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 03-Jul-2024

Source: Orissa High Court 

Why in News? 

Recently, the Orissa High Court in the matter of The Chief Manager-cum-Authorized Officer, Union Bank of India, Jharsuguda v. Rajesh Kumar Agrawal & Anr.  has held that the Consumer Commission has no jurisdiction to entertain cases which falls under the jurisdiction of Debt Recovery Tribunal or Appellate Tribunal. 

What was the Background of The Chief Manager-cum-Authorized Officer, Union Bank of India, Jharsuguda v. Rajesh Kumar Agrawal & Anr  Case? 

  • In this matter the respondent (1st opposite party) was the mortgagor and guarantor of one company, which used to avail the credit facilities from the respondent. 
  • The company failed to repay the loan amount in due time and resulted in Non-Performing Asset. 
  • The petitioner bank was the secured creditor who on failure of payment issued demand notice as per Section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) against borrowers and mortgagors to repay the loan amount. 
  • No action was taken, and no loan was repaid by the borrower and mortgagors resulting in another demand notice by the Petitioner bank for taking possession of the property, which was also published in the daily newspaper. 
  • In opposition to the auction the respondent filed an appeal to the District Consumer Commission (DCC), Jharsuguda under Section 35 of the Consumer Protection Act (CPA) seeking interim relief. 
  • The DCC passed a stay order for auction sale and also passed an ex-parte order against the petitioner bank for which the aggrieved bank filed writ petition to the Orissa High court. 

What were the Court’s Observations? 

  • The Orissa High Court referred to the provisions of Section 34, Section 35 and Section 37 of the SARFAESI Act, 2002 which bars the jurisdiction of any authority or court to entertain matters which are to be entertained by DRT or Appellate Tribunal under this act. 
  • It was also observed by the Orissa High Court that Section 35 of the SARFAESI Act, 2002 to be read with Section 37 of the SARFAESI Act in contradiction with Section 100 of CPA, 2019. 
    • No other act shall be applied on the matters governed by the SARFAESI Act, 2002. 
  • The Orissa High Court also reminded the Consumer Commission of its duty to be followed while dealing the matters related to special acts. 
  • The Orissa High Court quashed the stay order granted by Consumer Commission on auction sale. 
  • The Orissa High Court also imposed penalty on the respondent for concealing the fact of ongoing proceedings in DRT and fined it with Rs. 1 Lakhs that is to be transferred to Welfare Fund of Jharsuguda District Bar Association.  

What are the Provisions of the SARFAESI Act, 2002 referred to in this Case? 

  • Section 13: Enforcement of security interest  
    • Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of court or tribunal, by such creditor in accordance with the provisions of this Act.  
    • Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under subsection (4).  
    • The notice referred to in sub-section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower. 
    • If, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower: PROVIDED that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A.  
    • In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely: --  
      • Take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;  
      • Take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset.  
      • Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt. 
      • Provided Further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt.  
      • Appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor. 
      • Require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt. (5) Any payment made by any person referred to in clause (d) of sub-section (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower.  
    • Any transfer of secured asset after taking possession thereof or takeover of management under sub-section (4), by the secured creditor or by the manager on behalf of the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. 
    • Where any action has been taken against a borrower under the provisions of sub-section (4), all costs, charges and expenses which, in the opinion of the secured creditor, have been properly incurred by him or any expenses incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in the absence of any contract to the contrary, be held by him in trust, to be applied, firstly, in payment of such costs, charges and expenses and secondly, in discharge of the dues of the secured creditor and the residue of the money so received shall be paid to the person entitled thereto in accordance with his rights and interests.
    • If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset.  
    • In the case of financing of a financial asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursuant to sub-section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than three-fourth in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors 
      • Provided that in the case of a company in liquidation, the amount realized from the sale of secured assets shall be distributed in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956). 
      • Provided Further that in the case of a company being wound up on or after the commencement of this Act, the secured creditor of such company, who opts to realize his security instead of relinquishing his security and proving his debt under proviso to sub-section (1) of section 529 of the Companies Act, 1956 (1 of 1956), may retain the sale proceeds of his secured assets after depositing the workmen's dues with the liquidator in accordance with the provisions of section 529A of that Act:  
      • Provided also that the liquidator referred to in the second proviso shall intimate the secured creditors the workmen's dues in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956) and in case such workmen's dues cannot be ascertained, the liquidator shall intimate the estimated amount of workmen's dues under that section to the secured creditor and in such case the secured creditor may retain the sale proceeds of the secured assets after depositing the amount of such estimated dues with the liquidator:  
      • Provided Also that in case the secured creditor deposits the estimated amount of workmen's dues, such creditor shall be liable to pay the balance of the workmen's dues or entitled to receive the excess amount, if any, deposited by the secured creditor with the liquidator. 
      • Provided Also that the secured creditor shall furnish an undertaking to the liquidator to pay the balance of the workmen's dues, if any.  
      • Explanation: For the purposes of this sub-section, -  
        • "Record date" means the date agreed upon by the secured creditors representing not less than three-fourth in value of the amount outstanding on such date. 
        • "Amount outstanding" shall include principal, interest and any other dues payable by the borrower to the secured creditor in respect of secured asset as per the books of account of the secured creditor.  
  • Where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in the form and manner as may be prescribed to the Debts Recovery Tribunal having jurisdiction or a competent court, as the case may be, for recovery of the balance amount from the borrower.  
  • Without prejudice to the rights conferred on the secured creditor under or by this section, the secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses (a) to (d) of sub-section (4) in relation to the secured assets under this Act. (12) The rights of a secured creditor under this Act may be exercised by one or more of his officers authorised in this behalf in such manner as may be prescribed. (13) No borrower shall, after receipt of notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor. 
  • Section 34: Civil Court not to have jurisdiction  
    • No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be 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). 
  •  Section 35: The provisions of this Act to override other laws 
    •  The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 
  • Section 37: Application of other laws not barred  
    • The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force. 

What are the Legal Provisions of Consumer Protection Act Referred in this Case? 

  • Section 35: Manner in which complaint shall be made. 
    • A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by—  
      • The consumer,—  
        • to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided; or  
        • who alleges unfair trade practice in respect of such goods or service; 
      • any recognised consumer association, whether the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided, or who alleges unfair trade practice in respect of such goods or service, is a member of such association or not;  
      • one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested; or  
      • the Central Government, the Central Authority or the State Government, as the case may be: Provided that the complaint under this sub-section may be filed electronically in such manner as may be prescribed.  
      • Explanation.—For the purposes of this sub-section, "recognised consumer association" means any voluntary consumer association registered under law for the time being in force.  
        • Every complaint filed under sub-section (1) shall be accompanied with such fee and payable in such manner, including electronic form, as may be prescribed. 
  • Section 100: Act not in derogation of any other law. -  
    • The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. 
  • Section 17: Ex parte interim order. - 
    • If an application for vacating or modifying or his discharging the ex parte interim order is filed by any of the parties, it shall be decided within forty-five days and the Commission shall have the discretion to extend the ex parte interim order if such application is not decided within forty-five days. 

What are the Landmark Judgements Cited in this Case? 

  • United Bank of India v. Satyawati Tandon and others (2010):  
    • In this case it was held procedure followed under SAEFAESI Act not to be challenged under the provision of any other law. 
  • Islamic Academy of Education and another v. State of Karnataka and others (2010):  
    • In this case it was held that interpretation of a provision cannot be drawn by reading the mere heading of the provision.