Dated: 02.06.2023

O R D E R

BY HON’BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT

1. This is a complaint filed under Section 17 of Consumer Protection Act, 1986 seeking directions against OP/Bajaj Finance Limited to rectify the account statement loan account and wave off the illegal extra charges levied and re-issue a genuine and clear up to date balance sheet of loan account statement and to direct OP to pay the cost of damages towards laps of survive and loss due to OP deficiency of service and thus making the complainants to lose his rental value, building value and capital gain which is close to a earnings amount of Rs.01 Crore along with interest @ 12% p.a. till the date and including charges of complainants legal charges, i.e., Rs.01 Lakhs all along with interest and other charges caused for waste of the most valuable precious time for no fault of complainants making them to visit un-necessarily to the OP office during this corona virus pandemic situation, risking his life and causing mental harassment as compensation for damages and further reliefs as the Commission deems fit.

2. Upon service of notice OP contested the matter by filing version, contending that complainant had committed default in repayment of loan and the said loan account has been declared NPA.  It is further contended that OP has already initiated recovery process under SARFAESI Act, 2002 which is well within the knowledge of complainant; which is evident from para-11 of the complaint filed by complainant.  On going through the complaint averments in para-11 of the complaint, complainants submits as thus – “It is submitted that complainant have received a notice under Section 13(2) of the SARFAESI Act, 2002 dated 20^th August 2021 by registered post stating sections of SARFAESI Act that to comply with statutory demand notice and also to avoid any further action under the aforesaid Act, which shall of course be at the complainants cost and all the complainants will be liable for all consequences arising thereon.”  Further in para-13 of the complaint contains – “It is submitted that complainants received one more notice on 27^th November 2021 for disposal of objections/representation as raised by complainants against the notice issued under Section 13(2) SARFAESI Act.”  It is therefore, learned counsel for OP was right in contending that complainant is well aware of the fact of proceedings initiated under the SARFAESI Act.  Further to be noted herein that noted herein that this complaint is filed on 30.12.2021 through advocate and the notice under SARFAESI Act, 2002 was issued to complainant on 20.08.2021 through registered post i.e., well before filing of the present complaint before this Commission.  Learned counsel for OP relied upon the ration laid down by Hon’ble NCDRC in the case between Shib Shankar Lal Gupta v. Kotak Mahindra Bank Limited and other reported in II (2013) CPJ 56 (NC) wherein held –

     “……when the proceeding of SARFAESI is stated by OP/Bank or when the case is pending under SARFAESI Act, 2002, Civil Court as well as Consumer Forums has no power to entertain the case/suit/proceedings as per Section 34 of the Act.”

3.   Thus before discussing on merits, we are pointed only that since the proceedings are initiated against the complainant under the SARFAESI Act well before filing of the consumer complaint before the this Commission, we are of the view that, the present complaint is not maintainable before this Commission as per the ratio laid down by the Hon’ble NCDRC.  Accordingly, we proceed to dismiss the complaint with no order as to costs.

4. Supply free copy of this order to both the parties.  

Lady MemberJudicial MemberPresident

*GGH*