming relief of Rs. 12,25,000/- towards the loss of housing loan, for the deficiency in service of the opposite party with interest at 18 per cent per annum and also a sum of Rs. 1.00 lakh towards compensation on account of mental torture and agony, inconvenience and harassment suffered by the complainants.

IT has also been stated in the complaint, a complaint was filed before the National Consumer Disputes Redressal Commission as Original Petition No. 123 of 2002. In the course of hearing, it was realised that there were two separate causes for complaints. They were on account of two loans availed from State Bank of India Vasco Da Gama, (a) Housing Loan; (b) Educational Loan for financing the studies abroad of the complainant''s daughter. The National Commission by its order dated 29.4.2002 permitted the complainants to withdraw that complaint and to approach the Goa State Commission for appropriate reliefs, after reducing the compensation amount. The present complaint has been filed relating to the housing loan availed. The opposite party, State Bank of India resisted the complaint in the written version and raised the following preliminary objections. The complaint is not maintainable as there is no consumer-trader relationship between the complainants and opposite party. The opposite party has not charged any processing fee or service charges for considering the loan proposal of the complainants. As no service charges are collected for processing the loan proposal, the complainants cannot claim to be consumers. Further, the opposite party has alleged that they have filed recovery proceedings against the complainants for recovery of the outstandings of the housing loan as well as educational loan. The said proceedings are duly registered as O.A. No. 74 of 2002 before the Debt Recovery Tribunal-III at Mumbai. Complainants have wilfully suppressed this material fact. The complainants have to raise their claim in their defence before the Debt Recovery Tribunal, Mumbai and the present complaint is not maintainable.

The Counsels for both the parties were heard on the preliminary objections, namely whether the present complaint filed by the complainants is maintainable before this Commission in view of the fact the opposite party has filed recovery proceedings in O.A. No. 74 of 2002 in the Debt Recovery Tribunal-III at Mumbai.

THE learned Counsel for the complainant submitted that the cause of action is different so far the claim for compensation of deficiency in service is concerned. He has also submitted that the complainants can have recourse for deficiency in service before this Commission. THE fact of filing the recovery proceedings before the Debt Recovery Tribunal cannot take away the rights of the complainants. In support of the above contentions the Counsel for the complainants has relied on the following rulings. 1986-96 in Mike''s (P) Ltd. v. State Bank of Bikaner, 3187 (NS), the National Consumer Disputes Redressal Commission, New Delhi has held that the opposite party filed a suit - suit filed by the Bank prior to the complaint is about recovery of its dues outstanding against the complainant - complainant is claiming damages and loss on account of the negligence and deficiency in the rendering of banking service. Held a harassed consumer should not be allowed to suffer merely because the Bank has chosen to go to Court. Deficiency in service - Credit facilities freezed mala fidely - Bank guilty of negligence and deficient in rendering banking service. THE facts of this case are however, distinguishable from the facts of the present case on hand. State Consumer Disputes Redressal Commission, New Delhi in Transport Corpn. of India Ltd. v. Karan Sehgal, I (2000) CPJ 536, held Consumer Protection Act, 1986 - Subject matter of the suit filed by the appellant in the Court of Civil Judge and of the complaint filed by the respondent before the District Forum not identical - THErefore, the plea of res judicata advanced by the appellant in support of its case no longer available to it. Consumer Disputes Redressal Commission, Maharashtra State at Mumbai in N.V. Deoras v. Bank of India, Complaint No. 604 of 1993 judgment dated 16.7.1998 held that the suit is for recovery of the bank dues has nothing to do with the deficiency in bank service as pleaded by the complainant. The claim of the Bank is well documented and it can be pursued by the Bank but that suit does not come in the way of the complainant in canvassing deficiency in banking service. The suit cannot bar the claim of the complainant. State Consumer Disputes Redressal Commission, Assam in Amalendu Kar v. Employees'' State Insurance Corpn., I (2000) CPJ 250=2000 (3) CPR 490 - Consumer Protection Act has not ousted the jurisdiction of other Forums but is in addition to other laws. There is no dispute with respect to the principles enunciated in the above decisions.

THE Counsel for the opposite party has relied on National Consumer Disputes Redressal Commission, New Delhi in Master Drillers v. Nagpur Nagarik Sahakari Bank Ltd., II (1996) CPJ 45 (NC)=1996 (2) CPR 89 - Complaint alleging deficiencies in service with regard to these facilities - Opposite parties had already initiated proceedings before competent authority for recovery of amount due against complainants. Complainants to raise all questions available in those proceedings. THE main point decided in the case is when a person has availed bank credit facilities and makes complaint regarding deficiency in service of such facilities and the Bank has already filed proceedings before competent authority for recovery of dues then complainant may raise all questions before such competent authority and his complaint before Consumer Fora is liable to be dismissed. State Consumer Disputes Redressal Commission, Bihar, Patna in Vijaya Shankar v. State Bank of India, 2001 (2) CPR 312, it has been held that where Bank has initiated proceedings for recovery of loan amount all contentions concerning transaction can be raised before authority dealing with recovery proceedings and no consumer case can be prosecuted against Bank. In the present case on hand it is seen that the opposite party has filed recovery proceeding in O.A. No. 74 of 2002 in Debt Recovery Tribunal, Mumbai and it is stated that the complaint has been filed before Tribunal on 11.1.2002 and the present complaint before this Consumer Commission has been filed subsequent to the recovery proceedings. No doubt it has been stated by the complainants that they were served with notices subsequent to the filing of the present proceedings before this Commission. Further it is seen that the opposite party, the Bank has filed proceedings against the complainants for recovery of the loan taken by the complainants and in view of the above latest decision of the National Consumer Disputes Redressal Commission in 1996 (2) CPR 89, the proceedings before the Consumer Authority should not be entertained and all the questions can be raised by the complainants as defence before the Debt Recovery Tribunal. In that view of the matter, in view of the proceedings taken or initiated by the opposite party before the Debt Recovery Tribunal in Mumbai, the present complaint does not sustain and the same is to be dismissed.

THE complainants can raise all questions available to them in the proceedings before the Debt Recovery Tribunal-III, Mumbai. Accordingly the following order is passed : ''THE complaint is dismissed without any order as to costs.'' Complaint dismissed.