State Consumer Disputes Redressal Commission
Bharat Shankar Koli vs Sachin Pandurang Marathe on 18 July, 2023
1 (RP/22/190)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CIRCUIT BENCH AT NASHIK
REVISOIN PETITION NO.RP/22/190
(Arisen out of Common Order dated 12/04/2022 passed by the Jalgaon District
Commission on an application filed by the petitioner, in CC/22/19 to CC/22/24)
Shri.Bharat Shankar Koli
R/o Jainabad,
Tal & Dist. Jalgaon 425 001. Petitioner
Versus
1. Mr.Sachin Pandurang Marathe
Builder & Developer
R/o Sudarshan Colony,
Khedi (Bu.),
Jalgaon.
2. The Manager
Godavari Laxmi Co.Op.Bank
Off @ Bank Street,
Navi Peth,
Tal & Dist. Jalgaon. Respondents
BEFORE :
Mr.Justice S.P.Tavade, Hon'ble President
Mr.K.M.Lawande, Hon'ble Member
ORDER
Dated-18th July, 2023 Per: Mr.Justice S.P.Tavade, Hon'ble President 1] Being aggrieved and dissatisfied by the Common Order dated 12/04/2022 passed by the Jalgaon District Consumer Disputes Redressal Commission on an application filed by the petitioner, in Consumer Complaint Nos. CC/22/19 to 2 (RP/22/190) CC/22/24, the present revision petition has been filed by the original complainants. It is contended that the petitioner had booked flat Nos.303 and 304 with the respondent No.1 in his project 'Swapnashilpa Apartment'. It is contended that the petitioner had paid part consideration and thereafter respondent No.1 executed Agreement to Sale in favour of the petitioner. Respondent No.1 had agreed to hand over possession of the flat in the month of March 2020. It is contended that the petitioner used to take follow up of the construction site.
2] On 17/11/2021 petitioner came to know that the Respondent No. 2 had pasted notice of symbolic possession of 'Swapnashilp Apartment'. Hence, petitioner enquired with the respondentNo.1. It was revealed that the respondent No.1 had taken loan for the project but he could not repay the loan. Hence, respondent No.2 had taken action against the respondent No.1 under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 before the Debt Recovery Tribunal. As per the order of the DRT, notice was affixed on the project, which shows that the respondent No. 2 had taken symbolic possession of the entire project.
3] It is contended that the petitioner is bonafide purchaser. He had paid substantial amount towards consideration to the respondent No.1. But could not complete the project within time. He has committed deficiency service. Similarly, he also played unfair trade practice with the petitioner. Hence, petitioner filed complaint against respondent Nos.1 and 2 and prayed for injunction against the respondent No. 2 not to take action in pursuance of the notice issued by it.
3 (RP/22/190) 4] It is contended that the District Commission, Jalgaon had issued ad-interim injection. But subsequently said injunction was vacated. Hence, present revision petition came to be filed.
5] Notices were issue to the respondents. Respondent No.1 did not appear inspite of service of notice. Respondent No. 2 appeared and filed written argument. It is contended that the respondent No.1 had taken loan from respondent No. 2 in the capacity of partners of M/s. Shekhar Builder and Developers. Respondent No.1 had also executed Simple Mortgage Deed of the property developed by him on 14/10/2017. It is contended that the respondent No.1 did not repay the loan amount, therefore, respondent No.2 has filed Securitization Application No.56 of 2022 before the D.R.T. at Aurangabad against the respondent No.1 and other partners of the Firm. Respondent No.1 and other partners did not comply with the directions of the D.R.T. Thereafter, respondent No.2 had taken action under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Notice under the SARFAESI Act was issued to the respondent No.1. Thereafter, by resorting to section 13(4) of SARFAESI Act and Rule 8(6) of the Rules, symbolic possession of the property was taken by respondent No.2. Petitioner/complainant does not have any concern with the loan transaction of respondent No.2 nor he was party to the loan transaction. The order passed by the District Consumer Disputes Redressal Commission is legal and valid. It is also contended that the present revision petition is barred by limitation. It is not maintainable. It is prayed that it be dismissed with costs.
6] Heard Advocates for the petitioner and respondent No. 2.
7] Advocate for the respondent No. 2 has vehemently submitted that the petitioner is bonafide purchaser. He had booked the flat with the respondent No.1 4 (RP/22/190) by paying part amount of consideration. Respondent No.1 has failed to hand over possession as agreed. Therefore, complaint against the respondent No.1 is maintainable. It is true that the complaint filed by the petitioner against respondent No.1 is maintainable but there is no privity of contract between the petitioner and respondent No.2. Admittedly, respondent No.2 had advanced loan for development of the project to the respondent No.1. It is also admitted fact that the respondent No.1 failed to repay the said loan amount. Hence, the proceeding under the SARFAESI Act was initiated by the respondent No.2. It is also admitted fact that the DRT Aurangabad has passed order against the respondent No.1 wherein respondent No.2 was directed to take symbolic possession of the property of the respondent No.1. Accordingly, notice was pasted on the property which shows that the respondent No. 2 had taken symbolic possession of the property on 17/11/2021. The present complaint came to the filed in the month of January 2022. It can be said that the present complaint came to be filed after initiation of proceeding by the respondent No. 2 against the respondent No.1 in DRT under the SARFAESI Act.
