Date of filing: 04.01.2019 Date of disposal: 30.04.2019
Complainant: Sri Kamalesh Samadder, S/O-Sri Krishna Chandra Samadder, Resident of 85,Khan Pukur, Golghar, P.O. Burdwan, P.S. Burdwan, Dist. Purba Bardhaman, Pin 713101, West Bengal.
Opposite Party: 1. Allahabad Bank, Branch Office at Baidyanath Caterer, Monorama Sadan, Dutta Centre, P.O & P.S. Burdwan, Dist. Purba Bardhaman, Pin 713101.
Proforma OP: 2. M/s French Motor Car Company Ltd., the Branch Manager, Branch Office cum Show room at G.T. Road, Ushagram, P.O. Ushagram, P.S. Asansol(South), Dist.-Purba Bardhaman,
Present : Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member : Ms.. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party No.1: Ld. Advocate, Jayanta Konar.
Order No. 13, Dated: 30.04.2019
This order is arising out of the Misc. Application being No. 06/2019 filed by the complainant in the Consumer Complaint No. 176/2018 with a prayer to pass an order directing the Op-1 to withdraw the notice dated 12/11/2018 and to stop further action against the complainant in respect of notice dated 12/11/2018 u/S. 13 (2) of the SARFAESI Act, 2002.
It is stated by the complainant in the said Application the complainant obtained loan of Rs. 13, 66,364=00 from the OP-1 to purchase a vehicle and after observing all the official formalities the OP-1 issued a delivery order of the said vehicle and the OP-2 after receiving the delivery order dated 30.04.2012 the OP-2 delivered the said vehicle to the complainant on 18.05.2012.
Before hypothecation the OP-1 took the original title deed being No. 3738 dated 19.04.1977, original sanction plan and record of right from the complainant towards mortgage as co-lateral security. The OP-1 told the complainant to repay the loan within 7 years from the date of sanction of loan and the complainant has been repaying the loan accordingly and the already paid Rs. 6, 96,055.96 to the OP-1. All on a sudden the OP-1 sent a notice dated 19.09.2018 requesting the complainant to regularize the position of loan within 15 days from the date of notice, failing which appropriate action would be initiated.
Being aggrieved and dissatisfied with the conduct of the Ops the complainant filed this complaint before this Forum. At the time of admission hearing and as per prayer of the complainant the Ld. Forum was pleased to pass an order dated 12.10.2018 directing the OP-1 not to take any adverse action against the complainant till disposal of this complaint. But the Ops violating the said order sent a notice dated 12.11.2018 u/S. 13 (2) of the SARFAESI Act, 2002.
Therefore prayer is to pass an order directing the Op-1 to withdraw the notice dated 12/11/2018 and to stop further action against the complainant in respect of notice dated 12/11/2018 u/S. 13 (2) of the SARFAESI Act, 2002.
Ld. Counsel for the OP-1 has raised vehement objection against the said Application stating that the complainant has no locus standi to file such Application as the Ops have served notice u/S. 13 (2) of the SARFAESI Act, 2002 and this Forum has no jurisdiction to entertain any suit or proceeding in respect of matter and the prayer of the complainant made in this Application should be rejected.
In the said Application the complainant has prayed to stop further action against the complainant in respect of notice dated 12.11.2018 u/S. 13 (2) of the SARFAESI Act, 2002.
In this respect we have to come to a conclusive conclusion whether this Consumer Forum has any jurisdiction to entertain Interim stay order or not.
In this respect we may refer Section 34 of the SARFAESI Act, 2002:
34. 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 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).
The Jurisdictions of Civil Court has been clearly barred under Section 34 of the Act, stating that no Injunction shall be granted by any court or other authority in respect of any action taken or to be taken under SARFAESI Act or the DRT Act.
In this respect we may refer to the decision of the Supreme Court In the case of United Bank of India v/s Satyawati Tandon is a landmark Judgment on the issue of stay orders. It was held that normally the Supreme Court does not Interfere with the discretion exercised by the High Court to pass an interim order in a pending matter but, having carefully examined the matter, an exception have been made, because the order under challenge has the effect of defeating the very object of legislation enacted by the Parliament for ensuring that there are no unwarranted impediments in the recovery of debts due to Banks.
Having regard to the above-mentioned observation made by the Hon’ble Apex Court, we are of the opinion that the prayer of the complainant for interim injunction should not be allowed.
Hence, it is
O r d e r e d
that the Misc. Application being No. 06/2019 be and the same is dismissed without any cost.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) DCDRF, Purba Bardhaman
President
DCDRF, Purba Bardhaman
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Purba Bardhaman DCDRF, Purba Bardhaman
