Final order/Judgment 

             (Judgment Delivered on 18/11/2024 )

By Shri. Nitinkumar C. Swami, Hon’ble President

The complainants have filed this complaint under section 35(1) of the Consumer Protection Act, 2019 against the opposite parties. The brief facts of the case are as follows:

1. The complainants have taken loan facility of rupees 14,80,295/-  from opposite party No.1, by mortgaging house property at Mouja Dantala bearing No. M48 MIG, scheme 106, area 62.12 Square meter ground floor. The complainants regularly paid some installments, but some remains to be paid. It is further alleged that, on 10th October 2019 the opposite parties with recovery agents, police went to  place of working of the complainant No. 2 i.e. Narayana Vidyalayam Chandrapur and forcibly made the school authority to relieve the complainant No. 2 from the school immediately. Thereafter the opposite parties along with the complainant No. 2 went to the mortgage property and demanded 20 lakh in cash or by cheque to the complainant No. 2. She failed to comply the demand. Therefore, the opposite parties with help of recovery agents, police, and gundas, in absence of complainant No 1, unlawfully sealed the house of complainants.  Due to such a act of opposite parties, they are compelled to reside on a rent of rupees 5,000/- per month near Saraswati Vidyalaya bhewapur ward Chandrapur. On 10/10/2019 and 11/10/2019 complainants visited the office of opposite party No. 1 and requested to give the house keys by redeeming mortgage. The opposite party No. 1 again demanded rupees 20 lakhs, but complainants failed to fulfill it. The opposite party No. 1 suggested complainants to approach opposite Party No. 2 at Nagpur.  On 26/101019 when complainants were at the office of Opposite party No. 2, same demand was made for returning the keys of sealed mortgaged property. After the covid Pandemic, on 07/07/2020 and 04/08/2020 the complainants visited the office of the opposite party No.2 and requested for one time settlement and possession of the sealed house property. But the opposite parties had not paid any heed and charged heavy interest and penalties from the complainants. It is further alleged that the act of the opposite parties fall into the ambit of Unfair trade practices. The complainants have not mortgaged household material and essential commodities in the house as a security. The complainants executed Memorandum of agreement of mortgage by depositing title deed in respect of said house belonged to the complainants. It is further alleged that, the complainants approached to the opposite parties and expressed their intention to pay all the dues and to redeem mortgaged property. But no response was given by the opposite parties. It is further alleged that, the opposite parties illegally seized the property of complainants without following due procedure of law and there is deficiency in a services of the opposite parties. Therefore the complainants have filed this complaint and prayed for direction to opposite party for returning the said mortgaged property after redeeming it  and to reduce the heavy interest and loan penalties charged on complainants. They also prayed for compensation of Rs. 50,000/- to each complainant for physical mental harassment and Rs 1,00,000/- each of the complainants for financial loss caused to them by the opposite parties. The complainants have filed 21 documents along with list at exhibit 8.

2. After admission of the complaint, notices were issued to both the opposite parties. The Opposite Party No.1 and 2 have filed their joint written statement on 27/10/2021.

3. In written statement they have admitted that the complainants have taken loan from them. The opposite parties denied all adverse allegations against them made by the complainants. In special pleading they contended that, complainants have filed present case on basis of the false and imaginary concocted story. The complaint is not tenable and this Commission has no jurisdiction to try the matter, as the said dispute comes under the jurisdiction of Debt Recovery Tribunal. Thereafter, they submitted that, they have issued the loan amount of Rs 14,80,295/-  to the complainants for purchasing the property bearing  number M48 106 MIGS at MHADA, mauja Dantala, new Chandrapur. The complainants were irregular in payment of the loan and on 21/08/2018 there was outstanding of Rs. 14,81,143/-. Therefore, the opposite parties informed the complainants to repay the loan amount. But the complainant did not give any heed to the request of the opposite parties. The opposite parties have issued notice under S. 13(2) Securitization Act 2002. Thereafter, they took the action against the complainants according to securitization Act 2002 and taken the physical possession of the mortgaged property under police protection. It is contended that, the complainant No.2 peacefully handed over the physical possession of the property by signing on a Panchnama and inventory. The opposite parties have followed due process of law. It is stated that, till today the complainants have not paid any amount to the opposite parties for releasing the said property nor challenged the same proceeding before the appropriate Tribunal and they have filed this false case on the basis of concocted story. There is no deficiency in services, on a part of opposite parties. Hence, they requested to dismiss the complaint with the cost of Rs. 50,000/-. The opposite party No.1 and 2 have submitted 18 documents along with the list.

4. After considering the complaint and written statement of the opposite party No.1 and 2, purshis filed by both the parties, and written and oral argument made on behalf of both the parties, following points arose for determination, on which findings are given by this commission for the reasons as mentioned below.

REASONING.

5.     As to point No.1:-     

It is undisputed that, the complainants have taken the loan from the Opposite Parties and the Opposite party No. 1 and 2 have taken possession of the mortgaged house property, as complainants have failed to pay  installments regularly. From the complaint and its prayer clause, it is clear that complainants are seeking the repossession of the mortgaged property contending that opposite parties have illegally taken the possession of the mortgaged property without following due procedure of law. Contrary to this, the opposite parties stand is that, they have followed the procedure laid down under the Securitization and Reconstruction of Financial Asset and Enforcement of Secured Interest Act, 2002 ( In short “SARFAESI Act”) . To substantiate their contention, opposite parties have submitted following documents.

1. Notice under section 13 (2) of Securitization Act issued by opposite party to the complainant.( Document No.1)

2. Demand notice by paper Publication under securitization Act (Document No.7)

3. Symbolic possession Notice (Document No.9)

4. Order passed by Collector (Document No.11)

5. Order passed by district magistrate (Document No.12)

6. Order passed by the Tahsildar (Document No.13)

7. Letter issued by SDPO (Document No.14)

8. Order of police aid (Document No.15)

Considering the complaint, prayer clause and documents submitted by opposite parties, it can be seen that, this dispute falls under the purview of “SARFAESI Act”. But S. 34 of the SARFAESI Act bars the jurisdiction of civil courts in following words:

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 taken 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).

Now, it is settled law that, S. 34 of the SARFAESI Act, ousts the jurisdiction of Consumer Commission also, if dispute falls under the purview of SARFAESI Act. In present case, as mentioned above this dispute falls into purview of SARFAESI  Act. Therefore, we are of the opinion that, this commission has no jurisdiction to entertain the present complaint. Hence, we answer the point No. 1 in negative.

6.      As to point No.2:-

        From reasoning and findings given on point no.1 as above, we proceed to pass following order in answer to point No.2

ORDER

1. The consumer complaint No. CC/106/2021 is dismissed

2. No order as to cost of the complaint.  
3. Copy of this order shall be furnished to both the parties free of   cost.
4. Two sets of file “B” and “C” shall be returned to the complainants.

           (Swati A. Deshpande)                                               ( Nitinkumar C. Swami )   

                      Member                                                                         President