IMPORTANT POINT
Consumer Court cannot deal with directions given to a Company declared sick by BIFR.

J.M. Malik, Presiding Member—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 v. 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 Lal v. 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 arg