Today is fixed for order on the point of maintainability of Case No:C.C-51/2023 as raised by and on behalf of Bangiya Gramin Vikash Bank, dated 27.12.2023.

The contention of the petition is that complainant Manoranjan Palit along with O.P.No:3/Jharna Palit filed SA No:121 of 2023, Diary No:242 of 2023, U/s 17 of the SARFAESI Act, 2002 before the Hon’ble Debts Recovery Tribunal, Siliguri, on 12.09.2023 & thereafter filed this Case No:C.C-51/2023 on 17.10.2023 suppressing the fact of SA case where grounds, subject matter & claims are same & as such Hon’ble DRT have the authority to deal with any grievance under SARFAESI Act & this case is not maintainable.

No WO against instant petition dated 27.12.2023 is submitted on behalf of the complainant but Ld. Advocate advanced his submission orally.

Facts of the case narrated in Para-6 of SA No:121 of 2023 is that the O.P/Bank has sanctioned a Cash Credit Loan facility of Rs.20,00,000/- on or about 2020 to Arabinda Palit to run the business of buying the cereals of rice & wheat from the market and sale them to the mill & the Bank Authority had created equitable mortgage of the land & building at Mouza-Rupahar, JL No:202, Khatiyan No:LR 921, 922, Plot No:LR 613, 614, Area 0.04 acre classified as Bastu, stands in name of Arabinda Palit, the borrower & his brother Manoranjan Palit (complainant), the guarantor, contained in the Deed No:8037 of 2003 and Arabinda Palit died on 18.08.2021 & his wife Smt. Jharna Palit (O.P.No:3) succeeds him.

Possession Notice dated 20.12.2022 (produced by complainant) issued by authorized Officer & Regional Manager BGVB, Uttar Dinajpur Regional Office depicts being authorized Officer under SERFAESI Act, 2002 & in exercise of powers conferred U/s 13(12) read with Rule 9 of the Security Interest Enforcement Rules, 2002 issued demand notice dated 30.07.2022 calling upon the borrower/s & guarantor/s to repay the amount Rs.17,60,831.30 along with unbooked interest and incidental charges, costs etc w.e.f 01.07.2022 within 60 days from the date of receipt of the said notice, the borrower/guarantor having failed to repay the amount he has taken possession of the said property in exercise of power U/s 13(4)  of SERFAESI Act read with Rule 9 of Security Interest (Enforcement) Rules,2002 on 20.12.2022.

Notice for sale of assets of Lt. Arabinda Palit (Smt. Jharna Palit, W/o-Lt. Arabinda Palit, legal heir), dated 08.08.2023 (produced by complainant) narrated that possession has been taken by notice dated 20.12.2022 by delivering thereof to her, guarantor & the same was affixed to the properties mortgaged with the secured creditor, apart from publication of the same in news papers & that as she/guarantor have failed to clear the dues within time available U/s 13 (8) under said act & rules, the secured assets/property will be sold by holding public e-auction on 20.09.2023 & copy thereof was given to Manoranjan Palit (complainant), guarantor & also to another guarantor Subrata Sarkar (O.P.No:4) of this complaint case.

Complainant produced a letter dated 18.08.2023 whereby said authorized Officer informed him that he has rejected the proposal of compromise settlement (OTS), dated 03.08.2023 by you (Manoranjan Palit) as the proposed amount of settlement is not acceptable to them, henceforth you may submit fresh proposal by improving your offered amount & also you may contact with Branch Officials for doing the needful. No communication letter is found regarding submission of fresh proposal of compromise settlement, by the complainant.

Instead Manoranjan Palit a guarantor & Smt. Jharna Palit W/o-Late Arabinda Palit, legal heir of borrower of Arabinda Palit as applicant No:1&2 respectively filed  SA No:121 of 2023 against B.G.V.B Bank & the authorized officer of the bank before the Hon’ble Debts Recovery Tribunal, Siliguri, on 12.09.2023 U/s 17 of the SERFAESI Act, 2022.

Thereafter, Manoranjan Palit, a guarantor as complainant filed this case No:C.C-51/2023 against B.G.V.B, it’s authorized Officer Smt. Jharna Palit, legal heir of borrower of Lt. Arabinda Palit & Subrata Sarkar, another guarantor as O.P.No:1 to 4 respectively, on 17.10.2023.

Ld. Advocate for the bank referred citation if First Appeal No:262/2019 & 330/2019 of the S.C.D.R.C, Uttarakhand, Dehradun, relevant portion is reproduced below-

The consumer complaint in question was filed by the complainant before the District Commission on 11.06.2018, i.e, after issuance of notice dated 12.03.2015 by the bank under Section 13(2) of the SARFAESI Act, 2002. Thus, as per law, the consumer complaint filed by the complainant was not at all maintainable and ought to have been dismissed on the sole ground that the bank has already initiated the proceedings under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, prior to filing of the consumer complaint.

Hon’ble Apex Court in the case of Jagdish Singh Vs., Heeralal and others reported in 2013 STPL (Web) 895 SC, has held that the civil court jurisdiction is completely barred so far as the “measure” taken by a secured creditor under sub-section (4) of Section 13 of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest (SAEFAESI) Act, 2002, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal, to determine as to whether there has been any illegality in the “measures” taken. Hon’ble National Commission in the case of Standard Chartered Bank Vs. Virendra Rai reported in II (2013) CPJ 337 (NC), has held that the Civil Court or Forum cannot interfere in the proceeding initiated under Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002. Hon’ble National Commission by judgment and order dated 25.11.2013 passed in Revision Petition No.1653 of 2013; M/s India Bulls Housing Finance Ltd. Vs. Hardayal Singh, has held that the case pertains to SARFAESI Act, 2002 and neither District Forum nor the State Commission had jurisdiction to try the case. In the said decision, Hon’ble National Commission has placed reliance upon a judgment of Hon’ble Supreme Court given in Civil Appeal No.1359 of 2013; Yashwant G. Ghaisas and others Vs. Bank of Maharashtra,  wherein Hon’ble Apex Court has held:

“the appellants challenged the action of the bank by filing a complaint under Section 21 of the Consumer Protection Act, 1986 (for short, ‘the 1986 Act’). The National Commission referred to Section 34 of the 2002 Act whereby jurisdiction of all Courts and authorities to entertain challenge to the action taken by the bank has been ousted and dismissed the complaint by recording the following observations:

The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debt Recovery Tribunals. This matter is purely covered with the jurisdiction of DRT or DRAT. If there is any grievance against the notice under section 13(2) of the SARFAESI Act that should be brought to the notice of the concerned authority. It is well settled that main creditor and the guarantors are equally responsible.”

On bare perusal undoubtedly find that the facts, subject matter, grounds & claims of SA No:121 of 2023 & C.C-51/2023 are same & identical too & am in agreement with the submission of Ld. Advocate of the bank that as such Hon’ble DRT  has the authority to deal with any grievance(s) under SERFAESI Act, & this complaint case being subsequently filed suppressing the pendency of SA 121 of 2023 is not maintainable.

Hence, it is

O r d e r e d

that the instant petition dated 27.12.2023 filed by O.Ps is allowed on contest & accordingly Case No:-C.C-51/2023 be and the same is dismissed being not-maintainable.

Let a copy of this order be given to the complainant free of cost.