Delhi

New Delhi

CC/362/2011

Neeru Rani - Complainant(s)

Versus

M/S. Standard Chartered Bank - Opp.Party(s)

27 Apr 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION­­­-VI,

\DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC. NO.362/2011

IN THE MATTER OF:

 

1. NEERU RANI @ NEERU RAVI

W/O SH. RAVI CHANDRA NATRAJAN,

                                               

2.  SH. RAVI CHANDRA NATRAJAN,

BOTH R/O F-22/26, SECTOR-3,

ROHINI, DELHI-110085

BOTH THROUGH THEIR S.P.A.              … COMPLAINANTS

VERSUS

STANDARD CHARTERED BANK,

THROUGH ITS GENERAL MANAGER

CHAIRMAN/MANAGING DIRECTOR,

JEEWAN DEEP BUILDING,

10, PARLIAMENT STREET,

NEW DELHI-110001                                                       .… OPPOSITE PARTY

 

 

CORAM : SH. POONAM CHAUDHRY, PRESIDENT

                SH. BARIQ AHMAD, MEMBER

                 MS. ADARSH NAIN, MEMBER   

                                                                                                                                Date of Institution: 29.03.2011

                                                                                                                                 Date of Order     :27.04.2022

Application on behalf of the Opposite Party, under Section 34 & 35 of The Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002,r/w Order 7 Rule 11 of CPC and read with Section 9 & 151 of CPC for dismissal of Complaint.

ORDER

BARIQ AHMAD, MEMBER,

Hearing Through Video Conferencing.

Present: Complainant in person.

1. This order will dispose of the above noted application in above noted Consumer Complaint, filed by the Opposite Party (hereinafter to be referred as “the Opposite Party’), under Section 34 & 35 of The Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (in short “The SAFAESI Act”), read with Order 7 Rule 11 of CPC read with Section 9 & 151 of CPC for dismissal of Complaint, as the question of law and facts is involved in this application. Whether Consumer/Forum Commission does not have territorial jurisdiction to entertain and adjudicate the present complaint, as no cause of action arose within the jurisdiction of this Commission in view of the complainant has already filed a case before the Hon`ble Debt Recovery Tribunal, Delhi?
2. Brief facts, as averred in the application, are that the complainant has filed the complaint against the OP under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act, 1986”). Before this Forum/Commission, alleging deficiency in service on the part of the OP. The facts as alleged in the complaint are that the complainant and OP had entered into loan agreement dated 03.05.20006. the OP had disbursed home loan (522-0-564103-9), amount of Rs.9,99,000/-, EMI @ Rs.9224/- of 5^th of every month to the complainant by mortgaging property of the complainants i.e. MIG Flat No.142, Group-I, First Floor, Pocket-23, Sector-24, Rohini, Delhi. The complainant`s kept paid the EMI`s but the OP kept on levied unnecessarily, unlawful charges against the complainants. The complainant`s made various communications with the OP, but the OP did not redress the grievances of the complaint about the bouncing charges, late fees etc. It is further stated that the complainant`s had paid total amount of Rs.3,94,000/- against the loan of Rs.9,99,000/- by July 2009.
3. It is further been alleged that the complaint`s send legal notice dated 08.09.2010, but no reply, on 30.12.2010 the A/R of the complainant`s came to knowledge from the office of RWA that the OP had sold the mortgaged property along with house hold goods of the complainant`s and new buyer has taken possession of the property in question. It is further stated that the OP issued a letter dated 12.01.2011 for the criminal complaint dated 16.01.2011 filed at P.S. Begumpur, Delhi and from the reply dated 12.01.2011 complainant`s came to know that the OP has sold the mortgage property at approximately Rs.51,00,000/-
4. It is further been alleged that the OP had obtained order dated 24.06.2010 passed by Sh. Digvijay Singh, ACMM, (Special Acts)/Central Delhi. The complainant`s further stated that the OP send notice under Section 13(2) of the SURFACI Act at the property in question instead of the new address, alleging deficiency in service, filed the present complaint prayed to pay the complainant an amount of Rs.10,00,000/- towards the mental tension, agony along with interest @ 18% per annum w.e.f. 08.09.2010 till realization, with cost of litigation Rs.30,000/-.
5. OP contested the case and filed an application under Section 34 & 35 of the Securitizations Act for dismissal of the complaint. An objection was raised, by filling this application, by making reference to Section 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 (51 of 1993)/Section 34 of the SARFAESI ACT, this Commission has no jurisdiction to entertain the consumer complaint. It is further averred that the complainant has failed to plead the mandatory ingredients for bringing the complaint under the purview of a consumer dispute and enabling this Commission to adjudicate upon the present complaint.

