The Ld. Advocate of the complainant and the OPs are present. OP3 has filed this misc application which is registered as MA/279/2022 in the original case no. CC/235/2021.

It was clarified in the previous order no. 11 dated 02.01.2023 that in the event of absence of complainant, the matter would be disposed of after giving opportunity of being heard to the Ld advocate of OP3.

As such, hearing if the MA taken up today.

After perusal and hearing the sides, it is observed that the OP 3 has filed this MA petition to allow the same and to vacate the ex-parte order dated 02.08.2022 from this Commission against OP 3 and to enable Op 3 to file W/V.

But it is found that u/s 13(2) of the Sarfaesi Act notice has already been served upon the complainant. It is an admitted position of the complainant in the W/O filed on 27.02.2023 against the MA petition wherein it is stated in point no. XVIII that a proceeding under Sarfaesi Act, 2002 is initiated by issuance of a demand notice dated 08.04.2021 U/S 13(2) wherein a sum was claimed on account of outstanding loan and it’s principal, arrears, interest and late charges etc. But subsequently this complaint petition was filed by the complainant on 31.08.2021. It means inter-alia that after getting notice U/S 13(2) of the Sarfaesi Act, 2002 the complainant filed a complaint petition on 31.08.2021 before this Consumer Commission as per Case No. CC/235/2021.

Sec 34 of the Sarfaesi Act states that no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which is a Debt recovery tribunal is empowered by or under this Act to empower by or under this Act. This is also as per Banks and Financial Institution Act, 1993. Further there is embargo of granting injunction by any authority when action is taken under the Sarfaesi Act. The expression about the other authority is broad enough to include any other Forum under the Consumer Protection Act.

In the matter of Laximiba L Zawar Vs. Jalgaon Merchant Co-Operative Bank Ltd. (2011) of Bombay CR 236, the Division Bench of Bombay High Court held that once notice under Section 13(4) of the Sarfaesi Act was issued by the bank, the parties available remedy is under Section 17 of the same act and there is a complete bar under Section 34 to approach any other Court like Co-Operative Court or Consumer Commission as well.

Considering the materials referred above and with due considerations to the submissions by respective parties, a notice U/S 13(2) of the Sarfaesi Act, 2002 has already been served upon the complainant over the subject disputed matter and in view of the same as well as the specific provisions of Section 34 of the Sarfaesi Act, 2002, this complaint case no. CC/235/2021 is thus not maintainable and hence disposed of.

Hence, this MA petition has become infructuous as the original case is dismissed.

There shall be no order as to cost.

Dictated and Corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER