SRI SHYAMAL KUMAR GHOSH, MEMBER
The instant consumer case has been filed by the complainants against the opposite parties praying for certain directions upon the opposite parties along with some reliefs as prayed for which are clearly enumerated in the petition of complaint.
The record has been taken up for admission hearing.
We have heard the ld counsel for the complainant at length and in full.
We have also considered the submissions of the ld counsel.
We have perused the materials available on record meticulously.
Before deciding the prima facie case against the opposite parties at the stage of admission hearing we find some statements clearly enumerated in the paragraph nos-26 and 27 of the petition of complaint. The paragraph no-26 runs as follows:-
“The complainants state that, being law abiding citizen of this country, they had been making regular payments of the Easy Monthly Instalments (EMI) of the bank loan obtained in respect of the said flat since 2015 till date without having yet been handed over possession of the said flat by the opposite parties.”
The paragraph no-27 of the petition of complaint runs as follows:-
“Adding insult to injury, the complainants, on or about March, 2022 were shocked to receive letters from the State bank of India and came to learn that the State Bank of India had proceeded against the complainants before the Debts Recovery Tribunal, Kolkata by filing an application, being O.A. No.147 of 2022, against the complainants as well as the opposite parties for playing fraud upon the bank. The complainants crave leave to produce the copy of such application, being OA no. 147 of 2022 at the time of hearing, if necessary.”
In pursuant to the above referred two paragraphs and the contentions of other portion of petition of complaint, it is clear to us that the complainants intended to purchase a self-contained flat measuring super built up area about 1150 sft on the First Floor block ‘B’ by obtaining a bank loan amounting to Rs.44,00,000/- and to that effect the complainants were duty bound to pay the EMI regularly as per terms and conditions of the concerned bank. But the complainants clearly admitted in their petition of the complaint that the State Bank of India had already approached against the complainants as well as the opposite parties before the Ld. DRT, Kolkata by filing an application being no-OA/147/2022 due to playing fraud upon the bank.
At this juncture, the question has been arisen whether this Commission is entitled to entertain the instant petition of complaint when the matter is pending before the ld DRT. In this respect we can safely rely upon the case laws which are reproduced as under:-
- In Shiv Shankar Lal Gupta vs Kotak Mohindra Bank Limited and others reported in II (2013) CPJ 56 (NC) wherein the Hon’ble National Commission held that when the proceeding of SARFASEI is started by op/bank or when the case is pending under SARFASEI ACT 2002, the Civil Court as well as Consumer Forum has no power to entertain the case/suit/proceeding as per section -34 of the SARFASEI ACT, 2002.
- In standard Chartered Bank vs Virendra Rai reported in II (2013) CPJ 337 (NC) wherein the Hon’ble National Commission also held that the District Forum and the State Commission have no power to interfere with SARFASEI ACT 2002 under section 34 of the said Act.
It is fact that the SARFASEI proceeding has already been started against the complainants. Thus being the situation it is settled principles of law that when the matter is pending before the Ld. Debt Recovery Tribunal, we have no power and authority to entertain the said matter as per above observations.
Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the submissions of the ld counsel and citations of the Hon’ble NCDRC we are of the view that the instant petition of complaint has no leg to stand upon and accordingly we are constrained to dismiss the same at the admission stage without any order as to costs.
The instant CC case being no-21/2023 stands disposed of.
Note accordingly.
Let a copy of this order be supplied to the party free of cost forthwith.
