Madhya Pradesh

StateCommission

A/16/36

CENTRAL BANK OF INDIA - Complainant(s)

Versus

GOPAL KOLI - Opp.Party(s)

SH. LALIT GUPTA

11 Oct 2023

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

                              

                                    FIRST APPEAL NO. 36 OF 2016

(Arising out of order dated 28.10.2015 passed in C.C.No.57/2015 by the District Commission, Shivpuri)

                                                    

CENTRAL BANK OF INDIA.                                                                             …          APPELLANT.

                                               

Versus

                 

GOPAL KOLI.                                                                                                     …         RESPONDENT.

                                                                                                          

BEFORE:

 

                  HON’BLE SHRI A. K. TIWARI                 :      PRESIDING MEMBER

                  HON’BLE DR. SRIKANT PANDEY         :       MEMBER 

                  HON’BLE SHRI D. K. SHRIVASTAVA   :       MEMBER 

 

                                      O R D E R

11.10.2023

 

          Shri Lalit Gupta, learned counsel for the appellant.

            Ms. Mona Paliwal, learned counsel for the respondent.

           

 

As per A. K. Tiwari : 

                       The opposite party/appellant Central Bank of India (hereinafter referred to as ‘bank’) has filed this appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 28.10.2015 passed by the District Consumer Disputes Redressal Commission, Shivpuri (For short ‘District Commission’) in C.C.No.57/2015 whereby the complaint filed by the complainant/respondent has been allowed and the bank is directed to give possession of the building after opening the locks. Compensation of Rs.10,000/- with costs of Rs.2,500/- is also awarded. It is also directed that if the aforesaid amount is not paid within one month, interest @ 9% p.a. will be payable on the aforesaid amount.

 

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2.                Brief facts of the case are that the complainant in the year 2009 for the purposes of commercial limit had borrowed loan from the Central Bank of India, Branch-Khod (Bhoti) and pledged 750 sq.ft immovable property with the bank. It is alleged that on 07.10.2013 the bank unauthorisedly locked the three rooms constructed on 187 sq.ft land which was not pledged with the bank against the loan borrowed. Aggrieved complainant therefore filed a complaint before the District Commission seeking direction to the bank to release the possession of the said rooms which were seized by the bank, after opening the lock. He has also claimed compensation of Rs.50,000/- and Rs.5,000/- as costs.

3.                The opposite party/appellant despite notice remained absent and were proceeded ex-parte by the District Commission.

4.                Heard learned counsel for the parties. Perused the record.

5.                Learned counsel for the opposite party/appellant argued that the complainant had obtained commercial loan and when despite repeated notices and reminders, the complainant failed to make payment of remaining loan amount therefore, action was taken under the provisions of of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act). He further argued that in view of SARFAESI Act, the complaint is not maintainable and therefore, the impugned order deserves to be set-aside.  

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6.               He placed reliance on the decision of Hon’ble Supreme Court in Civil Appeal No. 19847 of 2017 (Agrawal Tracom Pvt. Ltd. Vs Punjab National Bank & Ors) decided on 27 November, 2017, Civil Appeal No. 1281 of 2018 (Authorized Officer, State Bank of Travancore And Another Vs Mathew K. C.) decided on 30 January, 2018, decision of Hon’ble High Court of M. P., Jabalpur in Civil Revision No. 600 of 2019 (Bank of India Vs Smt. Shakun Bai Suryavanshi & Ors) decieded on 30 September, 2022 and a decision of this Commission in First Appeal No. 813 of 2012 (Chandrashekhar Chouhan Vs Bank of Maharashtra) decided on 19.12.2022 in support of his contentions. 

7.                On the other hand, learned counsel for the respondent/complainant argued that the impugned order is just and proper and the present appeal is not maintable and requested for dismissing the same. 

8.                 After hearing learned counsel for the parties and having gone through the record, we find that it is an admitted fact that the complainant had borrowed loan for commercial limit.  It is true that the opposite party bank remained ex-parte before the District Commission and did not file any written statement and has filed this appeal on merits. However, we find that the bank took general defence and has challenged the legality of the 

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impugned order on the ground that the complaint before the District Commission was not maintainable. 

9.               The complainant has filed documents as per list, which includes complaint made to Lokpal, Collector & Branch Manager of the appellant bank. In the complainant the complainant has specifically pleaded that he borrowed loan for commercial limit. 

10.              There are two points which arises for our consideration one, the complainant had borrowed loan for commercial limit and therefore, he is not a consumer as he has nowhere mentioned in his complaint that he had obtained loan for the purposes of earning his livelihood by means of self-employment. Second, since the complainant had borrowed loan and for recovery of the same, the bank had taken action against the respondent under the SARFAESI Act. Section 34 of the SARFAESI Act puts a bar on civil court. Section 34 of SARFAESI Act bars the jurisdiction of the Commissions constituted under the Consumer Protection Act, 1986 and therefore, the District Commission has no jurisdiction to entertain the complaint. 

11.              We make it clear that if the complainant is aggrieved by the action of the bank, he can challenge the same before the appropriate Tribunal i.e. Debt Recovery Tribunal under the provisions of SARFAESI Act as the District Commission has no power to entertain such a complaint. 

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12.               Although there is no written statement filed by the opposite party bank before the District Comission and therefore the appeal cannot be considered on merits but looking to the complaint filed before the District Commission, we are of a considered view that the bank took action against the complainant under the SARFAESI Act and therefore, the complaint filed by the complainant against the said action of the bank before the District Commission is not maintainable. The District Commission overlooked this legal provision and has erred in allowing the complaint. 

13.              In view of the aforesaid, we find that the impugned order cannot be sustained and is hereby set-aside.

14.              In the result, the appeal is allowed. Consquently, the complaint is dismissed. No order as to costs.

 

      (A. K. Tiwari)        (Dr. Srikant Pandey)        (D. K. Shrivastava)  

  Presiding Member            Member                           Member