6. We have also gone through the order of District Forum dated 15.05.2013 and order of Hon`ble State Commission, New Delhi dated 16.08.2016 in appeal No. 936 of 2013. The application under Section 34 & 35 of the Securitizations Act was dismissed by the predecessor of this Forum on 15.05.2013, The OP had preferred First Appeal No. 936/2013 before Hon`ble State Commission, New Delhi, vide order dated 16.08.2016, the impugned order dated 15.05.2013 was set aside with the direction that this Forum shall decide the aforesaid application afresh.
7. On behalf of complainant, neither complainant, nor counsel for the complainant have appeared since  19.01.2021 to argue on the above noted application.
8. This question has already been elaborately dealt with by Hon`ble State Commission, New Delhi, 19^th March, 2021 in case titled Keshmati Meena vs Allahabad Bank, in Complaint No.576/2013, Paras 14 of the said order, inter-alia, being relevant, are extracted hereunder:- “the complaint is not maintainable before the Consumer Forum since the issue, relying on Section 34 of the SARFAESI ACT, cannot be adjudicated by this Commission”.
9. Not only this, it was also so said by the Hon`ble National Commission, in yet another matter, in the matter of Bank of India Vs. Anil Raveendran decided on 03.03.2015 observed as under:- `We have considered the rival contentions. On careful perusal of record, it is evident that petitioner opposite party had initiated proceedings under SARFAESI ACT against the respondent complainant prior to filing of the consumer complaint. In the aforesaid context, it is to be seen whether in view of Section 34 of the SARFAESI Act, the consumer courts had jurisdiction to entertain the complaint filed after the initiation of the recovery proceedings under SARFAESI ACT. This issue is no more resintegra. The issue came up before the Coordinate Bench of this Commission in RP No. 995 of 2012 titled Harianandan Prasad Vs. State Bank of India decided on 31.05.2012” wherein the coordinate Bench has held thus:

"Even then we have heard learned counsel for the petitioner on merits and have considered his submissions. From a conspectus of the facts and circumstances of the case and material obtaining on record, there cannot be denial of the factual position that faced with the recovery proceedings initiated by the Bank, the complainant had filed consumer complaint alleging deficiency in service on the part of the Opposite Party Bank. The District Forum unmindful of the provisions of section 34 of the said Act had passed an adinterim order directing the opposite party bank not to take any steps for recovery of the loan dues from the complainant by taking coercive measures. In our view, to say the least, such an order was clearly without jurisdiction and amounted to the usurping of the jurisdiction which was legally vested in another statutory tribunal under a particular statute. The State Commission has done well in setting aside the said order and dismissing the complaint because once it is found that the complainant had already approached the Appropriate Tribunal which was ceased of the entire gamut of controversy. The complainant could not agitate the said question before a consumer fora established under the Consumer Protection Act, 1986. Various tribunals constituted under the statute are expected to exercise their jurisdiction in accordance with the provisions of the Act under which they have been constituted. There is a clear cut demarcation of the jurisdiction and powers amongst various tribunals and no attempt should be made by one Tribunal to usurp the powers and jurisdiction of other either directly or indirectly. Such a situation may lead to anomalous situation because the orders passed by the two or more tribunals on the same controversy may vary. The question would then arise as to which of the order is binding and valid on the parties. Such a situation has to be avoided in all circumstances. In the case in hand, what we have found is that the District Forum has exercised a jurisdiction which was not vested in it. Rather such a jurisdiction was specifically taken away from any other Court / Tribunal / Forum under section 34 of the Act, 2002."

