Madhya Pradesh

StateCommission

A/19/934

ANDHRA BANK - Complainant(s)

Versus

SMT.APARNA SAINI - Opp.Party(s)

MS.SARITA JAIN

02 Jun 2023

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

 

                              FIRST APPEAL NO. 934 OF 2019

(Arising out of order dated 25.03.2019 passed in C.C.No.150/2015 by the District Commission Jabalpur-2)   

 

ANDHRA BANK                                                                                                    …          APPELLANT

 

          Versus

 

APARNA SAINI                                                                                                    ….          RESPONDENT.                                                                      

 

BEFORE:

                  HON’BLE SHRI A. K. TIWARI              :      PRESIDING MEMBER

                 HON’BLE DR. SRIKANT PANDEY      :      MEMBER

                 

                                      O R D E R

 

02.06.2023

 

            Shri Suryakant Bhujade, learned counsel for the appellant.

            Shri Ajay Dubey, learned counsel for the respondent.

 

As per A. K. Tiwari : 

                   This is an appeal filed by the opposite party/appellant-Andhra Bank (hereinafter referred to as ‘bank’) against the order dated 25.03.2019 passed by the District Consumer Disputes Redressal Commission, Jabalpur-2 (For short ‘District Commission’) in C.C.No.150/2015 whereby the District Commission has allowed the complaint filed by the complainant/respondent (hereinafter referred to as ‘complainant’).

2.                Facts of the case in brief as stated by the complainant/respondent are that as per advertisement in newspaper dated 03.02.2012 she had given a proposal to purchase the plot no.2 & 10 admeasuring 20x30 sq.ft. situated at village-Mohnia, Tehsil & District-Jabalpur for a sum of Rs.4,10,000/- to the bank. At the time of depositing the

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bid, the complainant deposited Rs.1,02,500/- with the bank. The respondent vide letter dated 06.03.2012 asked the complainant to deposit the balance amount. It is alleged that when she made an enquirty about the plots in question she came to know that the said land belongs to government and cannot be sold out. The complainant repeatedly made requests to refund the amount deposited by her but the bank neither refunded the amount nor executed registered sale-deed of the plots in her favour. Aggrieved complainant therefore, filed a complaint against the bank before the District Commission seeking refund of amount deposited by her along with compensation and costs.

3.                     The opposite party-bank resisted the complaint stating that the complainant never tried to get execution of registered sale deed of the plot in her favour and did not deposit the remaining amount, a notice was also given to her to deposit the balance amount and to get the plot registered in her favour.  Since, the complainant failed to deposit the amount, therefore the amount deposited by the complainant was seized and that action was taken under the provisions of Section 13(2) and 13(4) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act). The specific condition of the sale of property was that the property will be sold on the basis of where it is as it is and the appellant purchaser was agreed to it. Section 34 of SARFAESI Act 

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bars the jurisdiction of this Commission and this Commission has no jurisdiction to entertain the complaint. 

4.                The District Commission vide impugned order allowed the complaint directing the opposite party-bank to refund the amount of Rs.1,82,500/- with interest @ 8% p.a.Compensation of Rs.20,000/- along with costs of Rs.5,000/- is also awarded. It is further directed that the aforesaid amount be paid within one month failing which the amount shall carry interest @ 12% p.a. Hence this appeal by the bank.

5.                Learned counsel for the bank argued that when the borrower could not deposit the amount, the bank took possession of the mortgaged property and gave advertisement for sale of said property. In view of the advertisement, the complainant gave proposal to purchase the said property and had deposited certain amount. Despite repeated notices and reminders, the complainant failed to make payment of remaining amount and to get the plot registered in her name, therefore, a notice under the SARFAESI Act was issued to the complainant and the amount deposited by her was seized (confiscated). He further argued that even the complaint was not maintainable before the District Commission the District Commission has erred in allowing the complaint filed by the complainant.

6.                Learned counsel for the complainant/respondent argued that the request was made to the bank for refund of the amount deposited but the

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bank neither deliver the possession of the plot in question nor refund the amount deposited, instead seized the amount deposited by him. The District Commission has rightly passed the impugned order.

7.                Document no.1 is the advertisement, i.e. notice inviting tender for sale of properties ‘As is Where is and What is’ basis under Section 13 of the SARFAESI Act.  The complainant very well knew about this fact and had given tender for the property in dispute, which was accepted and he was asked to deposit the amount but when she failed to pay the full amount, the bank gave a notice to the complainant to deposit the balance amount. When the appellant failed to deposit the remaining amount the bank confiscated the amount deposited by her towards the said property. All these proceedings were initiated under the SARFAESI Act.

8.                Having gone through the record as also the impugned order, we find that the respondent bank had taken action against the appellant under the SARFAESI Act. Section 34 of the SARFAESI Act puts a bar on civil court. Bar contained in Section 34 reads as under:-

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 takin 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).

 

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9.                The Hon’ble National Commission in case of Harinandan Prasad Vs State Bank of India III (2012) CPJ 237 (NC) has observed that there is clear cut demarcation of jurisdiction and powers amongst various Tribunals and no attempt should be made by one Tribunal to usurp the powers and jurisdiction of other either directly or indirectly.  It has further been observed that the District Commission shall not exercise jurisdiction which was not vested in it.

10.              Similar view is taken by this Commission in First Appeal No.1991/2012 (Gangacharan Yadav Vs ICICI Bank Ltd. & Anr) decided on 10.01.2019, Revision Petition No.30/2020 (Bandhan Bank Vs Smt. Manju Singh & Ors.) decided on 25.02.2021 and First Appeal No.1246/2008 (Parmal Vs Bank of India & Anr) decided on 02.03.2021.

11.              In the present case, the bank had taken action against the complainant under the SARFAESI Act and we are of a considered view that this consumer complaint is not maintainable on the ground that complainant is not a ‘consumer’ as there is no contract for service and the property in question was sold in auction under the SARFAESI Act and the complainant is required to approach before the Debt Recovery Tribunal under the SARFAESI Act. 

12.              In view of the above discussion, we find that the District Commission has erred in allowing the complaint filed by the complainant and

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in directing the bank to refund the amount more particularly when the jurisdiction of the Consumer Commission constituted under the Consumer Protection Act, 1986 is barred and the complaint is not maintainable.

13.              In this view of the matter, the impugned order cannot be sustained. It is accordingly set-aside. The appeal filed by the bank is allowed. However, no order as to costs. Consequently, the complaint filed by the complainant/respondent is dismissed. The complainant/respondent is free to approach appropriate court, for redressal of her grievance in accordance with law.  

            (A.K. Tiwari)                  (Dr. Srikant Pandey)         

                 Presiding Member                      Member