O   R   D   E   R

 (Per Ms. Savita G. Kurtarker, Member)

1. The case of the Complainant is that the Complainant is a Physician by profession and raised loan with the Opposite Party Bank for purchase of advance medical machineries/instruments for his self employment purpose and thereby to earn for his livelihood and also to give better services to the patients.

1. Accordingly the Complainant purchased sophisticated and advance medical machineries/equipments and installed in the premises at Bhogtancho Dando, ward Comba, Margao so as to give better medical services to the patients. As per the cause title the Opposite Party is the Saraswat Co-operative Bank Ltd., SME Branch, Panaji Goa.

1. Further the case of the Complainant is that he has paid substantial loan amount to the Opposite Party.  However, despite his sincere efforts, he could not pay his loan installments as agreed because of rapid changes in the market.

1. As per the Notice dated 03.01.2011 issued by the Opposite Party the outstanding amount of Rs. 1,28,24,111.08 was due.  The Opposite Party obtained two cheques bearing No. 021316 dated 19.01.2011 for Rs. 8,00,000/- lakhs and another cheque bearing No. 021317 dated 20.01.2011 for Rs. 8,00,000/- of Saraswat Bank.

1. On 26.04.2011 the Opposite Party seized the following immovable and movable property belonging to the Complainant.

 IMMOVABLE  PROPERTY

Shop No. S-4, situated at Sheesh Mahal Building, Comba, Margao Goa.

FURNITURE  & FIXTURES

1. Arc  shape wooden table with drawers and compartments
2. Show case with glass on front and wood on back and other sides.
3. Wooden bench with cushion at the top and box
4. Steel Table
5. Cushion chairs (3 nos)
6. Wooden tables (3 nos)
7. Plastic chair
8. Plastic stools (2 nos)
9. Steel Cupboard

1.  A.C. with stabilizer (3 nos)
2.  11. Computer & Printer
3.  Ceiling fan
4.  Exhaust fan

MACHINERIES /EQUIPMENTS

1. GE HI-Speed/Spiral CT Scanner Model “FXI”
2. Ultra Sound Machine
3. X- Ray Machine

1. According to the Complainant the Opposite Party auctioned and sold the immovable property for Rs. 72,00,000/- without following proper procedure for auction sale.  Sale proceeds were attached as outstanding loan amount of Rs. 1,28,24,111.08.  The balance remaining outstanding is Rs. 56,24,111.08.

1. According to the Complainant the sale and auction of the machineries/equipments/furniture & fixtures is not conducted as per the procedure laid down.  Further, the Complainant states that the Opposite Party has prosecuted u/s. 138 of N.I. Act for having dishonoured the said cheques given by the Complainant to the Opposite Party.

1. According to the Complainant the Dy. Gen. Manager, Recovery vide his letter No. SCB/REC/11/RGN/857 dated 23.12.2011 has asked the Complainant to submit substantially higher bid than Rs. 5.40 lakhs for the machineries/equipments, furniture.  The fixing of bid amount of Rs. 5.40 lakhs after a clear lapse of more than 11 months by the Opposite Party is arbitrary which amounts to gross deficiency-in-service.

1. According to the Complainant the Opposite Party is liable to pay Rs. 2,35,888.92 being the excess amount of the seized machineries/equipments, furniture.
2.  

1.  The Opposite Party filed the written version and raised the following preliminary objections:

1. That the Opposite Party is a Co-operative Society duly registered under the Multi-State Co-operative Societies Act, 2002 and the Complainant is a member of the Opposite Party

as the Complainant is holding the shares. In view of this, under Section 84 of the Multi-State Co-operative Societies Act, 2002 any dispute between the Multi-State Co-operative Society and its member such dispute shall be referred toArbitration.

1. The Opposite Party also raised preliminary objection that the Complainant  is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act 1986.  Hence the present complaint is not maintainable.

