Today was fixed for consideration and disposal orders on the above application. We have duly heard the learned counsels for both the sides on the points of facts as well as of law and have also intently examined the supporting documents as produced before us by the litigating parties. We find that the present complaint has prompted at the auction sale notice of the complainant’s House (for recovery of Bank’s Loan outstanding) getting published in the Newspaper(s) at the instance of the opposite party Bank. The complainant, in order to defer the said ‘auction sale’ till the final decision of the present complaint has (along with) put forth the application in question; pleading therein i) non-repayment default of Loan resulting on account of non-deduction of repayment-installments (by the OP bank) from his monthly salary; and ii) non-receipt of the (otherwise requisite) demand/recall/pre-auction sale notices etc preceding the proposed auction sale of his sole ‘dwelling-house’ under self-occupation of his ailing spouse and minor children; and finally iii) willingness and inclination to repay the Loan (through monthly deductions from his Salary) but at the agreed interest rate of 6% per annum, only. On the other hand, the opposite party Bank has pleaded the defense of initiation of ‘recovery proceeding’ of Bank’s Loan (Public Money) by duly following the prescribed procedure under the SARFAESI Act’ 2002 coupled with the statutory ‘absence’ of the Forum’s adjudicatory jurisdiction to all dispute pertaining to any action under the SARFAESI Act’ 2002. The Bank has also produced copies of: i) Sarfaesi Notice U/s 13(2) of 19.06.2015, ii) Regularization Notice of 17.04.2013, iii) Housing Loan application of 25.05.2011, iv) Term Loan Agreement of 15.06.2011 with floating rate of interest @ 10.25 % PA, v) Guarantee Deed of 15.06.2011 and v) Arrangement/ Sanction Letter of 15.06.2011 with documented rate of interest @ 10.25% PA to sufficiently provide evidentiary support, strength and value to its pleadings and arguments.
- We examine the vis-à-vis extant provisions of the Sarfaesi Act’ 2002 and CP Act’ 1986 so as to reach a judicious and logical determination of the issues in question and a simple reading of the statutory provisions clarify that the legally prescribed and applicable remedy lies in the Sarfaesi Act’ 2002 through adoption of the procedure as indicated in Section 17 of the said Act. Section-35 (Sarfaesi Act’2002): The provisions of this Act to override other laws. 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); whereas Section-3 (the applicable CP Act’1986) Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Further, Section-34 (Sarfaesi Act’ 2002) 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 contained in any other law for the time being in force or any instrument having effect by virtue of any such law
- We appreciate the plea as put forth by the learned counsel for the complainant that the consumer Forum being not a civil court in its stricter functional merit and not bound by the technical shackles of the CPC 1908 is inherently bestowed upon with a competent adjudicatory jurisdiction where-so-ever there exist the ‘consumer’ relationship. In support, he has also cited a related judgment of the honorable U.T. State Commission, Chandigarh pronounced in Mukhtar Singh vs. Malwinder Singh 2011(2) CLT 635:2011(1) CPJ 284 holding out that ‘where dispute between parties was to be decided by conciliation or by some other authority, consumer fora still had power to decide dispute because remedy under section 3, has been given in addition to any other remedy available to aggrieved’. We respectfully concur with the pronounced proposition but the same has been a ‘case specific’ only pertaining to the remedy of Arbitration available under section 82 of the Punjab Cooperative Act. We are of the considered opinion that the applicable legal proposition has been still open to ‘contest’ and ‘debate’ and has been more of a ‘case-specific’ guideline than that being ‘blank’ general guideline
4. The consumer fora are possessed with jurisdiction to entertain consumer disputes only and where some ‘defect’ in goods and/or in services are complained. Moreover, as the adjudication under the disputes under the Sarfaesi Act are assigned to DRT (Debt Recovery Tribunal)/DRT (appeals), only; and as such the consumer fora shall not adjudicate disputes arisen (statutorily desired to be decided) under the SARFAESI Act and/or other such Acts under which adjudicatory courts have been specifically formulated.
5. In the light of the all above, we are of the considered opinion that the consumer Fora are not competent to adjudicate/pass/provide any relief in the matters pertaining to any legal ‘action’ initiated under the Sarfaesi Act’2002; as such we not inclined to decide the present application and thus we ORDER for the dismissal of the same with however, duly granted ‘liberty’ to the complainant to approach the appropriate court or forums to seek the ‘prayed relief/any other relief’ if so desired or so advised.
6. Under the circumstances and for the similarly alike reasons as fully enumerated above, we also ORDER for the dismissal of the present (main) complaint with directions to the complainant to avail himself of the prescribed remedy under the Sarfaesi Act and/or any other statue to seek prayed ‘relief’ if so desired and/or so advised and in that case he shall be entitled to relaxation in time under the Limitation Act for the period spent, here.
7. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
Announced: (Jagdeep Kaur)
March 15, 2016 Member.
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