Order No. 12                          Date - 16.09.2022

Ld. Advocate for the complainant and OP 1 is present.

Today is fixed for hearing Miscellaneous application dated 17.01.2022 filed by the OP 1 praying for dismissal of the complaint case on the ground stated therein.

Complainant files WO against the impugned application. Copy served and objection is endorsed. Let the WO be kept with the record.

Heard the Ld. Advocate for the OP 1 who submits that the complainant obtained financial assistance from the OP 1 bank and due to non payment of EMIs in terms of the loan agreement the account of the complainant/borrower become Non Performing Assets on 20.05.2021 as per guidelines of the RBI. He further submits that notice U/s 13(2) of the SARFAESI Act, 2002 was duly served upon the complainant on 23.09.2021 and the complainant received the said notice. After expiry of the notice U/s 13(2) of the SARFAESI Act, 2002 the OP Bank also issued a notice U/s 13(4) of the SARFAESI Act, 2002. He further states that Section 34 of the SARFAESI Act bar the jurisdiction of Civil Court to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or under this act to determine 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/or financial institutions. Thus the instant case in not maintainable in its present form in law.

Per contra, the Ld. Advocate appearing for the complainant submits that the complainant is a bona fide customer under the OPs and the relationship between the complainant and the OP 1/bank is not only that of borrower and lender. He further submits that the OP 1 conditionally sanctioned loan to the complainant against a loan link policy. The commission is the authority to entertain the instant consumer complaint as there is deficiency in service and unfair trade practice on the part of the OP 1 Bank. More so, notices U/s 13(2) and 13(4) of SARFAESI Act, 2002 were sent to the complainant after filing of the instant case. Thus, the complainant has prayed for dismissal of the Miscellaneous application filed by the OP 1 bank.

We have heard the submission of both sides. On perusal of the record and it appears to us that complaint case was filed on 19.07.2021 prior to issuance of notice U/s 13(2) SARFAESI Act, 2002.

Section 34 of the SARFAESI Act, 2002 reads as follows.

“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)”.

No doubt the OP bank initiated action under the provision of the SARFAESI Act, 2002 and as per section 17 of SARFAESI Act, the Debts Recovery Tribunal having jurisdiction in the matter within 15 days from the date on which such measures had been taken. In view section 34 of the SARFAESI Act, 2002, the commission have no jurisdiction to entertain the instant consumer complaint. Based on the above discussion we are inclined to allow the prayer of the OP 1 bank and the instant consumer complaint is not maintainable. Accordingly the prayer of the OP 1 is allowed on contest.

Thus MA being No. 31/2022 is disposed of.

Consequently, the consumer case being No. CC/289/2021 is dismissed.

OP 2 files an application U/s 40 of the CP Act, 2019 praying for permission to defend their case properly on the ground stated therein. The application is registered as MA/617/2022 instead of Review Application. In view of dismissal of the consumer case the impugned application in fractious and calls for no consideration.

Thus MA being No. 617/2022 is disposed of.