KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No.05/2024

JUDGEMENT DATED: 01.02.2024

PRESENT:

COMPLAINANTS:

(by Adv. J. Krishnakumar)

Vs.

OPPOSITE PARTY:

JUDGEMENT

SRI. AJITH KUMAR  D.  :  JUDICIAL MEMBER

          This is a complaint filed by one Thomas Mathew and others against the Manager, Kerala Bank, Idukki by resorting to Section 47 of the Consumer Protection Act, 2019. The averments contained in the complaint in short are as follows:

          2.       Landed property having an extent of 100 cents owned by the complainants was mortgaged by them with the opposite party and they had availed various loans from 2011 onwards.  Due to Covid pandemic and crisis on account of flood, the complainants could not make repayment of the loan and hence the account of the complainants was declared as NPA.  Thereafter, the complainants requested the opposite parties to restructure the loan for permission to sell 25cents of land out of the total land mortgaged.  The request put in by the complainant was rejected by the opposite party and they started initiation of recovery steps.  The act of the opposite party in rejecting the request for restructure of the loan amounts to deficiency in service.  The loan agreement contemplates an arbitration clause which was originally executed with DCB, Idukki.  The DCB, Idukki was merged with the Kerala Bank in 2019 and hence this account does not fall under Section 2(d)(n) of the SARFAESI Act, 2005.  So initiation of any proceedings under the SARFAESI Act is impermissible and hence the opposite party has no jurisdiction to take any steps under the SARFAESI Act.

3.       The complainant would seek for an order against the opposite party from forcibly dispossessing them from their dwelling house. Compensation to the tune of Rs.3,00,000/-(Rupees Three Lakhs only) for the loss and damages suffered by the complainant is also sought for.

          4.       The complainant had cited two decisions reported in Robust Hotesl & Co. Vs. EIA Ltd. 2017(3)Mh. LJ-1, P.32 & Mardia Chemicals Vs. Union of India 2004(2) Mh.LJ, 1990 para 51 and canvassed a preposition that the power of the Civil Courts supersedes the power of SARFAESI Act. 

5.       When the complaint came up for admission, we entertained a doubt regarding the maintainability of the complaint.  So the counsel for the complainant was heard in detail.  Perused the complaint and the documents filed in support of the complaint.

6.       One document filed by the complainant is a notice issued by the Authorised Officer under the SARFAESI Act as per Security Interest (Enforcement) Rules 8(1) 2002 to the effect that the Authorised Officer has taken possession of the property.  In this connection, ruling of our Hon’ble High Court reported in Punjab National Bank Vs. Consumer Disputes Redressal Commission, Alappuzha & Ors 2011 3 KHC 511 assumes significance.  The Hon’ble High Court had observed that the Consumer Forum cannot grant any relief against the measures taken by a Bank or Financial Institution under the SARFAESI Act as the jurisdiction to deal with such matters is provided  in the SARFAESI Act.  So the Consumer Forum has no jurisdiction to adjudicate any dispute.  In this connection another ruling is also significant.  

7.       The documents filed in support of this complaint would show that the complainant is seeking a relief against the initiation of recovery proceedings by the opposite party as per the provisions of the SARFAESI Act.  The rulings relied upon by the complainant are in respect of the jurisdiction of the Civil Courts.  The law as interpreted by the Hon’ble High Court would convincingly prove that the Consumer Forum has no jurisdiction to grant any relief against a banking institution with respect to initiation of proceedings under the SARFAESI Act.  Hence, we find no reason to admit the complaint.

Since this Commission has no jurisdiction to entertain the complaint, this compliant is rejected.

Dictated to my Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 1^st day of February, 2024.

SL

 C.C.No.05/2024

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBITS

JUDICIAL MEMBER