Delhi

North

CC/223/2021

Sharikant Sharma/Anupma Sharma - Complainant(s)

Versus

PNB - Opp.Party(s)

05 Oct 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No. 223/2021

AND

Miscellaneous Application No.: 22/2023

(REVISED ORDER)

In the matter of

Shrikant Sharma

S/o Shri O N Sharma                                      …       Complainant No. 1

Anupama Sharma

W/o Shri O N Sharma                                     …       Complainant No. 2

Both residents of

F-15A, 2^nd Floor, Subhash Chowk

Laxmi Nagar, New Delhi- 110092

Office

Shri J K Srivastava, Advocate

Chamber No. 39, Western Wing

Tis Hazari Courts, Delhi- 110054

 

Versus

 

Punjab National Bank

MSD Flats, Minto Road Complex

New Delh-110002                                          …       Opposite Party

 

05.10.2023

Present:       Shri Nikhlesh Jain, AR for Complainants along with Complainant No. 1 in person

                   Shri Ajay Kumar Tyagi, Ld. Advocate for OP

 

ORDER

MA No.: 22/2023

 (Divya Jyoti Jaipuriar)

1. This application was filed by the Complainants herein praying for, inter alia, suspension of possession notice dated 03.08.2023 issued by OP herein till final disposal of this complaint. We issued notice on this application and OP has filed its reply. In its reply, the OP has vehemently opposed the prayers as prayed by the Complainant herein. We have also heard arguments of Shri Nikhlesh Jain, AR of the Complainants and Shri Ajay Kumar Tyagi, Ld. Advocate for the OP on the last date of hearing before reserving order on this application.

2. It is argued on behalf of the Complainant that the Complainants filed application seeking interim relief along with the complaint. Notices were issued by this Commission on 20.12.2021 on the complaint as well as on the application seeking interim relief. BY the same order, the OP was also directed not to take any coercive action against the Complainant till next date of hearing, i.e. 10.02.2022. As there was no coram on 10.02.2022, the matter was relisted on 18.04.2022. The interim order continued vide orders dated 18.04.2022 and 11.05.2022. IT is argued by the Complainant that the said interim order was inadvertently not continued since the order dated 03.06.2022. Taking benefit of this, the OP has issued the possession notice dated 03.08.2023. Hence, this application has been filed seeking the relief of suspension of possession notice.

3. On behalf of the OP, it is argued that on the date of issuance of possession notice, there was no interim order in operation. It is a fact that the interim order was not continued from 03.06.2022, but the Complainants have neither pointed out this to this Commission nor have they taken steps for disposal of the application seeking interim relief. It was more than one year and after many hearings, before this Commission, this possession notice was issued under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter the Securitisation Act, 2002). He further states that after the proceedings under the Securitisation Act, 2002 has been initiated; the Complainants are bound to take recourse under the Securitisation Act, 2002. It is also argued on behalf of the OP that under section 34 of the Securitisation Act, 2002, this Commission cannot continue with this complaint once the proceedings against the Complainants have been initiated by the OP under the provisions of the Securitisation Act, 2002.

4. We have gone through the pleadings, documents on record and the legal provisions. It is indeed a fact that that interim order as granted on 20.12.2021 was continued by various orders of this Commission, but the same was discontinued since 03.06.2022. This was also not pointed out by the Complainants in any of the subsequent hearings until the possession notice was received by the Complainants. At this stage, we would also like to refer to the judgment of Hon’ble Supreme Court in the matter of  Asian Resurfacing of Road Agency (P) Ltd. v. CBI [(2018) 16 SCC 299], in which Hon’ble Supreme Court has categorically held that the stay granted in any matter shall not continue for a period beyond six months. In the said judgment, Hon’ble Supreme Court has held as under:

“36. In view of the above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalised. The trial court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.”

5. In the case in hand, the interim order so granted was in form of stay of proceedings against the Complainants and the same cannot remain in operation for more than six months unless it is extended by a reasoned order. Hence, it was the duty of the Complainants to move appropriate application for continuance of interim order for a period of more than six months. The Complainants have not done so. As a result, in view of the judgment of Hon’ble Supreme Court in the matter of Asian Resurfacing of Road Agency (supra) case, the interim order could not continue until the same is continued by a reasoned order. There was no order of this Commission to continue the interim order when the possession notice was issued. Hence, the issuance of possession notice by the OP cannot be said to be in the teeth of the order passed by this Commission.

6. Now coming on the possession notice dated 03.08.2023, which has been issued under rule 8 (1) of the Security Interest (Enforcement) Rules 2002 by the Authorised Officer of the OP Bank while exercising his powers under section 13 (4) of the Securitisation Act, 2002 read with rule 8 of the Security Interest (Enforcement) Rules 2002. The Securitisation Act empowers the Authorised Officer of the Lender Bank to issue such possession notice. In case any Person including the borrower is aggrieved with such possession notice appropriate recourse for such person is to move to Debt Recovery Tribunal under section 17 of the Securitisation Act, 2002. Only Debt Recovery Tribunal has the powers to stay the said possession notice and this Commission is barred from passing any order on such issue. Section 34 of the Securitisation Act, 2002 specifically bars the jurisdiction of courts to entertain such proceedings.

7. Hence, this Commission does not have power to grant the prayer of the Complainants to suspend the possession notice dated 03.08.2023 issued by OP. Accordingly; the application filed by the Complainant is dismissed. Interim order is also vacated.

 

CC No. 223/2021

8. In view of the fact that the OP has already initiated proceedings against the Complainants herein under the provisions of the Securitisation Act, 2002, this Commission cannot continue with this complaint as section 34of the Securitisation Act, 2002 specifically bars the jurisdiction of this Commission to entertain proceedings in respect of any matter which the Debt Recovery Tribunal/ or Appellate Tribunal is empowered to.

9. Hence, the complaint is dismissed only on the ground of lack of jurisdiction of this Commission. However the Complainants shall be at liberty to invoke appropriate legal remedy as available to them under the law. As we have not expressed any opinion on the merits of the complaint, this order shall not come in way of the merits of the claims of the Complainants.

10. Office is directed to supply the copy of this order to the parties as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping copies of the same in the record. Thereafter, file be consigned to the record room.

11. Order pronounced in open court on 05.10.2023.

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

___________________________

Harpreet Kaur Charya, Member

 

 

 

Consumer Complaint No. 223/2021

AND

Miscellaneous Application No. 22/2023

06.10.2023

The above matter has been put up by office as typographical mistakes are noticed. In the order, which was pronounced on 05.10.2023, inadvertently, the date of the order on the first page as well as in the paragraph 11 is written as 17.08.2023. The said inadvertent typographical mistakes are noticed and this Commission, while exercising the powers under section 40 of the Consumer Protection Act, 2023, take cognizance of the said inadvertent errors on the face of the order and pass following directions:

1. The date of disposal of the complaint and MA as shown in first page as well as in paragraph 11 of the order be read as 05.10.2023 in place of 17.08.2023.
2. All other contents of the said order be remain unchanged.
3. Office is directed to issue a revised order and supply the revised order to the parties in accordance with the rules.
4. This order be also printed at the bottom of the revised order.
5. After supplying the copy of the revised order, file be consigned to the record room.

___________________________

Divya Jyoti Jaipuriar, President

 

___________________________

Ashwani Kumar Mehta, Member

 

___________________________

Harpreet Kaur Charya, Member