Order no.6 , dt. 3.7.2023

This case record is taken up for consideration for passing order in respect of the application filed by the op bank authority that this C.C. case no.188/22 from which this MA case has been cropped up, is not maintainable.

The said application of OP bank authority has been contested by the complainant side by filing written objection.  Regarding the application filed by OP bank authority who is the applicant of the MA case it appears that in the said application dated.10.1.2023.  the OP/applicant of this MA case has adopted the plea that this case no.188/22 is not maintainable as it is barred by section 34 of the SARFAESI Act, 2002.  It is alleged that the petitioner had taken loan of Rs. 400000/- on 28.3.2014 but the complainant was not a bonafide  customer of the OP/applicant of this MA case due to several irregularities in repaying the alleged loan amount and so the said account has been declared NPA for 3 times on i.e. on 31.5.2016, 31.5.2019 and finally on 31.3.2021 and thereafter the applicant who is the op of the above noted complaint case has issued notice under section 13(2) of the SARFAESI Act, 2002.  On the other hand the op of the MA case who is the complainant of C.C. case no.188/22 has taken the defence alibi that this district commission has territorial and pecuniary jurisdiction to try this case and this commission has already admitted this case and so without completion of the trial it cannot be said that the above noted C.C. case is not maintainable, it has been alleged that no notice under section SARFAESI Act, 2002 has been served upon the complainant who is the op of this case.  It is also submitted that the bank authority who is the op of above noted C.C. case has already submitted written version and so this case is ready for trial and for that reason there is no justification  for dismissing this case only on the ground of “maintainability”.

After going through the material of this case record, this district commission finds that the notice under section 13(2) of SARFAESI Act, 2002 and under section 13(4) of the said Act read with rule 8 of the said Act has been given on 4.6.2021 and the loan account has been declared NPA.

In this regard the provisions of Section 34 of SARFAESI Act, 2002 is very important. As per Section 32 of SARFAESI Act, 2002 no Civil Court  shall have jurisdiction to entertain any suit or proceedings in respect of any matter. Thus, the argument highlighted by the op who is the complainant of this case that the provision of Section 13 (3) of SARFAESI Act has not been complied cannot be accepted.

In this instant case notice under section 13(2) has been sent to the complainant who is the op of this MA case on 4.6.2021 and this case has been instituted by complainant who is the op of the MA case on 13.9.2022.  Which indicates that the C.C case  has been filed by the complainant after receiving of the notice under section 13(2) of the SARFAESI Act, 2002.

Hon’ble State Commission, West Bengal Kolkata has been pleased to observe that civil court or any other authority cannot arrogate to itself the right to make decisions or to interfere with the SARFAESI Act, 2002 and as per section 34 of the SARFAESI Act, 2002 ,  this District Consumer Disputes Redressal Commission has no power to interfere when the notice has been issued under SARFAESI Act, 2002.  This legal principle has been reported in the 2022(2) CPR101(W.B).

The cumulative consideration of the above noted discussion goes to show that the C.C. case no.188/22 is not maintainable and this district commission has no jurisdiction  to try the said case.

In the result it is accordingly,

                                                            ORDERED

That MA case no.3/2023 be and the same is allowed on contest.  It is found that the C.C. case no.188/22 is found not maintainable and this district commission has no jurisdiction to try this case.

Let the case record of MA case no.3/2023 be tagged with the C.C. case no.188/2022.