Date of Hearing : 8th July,2015 Date of Judgement : Friday, the 10th day of July ,2015 JUDGMENT The instant appeal is at the instance of complainant Shri K.V. Ramakrishna Guru under section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) to impeach the final order dated 29-8-14 passed by the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur in consumer complaint No.34 of 2013 wherein and whereby the complainant’s case was dismissed on contest without costs. The appellant herein being complainant initiated the petition of complaint under section 12 of the Act before the Ld. District Forum claiming himself a bonafide customer of the respondent Bank being Syndicate Bank, Kharagpur Branch (hereinafter referred to as “the Bank”). The proforma respondent Shri Wesly Vikash Menon availed of a credit facility from the said Bank amounting to Rs.24,00,000/= (Rupees twentyfour lakhs) wherein the complainant stood as a guarantor in respect of the said loan. On account of default on the part of the borrower, the Bank issued a notice on 02-08-1012 upon the proforma respondent and the complainant respectively. After receiving of the said notice the borrower/proforma respondent met with the Bank and started repayment of loan. However, on 18-9-12, the respondent bank further issued a notice under section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (in short, SARFAESI Act 2002) upon the complainant without waiting for any observation on role and conduct of the borrower. The complainant had made several requests not to take any arbitrary action, but the respondent bank has blocked the bank account of the complainant for which the complainant has suffered huge loss. The complainant has stated that he is an employee of South Eastern Rly. under Govt. of India and he has to depend on his monthly salary but as the salary account was blocked, he could not pay the necessary educational fees of his daughter and son in the respective institutions. Hence, the complaint has been filed with a prayer of compensation of Rs.10 (Ten) lakhs by way of damages for deficiency in service of the respondent Bank. The respondent No.1 by filing a written version has refuted the contention of the complainant stating inter alia that the District Forum has no jurisdiction to entertain the complaint under section 34 of SARFAESI Act. It has also been stated that liability of the surety is co-extensive with that of the principal debtor unless it is otherwise provided by the contracts. The proforma respondent by filing a written version has stated that he availed of the credit facility in respect of Rs.24 (twenty-four) lakhs from the respondent bank wherein the complainant stood as guarantor. After receipt of the notice issued by the Bank dated 2-8-2012 he started repayment of loan and from then the respondent Bank is continuously receiving the loan instalments. It has further been stated on behalf of the proforma respondent that on several times he requested the respondent Bank not to cease banking facilities of the complainant but the respondent Bank did not pay any heed to the same. On the basis of the contention of the parties the Ld. District Forum framed several issues like :- 1. Whether the complaint is maintainable in its present form ? 2. Whether the complainant has any cause of action for presentation of petition of complaint ? 3. Whether the case suffers from want of jurisdiction? and 4. Whether the complainant is entitled for getting relief as prayed for ? By the impugned judgment the Ld. District Forum has decided issue No.1 in favour of the complainant but dismissed the complaint on the ground that no final settlement has been arrived at by and between the borrower and the Bank with regard to payment of loan and further, there is no valid ground for preventing respondent Bank from issuing of notice against the guarantor in accordance with the agreed terms and conditions enumerated in the Deed of Guarantee. The point arises for consideration in this appeal as to whether or not the Ld. District Consumer Forum was justified in passing the orde D E C I S I O N It remains undisputed that the proforma respondent, herein Shri Wesly Vikash Menon, availed of credit facility from the respondent i.e. Syndicate Bank, Kharagpur Branch amounting to Rs.24 (twentyfour) lakhs. The complainant stood as guarantor in respect of the said loan. It remains undisputed that the borrower failed in paying instalments of loan in terms of the agreement. Accordingly, on 2-8-2012 the respondent Bank issued notice upon the proforma respondent (borrower) as well as complainant (guarantor) under section 13(2) of the SARFAESI Act 2002 mentioning that out of Rs.24 (twentyfour) lakhs a sum of Rs.17,89,062/- (Rupees seventeen lakh eightynine thousand sixtytwo) and odd is due along with the interest from 1-8-2012 etc. By the said notice the complainant as well as the proforma respondent were asked to discharge their liabilities in full within a period of 60 (sixty) days from the date of notice, failing which necessary action will be taken in view of the provisions of the referred section. In this regard it would be pertinent to note that under the provisions of Indian Contract Act the liability of the guarantor is coextensive with that of the borrower unless it is otherwise provided by the contract. In the instant case, no other agreement was executed by and between the parties, save and except the Deed of Guarantee. Therefore, like the proforma respondent, the complainant being the gurantor is under obligation to pay the required instalments of the dues. Ld. Advocate appearing for the appellant has submitted that the term guarantee has been defined under section 126 of the Indian Contract Act 1872. According to the Ld. Advocate for the appellant the guarantor will stand discharge when the creditor aims to proceed against the principal debtor, because section 136 of the Indian Contract Act is based on the principle that when a principal debtor is discharged the surety also stands discharged. He has also submitted that when a creditor accepts a smaller amount then the amount due from the principal debtor in full payment of the debt due, he cannot be allowed to claim from the guarantor. To fortify his contention Ld. Advocate for the appellant has also placed reliance to 2 decisions reported in : (1) AIR 2010 Andhra Pradesh 203 (Chembeti Brahmaiah Chowdary –vs- State Bank of India and another, and (2) an unreported decision of our parent High Court, delivered on 1st July 2013 in connection with WP Nos.392 of 2013 and 393 of 2013 (GBM Manufacturing Pvt. Ltd. –vs- Indian Overseas Bank and others). I have gone through the decisions referred hereinabove but sorry to note that those decisions have no manner of application in our case. The law in this regard is very clear. Section 34 of SARFAESI Act 2002 provides “No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt 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 in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993(51 of 1993)”. The materials on record clearly indicate that the respondent Bank had issued notice upon both the borrower and the guarantor under section 13(2) of SARFAESI Act 2002. Therefore, if there is any grievance against notice it should be brought to the notice of Debt Recovery Tribunal. It is well settled that the borrower and the guarantor are equally responsible for payment of instalments. In 2015(2) C.P.R. 41 (Bank of India –vs- Anil Raveendran) Hon’ble National Consumer Dispute Redressal Commission, New Delhi has observed that there lies no rub for the Bank to take action against the guarantor directly. In other words , it cannot be alleged that the Bank is adopting a policy of pick and choose in this regard. Therefore, when the bankers are working within the ambit of SARFAESI Act 2002 it cannot be said to be deficiency on the part of the Bank. In the reasons aforesaid, we must say that the Ld. District Forum had no jurisdiction to entertain the complaint in view of provisions of section 34 of SARFAESI Act 2002. The observation made by the Ld. District Consumer Forum in dismissing the complaint does not require any interference. Accordingly, the appeal is dismissed. However , we do not make any order as of costs in this appeal. The final order dated 29-8-14 passed by Ld. District Redressal Forum, Paschim Medinipur in C.C. No.34/2013 is hereby affirmed. | 
