Today is fixed for hearing argument in respect of the maintainability petition filed by the OP and also challenging the jurisdiction of this Forum to decide the same and fact remains Ld. Lawyer for the OP submitted some papers related to action taken by the Bank (OP) as per provision of SARFAESI Act, 2002.

          Fact remains complainant and his Ld. Lawyers are absent on repeated calls up to 2-00 p.m. for which the matter is heard accordingly after hearing argument from the Ld. Lawyer for the OP.

          But truth is that OP challenged the legality of the complaint on the ground that the complainant took house building loan by mortgaging property being holding no.132/8/2 (New P 120A) Unique Park, Kolkata – 24 of Ward No.129 of KMC and complainant failed to pay the EMIs regularly and complainant was found a habitual defaulter and ultimately OP Bank started proceedings under SARFAESI Act, 2002 and accordingly, the Bank Authority as per provision of the said Act sent notice u/s.13(2) of the said Act and, thereafter, took all steps Section 8(1) of the Act and ultimately they took possession of the said property after taking all legal steps and in support of that OP has filed the copy of this documents in respect of the order passed in proceedings u/s.13(2) of the SARFAESI Act and before that complainant called upon to pay Rs.5,18,974/- as outstanding balance against the loan as granted by OP Bank in favour of the complainant.

Against that maintainability petition complainant filed reply and submitted that simple issue of this case is for non-delivery of entire details in respect of the relevant loan account of the complainant with the OP and OP has not yet supplied all those papers for which the case was filed and so it is maintainable.  But today Ld. Lawyer for the complainant or his Ld. Lawyer is found absent.  So, relying upon the objection as filed by the complainant and also maintainability petition is filed by the OP it is clear that the matter may be disposed of relying upon the documents filed by the OP.

          In this regard we are well aware of the fact that as per provision of Section 34 and 35 of the SARFAESI Act, the Consumer Forum has no authority to decide dispute of any loan account of any loanee member against whom any proceeding u/s.13 of SARFAESI Act has already been started.  So, relying upon the said principle of law we are confirmed that if any proceeding u/s.13(2) of SARFAESI Act is started against the complainant and subsequently proceedings has been proceeded against him and ultimately a possession is taken by the Bank applying the provision of Section 8 and 14 of the Act and in that case a loanee Member has no right to get any relief from Civil Court or Consumer Forum or from any other Authority.  But in such a situation complainant is entitled to get relief from Debts Recovery Tribunal and Debts Recovery Tribunal is the only authority to decide such a dispute and as per provision of Section 3 of the C.P. Act and also considering the provision of Section 34 and 35 of the SARFAESI Act, 2002 we are convinced that the present case is barred u/s.34 and 35 of the SARFAESI Act and this Forum has no jurisdiction to entertain such dispute when proceeding under SARFAESI Act has been exhausted against the complainant long back in the year 2009 and possession was taken on 19-01-2009 in respect of the mortgage property but the present complaint was filed by the complainant on 06-09-2013 i.e. also barred by limitation.  In the light of the above observation we are convinced to hold that the present complaint is barred u/s.34 and 35 of the SARFAESI Act and for which the Forum has no jurisdiction to decide such dispute and for which the present complaint is not maintainable in the eye of law.

          Hence,

Ordered

That the complaint be and the same is dismissed on the ground that this complaint is not maintainable and this Forum has no jurisdiction to decide the present dispute on the ground the proceeding under SARFAESI Act had already been disposed of finally against the complainant on 19-01-2009 and against that order of the SARFAESI Act complainant did not prefer any appeal to Debts Recovery Tribunal.