Madhya Pradesh

StateCommission

FA/12/813

CHANDRA SHEKHAR CHOUHAN - Complainant(s)

Versus

BANK OF MAHARASHTRA - Opp.Party(s)

19 Dec 2022

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

 

                              FIRST APPEAL NO. 813 OF 2012

(Arising out of order dated 18.04.2012 passed in C.C.No.685/2011 by the District Commission Gwalior)     

 

CHANDRASHEKHAR CHOUHAN,

S/O LATE SHRI NANDLAL SINGH CHOUHAN,

R/O BHAGAT SINGH NAGAR, BHIND ROAD,

GOLE KA MANDIR, GWALIOR (M.P.).                                                                    …          APPELLANT

 

Versus

 

BANK OF MAHARASHTRA,

THROUGH BRANCH MANAGER,

GOLE KA MANDIR BRANCH,

47, MURAR ENCLAVE, RESIDENCY,

GWALIOR (M.P.)                                                                                                    ….          RESPONDENT.                                                                      

 

BEFORE:

                  HON’BLE SHRI A. K. TIWARI                             :    PRESIDING MEMBER

                  HON’BLE SHRI D. K. SHRIVASTAVA                :    MEMBER    

                 

COUNSEL FOR PARTIES :

 

      Shri Hemant Sharma, learned counsel for the petitioner.

      Shri Lalit Gupta, learned counsel for the respondent.

                                                                               

                                                            O R D E R

                                       (Passed On 19.12.2022)

                   The following order of the Commission was delivered by A. K. Tiwari, Presiding Member.

                   This is an appeal filed by the complainant/appellant against the order dated 18.04.2012 passed by the District Consumer Disputes Redressal Commission, Gwalior (For short District Commission) in C.C.No.685/2011.

2.                Facts of the case in brief as stated by the complainant/appellant are that as per advertisement in daily newspaper, Dainik Bhaskar dated 18.07.2009 he had given a proposal to purchase the plot no.26, situated at village-Maharajpura Ramanna for a sum of Rs.2,71,000/- to the opposite

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party/respondent. The respondent vide letter dated 21.08.2009 to deposit the amount, the appellant therefore deposited Rs.27,000/- and additional sum of Rs.70,000/- with the respondent-bank. It is alleged that when he tried to admeasure the plot, some persons showed their registry claiming that the said plot belongs to them and they had possession over it. The appellant informed the respondent about it and made a request that on getting possession of the plot, he will deposit the remaining amount but the respondent failed to deliver the possession of the said plot to the appellant.  Thereafter the respondent seized the amount deposited by him. Aggrieved appellant filed a complaint against the respondent before the District Commission seeking refund of Rs.97,000/- with interest @ 12% p.a., compensation of Rs.20,000/- along with costs Rs.10,000/-.

2.                     The opposite party/respondent resisted the complaint stating that the appellant never tried to get the possession of the plot and when he did not deposit the remaining amount, a notice dated 07.09.2011 (P-6) was given to him to deposit the balance amount and to get the plot registered in his favour.  The appellant failed to deposit the amount, therefore the amount deposited by the appellant was seized by giving notice dated 19.09.2011 (R-1) and that action was taken under the provisions of Section 13(2) and 13(4) of Securitization and Reconstruction of Financial Assets and 

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Enforcement of Security Interest Act, 2002 (for short SARFAESI Act). The specific condition of the sale of property was that the property will be sold on the basis of where it is as it is and the appellant purchaser was agreed to it. Section 34 of SARFAESI Act bars the jurisdiction of this Commission and this Commission has no jurisdiction to entertain the complaint. 

3.                The District Commission vide impugned order dismissed the complaint holding that the action taken by the respondent under the provisions of SARFAESI Act against the appellant cannot be challenged before this Commission.

4.                Challenging the aforesaid order in the present appeal, learned counsel for the appellant argued that when the borrower could not deposit the amount, the respondent took possession of the mortgaged property and gave advertisement for sale of said property. In view of the advertisement, the appellant gave proposal to purchase the said property and had deposited Rs.97,000/- with the respondent but the respondent neither deliver the possession of the plot in question nor refund the amount deposited, instead seized the amount deposited by him. The District Commission did not consider this aspect and therefore, the impugned order deserves to be set-aside.

 

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5.                Learned counsel for the respondent-bank argued that despite repeated notices and reminders, the appellant failed to make payment of remaining amount and to get the plot registered in his name, therefore, a notice under the SARFAESI Act was issued to the appellant and the amount deposited by him was seized (confiscated). He further argued that even the complaint was not maintainable before the District Commission and therefore, the District Commission has rightly passed the impugned order dismissing the complaint.

6.                The complainant/appellant has filed his affidavit along with documents Annexure P-1 to P-8. The opposite party/respondent-bank has filed affidavit of Shri Munendra Singh, Branch Manager along document R-1.

7.                Annexure P-1 is the advertisement, i.e. notice inviting tender for sale of properties ‘As is Where is and What is’ basis under Section 13(2) and 13(4) of the SARFAESI Act.  The appellant very well knew about this fact and had given tender for the property in dispute, which was accepted and he was asked to deposit the amount but when he failed to pay the full amount, the respondent bank vide Annexure P-6 gave a notice to the appellant to deposit the amount by 15.09.2011 failing which the amount of Rs.97,000/- deposited by him will be confiscated. When the appellant failed to deposit

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the remaining amount by 15.09.2011, the respondent-bank vide notice dated 19.09.2011 (R-1) confiscated the amount of Rs.97,000/- deposited by him towards the said property. All these proceedings were initiated under the SARFAESI Act.

8.                Having gone through the record as also the impugned order, we find that the respondent bank had taken action against the appellant under the SARFAESI Act. Section 34 of the SARFAESI Act puts a bar on civil court. Bar contained in Section 34 reads as under:-

34. Civil Court not to have jurisdiction—No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be takin in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).

9.                The Hon’ble National Commission in case of Harinandan Prasad Vs State Bank of India III (2012) CPJ 237 (NC) has observed that there is clear cut demarcation of jurisdiction and powers amongst various Tribunals and no attempt should be made by one Tribunal to usurp the powers and jurisdiction of other either directly or indirectly.  It has further been observed that the District Commission shall not exercise jurisdiction which was not vested in it.

 

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10.              Similar view is taken by this Commission in First Appeal No.1991/2012 (Gangacharan Yadav Vs ICICI Bank Ltd. & Anr) decided on 10.01.2019, Revision Petition No.30/2020 (Bandhan Bank Vs Smt. Manju Singh & Ors.) decided on 25.02.2021 and First Appeal No.1246/2008 (Parmal Vs Bank of India & Anr) decided on 02.03.2021.

11.              In the present case, the respondent bank had taken action against the appellant under the SARFAESI Act and the District Commission has rightly dismissed the complaint as the jurisdiction of the District Commission is barred.

12.              In view of the aforesaid, we do not find any illegality or infirmity in the order passed by the District Commission holding that the complaint is not maintainable.

13.              In the result, the appeal being devoid of any merit is dismissed. No order as to costs.

               (A.K. Tiwari)                  (D. K. Shrivastava)         

                    Presiding Member                      Member