8] Learned Advocate for the petitioner submits that the petitioner has spent his lifetime saving, therefore, his interest may be protected by issuance of injunction against the respondent No. 2. She relied on the ratio laid down in the case of Mr.Shridhar Narsayya Samala versus Allahabad Bank, Appeal No.897 of 2016. We have gone through the said Judgement. The facts of the said Judgement are not identical with facts of the present case. The said Judgement is not applicable to the present case. In the said Judgement there is no dual opinion that the complainant is entitled to file complaint against the respondent No.1 because the respondent No.1 failed to hand over possession of the booked flat to the petitioner. But in the present case, the petitioner is seeking injunction against the respondent No.2, restraining from taking possession of the property of the respondent No.1. In fact, D.R.T. has already passed an order directing the 5 (RP/22/190) respondent No.2 to take symbolic possession of the property of the respondent No.1. Therefore, the facts of the case cited supra, are not identical to the facts of the present case. On the other hand, learned Advocate for the respondent No.2 has submitted that, in view of the provision of the Section 34 of SARFAESI Act, the District Commission as well as the State Commission have no power from restraining the respondent No. 2 from enforcing their right under the Loan Agreement executed by the respondent No.1. To substantial his point, he has relied upon the ratio laid down in the case of Punjab National Bank versus Consumer Disputes Redressal Forum and ors., AIR 2012 Kerala 8, Kerala High Court, wherein it is held that as per section 14 of the Consumer Protection Act, 1986 , Consumer Forum has no power to restrain a bank from enforcing their right under the SARFAESI Act. As latter part of section 34 of the SARFAESI Act expressly bars the jurisdiction of not only Civil Courts but also 'other authorities' which would include Consumer Forum also from granting injunction in respect of any action taken under the SARFAESI Act.
9] Advocate for the respondent No. 2 has also relied upon the ratio laid down in the case of Aruna versus S.B.I and ors., passed by the Hon'ble National Consumer Disputes Redressal Commission. He has also relied upon the ratio laid down in the Revision petition No.721 of 2013, Standard Chartered Bank versus Virendra Rai, decided on 01/04/2013, decided by the Hon'ble National Consumer Disputes Redressal Commission, wherein it has been held that, " we have already held that, "as per section 34 of the SARFAESI Act, 2002, the District Forum or the State Commission have no power to interfere with the SARFAESI Act." The said ratio is squarely applicable to the facts of the present case.
10] On going through the ratio laid down by the Hon'ble Kerala High Court , AIR 2012 Page 8, Kerala High Court and the ratio laid down by the Hon'ble 6 (RP/22/190) National Commission in the case of Standard Chartered Bank versus Virendra Rai, we are of the opinion that the District Consumer Disputes Redressal Commission or the State Consumer Disputes Redressal Commission, have no power to interfere with the order passed under the SARFAESI Act. Therefore, there is no merit in the present revision petition.
11] The learned Advocate for the respondent No.2 has also contended that the present revision petition is not filed within the period of limitation. Advocate for the petitioner submits that the present revision petition is filed within 90 days from the date of receipt of certified copy of the order. Admittedly, impugned order was passed on 12/04/2022. Petitioner applied for the certified copy on 19/10/2022. Petitioner received the certified copy of impugned order on 10/11/2022 and present revision petition was filed on 16/12/2022. If the period of limitation is calculated from the issuance of the certified copy, it can be said that, it is within limitation. But it is to be noted here that the impugned the order was passed on 12/04/2022. Petitioner applied for the certified copy on 19/10/2022. It means that the petitioner applied for the certified copy after about six months from the date of order. No explanation for the delay in applying certified copy was put fourth by the petitioner. Admittedly, impugned order was passed after hearing the petitioner. Therefore, the petitioner was well aware of the order. But he failed to apply for the certified copy within reasonable time. Therefore, we are of the opinion that, the revision petition is not filed within the time limit. Petitioner cannot take advantage of the section 14 of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 which shows that the revision petition shall be filed within 90 days from the date of receipt of certified copy of the order. Petitioner was not diligent to apply for the certified copy and no explanation for the delay was given. Thus present revision petition is barred by limitation.
7 (RP/22/190) 12] In view of the above discussion, we pass the following order-
ORDER [1] Revision Petition is hereby dismissed.
[2] No order as to costs.
[3] Copy of this order be supplied to both the parties.
[Justice S.P.Tavade] President [K.M.Lawande] Member rsc