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“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 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)”.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

 

REVISION PETITION NO. 721 OF 2013

(From  order dated 26.11.2012 in Appeal No. 201/2012 of the

               State Consumer Disputes Redressal  Commission,  Uttar Pradesh, Lucknow )

With

IA/1315/2013

(STAY)

Standard Chartered Bank

Through its Authorised Officer, Mr.Ajay Rana

10, Parliament Street, New Delhi                                … Petitioner

Versus

 

Virendra Rai, S/o Late Sh.Patu Rai

R/o 3/83, Sanjay Gandhi Nagar

P.N.Road, Tehsil & Dist. Lucknow                                      … Respondent

 

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER

          HON’BLE MR. VINAY KUMAR, MEMBER

 

For the petitioner            : Mr. Sanjeev Sagar,  Advocate

For the Respondent :  N E M O

 

PRONOUNCED ON  01.04.2013

 

                                                O R D E R

JUSTICE J.M. MALIK

1.      The Civil Court or any other authority can not arrogate to itself  the right to make decisions or interfere with the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short ‘SARFAESI Act’).  Here lies the rub in Section 34 of SARFAESI Act  which reads as follows:-

 “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 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)”.

 

 

2.      The State Commission, Lucknow, presided over by S/Sh. Rampal Singh, Presiding Member and Jugal Kishore, Member, passed the following order:-

“… The petitioner states that in order dated 24.07.2011 the Consumer Forum has ordered the petitioner bank that during the pendency of this case, the petitioner shall not take possession of property of complainant bearing No.Plot No.14, Gaurbhith,Fazulahganj, Lucknow. The Consumer Forum has also given next date as 25.08.2012 for further proceedings.

The petitioner has prayed before this Forum for setting aside of order dated 24.07.2012 by this Forum. Further, after the passing of the date fixed by the Consumer Forum, i.e. 25.08.2012, the petitioner has not informed us about the orders passed by the Consumer Forum.  After hearing the counsel for petitioner in detail, it is found that the appeal of the petitioner is merit-less and hence liable to be dismissed.

                                         ORDER

          Present appeal does not have any force and hence is dismissed. The order passed by the Consumer Forum dated 24.07.2011 in case No. 780/11 is hereby confirmed. The cost of this appeal shall be borne by the petitioner himself.

          The certified copy of the order be supplied accordingly to rules”.

 

3.      We  have  also  seen  the order  passed  by the District Forum-II, Lucknow, which has  observed as under :-

“…… The complainant on the other hand objected to objection of respondent and stated that this Forum has jurisdiction to hear the present case.  From their side an order passed by Hon’ble State Consumer Disputes Redressal Forum, U.P. in appeal No.694/09 titled “Gaya Prasad Vs. GIC Housing Finance Limited”  and order dated 01.05.09 has been relied upon, we have gone through the said order from which it is clear that only the Civil Court has been barred from hearing and thus only civil court does not have jurisdiction to hear the present case and not the consumer fourm.  Into this order, the Hon’ble State Consumer Forum, U.P. has also mentioned Section 3 of the Consumer Protection Act, 1986, wherein it has been specifically stated that the provisions of this Act shall be in addition to and not in derogation of provisions of any other law for the time being in force. Referring to this provision, the Hon’ble State Consumer Forum, U.P. has stated that the powers given to the Consumer Court are not in derogation of the provisions of SARFAESI Act.  Hon’ble State Consumer Forum, U.P. and its order in case titled “Kishori LalVs. ESI Corporation has stated clearly that the Consumer Forum has the jurisdiction to hear such cases and section 34 of the SARFAESI Act does not bar the said jurisdiction and in such circumstances, the objection of respondent bank does not have any force”.

 

4.      Counsel for the petitioner present.  Respondent has not appeared.  However,  his written submissions have been placed on record.  We have gone through the same.  Instead of touching the heart of the problem, the complainant has just skirted it.  He has countenanced the deficiency on the part of the Bank.  He has not spoken about the jurisdiction of this case.

