DISPOSAL OF APPLICATION UNDER SECTION 36 (2) & READ WITH SECTION 39, CONSUMER PROTECTION ACT, 2019 FOR REJECTION OF COMPLAINT.
THE OPPOSITE PARTY SUBMITTED AS UNDER:-
That the complainant has taken a housing loan from Respondent for Rs. 7,00,000/- in the year 2006 and mortgaged the property situated at flat no- C, 3rd floor, Krishna Plaza, Mohi Bullahpur, Sita Pur Road, Lucknow U.P.The Respondent Bank has initiated proceedings against the complainant and sent the notice under the Sarfaesi Act 2002 and notice dated 18/12/2021 to complainant u/s 13(2) of Sarfaesi Act 2002 to the complainant and also to guarantors for Rs. 5, 56,840.13/-The Ld. District Commission has no jurisdiction to hear the Complainant filed by the Complainant as barred by section 34 of SARFAESI ACT 2002. The Loan was taken from UCO Bank situated at Chinhat Branch, Lucknow the mortgaged property is also situated at Lucknow and all loan documents were also executed at Lucknow. Therefore, the District Consumer Dispute Redressal Commission, Noida have no territorial jurisdiction in the said Complaint case. Hence, this complaint is liable to be dismissed on this ground alone. The Bank had initiated SARFAESI action as a fresh and issued demand Notice U/s 13(2) of SERFASI ACT, 2002 dated 15/02/2024 to all Borrowers and Guarantor, if any grievance against the SARFAESI action the applicant may challenge the same U/s 17 of SERFASI ACT before the Hon'ble DRT Lucknow. Hence, this complaint is liable to be dismissed on this ground alone.
In the above-mentioned facts and circumstances, it is, therefore, most respectfully prayed that this District Commission may kindly be pleased to dismiss the complaint with a heavy cost in the interest of Justice.
The complainant has opposed the application on the ground that the contention of UCO Bank, i.e. opposite party, that this District Consumer Redressal Forum does not have jurisdiction to hear the complaint on account of bar by section 34 of the SARFAESI Act, 2002, is not true and is not based on the correct interpretation of the law. In the matter of Harinandan Prasad Vs State Bank of India, as quoted by the opposite party has specifically stated that the Bank initiated proceedings for recovery of the loan by taking recourse to the provisions of SARFAESI Act, and it is only after the action was initiated by the Bank, that the borrower approached Consumer Forum and filed an application for ad-interim stay, on the ground that he did not receive any notice of the original petition filed by the Bank. the complainant has never received the notices as said by the opposite party
The prayers made by the complainant are not of a nature which can be exclusively decided by the DRT or by any other Tribunal and are in the nature of deficiency in service. Hence, this Forum has jurisdiction to entertain the present complaint. The Consumer Forum does not fall into the category of a Court and apart from it, complaints filed before the Consumer Forum are not suit or proceeding, as so mentioned under section 34 of the SARFAESI Act. Therefore, complaints for deficiency in service can be decided by this Forum Under section 34 (2) (d) of the Consumer Protection Act, 2019, a complaint can be filed at a place where the complainant resides or personally works for gain. Complainant is working at M/s Uila Power Pvt Limited based at Delhi NCR and reside in E-807 Prateek Laurel, Sector-120, Noida, and hence my complaint is maintainable before this Hon'ble Forum at Noida. The application is liable to be dismissed.
We have heard the parties and perused the file.
Under section 34 (2) (d) of the Consumer Protection Act, 2019, a complaint can be filed at a place where the complainant resides or personally works for gain. The complainant is a resident of Noida district Gautam Budha Nagar. Hence this commission has the territorial jurisdiction to hear this case.
Given the facts that the respondent bank initiated proceedings under the Sarfaesi Act 2002 has already been initiated and sent the notice u/s 13(2) of Sarfaesi Act 2002 to the complainant as well as to the guarantors for Rs. 5, 56,840.13/- dated 18/12/2021. Further, again the Bank had initiated SARFAESI action as a fresh and issued demand Notice U/s 13(2) of SERFASI ACT, 2002 dated 15/02/2024 to all Borrowers and Guarantor.
The Hon/ble NCDRC in Harinandan Prasad vs State Bank of India, III (2012) CPJ 237(NC) has held as under:
"The bank initiated proceedings for the recovery of the loan by taking recourse to the provisions of securitization and reconstruction of financial assets and enforcement of the Security Interest Act, 2002 by filing an application under section 13 (2) of the act. It clearly showed that the complaint was filed after the bank had initiated the recovery proceedings. Apprehending an adverse order, the complainant approached the consumer forum with the complaints and an application for an ad-interim stay order on the ground that the complainant received no notice of the original petition filed by the bank. The bank challenged the jurisdiction of the consumer forum in the revision petition filed before the state commission. The bank pleaded that in view of section 34 of SARFAESI ACT 2002, no other court or tribunal except the Debt Recovery Tribunal or an Appellate tribunal was empowered to grant any injunction in respect of any action taken or to be taken by the said Tribunal or Appellate Tribunal in pursuance of any power conferred by or under the said act or under the Recovery of Debts due to bank and financial institution Act, 1993".
Based on the aforesaid case it is clear that this complaint is not maintainable before this Commission as the proceedings under the SARFAESI Act had already been initiated as the first notice was issued on 13/12/2021 against the complainant before filling of this complaint case therefore, this complaint so far as the opposite party is concerned is not maintainable on the aforesaid grounds. Hence, the complaint deserves to be dismissed as against the opposite party.
ORDER
The application of the opposite party is allowed. The complaint is dismissed. The parties shall bear their own cost
