Sri Shyamal Kumar Ghosh, Presiding Member
The instant interlocutory application has been filed on 18/07/2022 by the opposite party bank against the complainant praying for dismissal of the consumer case being no-86/2020 on the ground of non-maintainability as the matter connected hereto pending before the ld. Debt Recovery Tribunal.
By filing the instant application the ld. counsel appearing for the opposite party/bank submitted that the complainant was a habitual defaulter in payment of loan and as such a huge amount of money is still outstanding. Actually the aforesaid amount of money became public money and for recovery of the same the opposite party/bank already took a legal step against the complainant herein by filing OA being no-589/2016 on 12/08/2016 before the ld. Debt Recovery Tribunal-1, Kolkata and the matter is still pending under the provision of the SARFAESI Act,2002. The complainant also filed SA being no-24 of 2021 before the said ld. Tribunal against the op/bank which is also still pending for disposal. The complainant contested the OA case before the concerned Tribunal. Having full knowledge of aforesaid matters, only for making harassment towards the opposite party/bank, the complainant filed the instant consumer case before this Commission. Ld. Counsel also submitted that the account of the complainant was already declared NPA. The instant consumer case has no basis at all and it has no leg to stand upon. Accordingly the opposite party/bank prayed for dismissal of the consumer case on the ground of non-maintainability with exemplary cost.
The ld. counsel appearing for the complainant filed a written objection against the aforementioned interlocutory application on 09/09/2022 and argued that the complainant took the loan from the opposite party/bank by submitting the Title Deed being no-1689/1989 as equitable mortgage only to the extent of the land and factory shade and it does not include the residential portion of the property. The opposite party/bank had no SARFAESI right upon the residential part of the property pertaining to the Title Deed being no-1689/1989. Accordingly the complainant prayed for rejection of the instant interlocutory application with cost.
We have heard the ld. counsel for both sides at length and in full.
We have also perused the materials on records meticulously.
We have also considered the submissions of the Ld. Counsels appearing for both sides.
We have carefully perused the letter dated 08/08/2016 issued by the UCO Bank wherefrom it appears that the notice under the provision of section-13(2) of the SARFAESI Act, 2002 had already been served upon the complainant herein in respect of Schedule A, B and C. The said notice already included the property relating to the schedule C, PART-II and in connection with the aforementioned event the original Title Deed being no-1689/1989 dated 17/04/1989 was already kept under the custody of the opposite party/bank as mortgage. This notice also reveals that the opposite-party bank already called upon the complainant herein under section 13(2) of the SARFAESI Act 2002 to meet up the outstanding dues along with interest.
From the four corners of the record, it is admitted that one OA being no-589/2016 was filed by the opposite party/bank against the complainant herein before the ld DRT-1, Kolkata and upon careful perusal of the advocate’s letter dated 11/03/2021, it is apparent that the complainant also filed one SA being no-24/2021 before the ld DRT-1, Kolkata under section 17 of the SARFAESI ACT 2002 against the opposite party/bank and both the matters are pending before the concerned ld. Tribunal for disposal.
Under such circumstances, it should be decided at first that whether the Consumer Forum (now Commission) has any jurisdiction to entertain the case when the proceeding under the provision of SARFAESI Act 2002 before the ld. DRT has already been started. In such situation we can safely rely upon the two decisions mentioned herein below:-
- SHIV SHANKAR LAL GUPTA VS KOTAK MAHINDRA BANK LTD AND OTHERS reported in II (2013) CPJ 56 (NC) wherein the Hon’ble National Commission held that when the proceeding of SARFAESI is started by the OP/Bank or when the case is pending under SARFAESI ACT 2002, Civil Court as well as Consumer Forum has no power to entertain the case/suit/proceeding as per Section-34 of the said Act 2002.
- STANDARD CHARTERD BANK VS VIRENDRA RAI reported in II (2013) CPJ 337 (NC), wherein the Hon’ble National Commission held that the District Forum and the State Commission have no power to interfere with the SARFAESI Act, 2002 under section 34 of the said Act.
From the foregoing discussions, it is clear to us that the complainant does not come with clean hand before the Commission as the complainant, having full knowledge regarding SARFAESI proceedings, filed the instant case before the Commission. The aforesaid case laws provide the clear answer wherefrom it is realized that the Commission has a clear bar to entertain the matter when the same is pending before the ld DRT under SARFAESI Act 2002.
Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the submission of both sides and cited case laws, we are of the opinion that the instant interlocutory application being no.589/2022 has a sufficient merit and accordingly we allow the instant interlocutory application filed by the OP/Bank without any order as to costs and the said IA being No. 589/2022 stands disposed of.
Subsequently, the pending interlocutory applications being nos. 386/2022 and 387/2022 have no merit at all at this stage and as such both the applications stand rejected and disposed of without any order as to costs.
Simultaneously, the consumer case being No. 86/2020 filed by the complainant has no leg to stand upon as per above observations and thus the same also stands dismissed on contest against the opposite party/bank without any order as to costs.
Hence, the instant CC Case being no.86/2020 stands disposed of.
Note accordingly.
