Punjab

Ludhiana

CC/17/60

Balbir Kaur - Complainant(s)

Versus

Central Bank of India - Opp.Party(s)

R.S.Mand Adv.

06 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                            Complaint No:  60 of 30.01.2017.                                                                     Date of Decision: 06.03.2017.

 

Balbir Kaur wife of Sukhwinder Singh, resident of Plot No.135, New Akash Nagar, Jalandhar Bye Pass, Ludhiana.                                                                                                                                              ..… Complainant

                                                  Versus

Central Bank of India, Nizam Road, Ludhiana trough its Branch Manager.

…..Opposite party 

                              Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH. G.K. DHIR, PRESIDENT

SH. PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant               :         Sh. R.S. Mand, Advocate.

ORDER

PER G.K. Dhir, PRESIDENT

1.                 Complainant filed an SARR bearing No.93/2013 titled as Balbir Kaur Vs CBI before Debt Recovery Tribunal-II, Chandigarh. Cheque bearing No.34930 of Rs.2,00,000/- was issued by the complainant in favour of OP and said cheque was honoured. Thereafter the cheque submitted three years ago and complainant claimed that she is ready to clear the dues within one month. Debt Recovery Tribunal passed the orders to the effect that complainant directed to pay Rs.16,13,517/- as per notice with simple interest @12% per annum on reducing balance from 01.03.2011. Status quo regarding the property was ordered to be maintained till 29.08.2016. The documents were ordered to be returned after clearance of the entire amount in accordance with law within 15 days and thereafter, S.A. was disposed with these directions by Hon’ble Debt Recovery Tribunal-II, Chandigarh. In compliance with those orders, cheque of amount of Rs.22,92,200/- drawn on Oriental Bank of Commerce was issued and same was received by OP on 11.08.2016. Even thereafter the OP failed to handover the sale deed and keys to complainant till date and as such, after serving legal notice dated 23.08.2016, this complaint filed for direction to OP to hand over the sale deed and keys to the complainant.

2.                 Arguments heard for preliminary hearing. Letter dated 11.08.2016 issued on the letter paid of Central Bank of India produced to show that cheque of Rs.22,92,200/- dated 06.08.2016 has been received by OP. Copy of that cheque annexed with complaint. This amount deposited in accordance with the terms of orders dated 28.07.2016 passed by Hon’ble Debt Recovery Tribunal-II, Chandigarh in SARR 93/2013 titled as  Balbir Kaur Vs CBI. Vide these orders of 28.07.2016, Hon’ble Debt Recovery Tribunal-II, Chandigarh directed maintenance of status quo regarding the property till 29.08.2016. Even direction was given to complainant to pay Rs.16,13,517/- as per notice with simple interest @12% p.a. on reducing balance from 01.03.2011. Documents were ordered to be returned after clearance of the entire amount in accordance with law within 15 days. That amount alleged to be cleared by complainant and thereafter, return of the documents along with keys sought from OP. So virtually this complaint has been filed for getting orders dated 28.07.2016 of Debt Recovery Tribunal-II, Chandigarh executed. Consumer Forum is not to act as an executing court, where the Debt Recovery Tribunal has already exercised the jurisdiction because provisions of Section 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as SARFAESI Act) provides that the provisions of said act to have effect not-withstanding anything in-consistent contained in any other law for the time being in force or in any instrument having force by  virtue of any such law. As provisions of SARFAESI Act to over ride provisions of any other law including Consumer Protection Act and as such, if it all complainant to get relief in respect of execution of the orders passed by Hon’ble Debt Recovery Tribunal-II, Chandigarh as referred above, then she should approach that Forum. Provisions of Section 34 of SARFAESI Act also provides that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter to which Debt Recovery Tribunal is empowered by the Act to determine. Further as per that Section, no injunction to be granted by any court or other authority in respect of any action taken or to be taken in pursuance of the powers conferred by the SARFAESI Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993). Virtually through this complaint mandatory injunction sought against OP for directing them to hand over the documents and keys by claiming that compliance of the orders dated 28.07.2016 passed by Hon’ble Debt Recovery Tribunal-II, Chandigarh has been done by complainant. As issue of mandate in the shape of injunction or otherwise is prohibited by Section 34 of the SARFAESI Act and as such, certainly this Forum has no jurisdiction to entertain this complaint because remedy available with complainant is to approach Debt Recovery Tribunal itself for getting the orders dated 28.07.2016 executed.

3.                 Parallel proceeding in Civil Court or Consumer Fora qua same subject matter not permissible to be continued is law laid down in case titled U.P. Somashekar Vs The Secretary APMC Yard III (1999) CPJ 134 and Haryana State Electricity Board Vs Jai Devi Aggarwal 1999(1) MCLT III (Haryana). As the parallel proceedings before the Consumer Fora are prohibited and as such, this complaint for getting the orders of Debt Recovery Tribunal executed, virtually is not maintainable and the same dismissed at admission stage itself. Copies of order be supplied to complainant free of costs as per rules. File be indexed and consigned to record room.

                                         (Param Jit Singh Bewli)                      (G.K. Dhir)

                                         Member                                              President

Announced in Open Forum.

Dated:06.03.2017.

Gobind Ram.