Order No. 18                         Dated: 09.102023

Today is fixed for passing order on MA/620/2022 which was heard in presence of both the sides on 25.07.2023.     

It appears from the MA that the complainant has purchased one flat from developer by entering into an agreement for sale dated 21.05.2016 and subsequently in the month the June, 2016 and the complainant approached the OP-7 for availing financial assistance against the subject flat.  It has also been stated that several demand notice have been issued to the OP-7 against the Loan A/c.  It has also been submitted that the said notices are loan recalling notice and notice under provision of SARFAECI Act, 2002.  After issuing notice U/S 32 of the said Act, 2002 on 27.09.2021 and the proceeding under SARFAECI Act, 2002 has already been initiated by the OP-7 and as per Section 34 of said Act, this Commission did not and could not have jurisdiction to try and entertain the complaint case and as such the instant complaint case is expressly barred by Section 34 of the said Act, 2002.  Prayer of the OP-7 is for dismissal of the instant complaint as same is barred by the SARFAECI Act, 2002.  Some judgements are cited for the complainant reported in SCC (2017) 1 SCC.

WO has been filed by the complainant on 25.07.2023 stating that the complainant filed the consumer complaint against the illegal action of the developer and the respondent bank wherein the developer and the bank in collusion with each other and with intend to defraud the complainant.  It is also stated in the WO that the complainant had visited the office of the developer of the project and he had been instructed by them to obtain loan from the OP-7 since OP-7 has pre approved the housing project of the developer.  It has further stated that proceeding under SARFAECI Act, 2002 were initiated after filed of the instant complaint before this Commission and the complainant in the instant complaint has not challenged any notice issued by OP-7 under provision of SARFAECI Act, 2002.  It came to the notice of the complainant that the OP-7 had taken steps under SARFAECI Act after filing of the instant case before this Commission and this Commission has jurisdiction to entertain the instant complaint since the complaint deals with the issue which are not covered under SARFAECI Act, 2002.  Prayer of the complainant is for dismissal of the instant MA as the provision U/S 34 of the SARFAECI Act, 2002 will not application in the instant case. 

On perusal of the MA and the WO filed in this matter, it appears that notice U/S 13(2) of the SARFAECI Act, 2002 was issued by the OP-7 on 27.09.2021 and the instant consumer complaint was filed by the complainant on 08.10.2021.  It is evidently the notice U/S 13 of the SARFAECI Act, 2002 was issued before filing of the consumer complaint and it is settled principle that once notice U/S 13(2) of the SARFAECI Act, 2002 was issued by the OP-7 bank, the remedy of the parties lies in Section 17 of the same Act.  As a notice U/S 13(2) of the SARFAECI Act, 2002 has already served upon the complainant over the subject disputed matter and in view of the same as well as specific provision of Section 34 of the SARFAECI Act, 2002 the instant consumer complaint is not maintainable before this Commission and as such MA is allowed.

Hence, the Consumer Complaint being No. 379/2021 is dismissed as the same is barred U/S 34 of the SARFAECI Act, 2002.  .

MA/620/2022 is thus disposed of.

There is no order as to costs.