The instant case was initiated on the basis of a petition filed by Jago Mahato and Shankar Sing u/s. 12 of C.P.Act, 1986 which was registered as complaint Case No.59/16.

The fact of the case as revealed from the petition as well as from the evidence is that the complainant/petitioner No.1 is the wife of the complainant No.2 and for the purpose of purchasing harvester and tractor both the complainants/petitioners approached before the O.P for financial assistance. Thereafter after observing all formalities the O.P granted loan in favour of the complainants. From the evidence it is revealed that the tractor was purchased through Raj Motors and they submitted quotation for Rs.9,50,900 including time cultivation, Hood, Cage Wheel, Hitch, Rota Vetor, Trolley etc. The complainant deposited Rs.1,50,900/- with Raj Motors and the bank authority stated to the complainants/petitioners that bank authority will grant Rs.8,00,000/-. Accordingly Rs.8,00,000/- was granted in favour of the complainant No.1. It is to be mentioned that the complainant deposited Rs.2,01,000/- 0nly by way of fixed deposit as a security for repayment of loan and the amount was deposited through joint account No.31856516248. It has been further stated that only tractor and hitch was supplied to the complainant out of the aforesaid articles as mentioned. The complainant also requested the bank authority to hand over the copy of the quotation. But the bank authority has yet did not provide the same. From the petition it is also further mentioned that the bank authority collected the excess amount of Rs.2,36,000/- and for the purpose of the said loan the complainant No.1 open a loan account bearing No.31864274037. The complainant No.1 paid the installment regularly, but the bank authority has been recently trying to repossess the said vehicle forcibly from the custody of the complainant though the petitioners are paying regular installment. It has been further stated in the petition of complaint that in the year 2015 there was a heavy rain, as a result of which the complainant failed to repay the loan amount . But subsequently the complainant started making the repayment of loan regularly. From the petition of complaint it is further revealed that the complainant/petitioner No.2 stood guarantor for the repayment of the said loan amount and he created equitable mortgage in respect of 1.26 acres of land. The petitioner No.2 took loan of Rs.7,75.000/-for purchasing the harvester and he also made repayment of the loan amount and also created equitable mortgage in respect of 8 decimal of land as security for repayment of loan. But due to heavy rain the petitioner could not work properly by using tractor and harvester, for which the loan amount could not be repaid. In the year 2015 the bank authority initiated proceeding under the SARFAESI Act as the petitioner was making repayment regularly towards the loan so they did not process further realization of the loan amount. Recently the complainant obtained the quotation of Raj Motors from the bank authority whereby they came to know that the excess amount paid to Raj Motors by the bank authority and the O.P. No.1is creating threat upon the petitioner that they will take possession of the harvester and the tractor at any time which is totally illegal. That due to the act of the bank authority and due to the threat of the bank authority for taking forcible possession of the tractor and harvester the complainants is passing the day not only the financial loss but also mental pain and agony. This is why they are come to the Forum so that the O.P.No.1 cannot repossess the tractor of the petitioner No.1 and they cannot repossess the harvester from the O.P.No.2 and they prayed for further relief

The petition has been contested by the O.P by filing the W.V denying all the material allegations as leveled against them contending inter alia that the present petition filed by the petitioners/complainants is not maintainable, there is no cause of action to file the instant case against the O.Ps.

The definite defence case is that in the year 2015the bank authority started proceeding under the provision of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 ( SARFAESI Act) and he notice was duly issued to the petitioners. As the bank authority has been initiated a proceeding under the provision of SARFAESI Act the instant case before this Forum is not maintainable. In order to humiliate the O.P in the eye of the public the instant case has been filed by the complainant. Considering such facts and circumstances the instant case is liable to be dismissed with heavy cost..

During trial the complainant No.2 Shankar Sing was examined as P.W.1 and he gave the reply to the questionnaires of the O.P. No other witness was examined on behalf of the complainant. On the other hand one Prabhat Kr. Rajpal was examined as O.P.W.1 on behalf of the O.Ps. No other witness was examined by O.P. and some documents were filed by the bank.

                                         Decision with reasons

At the time of argument Ld. Lawyer of the O.P vehemently argued that the instant case is not at all maintainable in this Forum as because the O.P initiated a proceeding under the provision of SARFAESI Act. There is no dispute as to the point that the proceeding under the provision of SARFAESI Act has been initiated by the bank as because the complainant in para No.11 of the petition of complaint has clearly stated that in the year 2015 the bank authority initiated a proceeding under the provision of SARFAESI Act. So, it is admitted that the bank authority has initiated a proceeding under the provision of SARFAESI Act for recovery of the loan from the complainants.

Now the main crucial point is to be considered whether this Forum has any jurisdiction or authority to proceed with this case.

 According to the provision of Sec.34  of SARFAESI Act no Civil Court shall have the 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 Debts Due to Banks and Financial Institutions Act,1993 (51 of 1993). In this regard the Ld. Lawyer of the O.P refers the case law reported in Authorized Officer S.B.I, Trivankur Vs. Mathew K.C. (S.C) and Central Bank of India and another Vs. Ram Ch. Sahu and others. Another case law is Standard Chartered Bank Vs. Virendra  Rai 2013 CJ 750 (N.C.). On perusal of the case laws it is found that when the case is pending no other court has any authority or jurisdiction to try the matter as and when it has been admitted by the complainant that a proceeding under the provision of SARFAESI Act has already been started. In such circumstances this Forum has no jurisdiction to try this case. In this regard the Ld. Lawyer for the complainant argued that the Consumer Forum cannot be regarded as Civil Court. But on perusal of this judgement and the observation of the Hon’ble S.C.it is found that neither any Civil Court nor any other authority have any jurisdiction to try the matter. So according to the observation of the Hon’ble Supreme Court, Consumer Forum comes under the other authority. So definitely the argument raised by the Ld. Lawyer of the complainant is not tenable as because it is not barred by Sec.34 of the SARFAESI Act. So on consideration of the facts and circumstances the instant case is not maintainable before this Forum as it is barred by Sec.34 of the SARFAESI Act.

The other points as argued by the Ld. Lawyer of the complainant is not at all tenable as regard to the point whether the Statement of Accounts is correct or not, whether excess of refund amount to the petitioner, whether the loan was given for Agricultural purpose or Commercial purpose. The complainants have the liberty to raise such points before the SARFAESI authority. Considering the facts and circumstances the instant case is not maintainable and it is liable to be dismissed.

C.F. paid is correct.

Hence, it is,

Ordered,

That the case being No. CC-59/2016 be and the same is dismissed on contest but without cost.

Thus the case is disposed of.

Let a copy of this order be supplied to the parties free of cost.