The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35845 of 2023 The Chief Manager-cum- Authorized Officer, UCO Bank, Zonal Office, Sambalpur & Anr. …. Petitioner(s) Kunal Panda & Ors. Mr. Bibhuti Bhusan Swain, Adv. -versus- …. Opposite Party(s) Mr. Dhananjaya Mund, Adv. Mr. Pratap Kumar Behera, Adv. for O.Ps.1 to 3 CORAM: DR. JUSTICE S.K. PANIGRAHI Order No. ORDER 26.07.2024 03. 1. This matter is taken up through hybrid arrangement. 2. In filing this Writ Petition, the Petitioners/Bank have
Legal Reasoning
challenged the orders dated 26.03.2021/ Annexure-2, dated 27.05.2022/ Annexure-3 and dated 27.10.2023/ Annexure-4 passed by the learned District Consumer Disputes Redressal Commission, Nuapada in C.C. No.15 of 2021. 3. Factual scenario of the case as well as submissions on behalf of the Parties in brevity remains:- (i) In order to fulfill their requirement, the Opposite Parties had availed a housing loan of Rs.36,00,000/- from the Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 30-Jul-2024 19:25:08 Petitioners/Bank by mortgaging their property. Due to non- payment of regular EMIs, the loan account of the Opposite Parties was classified as NPA. Page 1 of 6 (ii) Upon such classification, the Bank authorities issued demand notice under Section 13(2) of the SARFAESI Act to the Opposite Parties. Thereafter, since the Opposite Parties did not pay the demanded loan outstanding dues within the time the Petitioners/Bank on 25.02.2021 issued a symbolic possession notice under Section 13(4) of the SARFAESI Act, 2002. (iii) Being aggrieved by such action of the Petitioners/Bank the Opposite Parties approached the learned District Consumer Disputes Redressal Commission, Nuapada by filing Consumer Complaint No.15 of 2021 under Section 35(c) of the Consumer Protection Act, 2019. (iv) Thereafter, upon hearing the parties concerned, the learned District Consumer Disputes Redressal Commission, Nuapada on 26.03.2021 passed an interim order thereby staying the further proceeding in respect of the Loan Account No.01100610001455 of the UCO Bank, Katapali Branch. (v) In the meantime, the Petitioners/Bank filed an Original Application under Section 19 of the RDDV Act to recover the loan outstanding dues from the Opposite Parties. Soon after such filing, the Opposite Parties filed another Misc. Case under Section 38(8) of the Consumer Protection Act, 2019 in the said Consumer Complaint No.15 of 2021 for interim Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 30-Jul-2024 19:25:08 relief. Page 2 of 6 (vi) Thereafter, hearing the parties concerned, the learned District Consumer Disputes Redressal Commission, Nuapada by order dated 27.05.2022 passed a further interim order in the said Complaint Case No.CC/15/2021. The order dated 27.05.2022 is extracted herein below:- “
Decision
O R D E R In the above facts and circumstances of the case and as an interim relief, it is directed to the OP No.1 & 2 as follows:- i) To recall the “Loan Recall Notice” vide Annexure-V of complaint petition. AND ii) To recall the Notice under SARFAESI Act vide Annexure-VI of complaint petition. AND iii) To recall the possession Notice vide Annexure- VII of complaint petition. AND iv) Restricted to take further coercive action in continuation to the early order passed by this Commission dated 26.03.2021 with regard to the Mortgaged Property situated in Mouza: Katapali, vide Khata No.11, Plot No.530(P) having an area of Ac.0.015 decimals recorded in the name of complainant No.1 until further order of this Commission. AND v) The OP No.1 & 2 are further directed to comply the above order within seven (7) days from the date of receipt of this order and intimate to this Commission on date fixed. AND vi) Failing which the above order, the OP No.1 & 2 shall liable for legal proceeding as per process of law.” Page 3 of 6 Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 30-Jul-2024 19:25:08 (vii) Challenging the above orders, the Petitioners/Bank approached the learned State Consumer Disputes Redressal Commission, Odisha through Revision Petition No.31 and 32 of 2022. Since no interim order was passed in the said Revision Petition, the Petitioners preferred a Writ Petition vide W.P.(C) No.14815 of 2022 before this Court, which was disposed of on 13.06.2022 granting liberty to the Petitioners to move an application before the learned District Consumer Disputes Redressal Commission, Nuapada for hearing of the case vide Complaint Case No.15 of 2021. (viii) The learned District Consumer Disputes Redressal Commission, Nuapada was also directed to first hear the case on maintainability. (ix) Upon getting such information, the Opposite Parties filed M.A. No.07 of 2023 for issuing non-bailable warrant of arrest with a penalty of Rs.1,00,000/- against the Petitioners/Bank. A prayer was also made therein to pass an order of stay of the E-Auction Sale supposed to be held on 31.10.2023. (x) On hearing the said M.A. the learned District Consumer Disputes Redressal Commission, Nuapada vide order dated 27.10.2023 directed the authorities concerned of the Petitioners/Bank to appear in person before the Commission on 03.11.2023 for hearing of the prayer of the Opposite Parties regarding issuance of NBW. Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 30-Jul-2024 19:25:08 Page 4 of 6 (xi) Being aggrieved by such orders of the learned District Consumer Disputes Redressal Commission, Nuapada in Consumer Complaint No.15 of 2021 the Petitioners/Bank has preferred this Writ Petition. 4. Considering the factual scenario of the case and since the dispute involved herein pertains to the SARFAESI Act, this Court is of the view that instead of approaching the District Consumer Disputes Redressal Commission, Nuapada, the Opposite Parties should have approached the appropriate forum. However, since the learned District Consumer Disputes Redressal Commission, Nuapada has entertained the application of the Petitioner vide Consumer Complaint No.15 of 2021, this Court without going into the merits of the case directs the learned District Consumer Disputes Redressal Commission, Nuapada to decide the maintainability of the proceeding first and thereafter pass appropriate order within a period of one month from the date of presentation of an authenticated copy of this order. 5. At this juncture, this Court further makes an observation that since the matter pertains to the SARFAESI Act, the learned District Consumer Disputes Redressal Commission, Nuapada should have refrained itself from entertaining the dispute without dealing with the maintainability first. Hence, this Court directs the learned District Consumer Disputes Redressal Commission, Nuapada to always decide Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 30-Jul-2024 19:25:08 the maintainability of the proceeding first. Page 5 of 6 6. This Court has, time and again, observed that the District Consumer Disputes Redressal Commissions are entertaining the disputes relating to the SARFAESI Act without even adjudicating the maintainability of the proceeding, which is wholly improper. This Court is of the view that it is imperative that all the District Consumer Disputes Redressal Commissions should adjudicate the maintainability of the proceeding pertaining to the SARFAESI Act at the time of hearing. 7. This Writ Petition is, accordingly, disposed of. Judge (Dr. S.K. Panigrahi) Ayaskanta Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 30-Jul-2024 19:25:08 Page 6 of 6