J U D G M E N T

(Delivered on 27.12.2023)

Per Mr.Milind.S.Sonawane, Hon’ble Presiding Member.

This is the case filed under S.49 read with S.35 of the Consumer Protection Act,2019. ( the ‘C.P. Act’ for short).

2. It is case of Complainants that, complainant no.1 and opponent no.2 are the relatives and they formed M/s Suvarna Packaging which is complainant no.2, a partnership firm. Complainant no.3 M/s Packwell Pvt. Ltd,. is an independent firm of complainant no.1. Complainant no.1 and opponent no.2 initially took loan from Sarastwat Co-operative Bank in June 2003 and mortgaged its plants, machinery and other fixed assets in 2003. Later on that loan was transferred to Akola Urban Co- oprative Bank. Thereafter, the loan was taken over by State Bank of Hyderabad, which later on merged with opponent No.1.

3. The complainants further state that, up to Oct. 2010 everything was going well and complainant no.2 was making good business. But thereafter there has been dispute arose between complainant no.1 and opponent no.2. Ultimately the dispute went to the Arbitrator. The Arbitral award has been passed by the Arbitrator. Resultantly, the partnership firm i.e. complainant no.2 become the defaulter of opponent no.1. Opponent no.1 initiated an action against complainant no.2 under S.13 of the SARFAESI Act, 2002. It is alleged by the complainants that, the said action initiated by opponent no.1 at the instance of the applications made by opponent no.2 and her husband Pratap Patil to the Debt Recovery Tribunal. There were several ‘onetime settlement offers’ given by opponent no.1 since 2016 to 2020. Opponent no.1 also gave proposal to complainant no.1 to start the functioning of complainant no.3 company owned by her at the business place of complainant no.2, so that outstanding loan amount could be recovered. It is alleged by the complainants that after having accepted the said request of opponent no.1 she shifted her machinery and raw material at the business place of complainant no.2. However, thereafter, the officers of opponent no.1 during the period of 2020 to 2021 auctioned plant and machinery of complainant no.3 supposing it to be the property of complainant no.2 under the provisions of SARFAESI Act, 2002. The complainants have come with the case that, opponent no.1 has auctioned the assets of company of complainant no.1 without any authority and without following the procedure as required by the law. It is therefore, opponent no.1 has committed deficiency in service. The complainant prayed that, opponent no.1 may kindly be directed to pay sum of Rs.82,24,153/- along with interest towards illegal sale/auction of the plant and machinery. It is also prayed that, opponent no.1 be directed to pay sum of Rs.24,61,550/- towards the damage of the stock, raw material, finished goods, semi finished good etc. The complainants also sought compensation for mental and physical harassment along with the cost of the proceedings.

4. We heard Ld. Advocate Mr.Patil for the complainants initially. Later on when we raised the query that whether this Commission is having jurisdiction to entertain and try this complaint, he took several dates. Finally, Adv. A.M.Mamidwar under the authority letter of Adv. E.S.Potdar argued the matter after relying certain judgment of the Hon’ble Supreme Court.

5. The points for determination along with our findings thereon are as for follows.

REASONS As to point no.1-

6. On perusal of the complaint, we raised the issue that whether this Commission has jurisdiction to entertain and try the present complaint or not. Initially, Ld. Adv. Mr.Patil for the complainant submitted that, opponent no.1 has auctioned out the property of complainant no.3 unauthorizedly in an action initiated against complainant No.2 under the SARFAESI Act, 2002. The officers of opponent no.1 deliberately auc