A. ANNADURAI Vs. SANJAY NAIR

JUDGEMENT

(1.) This revision petition has been filed under sec. 21(b) of the Act 1986 in challenge to the Order dtd. 3/8/2012 of the State Commission in appeal no. 100 of 2011 arising out of the Order dtd. 5/5/2009 of the District Commission in complaint no. 347 of 2007.

(2.) We have heard the learned counsel for the legal heirs of the deceased complainant (the petitioner herein) and the learned counsel for the citi bank (the respondents herein). We have also perused the record, including inter alia the Order dtd. 5/5/2009 of the District Commission, the impugned Order dtd. 3/8/2012 of the State Commission and the petition.

(3.) The crux of the case has been captured by the State Commission in paragraph 7 of its impugned Order of 3/8/2012, which is reproduced below for reference: Further the opposite party relied upon the documents under Ex. B.1 to B.5 related to the earlier loan transactions the terms and conditions of loan granted and under Ex.B.8. We are able to find from the paper publication according to the proposed action taken by the opposite party by issuing demand notice under sec. 13(2) of Securitization Act under reconstruction of Financial Assets and Enforcement of security interest Act under in which showing the details of.. Ex.B.8 the complainants name mentioned in the serial No. 12 for the loan amount of Rs.2,79,192.00 availed for which outstanding amount of Rs.3,63,380.00 pending recovery for which the mortgaged property is mentioned the same property which was shown as security for the earlier loan availed and in the document under Ex.A.9 relied upon the complainant requested the opposite party regarding the details of housing loan availed and also requested not to initiate any further proceedings on the property as per the notice dtd. 3/9/2005 and as per the discussions between the parties on 17/2/2007 until other dispute on the property Loan is solved. From this letter It is clear that the complainant was aware of the proposed proceedings against the properties by the opposite party for discharging of loan. In those circumstances the complainant availed the 1st loan and subsequently entered in agreement for another loan during the year 2003 for Rs.2,99192.00 as per the details under Ex.A.7 and also under Ex.A.12 from which we are able to observe that certain amounts are not paid towards the loan for many months and now as per the additional document under Ex.B.9, the loan agreement entered into by the complainant along with surety one Arumugam on 25/1/2003 by mentioning the same property as security against which already he availed the present loan in dispute and discharged the same as per document under Ex.A.5 dtd. 30/1/2003 and before issuing such certificate Ex.B.9 loan agreement was accepted on 25/1/2007 would go to show that the complainant was fully aware of the existing of 2nd loan availed and the complainant by suppressing those entire details would reflect that he had not come with clean hands in filing the complaint. Since the opposite parties had proceeded under SARFASI Act for the recovery of 2nd loan which is knowingly denied by the complainant and the same have to be resolved between the parties which is not the subject matter before the district forum or before this commission unless such dispute is resolved between the parties, the District Forum cannot direct the opposite parties to return the title deeds on which basis the 2nd loan was also availed and also as far as the refund of the excess payment of Rs.65,304.00 is concerned which was not proved by the complainant that amount was paid only as an excess payment for the discharge of the earlier loan alone and not for any other transactions and thereby the District Forum order cannot be sustained in this regard also in view of the fore going reasons and discussions made as above and the appeal to be accepted as meritorious.