Sri Ashoke Kumar Pal, Hon’ble President :
The case of the complainant in short is that on 02.12.2013 the complainant applied for a loan of Rs. 17,50,000/- (Rupees Seventeen lakh fifty thousand) only against the mortgage of his property from the O.P. No. 1 Bank of India, Narendrapur Branch, vide loan application No. 40580001409 dated 07.02.2014. The loan was sanctioned and the same was repayable in 144 monthly installments of Rs. 22,669/- each. The complainant paid Rs. 2,50,000/- and due to Corona pandemic requested the O.P. No. 1 for some time to clear up the due by installments. But the O.P. No. 1 / Bank ignoring the proposal of the complainant sold / transferred the mortgaged property to the O.P. No. 2 on 02.07.2020 without any prior intimation to the complainant violating the provisions of section 14 of the SARFAESI Act, 2002. The market value of the mortgage property is Rs. 75,00,000/-(Rupees seventy five lakh) only which is more than the outstanding loan amount with interest and hence, this case.
O.P. Nos. 1 and 2 appeared and contested the case by filing their respective W.V. contending inter-alia that the case of the complainant is a false one. The specific case of the O.P. No. 1 is that the loan of Rs. 17,50,000/- (Rupees Seventeen lakh fifty thousand) only was sanctioned to the complainant on 18.02.2014 and the loan account turned NPA on 30.09.2015. Notice under section 13(2) of the SARFAESI Act, 2002 was issued on 13.10.2015 and received by the complainant on 09.11.2015 (Annexure-A). Despite repeated requests when the complainant did not pay any further amount to the Bank finding no other alternative the O.P. No. 1 / Bank engaged enforcement agent and published the possession notice under section 13(12) read with Rule 9 of the Security Interest (Enforcement ) Rules, 2002 in two leading daily newspapers – “ Financial Express” on 22.03.2016 and in a Bengali newspaper “Aajkal” on 18.03.2016 and the possession of the property was obtained on 18.03.2016 by the O.P. No. 1 / Bank (Annexure – B). It was the further contention of the O.P. No. 1 / Bank that the first e-auction notice was published on 27.05.2016 in “Times of India” and the second e-auction notice was published in “Financial Express” on 11.01.2018 under section 13(4) of the SARFAESI Act, 2002 and the said intimation was received by the complainant on 01.02.2018. Further e-auction notice was published in “Aajkal” newspaper on 22.02.2019 and the next paper publication was made on 23.01.2020 in “Times of India” and intimation letter was issued on 29.01.2020. The said mortgaged property was sold to the O.P. No. 2 Ram Deo Shaw in e-auction on 29.02.2020 and sale certificate was issued by the authorized officer of the bank and the deed of conveyance was executed by the Bank on 29.06.2020 in favour of the O.P. No. 2 Ram Deo Shaw. O.P. No. 1 also denied the other material averments of the complainant para wise and prays for dismissal of the complaint case with cost.
The O.P. No. 2 also filed W.V. separately contending that he is a successful auction purchaser of the property in question from the O.P. No. 1/ Bank and the same has been done after observing all legal formalities as per provisions of the SARFAESI Act, 2002. The provision of section 13(2) and 13(4) of the SARFAESI Act, 2002 has been complied with. The complainant also filed a writ petition being No. WPA/8264/2020 before the Hon’ble High Court, Calcutta and the same is still pending for disposal. After purchasing the property from the O.P. No. 1/Bank the O.P. No. 2 became the absolute owner of the same having right, title and interest therein. The O.P. No. 2 also denied the other material averments of the petition of complaint para wise and prays for dismissal of the complaint case with cost.
Points for consideration :-
- Is the complainant, a consumer?
- Are the O.Ps. guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get reliefs as prayed for?
Decision with reasons :-
Point Nos. 1, 2 and 3:-
All the points being Nos. 1, 2 and 3 are taken up together for consideration and for the sake of convenience as they are inter-linked. The complainant took the loan of Rs. 17,50,000/- from the O.P. No. 1 / Bank of India mortgaging his property which was repayable in 144 monthly installments of Rs. 22,669/- each. The complainant is thus a consumer as defined U/S 2(7) of the Consumer Protection Act, 2019.
As such, the Point No. 1 is decided in favour of the complainant and against the O.Ps.
Subsequently, for non-payment of EMI by the complainant the loan account turned NPA and notice under section 13(2) of the SARFAESI Act, 2002 was issued on 13.10.2015 and received by the complainant on 09.11.2015 which is evident from Annexure-A. Now the question arises whether the instant complaint case is maintainable when the notice under section 13(2) of the SARFAESI Act, 2002 has been issued and the consumer commission have any right to interfere with the SARFAESI proceedings of the bank. In this case the notice under section 13(2) of the SARFAESI Act, 2002 has been given. Thereafter, e-auction was held on 29.02.2020 after observing all the legal formalities and the sale certificate was issued to the auction purchaser O.P. No. 2 Ram Deo Shaw and a proper deed of conveyance was executed by Bank on 29.06.2020. It appears from the papers and documents that the complainant was given enough time at each stage of the proceeding to pay back the outstanding loan amount to the O.Ps. but they failed to utilize the same. Hence, we find that there is no deficiency in service or unfair trade practice followed by the O.Ps. in the entire transaction. They have utilized the legal rights available for them to recover the outstanding amount. Moreover, it is well known to us that the consumer commission have no right to interfere with the proceedings of the Bank as the SARFAESI Act, 2002 is special enactment and the jurisdiction of the civil courts for entertaining any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by the said Act to determine, is barred under section 35 of the SARFAESI Act, 2002. Hence, this Commission is not having jurisdiction over this complaint, the complaint needs to be dismissed.
Thus Point Nos. 2 and 3 are decided in favour of the O.Ps. and against the complainant.
In the result, the complaint case fails.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby dismissed on contest. Parties will bear their respective cost.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.in.
Dictated and corrected by me.
President
