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2008 DIGILAW 118 (UTT)

UNION BANK OF INDIA v. SHOBHA DEVI

2008-03-18

C.C.PANT, IRSHAD HUSSAIN

body2008
ORDER (Per : Justice Irshad Hussain, President) Challenge in Revision Petition No. 13 of 2008 is to the order dated 25.01.2008 passed by the District Forum, Haridwar in consumer complaint No. 35 of 2008; Smt. Shobha Devi and others Vs. Union Bank of India, whereby the bank was restrained from prosecuting recovery proceedings against the complainants in regard to agricultural loan of Rs. 14,76,500/- till the next date fixed in the case. 2. In another Revision Petition No. 12 of 2008, propriety of the order dated 12.02.2008 is under challenge. By this order, show-cause notice under Section 25 of the Consumer Protection Act, 1986, for having allegedly initiating the recovery proceedings despite the interim order against the bank, was issued. 3. Complainants were extended facility of term loan of Rs. 15,00,000/- for their Bio-tech Agro Project under the agricultural loan scheme of the bank. The complainants claimed to have received loan of Rs. 14,76,500/- on 24.05.1996 and thereafter repaid various amounts to discharge their liability to repay the loan and interest thereon. They alleged that without giving them notice and letting them know the total amount still due against them, recovery proceedings were initiated through revenue authorities and it tantamount to deficiency in service. Complainants, therefore, filed consumer complaint with the prayer that the bank may be directed to give the detail of the disbursement of the loan and amount paid to it and to restrain the bank from initiating proceedings for recovery and also to pay damages amounting to Rs. 1,00,000/- for harassment and mental agony. The complaint was filed on 25.01.2008 with deficient fee and the District Forum gave time to make good the deficiency and on that very date, i.e., 25.01.2008 went on to pass the impugned order on the premise that despite asking by the complainants, neither the bank, nor the revenue authorities gave detail of the amount under the loan due from the complainants and, therefore, it appear just and proper to restrain the bank from prosecuting the recovery proceedings. 4. We have heard the learned counsel for the parties and considered their submissions in the light of the facts and circumstances of the case and the legal aspect of the matter in issue. 4. We have heard the learned counsel for the parties and considered their submissions in the light of the facts and circumstances of the case and the legal aspect of the matter in issue. At the outset, it need to be stated that the District Forum passed the impugned order in exercise of its jurisdiction under Section 13 (3B) of the Consumer Protection Act, 1986, which provide that during the pendency of any proceeding before the District Forum, if is appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case. Though, Order 39 Rule 1 and 2 of the Civil Procedure Code, 1908, are not as such applicable to the proceedings before the Consumer Foras, the Foras, however, while considering application for interim order, should record a finding on prima facie case, balance of convenience and irreparable injury or loss. It is evident from the material on record that the District Forum, while passing the impugned order, has not gone into the vital principles, while by the impugned order, prohibited the bank - revision petitioner from prosecuting the recovery proceedings. 5. As pointed out by the learned counsel for the bank, the loan was advanced in the month of May, 1996 and there is no allegation in the complaint that for such a long period, the complainants were kept in dark and were not in the know of the outstanding dues against them. Revision petitioner placed on record copy of the notice dated 15.12.2005 issued by Recovery Officer, Debts Recovery Tribunal, Lucknow (Paper Nos. 23 and 24) and the learned counsel submitted that proceedings before the Tribunal were pending against the family members of the complainants and their Leasing and Finance Company in connection with the loan advanced by this bank itself and that the complainants were not such type of persons, who are supposed to be kept in ignorance about the outstanding dues against them in regard to the agricultural loan. For this purpose, the said notice is relevant and run counter to the allegation of the complainants that they were not aware of the outstanding dues of the agricultural loan against them. In fact, as submitted, the complainants have not come with clean hands and suppressed the fact of knowing the amount due from them to the bank. 6. For this purpose, the said notice is relevant and run counter to the allegation of the complainants that they were not aware of the outstanding dues of the agricultural loan against them. In fact, as submitted, the complainants have not come with clean hands and suppressed the fact of knowing the amount due from them to the bank. 6. The certificate of the Branch Manager of the bank (Paper No. 25) indicate that present balance of the outstanding dues in regard to the agricultural loan is Rs. 42,58,612/- and it clearly appear that to thwart the recovery proceedings, the consumer complaint was filed by concealing the correct facts. In the totality of the circumstances of the case, we see no force in the submission of the learned counsel for the complainants that the complainants were not made aware of the outstanding dues and recovery proceedings were initiated by keeping them in dark. 7. Uttar Pradesh Agricultural Credit Act, 1973 provide a mode of recovery of the arrears of the outstanding dues in regard to agricultural loan and whereas under Section 11 of the Act, the proceedings for recovery by the sale of the land or other immovable property, which is charged or mortgaged, can be made, the recovery in case of personal security can, however, be made under Section 11-A of the Act through the Collector, to whom certificate of recovery is to be sent in the manner prescribed. Learned counsel for the complainants has not been able to show any violation of the provision and procedure so laid down under the Act for recovery and as has also been initiated in the case of the complainants. A Reserve Bank of India circular dated 07.05.2007 (Paper Nos. 53 and 54) placed on record on behalf of the complainants, can also be of no help to them because it relate to small and marginal farmers, which the complainants are not. Hon'ble National Commission in the case of Prem Baby Vs. Branch Manager, Farukhabad Gramin Bank and Others; 2004 CTJ 622 (CP) (NCDRC), reiterated that the bank is free to recover the outstanding amount under the loan transaction with the help of revenue authorities. As stated above, the bank initiated recovery through the revenue authorities and considering the huge outstanding dues against the complainants, they have absolutely no prima facie case for a favourable interim order in their favour. As stated above, the bank initiated recovery through the revenue authorities and considering the huge outstanding dues against the complainants, they have absolutely no prima facie case for a favourable interim order in their favour. Since amount of dues was being recovered by due process of law, the balance of convenience also does not lie in favour of the complainants and they, in the totality of the circumstances of the case, were not likely to suffer any irreparable injury or loss by reason of initiation of the recovery proceedings. 8. As stated in the beginning, the District Forum in not taking into consideration these vital principles, has failed to exercise jurisdiction so vested in it and acted with material irregularity in passing the impugned interim order in the case. In other words, the facts and circumstances of the case do not at all warranted such an order in favour of the complainants and the same neither being just, nor proper, is liable to be set aside and the revision petition deserve to be allowed. 9. The record of the other Revision Petition No. 12 of 2008 do not at all indicate that the revenue authorities continued to prosecute the recovery proceedings knowingly at the face of the impugned interim order dated 25.01.2008 passed by the District Forum and, therefore, the District Forum was not justified in issuing the show-cause notice under Section 25 of the Consumer Protection Act, 1986 and the same, as such, is liable to be discharged. The Revision Petition No. 12 of 2008, therefore, also deserve to be allowed. 10. In view of above, both the Revision Petitions are allowed and the impugned interim order dated 25.01.2008 is set aside and the show-cause notice issued in pursuance of the order dated 12.02.2008 in Miscellaneous Case no. 03 of 2008 is discharged and the order to that effect is set aside. All interim orders passed by this Commission, also stand vacated. No order as to cost. 11. Let the copy of the judgment be kept on the record of Revision Petition No. 12 of 2008.