1. Further the Opposite Party raised the objection stating that this Forum does not have pecuniary jurisdiction to entertain, try and decide the present complaint as the amount of loan sanctioned by the Opposite Party is to a tune of Rs. 1,61,00,000/- only.

1.  We have gone through the complaint, written version, documents and written arguments filed by both the parties, and also heard Ld. advocates for both the parties and we have observed from the record that the Complainant has filed the present complaint alleging deficiency in service on the part of the Opposite Party in regard to machineries, equipments, furniture sold in auction by the Opposite Party under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
2.  

1.  We have observed that the Complainant has relied on copy of the notice dated 03.01.2011 under No. SC/GSME/02-6215 issued by the Opposite Party, from which it is seen that the Opposite party has initiated proceedings for the recovery of the loan by taking recourse to the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, by giving said notice dated 03.01.2011.

1.  We have also observed that the Opposite Party vide their letter dated 07.12.2010 under reference No. SCB/GSME/02/2400 addressed to the Complainant had given final opportunity to regularize the Complainant’s account in respect of loan sanctioned to the Complainant.

1.  Further we have seen that Opposite Party also issued vide its letter dated 10.03.2011 under reference No. SCB:REC:10:RGN possession notice in respect of machinery, furniture and fixtures and other office equipments landed property of Karwar and four shops in Sheesh Mahal Building at Comba, Margao Goa.

1. We have observed that vide letter dated 07.04.2011 under reference No.SCB/REC/10/RGN/1926, the Opposite Party informed the Complainant that despite the demand notice and possession notice issued to the Complainant under provisions of Securitization and Reconstruction of Financial Assets and Enforcement Security  Interest Act 2002 (No. 54 of 2002) the Complainant had intentionally failed and neglected to pay the outstanding loan amount to the Opposite Party.

1.  We have also observed that sale notice dated 07.05.2011 were published  by   the   Opposite  Party  in  the  daily  Gomantak  and

Gomantak Times in respect of sale of four shops of the Complainant in Sheesh Mahal Building, situated at Comba, Margao Goa.We have further observed that vide letter dated 24.06.2011 the Opposite Party sold four shops situated in Sheesh Mahal Building at Comba, Margao Goa, on “as is where is” andwhat is where is” basis under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement Interest Act 2002 No. 54 of 2002.

1.  Under the circumstances we are of the opinion that the Opposite Party has taken steps under the “Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002  (54 of 2002).  In order to dispose this complaint we have relied upon order of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No. 74/2012 dated

01.02.2013 between Shiv Shankar Lal Gupta V/s. Kotak Mahindra Bank Ltd. wherein the Hon’ble National Commission has held that the law under the Securitization and Reconstruction of Financial Assets and Enforcement Interest Act 2002 puts a crimp in invoking the jurisdiction of Consumer Commission.We reproduce para Nos. 10 and 11 of the said decision.

                   34. Civil Court not to have jurisdiction. No Civil Court shall have        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 of Debts Due to Banks and Financial Institutions Act, 1993.      

11. The Civil Court mentioned here also includes Tribunals and Commissions dealing with civil matters.  There lies a rub and we cannot entertain this complaint.”      

1.  We shall also rely on the order of the Hon’ble Consumer Disputes Redressal Commission, New Delhi passed in Revision Petition No. 995 of 2012 between Harianandan Prasad V/s. State Bank of India wherein the Hon’ble National Commission has upheld that section 34 of the said Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has specifically taken away jurisdiction from any other Court/Tribunal/Forum.

1.  Under the circumstances in view of above mentioned decisions of the Hon’ble National Commission, New Delhi, we are of the opinion that this Forum has no jurisdiction to try and entertain the present complaint.  Therefore we pass the following order:

The complaint is dismissed with no orders as to costs.

                                                                         (Shri Jayant S. Prabhu)

                                                                                    President

                                                            (Ms. Savita G. Kurtarker)

                                                                                Member

                                                                        (Ms. Cynthia A. Colaco)                                                                                                                                            

                                                                                     Member