Order No.  18  dt. 03/02/2016

Record is put up for order in respect of the petition dt.16.2.15 filed by o.ps. challenging the maintainability of the case. Complainant filed objection thereto.

O.ps. stated that complainant took the loan for commercial purpose and the disbursement of said loan took place sometimes in the year 2003 vide para 1 of the complaint petition. O.ps. further stated that complainant filed a case being no. CC 136 / 2009 before the DCDRF, Hooghly and the said petition was disposed of on 8.9.11 and Ld. District Forum as stated above rejected the same due to want of territorial jurisdiction vide para 14 of the complaint petition. 

O.ps. further stated that complainant filed the instant case before this Forum on 30.10.13. It is the contention of o.ps. that the present case suffers from  limitation since the self same matter was disposed of by DCDRF, Hooghly on 8.9.11 and rejected the same for want of territorial jurisdiction and complainant filed the case before this Forum on 30.10.13 i.e. beyond two years after the disposal of the case at DCDRF, Hooghly.

O.ps. further stated that complainant has not filed any petition before this Forum u/s 24 (A) of the C.P. Act, 1986 and as such, it is clear that complainant has not prayed before this Forum towards waive of barred by limitation as has been stipulated in the relevant Act. O.ps. further stated that upon their initiation complainant has received a notice on 28.4.09 u/s 13(2) of the SARFAESI Act, 2002 in connection with the loan account no.LBCAL00000661229 of the complainant vide para 12 of the complaint petition.

It is settled principle of law as per Sec 34 of the SARFAESI Act, 2002 that the Consumer Forum has no jurisdiction to adjudicate the matter after issuance of notice of the said Act.

Upon considering the facts and circumstances as stated hereinabove this Forum holds that the instant case cannot be adjudicated by this Forum for the reasons as stated below:-

 (1) That the loan was taken by complainant for commercial purpose and as such, complainant cannot be termed as consumer as per the definition of ‘consumer’ of the relevant Act.

 (2) The case is barred by limitation since DCDRF, Hooghly had rejected the case being no. CC 136/2009 due to want of territorial jurisdiction on 8.9.11 and the instant case has been filed by complainant before this Forum on 30.10.13 which is beyond more than two years of the disposal of the case by DCDRF, Hooghly on the self same cause of action and as such, the instant case is barred by limitation.

 (3) Pursuant to Sec 34 of the SARFAESI Act, 2002 Consumer Forum cannot adjudicate any matter where notice has been issued under the SARFAESI Act, 2002 and here in particular case notice has been issued u/s 13(2) of the SARFAESI Act, 2002 in connection with the home loan account of the complainant being no.LBCAL00000661229.

Hence, ordered,                                             

That the petition filed by o.p. dt.16.2.15 is allowed and the instants case is not maintainable and as such, the same is rejected.