State Consumer Disputes Redressal Commission
Tripti Bose vs Rahul Das on 28 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Miscellaneous Application No. MA/1114/2016 In First Appeal No. A/1055/2016 1. Tripti Bose kol ...........Appellant(s) Versus 1. Rahul Das kol ...........Respondent(s) BEFORE: HON'BLE MR. TARAPADA GANGOPADHYAY PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Partha Sarathi Ghosh, Advocate For the Respondent: Mr. Rabiuddin Ahmed, Advocate Dated : 28 Feb 2017 Final Order / JudgementORDER NO. 6
Both the Misc. Applications bearing Nos. MA/1114/2016 and MA/42/2017 arising out of A/1055/2016 were taken up for order.
Both the Misc. Applications were heard together with the consent of both the parties involved.
In the Misc. Application bearing No. MA/1114/2016, the Applicant/Respondent No. 1submitted a prayer for recalling the order dated 8th February, 2016 passed by this Commission staying the Execution Case No. 155/2015 arisen out of Complaint Case No. 199/2015.
The Applicant/Respondent No. 1 informed in the subject Misc. Application that the notice regarding hearing of stay petition was not served upon him. The stay petition, therefore, was heard ex-parte and the order dated 8th November, 2016 staying the Execution Case No. 155/2015 was passed without offering the Applicant/Respondent No. 1 any opportunity of being heard.
Since the appeal, as the Ld. Advocate continued, is bereft of any merit on maintainability point of view, the stay order, unless it is vacated, as prayed for in the Misc. Application, shall seriously prejudice the interest of the Applicant/Respondent No. 1.
Having heard the Ld. Advocate on behalf of the Applicant/Respondent No. 1 and also on perusal of papers on record, we dismiss the Misc. Application bearing No. 1114/2016 since the Commission is not empowered by the provisions of the C. P. Act, 1986 for reviewing or recalling its own order as was held by the Hon'ble Supreme Court Rajib Hirendra Pathak - vs. - Achyut Kasinath Karkar & Anr. reported in 2011(9) SCC 541.
In the MA/42/2017, the same Applicant/Respondent No. 1 furnishing with the above Misc. Application a copy of the possession notice dated 13.12.2016, issued under SARFAESI Act, 2002, prayed for passing an order directing the SBI Patiala not to take possession of the subject flat otherwise, as stated in the application, the interest of the Applicant/Respondent No. 1 will be adversely affected and the process of the Execution Case No. 155/2015 will be hampered.
In the above context, we may rely on the observation of the Hon'ble National Commission in the Consumer Complaint No. 302 of 2012 under SARFAESI Act, 2002 [Sri Yashwant Ghaisas & Ors. - vs. - Bank of Maharashtra] dated 06.12.2012 wherein, while dismissing the complaint inlimine, the Hon'ble National Commission was pleased to observe that the Consumer Fora had no jurisdiction to try the case. The Hon'ble Apex Court was also pleased to approve the above observation of the Hon'ble National Commission in Special Leave Petition to Appeal (Civil) 1359 of 2013 with the following observation :-
"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"
Having heard the Ld. Advocates for both sides, on perusal of the record, keeping in view the above order of the Hon'ble National Commission and also observations of the Hon'ble Apex Court as referred to above, we dismiss the MA/42/2017.
Accordingly, both the Misc. Applications bearing Nos. MA/1114/2016 and MA/42/2017 are dismissed and thus disposed of.
To 22.8.2017 for hearing of the Appeal and filing of BNAs. Parties are to exchange their BNAs as per regulation.
Interim order of stay already passed will continue till the next date. [HON'BLE MR. TARAPADA GANGOPADHYAY] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER