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2009 DIGILAW 599 (UTT)

SANJAY AGARWAL v. COLLECTOR, DISTRICT NAINITAL

2009-12-03

C.C.PANT, IRSHAD HUSSAIN, KUSUM LATA SHARMA

body2009
ORDER (Per : Justice Irshad Hussain, President) Both these appeals, one by the complainant Sanjay Agarwal and the another by opposite party No. 1, State Bank of India, have been filed against the order dated 28.06.2008 passed by the District Forum, Nainital, partly allowing consumer complaint No. 101 of 2007 awarding compensation of Rs. 4,00,000/- with interest and Rs. 2,000/- as litigation expenses to the complainant to be paid by opposite party No. 1 within the stipulated period. Complaint was dismissed against opposite party No. 2, District Magistrate/Collector, Nainital. In awarding the compensation, the District Forum accepted the contention of the complainant that the opposite parties made deficiency in service in making recovery of the bank dues pertaining to Cash Credit Business Loan outstanding against the complainant by resorting to the provisions of Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972, although bank had lien on equitable mortgage of land, building, plant, machinery and the stocks and also the collateral security of two guarantors as a legally admissible mode of recovery of dues against the complainant. The opposite party No. 2 was absolved of the liability on the premise that the recovery charges of 10% were deposited in the account of the State Government and further that the recovery has not been effected by reason of any undue influence of the bank. 2. Complainant filed appeal against the order of absolving the opposite party No. 2 from liability to pay the compensation and particularly to the tune of recovery charges of Rs. 33,567/- and whereas opposite party No. 1, State Bank of India felt aggrieved against the said order by reason of award of compensation despite the fact that the amount recovered was due from the complainant and that the bank while issuing the recovery certificate had given the title deeds of the mortgaged properties to the Collector, but the Collector did not take steps to recover the money by sale of the properties and the complainant himself, after receipt of the citation, voluntarily started depositing the amount due in instalments. 3. Having heard the learned counsel for the parties in the light of the peculiar facts, circumstances and legal aspects of the case, we may state at the outset that in view of the principle laid down by the Hon’ble National Commission in the matter of Shiya Sharan Singh @ Shiya Singh and another Vs. 3. Having heard the learned counsel for the parties in the light of the peculiar facts, circumstances and legal aspects of the case, we may state at the outset that in view of the principle laid down by the Hon’ble National Commission in the matter of Shiya Sharan Singh @ Shiya Singh and another Vs. The Branch Manager, Bihar State Co-operative Land Development Bank Limited and others; 1 (2002) CPJ 27 (NC), the Consumer Fora has had no jurisdiction under the provisions of the Consumer Protection Act, 1986 to adjudicate the dispute and award compensation to the complainant. 4. The reason for our decision is that in the above reported case, due to non-payment of loan, recovery certificate was issued by State Co-operative Land Development Bank Limited and proceedings under the Bihar Public Demand Recovery Act, 1914 were initiated against the complainant of the said case. In execution of the proceedings for recovery, said complainant was taken into custody, imprisoned and remained in jail from 08.07.2000 to 24.07.2000. Complainant alleged that whole action of the recovery was illegal and because of illegal custody, the complainant had suffered damages and laid claim for sum of Rs. 24,50,000/- and Rs. 50,000/- as costs. The Hon’ble National Commission, in the face of the facts of the case, observed that it is a case where complainant can not allege any deficiency in service and if there is any grievance of the complainant, he can knock at the doors of the Civil Court and we don’t find it a fit case to exercise our jurisdiction under the Consumer Protection Act, 1986. The complaint was, thus, dismissed. The facts of the reported case are almost similar to the facts of the case in hand as the proceedings for recovery of the dues of the bank were initiated against the complainant under the analogous provisions of Recovery Act of 1972 and the complainant was also taken into custody and remained in jail for three days only. The facts of the reported case are almost similar to the facts of the case in hand as the proceedings for recovery of the dues of the bank were initiated against the complainant under the analogous provisions of Recovery Act of 1972 and the complainant was also taken into custody and remained in jail for three days only. In other words, the principle laid down in the above case by the Hon’ble National Commission, would apply on its four corners to the facts of the instant case and, therefore, we have no hesitation in coming to the conclusion that the District Forum fell in error in exercising the jurisdiction under the Consumer Protection Act, 1986 to award compensation to the complainant on the ground that it was a case where the bank made deficiency in service in regard to the dues outstanding against the complainant in respect of Cash Credit Account Loan obtained by the complainant from the bank. 5. While parting with the case, it shall also be pertinent to mention that under the recovery proceedings, complainant had paid major amount of the dues outstanding against him and thereafter entered into a compromise with the bank in regard to remaining dues outstanding against him and under the terms of compromise, interest of Rs. 41,423.97/- had been waived and benefit to that extent had been availed by the complainant. At any rate, the complaint was not legally maintainable before the District Forum and the order impugned is liable to be set aside. 6. In view of above, First Appeal No. 161 of 2008 filed by the complainant is dismissed and First Appeal No. 167 of 2008 filed by State Bank of India is allowed. Order impugned dated 28.06.2008 of the District Forum is set aside and consumer complaint No. 101 of 2007 is dismissed as not maintainable. If the complainant prefers to file a civil suit, he may seek exclusion of the time for the purposes of limitation in the light of the judgment of the Hon’ble Apex Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute (1995) 3 SCC 583. No order as to costs. 7. Let the copy of the order be kept on the record of First Appeal No. 167 of 2008.