26.07.2017

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

          This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the judgment and order dated 15.12.2014 passed by the Ld. District Forum, Kolkata, Unit – II in connection with Complaint Case No. 199 of 2014, directing the O.P. – Bank to pay, within 15 days from the date of the order, to the Complainant Rs.94,000/- paid in advance with interest “@6%” for the period from the date of receipt of the said amount till the payment is made in full and also to pay Rs.10,000/- as compensation and Rs.10,000/- as litigation cost, failing which shall attract penal interest @ Rs.200 per day of default for the entire period of default and such penal interest shall be deposited with the District Forum’s account.

          Facts of the case, as emerged from the materials of record, are that the Respondent/Complainant going through the advertisement under Section 13(4) of the SARFAESI Act, 2002 by the Appellant/O.P. – Bank for auction-sale of the flat concerned, participated in the said E-auction and became highest bidder of the said E-auction as is revealed from the letter dated 23.02.2013 of the Appellant/O.P. Bank to the Respondent/Complainant, and the Respondent/Complainant deposited 25% of the bid amount i.e. Rs.94,000/- out of the total bid amount of Rs.16,32,000/- with the Appellant/O.P. Bank.  Thereafter, when the Respondent/Complainant attempted for physical inspection of the flat concerned, Respondent/Complainant came to know that the flat concerned was previously sold to another party by Union Bank of India, Salt Lake Branch through E-auction.  It is alleged that the Appellant/O.P. Bank suppressing the fact of previous sale of the flat concerned by the Union Bank of India, Salt Lake Branch, fraudulently further negotiated the sale-transaction of the flat concerned through E-auction with the Respondent/Complainant.  After such knowledge of second E-auction sale of the same flat when the Respondent/Complainant demanded refund of the deposited money with interest, the Appellant/O.P. Bank did not respond to in favour of the Respondent/Complainant.  With the aforesaid factual background, the Complainant moved the complaint concerned before the Ld. District Forum which passed the order in the aforesaid manner.  Aggrieved by such order O.P. Bank has preferred the instant appeal.

          The Ld. Advocate for the Appellant/O.P. Bank, in the very beginning, submits that as the transaction of the flat concerned is related to E-auction under the SARFAESI Act, 2002, so the Consumer Fora have no jurisdiction to try the instant complaint case as per provision of Section 34 of the SARFAESI Act, 2002.

          Ld. Advocate concludes that in view of the aforesaid submission, the instant appeal should be allowed and the impugned order be set aside. 

          On the other hand, the Ld. Advocate for the Respondent/Complainant submits that as the Appellant/O.P. Bank attempted to sell the flat concerned through E-auction under SARFAESI Act, 2002 suppressing the previous E-auction sale under SARFAESI Act by the Union Bank of India, Salt Lake Branch, and the amount received in advance has not yet been refunded, so the Appellant/O.P. Bank has committed deficiency in service, and hence the instant appeal should be dismissed and the order impugned be affirmed.

          Heard both the sides, considered their respective submissions and perused the materials of record.

          Notice of sale under Section 13(4) of the SARFAESI Act, 2002 by the Appellant/O.P Bank and the letter dated 23.02.2013 of the Appellant/O.P. Bank informing the Respondent/Complainant that he was the highest bidder in the E-auction sale of the flat concerned, unambiguously indicate that the transaction of the flat concerned is related to E-auction under the SARFAESI Act, 2002.

          It is well settled by the Hon’ble National Commission in MOH Leathers Limited – vs. – Indian Bank, reported in IV (2013) CPJ 107 (NC) that the Conformer Fora have no jurisdiction to try the case related to SARFAESI Act.  Also, in Sri Yashwant – G. Ghaisas & Ors. – vs. – Bank of Maharashtra, decided by the Hon’ble National Commission on 06.12.2012 in CC No. 302 of 2012, the  Hon’ble National Commission echoed the same view and this view was approved by the Hon’ble Supreme Court of India by its order dated 01.03.2013 in SLP to Appeal (Civil) No. 1359 of 2013 wherein it was observed that the Consumer Fora are not empowered to arrogate to itself the power which comes under SARFAESI Act, 2002.

          The foregoing facts and decision lead us to conclude that the Consumer Fora have no jurisdiction to try the complaint case concered.

          Consequently, the instant appeal is allowed.  The impugned order is set aside.

          The Respondent/Complainant is at liberty to seek the remedy, if any, before the appropriate forum.