IMPORTANT POINTS
(i) Right to make decisions – Civil Court or any other authority cannot arrogate to itself the right to make decisions or interfere with the SARFAESI Act. The Section 34 of SARFAESI Act.
(ii) SARFAESI Act – As per Section 34 of SARFAESI Act the Consumer Commission has no power to interfere when the notice has been issued under the SARFAESI Act.

JUDGMENT

Samiksha Bhattacharya, Member.—The instant appeal has been directed by the appellant/complainant namely Mr. Sudipta Saha against the judgement dated 28.09.2021 passed by the Ld. Additional Consumer Disputes Redressal Commission, Rajarhat (New Town) in CC/251/2021.

2. The Complainant filed the Consumer complaint before the Ld. ACDRC, Rajarhat against the OPs No. 1 & 2 alleging deficiency in service and prayed for a direction upon OPs 1 & 2 to refund money which was paid by the complainant alongwith 18% interest, compensation of Rs. 5,00,000/- and litigation cost of Rs. 50,000/-.

3. The Ld. ACDRC has pleased to reject the case on the date of admission hearing since the case is not maintainable before the Consumer Commission.

4. The Ld. ACDRC has observed that two authorized officers of the OPs have remitted a notice under the SARFAESI Act on 12.12.18 as per settled law. After initiation of any notice of the said Act Consumer complaint cannot lie and accordingly the Ld. Commission dismissed the complaint without being admitted.

5. Being aggrieved by such order the complainant has filed the instant appeal before this Commission.

6. On perusal of record and the judgment dated 28.09.2021 we have observed that complainant has mentioned in para 15 of the petition of complaint that due to stop payment of EMI the authorized officer, Recovery Cell, LIC Housing Finance Ltd. issued a letter u/s 13(2) of SARFAESI Act, 2002 dated 27.08.2018 (mentioned in Para 15 of the petition of complaint/running page 35 of Memo of Appeal). Therefore, it is evident that OP had initiated proceedings under SARFAESI Act against the Complainant prior to filing of the Consumer Complaint. Therefore, it is clear for the dispute, for which the complainant has filed the Consumer Case, notice has been issued notice under SARFAESI Act, 2002 to the complainant/appellant. There are plethora judgments passed by Hon’ble National Commission where it is observed that the Civil Court or any other authority cannot arrogate to itself the right to make decisions or interfere with the SARFAESI Act. The Section 34 of SARFAESI Act reads as follows :

“No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which Debts Recovery Tribunal or Appellate Tribunal is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authorities 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)”. In this connection, we can rely upon the case law passed in Shib Shankar Lal Gupta vs. Kotak Mahindra Bank Ltd. & Others reported in II (2013) CPJ 56(N.C.), wherein the Hon’ble National Commission held that when the proceeding of SARFAESI is started by OP/Bank or when the case is pending under SARFASEI ACT, 2002, Civil Court as well as Consumer Forum has no power to entertain the case/suit/proceeding as per Section 34 of SARFAESI Act, 2002. We can also cite the judgement passed by Hon’ble National Commission in Bank of Baroda vs. M/s Geeta Foods decided on 08.11.2012 (RP No. 3499/2012). As per Section 34 of SARFAESI Act the Consumer Commission has no power to interfere when the notice has been issued under the SARFAESI Act.

7. Therefore, we find no illegality or material irregularity in the order passed by the Ld. ACDRC, Rajarhat. The view taken by the Ld. District Commission therefore, does not call for any interference. The appeal being devoid of any merit is hereby rejected being not admitted.

8. Thus the appeal is disposed of accordingly.