10. Similarly view was taken by another Bench of Hon`ble National Commission in Consumer Complaint No. 302 of 2012 tiled Yashwant G Ghaisas & Ors. Versus Bank of Maharashtra decided on 06.12.2012. An appeal against the said order was filed in the Supreme Court and Civil Appeal No. 1359 of 2013 was dismissed by the Hon'ble Supreme Court with following observations: "It is clear that this case is covered under the Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002. Section 34 of the said Act is reproduced as hereunder:-

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)".

The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debt Recovery Tribunals. This matter is purely covered within the jurisdiction of DRT or DRAT. If there is any grievance against the notice under Section 13 (2) of the SARFAESI ACT that should be brought to the notice of the concerned authority. It is well settled that main creditor and the guarantors are equally responsible. There lies norub for the bank to take action against the guarantor directly. It cannot be alleged that he is adopting the policy of pick and choose. From the allegations stated above, there appears to be no deficiency on the part of the opposite party. In case the bankers are working within the ambit of SARFAESI ACT, it cannot be said to be deficiency on the part of the bank. It must be established that there is deficiency on the part of the bank. In that case this commission can take action. For the reasons stated above, the complaint is dismissed at the stage of its admission. Nothing will preclude the complainants from approaching the appropriate Forum as per law.

11. During the course of arguments the learned counsel for the opposite party also referred decisions in case titled Standard Charted Bank Vs. Virender Rai 2013 (2) C.P.J. 337 passed by Hon`ble National Commission, Swadeshi Cement Ltd. & Ors. Vs. Union of India & Ors.[2011 (1) D.R.T.C. 699 (Delhi)], Vicky Kumar Rana Vs. Kamal Kumar Nangira & Ors. [2011 (1) DRTC] and United Bank of India Vs. Satyawati Tondon & Ors. [2010 (2) DRTC 457 (S.C)]. However, the aforesaid decisions appear to be directly relevant to the issues involved in this Consumer Complaint, wherein Section 34 of SARFAESI Act of 2002 have been taken into consideration, it held U/S 18 of The Recovery of Debts due to banks and Financial Institution Act,1993  Jurisdiction of the Fora has been barred, where the bank filed suit for recovery before DRT. Moreover, the Counsel for the opposite party  point out that the opposite party had filed a Securitization application No.73/2010 titled `Standard Charted Bank Vs. Neeru Rani, wherein final order had passed on 03.02.2011 by DRT-II, Delhi whereby a sum of Rs.37,41,896.83 already deposited by the OP before DRT-II, Delhi in the form of fixed deposit for complainant.
12. From the allegations stated above, there appears to be no deficiency on the part of the opposite party. In case the bankers are working within the ambit of SARFAESI ACT, it cannot be said to be deficiency on the part of the bank. It must be established that there is deficiency on the part of the bank. In that case this commission can take action.
13. Having regard to the discussion done and the legal position explained, We, are of the considered view that the complaint is not maintainable before the Consumer Forum since the complainant is not a consumer and thus not entitled to raise the consumer dispute. The issue, relying on Section 34 of the SARFAESI ACT, cannot be adjudicated by this Commission.

Accordingly, the complaint is returned granting liberty to the complainant to file it before the appropriate forum having the jurisdiction to try & adjudicate the same.

Ordered accordingly, leaving the parties to bear the cost.

The order be uploaded on the website of this Commission.

File be consigned to record room.

Announced in open Commission on this 27th  day  of April, 2022.

 

 

MS.POONAM CHAUDHRY

(PRESIDENT)

 

 

BARIQ AHMAD                                                        MS. ADARSH NAIN          

MEMBER                                                                         MEMBER