CC/58/2023

ORDRE NO.02

DATED:14.06.2023

                             Today is fixed for admission hearing.

                             Ld. Adv. for the complainant is present.

                             Case is taken up for admission hearing.

                             Hd. Ld. Adv. for the complainant.

                             Perused the petition of complaint and copy of documents filed with the petition of complaint.

                             On perusal of petition of complaint, we find that it is the main grievance of the complainant that OP No.1-4 gave notice of intend to sale of complainant’s property. They also published the said notice in a daily news paper namely Ajkal dated 28.07.2021. By the said notice and advertisement OP No.1-4 took attempt to sale the property which has not been mortgaged before the OP NO.1-4.

Hence, the complainant filed this case and prayed for reliefs as per his prayer.

On careful perusal of record we find that complainant produced copy of notice issued by Bank Authority dated 11.04.2013 addressed to him, we find that complainant took three loans that is Overdraft Rs.9,00,000/-, Cash Credit loan Rs.23,00,000/- and Term Loan Rs.9,00,000/- from the OP No.1-4.

We also find that OP NO.1-4 by the said letter alleged that complainant is violating the terms of the agreement of loan.

On perusal of notice dated 12.04.2014 issued by  the Bank Authority in favour of the complainant, we find that  OP No.1-4 gave the said notice u/s 13(2) read with section 13(13) by SARFEISI Act, 2002. In the said notice they have mentioned the property vide JL No.25, LR Kh. No.631, Hal Kh. No.1422, LR Dag No.571, area 1306.80 Sq. ft. situated  in Ward  No.11 of 

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Santipur Municipality vide Deed No.3433 of 1984 and Deed No.8392 of 1984. They mentioned the said property as security of aforesaid loan.

On perusal of possession notice (Immovable Property) dated 16.07.2014, we find that OP NO.1-4 took the possession of aforesaid property. Complainant has put his signature over the said document.

On perusal of notice dated 26.07.2021 issued by Bank Authority addressed to complainant, we find that  said notice has described  as a notice of intend to  sale under Rule 6(2) and 8(6) security  interest (Enforcement) Rules, 2002  under securitisation  and reconstruction  of financial  assets and enforced  of security  interest act.

By the said notice Bank Authority expressed their intention to sell the property /asset described in the schedule of said notice.

In the said notice date of sale has mentioned as 12.08.2021.

On perusal of paper cutting, we find that Bank Authority published the aforesaid property in the News Paper for sale. And aforesaid property has described in serial no.92.

Now, the question comes before this Commission that when Bank Authority started the process of SARFEISI Act then complaint lodged before this Commission is maintainable  or not.

In this context, we have carefully gone through section of 34 of SARFEISI Act which reads as under:

“Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority  in respect of any action taken or to be taken

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in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).”

                   In view of the said provision case the before the Civil Court is not maintainable.

                   In this Context, we have carefully gone through the decision of Kerala High Court in Punjab National Bank Vs the Consumer Dispute Redressal Forum and others (WP (C)) No.5957 of 2011(T).

                   On perusal of the said decision, we find that Hon’ble High Court of Kerala at Ernakulum in para 10 of the said decision held “The result  of the above discussion  is that the Consumer  Disputes Redressal Forum has no jurisdiction  to entertain  any complaint  in respect of any measures taken by a Bank or a Financial Institution under the Securitisation  and Reconstruction  of Financial Assets and Enforcement of Security Interest Act, 2002 and the CDRF has no jurisdiction  to give any relief whatsoever, against the same, it is declared so.

                   In the result Ext P3 order of the CDRF, Alappuzha is quashed.

                   It is declared that the CDRF has no jurisdiction to entertain or deal with CC No.371 of 2010 (Ext P4) in which Ext P3 order has been passed as against the measures taken by the petitioner under SARFEISI Act.

                   Accordingly, the CDRF shall take steps to remove Ext P4 complaint from the files of CDRF.”

                   In view of the aforesaid discussion, it is clear before us that the aforesaid complaint which has been filed before this Commission is not maintainable.

                   Hence,

                             It is

                                                                   Ordered

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                                                                             that the present case be and the same vide no.CC/58/2023 is dismissed as not maintainable  without being  admitted the same.

Liberty is given to the complainant to file the said complaint before any other appropriate Forum if not otherwise barred by any other law.

MEMBER                     MEMBER                     PRESIDENT