D.O.F:14/03/2022
D.O.O:12/12/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.47/2022
Dated this, the 12th day of December 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Fathimath Shamshad aged 40 years,
W/o Abdul Kareem,
R/at Izzath Nagar,
Hidayath Nagar Post, : Complainant
Kasaragod Taluk and District – 671123
(Adv: Mohanan Nambiar.M)
And
The Manager
Kerala Bank, Kasaragod Branch, : Opposite Party
P.O. Kasaragod, Kasaragod.
(Adv Chandramohan.G)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The case of the complainant is that, she availed a housing loan of Rs. 9,00,000/- (Rupees Nine lakhs only) from Opposite Party bank by mortgaging of immovable property. She was very regular in paying monthly installments but after Covid-19 she could not continue payment. The Opposite Party bank has collected Rs. 29,000/- as additional charges which is illegal and Opposite Party demanded excess interest. The complainant prays for restraining Opposite Party from taking possession of the property situated in Rs. 280/15 (old RN No 312/1B15A) of Kudlu Village.
2. The complainant filed separate petition to grant interim injunction restraining the Opposite Party from proceeding with taking possession and sale of the property. The Commission upon hearing complainant originally granted interim injunction as prayed for on condition that petitioner/complainant shall deposit Rs. 75,000/- within the period there in.
3. The Opposite Party filed detailed counter and version stating that consumer Commission has no jurisdiction to entertain the complaint. Further stated that Opposite Party issued a notice under section 13(2) of SARFAESI Act dated 14/08/2019 and same was unclaimed by complainant. The Opposite Party took possession of the property on 08/02/2022 and the present complaint is a counter blast.
Complaint is filed by suppressing the facts. As per section 34 and 35 of SARFAESI Act consumer Commission has no jurisdiction to entertain any complaint of any action under the act. The Opposite Party also produced notice under section 13(2) of SARFAESI act and therefore injunction order may be dismissed as not maintainable and consumer complaint is not maintainable as per law.
Point for consideration is whether the complaint is maintainable?
According to Opposite Party the consumer Dispute Redressal Commission has no jurisdiction to entertain a challenge against the proceedings under the SARAFAESI act.
Section 34 of SARFESI Act provides thus:
“Civil Court not to be have jurisdiction:- No Civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter in which a debits recovery Tribunal or the appellate Tribunal as empowered by or under this Act to determine and no jurisdiction shall be granted by any court or 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 of debits due to banks or financial institutions Act ( 1993 (5) od 1993”.
All though the first part of section ousts the jurisdiction of only the Civil court which will not apply to CDRC which is not a Civil court, the later part of the section expressly bars the jurisdiction of not only Civil courts but also other authorities, which would include CDRC’s also from granting injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the SARFAESI Act. The CDRC cannot without granting an injunction, restrain financial institutions like banks from proceeding with action taken invoking section 14(1) Consumer protection Act and such power is expressly barred by section 34 of the SARFAESI Act. As such it is clear that the CDRC cannot grant any relief against measures taken by a bank or financial institution under the SARFAESI act is expressly excluded. We referred the citations in Integrated Rubian Experts Ltd Vs Industrial Finance Corporation 2008 (4) KLT 640 and Havinandan Prasad Vs State Bank of India III 2012 CPJ 237 (NC)
As already noticed the relief sought is for an order of temporary prohibitory injunction against invoking the provision 13(a) and 14 of the SARFAESI Act section 13(a) and 14 of the SARFAESI Act section 34 of the SARFAESI act among other things provides that no injunction shall be granted by any court or other authority in respect of any action taken the SARFESI Act or under the recovery of debits is due to banks and Financial institutions Act 1993 after referred to as the ‘RDB Act’. Therefore there is a clear bar created by statute law on the grant of injunction against any action taken or to be taken under the SARFAESI act or the RDB Act.
In the result law does not permits the court (CDRC) to grant injunctions against sale of mortgaged properties as per SARFAESI Act and hence complaint is rejected as not maintainable. Thus order in IA 76/2022 stands vacated and complaint is dismissed is not maintainable.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
