District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present          

Shri Sambhunath Chatterjee              - President

Shri Siddhartha Ganguli                      - Member

Consumer Complaint No. 27/2015

Smt. Bulbuli Kundu

W/o Sri Narayan Chandra Kundu

Vill.: Ramkrishnapally (Beltalapark),

PO: Beltalapark,  P.S.: Balurghat,

Dist. Dakshin Dinajpur                      …………………Complainant(s)

V-E-R-S-U-S

1.   The Manager,

      Allahabad Bank, Mohona Hat Branch,

      Vill.: Mohonahat PO: Mohipur,

      PS: Kumarganj

      Dist.: Dakshin Dinajpur.  

2.   The Authorised Officer,

      Allahabad Bank Zonal Office,

      2, Church Road, PO: Siliguri,

      Dist.: Darjeeling.  

3.   The Chief Manager,

      Allahabad Bank, Mohona Hat Branch,

      Head Office, 2 N.S. Road

      Kolkata – 700 001             …………………Opposite Party / Parties

 Ld. Advocate(s):

For complainant          ………………  - Shri Prasun Choudhury

For OP Nos. 1, 2 & 3 ………………   - Shri Achintya Kumar Das

Date of Filing                                       : 22.04.2015

Date of Disposal                                 : 20.11.2015

                                                                 Contd…P/2

Judgment & Order  dt. 20.11.2015

            Fact of the case in brief is that the complainant in response to an advertisement published in daily newspaper with regard to sell of a property on auction by Allahabad Bank Mohana Hat Branch. The complainant applied for purchasing the said property from the Bank and deposited a sum of Rs.1,83,000/- and also agreed to deposit the rest amount, subsequently paid the said amount Rs.16,47,000/- to Allahabad Bank Balurghat Bus Terminal Branch, Balurghat, Dakshin Dinajpur. In spite of receiving the sale certificate and by requesting to the Bank to register the document in favour of the complainant the Bank failed to comply the said request and failed to deliver physical possession of the property for which the complainant lost her interest and wanted to get back the amount which she paid to the Bank to the tune of Rs.18,30,000/-. The complainant also prayed for interest @ 18% p.a. and compensation and litigation cost etc.

OP contested the case by filing a written version whereby denied all the material allegations made by the complainant in the petition. It was specifically stated by the Bank that the Bank wanted to sell the mortgage property under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The original owner of the said property belongs to one Smt. Manju Saha  and the said property was mortgaged to the Bank for obtaining loan in respect of running business of Ma Durga Hardware being the Prop. Parthpratim Saha. Since the borrower failed to pay the loan amount the property was advertised to be sold to any person who will be the highest bidder in respect of such property as per the provision as laid down u/s 13 (2) of Sarfaesi Act. Since the complainant in response to the advertisement issued by the Bank took part in the bidding for purchasing the property and the complainant also agreed to pay the amount and accordingly she paid the amount and sale certificate was issued in favour of the complainant. So far as the physical possession

                                                                                                Contd…P/3

and other compliance regarding registration of deed is concerned, the OPs have taken necessary steps for registering the document as well as handing over the physical possession to the complainant. It was also stated in the written objection that the case is not maintainable since in case of disputes regarding to Sarfaesi Act the Forum lies before Debt Recovery Tribunal and this Forum has no jurisdiction to entertain the case. Considering all the aspects the OPs have prayed for dismissal of the case.

On the basis of the pleadings of the respective parties following points are to be decided :-

1. Whether the complainant after taking part in the auction can retreat after full payment of the amount of the consideration price of the property?
2. Whether disputes between the parties can be raised before this D.C.D.R.F.?

3. Whether in case of dispute of such transaction the proper Forum is Debt Recovery Tribunal?

4. Whether the Sarfaesi Act prohibits the complaint to seek her remedy from this Forum?

5. Is the complainant entitled to get relief as prayed for?

DECISION  WITH  REASONS

            All the points are taken together for the sake of brevity and avoidance of repetition of the said fact.

