Today is fixed for passing order in respect of the petition filed by the op challenging in the maintainability of the case.

          Fact remains that the matter was heard on 27.03.2015.  In reality op by filing a petition on 10.03.2015 challenging the maintainability of this case on the ground that in respect of the present dispute already a proceeding under SARFAESI Act-2002 was started against the complainant and if complainant has any grievance against the op authority or the SARFAESI Act authority, in that case, there is a specific provision in the said Act to challenge the same before the Debts Recovery Tribunal.  But complainant without adopting such procedure appeared before this Forum for getting relief under C.P. Act 1986.  But as per provision of SARFAESI Act-2002 u/s 34 & 35, this Forum has no jurisdiction to decide.

On the other hand complainant’s present transaction is a commercial transaction and the total amount what complainant took, is being a monetary transaction with the bank against current account and overdraft account and ultimately outstanding dues was Rs. 13,58,390/- and said amount has not been paid by the complainant for which it was declared as non-performing asset and ultimately the proceeding of SARFAESI Act-2002 was stated and it was stated long prior to filing of this case.  So, the present complaint is not maintainable and this Forum has no jurisdiction to decide this case.

Whereas complainant by filing an objection submitted that bank after falsely classifying the outstanding NPA A/C in regard to complainant’s OD A/C untimely started and initiated recovery proceedings misapplying the rule & law of the SARFAESI Act-2002 against the complainant and without providing any relief in a justified way to the complainant when the bank could not justify its alleged claimed NPA amount Rs. 13,37,699.44 paisa to be repaid to bank from complainant’s end. 

Moreover complainant has submitted that complainant preferred to claim to the op and requested them to dispose of his grievance.  But against the wrongful act they started a proceeding under SARFAESI Act-2002 to recover that money Rs. 13,37,699.44 paisa.  But such sort of act is wrong on the part of the op and for which complainant filed this complaint and it was admitted, notice was served upon the op for reply.  So at this stage the complaint is maintainable and the application challenging the maintainability of this case is not maintainable and same should rejected.

                                               Decision with reasons

On proper consideration of the entire materials on record and further the complainant’s own complaint, it is clear that SARFAESI Act-2002 has already been started which is admitted fact.  But truth is that there is an outstanding of Rs. 13,37,699.44 paisa.  So, apparently complainant is a defaulter in respect of the current account and OD A/C of the complainant.

No doubt already the said amount has been declared as NPA and proceeding of SARFAESI Act-2002 has already been started prior or filing of this case.  Then after proper evaluation of the provision of Section 34 & 35 of the SARFAESI Act-2002, we have gathered that after starting of any proceeding under SARFAESI Act-2002, no Court or any other Tribunal or any Judicial or Quasi-judicial Authority has/have any jurisdiction to decide such dispute in respect of which provision of SARFAESI Act-2002 has already been initiated and considering that provision of law and the present fact and circumstances we have gathered that proceedings under SARFAESI Act-2002 has already been stated against the complainant.  Then complainant has no other alternative way but to fight with the proceeding under SARFAESI Act-2002 and before the Debts Recovery Tribunal of the Nodal Officer of the SARFAESI Act-2002 which is initiated the proceedings against the complainant.  When that is the fact, then invariably the present complaint is not maintainable in this Forum and this has no jurisdiction to decide the present dispute.

Truth is that the case was admitted for further proceeding and that does not mean that the case is maintainable because it is the provision of law that at any point of time even after hearing of the argument, any authority of judicial or quasi-judicial may decide the maintainability and jurisdiction error if any or any other provision by which quasi-judicial or judicial authority has debarred to entertain such jurisdiction.

No doubt in this case the, this case ought not to have been admitted, but anyhow at that point of time it was no possible to determine that Forum has no jurisdiction.  But after appearance of the op, op has confirmed that proceeding under SARFAESI Act-2002 has already been started for which this Forum has no jurisdiction to decide such dispute.  When a competent authority as per SARFAESI Act-2002 has taken cognizance of the dispute and its notice was served upon the complainant, then complainant shall have to get such relief from the Tribunal and if he is not satisfied about any act of the Nodal Officers of the SARFAESI Act-2002, he may prefer such revision or appeal or any other proceeding before the Debts Recovery Tribunal Authority.

In the result the application challenging in the maintainability of this case is filed by the op on 10.03.2015 bears merit and succeeds.

Hence, it is

                                                     ORDERED

That the application challenging the maintainability of this case by the op is hereby allowed on contest against the complainant and it is ordered that this complaint is not maintainable because this Forum has no jurisdiction to decide such dispute when proceeding under SARFAESI Act-2002 had already been started before filing of this case.