MR. PRAVAT KUMAR PADHI, PRESIDENT:-
Complainant has filed the C.C.Case No. 39/2023 U/s-35 of C.P.Act, 2019 seeking following relief, Honbl’e Commission after hearing from both parties, to direct the Ops Bank shall not sale the Complainant property which will cause irreparable loss which can’t be compensated homestead land which have no connection with the alleged cash credit loan and pass such order/direction(s) as may deem fit, just & proper in favour of the Complainant.
Brief facts of Complainant’s case is that, the husband of Complainant has taken cash credit loan and Complainant had taken home loan against a land bearing Khata No.76, Plot No. 325, under Mouza- Ramanagarpatana, Tahasil-Kendrapara for an amount of Rs. 11,80,500/- and repaying the loan regularly and after death of her husband both the loan have been joint by Opp.Party Bank.
The Opp. Party Bank in their written version have stated that “the fact of the case is that the husband of the Complainant has been sanctioned a cash credit loan facility of limit of Rs. 34,00,000/- and the complaint has executed the mortgage deed by deposited title deeds on dt. 22/10/2009 and subsequently for enhancement of the limit she has also executed supplemental mortgage deed on dt. 24.10.2011 in which she had depositing the original registered sale deeds bearing No. 1657, dt. 27.05.2008 and R.S.D. No. 241, dt. 21/01/1991 and ROR Khata No. 76, Plot No. 325, Area –A 0.065 of Mouza- Ramanagarpatana and the question of no knowledge of Complainant in respect of C.C. loan of her husband does not arise at all. On the above circumstances the Op-Bank had send recall notice on dt. 02.06.2017 and legal notice dt. 06.06.17 and inspite of several promise on behalf of the complaint she did not repay the amount for which the Bank has been constrained to issue notice U/s 13(12) of SARFAESI ACT and proceed with paper Publication and has taken the possession of the schedule property as per due procedure of SARFAESI ACT and the Bank has also through its authorized officer became the possession of the schedule premises vide order dt. 23/03/2023 passed by Collector and District Magistrate, Kendrapara U/s 14 of SARFAESI Act and thereafter the Opposite Party Bank has sold the schedule property in due procedure in favour of two persons namely (a) Rajan Khan, S.o- Jalauddin Khan of Vill- Tamalassan, Po-Choudakulat, Ps-Pattamundai, Dist-Kendrapara, (2) Srikanta Behera, S/o- Krushna Ch. Behera, Vill- Ramachandrapur, Po-Gulnagar, Ps-Kendrapara Sadar, Dist-Kendrapara and received Rs. 36,40,000/- and also handed over the delivered of possession of the schedule property i.e, Khata No.76, Plot No.-325, A 0.058 dec., Mouza- Ramanagarpatana and issued the certificate of sale dt. 06.03.2023 through E-auction dt. 15.02.2023. Further more the SARFAESI Act 2002 is a special Act and U/s 34 of the Act bars the jurisdiction of Civil Court and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in Persuana of any power conferred by or under this Act and U/s-35 the provisions of SARFAESI Act over rides any other Law and as such this Honbl’e Court has no jurisdiction to pass any order preventing the Bank from performance of the power under SARFAESI Act.
In view of the facts stated above and settled position of law SARFAESI Act, 2002 being a special statute and the matter being Sub Judice under SARFAESI Act, this Commission has no jurisdiction to adjudicate the same and as such the present C.C.Case is not maintainable before this Commission in view of provisions of SARFAESI Act.
However while deciding the case the Counsel for Complainant submitted that, Complainant & her family still residing in the disputed property, which was gifted by her father and it is their only residential house and she is ready & willing to pay the Bank’s outstanding dues and unless she is protected she will be in the street. A consumer should certainly be preferred over an outsider/auction purchaser as not only the money but also emotion of entire family is associated with the house. If the Complainant is ready & willing to repay the loan to Opp.Party, natural justice demands that Complainant should be given priority over others. If the Complainant is ready & willing to repay the same amount that of the auction purchaser then she should be given priority & Opp.Parties may be liberal to a widow lady. If the Complainant fails to repay the amount then Opp.Parties are free to take action against the Complainant as per law.
With the aforesaid observations the C.C.Case No. 39/2023 alongwith I.A. No. 21/2023 are accordingly disposed off. No order as to cost.
Issue extract of the order to the parties for compliance.
Pronounced the Open Commission on this the 11th day of July, 2023.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