            It is admitted fact that the property relates to hypothecated property to the Bank by the original owner of the property for securing loan from the Bank and on failure to pay the loan amount the Bank adopted the proceeding as laid down in Sarfaesi Act. Accordingly, the property was taken over by the OPs and in order to sell out the property an advertisement was published in the newspaper, the complainant took part in the said bidding for purchasing the property and paid the full consideration price which was accepted by the Bank. It is also admitted

                                                                                                Contd…P/4

fact that the entire proceeding was started by the Bank as per Sarfaesi Act. It is also admitted fact the sale certificate was issued by the Bank in favour of the complainant. So far as the registration of deed is concerned in favour of the complainant the Bank had taken steps with the District Magistrate as per the provision of u/s 14 of the said act and the District Magistrate is yet to take decision for compliance of the said provision on his part for which the Bank had no hand in it. Now the moot question arose where the complainant can retreat the said transaction which has already been completed in view of fulfillment of the offer and acceptance by the both parties namely complainant and the Bank. It is also admitted fact that the entire proceeding was started as per provision as laid down in Sarfaesi Act. Though, the Ld. Counsel for the complainant emphasized that in case of disputes between the Bank and the borrower the Forum lies before Debt Recovery Tribunal. But since here in this case the complainant is not a borrower, therefore, disputes that has arisen in this case, does not attract the provision of Sarfaesi Act and this Forum is competent to pass an effective order in favour of the complainant.

            Ld. Counsel for the complainant in support of his contention relied on some decisions namely SC Civil Digest page – 865, 867, Kreta Suraksha Iyeen Page-114, (Pushpa Jain vs Haryana Urban Development Authority and also relied on another decision as reported in 1994 CCJ page-231. On perusal of those judgements we found that those judgements are not applicable in this case because of facts and circumstances of those cases are totally different from the facts and circumstance of this case.

            On perusal of the materials on record we found that the entire proceeding was started under Sarfaesi Act and sale certificate was issued as per the provision as laid down u/s 13 of the said act. From the

                                                                                                Contd…P/5

materials on record it is found that the complainant before institution of this case issued a notice whereby the subject matter was mentioned that the auction No.ALB/20/SLG/RECO/Sarfaesi/auction 2013-2014/03 dt. 17.10.2014, which clearly reveals that the said transaction that took place between the complainant and the Bank was also governing under the provision of Sarfaesi Act. It is also admitted fact that in the Sarfaesi Act as per sec. 11 laid down to Forum where the disputes in such transaction can be resolved i.e. the aggrieved party can seek remedy before D.R.T. Apart from the said fact that there is also a provision in the said act sec. 34, wherein the jurisdiction of the Civil Court as well as power of another Forum has been taken away by virtue of the provision as laid down u/s 34 of the said act. Though, Ld. Lawyer for the complainant brought to the notice as per sec. 3 of the CP Act, 1986, the complainant can ventilate her grievance before this Forum but on perusal of the section 3 of the CP Act, whereby it has been mentioned that the provision of this act shall be, in addition to, and not in derogation of the provision in other law for the time being in force the section 34 of the Sarfaesi Act clearly ousted the jurisdiction of Civil Court as well as in other Forum, therefore, we hold that if section 3 of CP Act, is invoked here, there will be derogation of the provision of section 34 of Sarfaesi Act. Accordingly, we are agreeable with the Ld. Lawyer for the OPs and it is our conviction that this Forum has no jurisdiction to entertain the complaint and accordingly we hold that the complainant will not be entitled to get any relief from this Forum.

             Hence, it is

                                                O R D E R E D

            that the instant petition of complaint CC No.27/2015 is dismissed on contest without any cost.

                                                                                                Contd…P/6

            Let the copy of this order be handed over to all the parties forthwith free of cost.

            Dictated & corrected

            …………….…….                                                       

            (S. N. Chatterjee)                                                       

                President                                                                

            I concur,

            ………..……                                                  

              (S. Ganguli) 

               Member                                                               

1. Date when free copy was issued                         ……………………
2. Date of application for certified copy       ……………………
3. Date when copy was made ready            ……………………
4. Date of delivery                                        ……………………

FREE COPY [Reg. 18(6)]

1. Mode of dispatch                                ……………………
2. Date of dispatch                                  ……………………

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