 

5.      The learned counsel for the petitioner  vehemently argued that the Bank had cited before the State Commission, the order passed by this Bench, titled as “Bank of Baroda Vs. M/s. Geeta Foods”, decided on 08.11.2012 (RP No. 3499 of 2012).  The counsel for the petitioner alleges that this order was not discussed by the State Commission. He contended that the State Commission should have mustered the courage to mention about this order which otherwisetantamounts to Contempt of Court.

 

6.      We have already held that as per Section 34 of the SARFAESI Act, 2002, the District Forum or the State Commission have no power to interfere with the SARFAESI Act. The District Forum and State Commission are under the misconception that the Consumer Court is not a civil court.  In Patel Roadways Vs. Birla Yamaha Limited, 2000 (4) SCC 91, AIR 2000 SC 461, the Hon’ble Apex court has held :

“The contention that the use of the term ‘suit’ in Section 9 of the Carriers Act shows that the provision is applicable only to the cases filed in a civil Court  and does not  extend to proceedings before the National Commission which is a forum to decide complaints by Consumers following a summary procedure cannot be accepted. The term ‘suit’ is a generic term taking within its sweeps all proceedings, initiated by,  a party for realization of a right vested in him under law.  The meaning of the term ‘suit’ also depends on the context of its use which in turn, amongst other things, depends on the Act or the rule in which it is used.  No doubt the proceeding before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil Court.  That does not mean that the proceeding before the Commission is to be decided ignoring the express statutory provisions of the Carriers Act (Section 8) in a proceeding in which a claim is made against a common carrier as defined in the said Act.  Accepting such a contention would defeat the object and purpose for which the Consumer Protection Act was enacted.  A proceeding before the National Commission comes within the term ‘suit’.

 

7.      In S.James Vincent Vs. Greater Cochin Development Authority, 1994 (1) CPJ 174 (NC), this Commission held that “a complaint filed by the complainant suppressing the fact that the matter was already sub judice in the Sub-Court, Ernakulam, was dismissed by the State Commission as the case was already sub judice before a Civil Court.  In appeal, the National Commission upheld the order of the State Commission holding that the complaint was gross abuse of the Consumer Protection Act”.                 

8.      In Oswal Fine Arts Vs. H.M.T., 1991 CPC 43: (1991) 1 CPJ 330: 1991 (1) CPR 386 (NC), this Commission upheld the important principle that when a matter is sub judice before the ordinary Civil Courts of the land, the Consumer Commission cannot and will not entertain any claim for compensation in respect of the same subject matter.

 

9.      It must  be borne in mind that under Section 6 of the Indian Post Office Act, the Consumer Fora  have got limited jurisdiction.

 

10.    Again,  in Southern Railways Vs. M.Chidambaram, 2002 (1) CPJ 34: (2002) 1 CPJ 342 (NC),  it was held that since it was not disputed that untoward incident as mentioned in Section 124-A of the Act has occurred the proper forum of  adjudication would only be before the Railway Claim Tribunal under Section 15 of the Railway Claims Tribunal Act, 1987.  The consumer court had no jurisdiction in this respect.

 

11.    The consumer court cannot deal with the directions given to a Company declared ‘sick’ by BIFR.

 

12.    In Dinesh Kumar Vs. Railway Station Master, Raipur Station, IV (2004) CPJ 136 (Chhattisgarh), it was held that as Section 15 of the Railways Act, clearly bars jurisdiction of any other Court authority, consequently, remedy under Consumer Protection Act, 1986 stands barred and was not available to the complainant.

13.    Last, but not the least, this Commission clearly, specifically and unequivocally  held  in Traxpo Trading Co. Vs. The Federal Bank  Ltd, I (2002) CPJ 31 (NC)  that under Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, jurisdiction of  this Commission has been barred, where the Bank has filed ‘suit for recovery’,  before DRT.

 

14.    Under these circumstances, the proceedings pending before the District Forum are hereby quashed and the revision petition is accepted.  The complaint is dismissed. Copy of this order be sent to the State Commission and District Forum to follow the order passed by this Commission, time and again, without caring whatever their personal views are.

 

    ……..…………………………

(J. M. MALIK,J.)

                                                                                       PRESIDING MEMBER       

 

…..…..…………………………

(VINAY KUMAR)

                MEMBER

 

dd/7

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