BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA Complaint case no. : 443 of 2017. Date of Institution : 15.12.2017. Date of decision : 01.01.2018. 1.Gurvinder Singh aged??years son of late Sh.Joginder Singh. 2.Bhupinder Kaur age 43 years widow of Sh.Inderpal. 3.Raj Rani widow of Sh.Joginder Singh all residents of House No.90, New Milap Nagar, Near Manav Chowk, Hisar Road, Ambala City. ??. Complainants. Versus 1.State Bank of India, S.A.Jain College, Ambala City through its authorized officer/Branch Manager. 2.State Bank of India, Local Head Office, Sector-17-A, through its General Manager (Network (II), Chandigarh-160017. ?.?. Opposite parties. BEFORE: SH. D.N. ARORA, PRESIDENT SH. PUSHPENDER KUMAR, MEMBER MS. ANAMIKA GUPTA, MEMBER Present: Sh.Vipul Singh, counsel for complainants. ORDER Brief facts of the present complaint are that the complainants alongwith Inder Pal Singh (now deceased) had applied for home loan by way of equitable mortgage of house No.90 Milap Nagar vide sale deed No.6177 dated 30.09.2004 with OP No.1. Loan of Rs.12 lac was sanctioned in favour of complainants @ 8.50 % interest. Said Inderpal Singh died on 04.11.2004 and complainant No.2 inherited her share vide mutation No.6537. The complainants kept on depositing monthly installments @ Rs.10,416/- and had deposited Rs.15,88,657.33/-. The complainants in order to dispose of the property had entered into an agreement to sell dated 23.10.2017 and a date for execution and registration of sale deed was fixed as 12.01.2018. The complainants contacted the Ops and enquired about the balance amount but it was utter surprise to know that an amount of Rs.9,34,022.26/- was outstanding. The complainants requested the Ops for supplying of repayment schedule but they failed to do so. On 20.11.2017 the OP No.2 sent copy of repayment schedule wherein the rate of interest has been mentioned @ 8.50 %. As per calculation a sum of Rs.6,43,114.85/- was due and the complainants are ready to pay the same. The OPs have charged exorbitant rate of interest and the complainants are not willful defaulters. The OPs have deliberately and intentionally withhold the claim and deliberately closed the file for wrongful gains. The act and conduct of the OPs clearly amounts to deficiency in service and unfair trade practice on their part. 2. Heard. 3. After hearing learned counsel for the complainant and going through the material available on the case file it is clear that the complainant has no cause of action to file the present complaint because before filing this complaint the Ops had already issued notice u/s 13 (2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on dated 23.10.2017 duly received by the complainants and the same has also been placed on the case file. It is worthwhile to mention here that the The Consumer Protection Act is a general enactment and came into existence in 1986 and the SARFAESI Act is a special enactment and came into existence in 2002. Sections 34 & 35 of SARFAESI ACT are as under: Section 34 of the SARFAESI Act, jurisdiction of the civil courts for entertaining any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate W.P.(C)No.5957 of 2011 Tribunal is empowered by the said Act to determine is barred 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 the said Act. Section 35 of the SARFAESI Act, the provisions of the said Act is to 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. The SARFAESI Act is a comprehensive law providing for all aspects relating to the subject dealt with by that legislation and the Act provides to persons aggrieved by measures taken under the Act a remedy by way of challenging the action taken under the Act before a quasi judicial authority, namely, the Debts Recovery Tribunal, W.P.(C)No.5957 of 2011 with a right to file a further appeal before the Debt Recovery Appellate Tribunal, making the legislation a self contained one. Certainly, as stated in its Preamble, the Consumer Protection Act, 1986 is an Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers? disputes and for matters connected therewith. Section 2 (o) of the said Act defines 'service' thus: "service" means service or any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;" Under Section 12 of the Act, the CDRF has jurisdiction to entertain a complaint in relation to any service provided or agreed to be provided. Section 3 of the said Act reads thus: "3. Act not in derogation of any other law.-The provisions of this Act shall be in addition to and not in derogation of the W.P.(C)No.5957 of 2011 provisions of any other law for the time being in force." Borrower of money from a Bank is a consumer as defined under Section 2 (d). Reading all these provisions together, certainly deficiency in service provided by a Bank can be the subject matter of a dispute before a CDRF. But in the event of a CDRF finding in favour of a complainant, the CDRF has power to grant only the reliefs provided for in Section 14 (1) of the Consumer Protection Act, which reads thus: (1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely (a) to remove the defect pointed out by the appropriate laboratory from the goods in question (b) to replace the goods with new goods of similar description which shall be free from any defect (c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit; (e) to remove the defects in goods or deficiencies in the services in question; (f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them (g) not to offer the hazardous goods for sale (h) to withdraw the hazardous goods from being offered for sale (ha) to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature; (hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently Provided that the minimum amount of sum so payable shall not be less than five per cent, of the value of such defective goods sold or services provided, as the case may be, to such consumers: Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed; (hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement to provide for adequate costs to parties Going by the said Section, the DCDRF has no power to injunct or restrain a Bank from enforcing their rights under a loan agreement executed by a borrower with them, which would include sale of the mortgaged properties for recovery of the loan amounts advanced by the Bank to the borrower,W.P.C No.5957 of 2011 for which specific purpose the SARFAESI Act was enacted. Although the first part of the Section ousts the jurisdiction of only the Civil Court, which will not apply to a DCDRF which is not a Civil Court, the latter part of the Section expressly bars the jurisdiction of not only civil courts but also other authorities, which would include DCDRFs also from granting injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the SARFAESI Act. The DCDRF cannot without granting an injunction, restrain financial institutions like Banks from proceeding with an action taken under the SARFAESI Act, for which the DCDRF has no powers under Section 14 1 of W.P.C No.5957 of 2011 the Consumer Protection Act and such power is expressly barred by Section 34 of the SARFAESI Act. As such it is clear that the DCDRF cannot grant any relief against measures taken by a Bank or Financial Institution under the SARFAESI Act. Therefore, going by the above said provisions of the two Acts themselves, the jurisdiction of the DCDRF to deal with matters provided for in the SARFAESI Act is expressly excluded. On this point reliance can be taken from case law titled as Punjab National Bank Vs. The District Consumer Disputes Redressal Forum,WP C No.5957 of 2001 T decided on 29.07.2011 by Honble Kerla High Court. Keeping in view the above facts and circumstances as well as the law laid down in above cited case law, the present complaint is not maintainable before this Forum, therefore, the present compliant deserves dismissal in limine being not maintainable before the present Forum. Accordingly, the present compliant is hereby dismissed in limine with no order as to costs with a liberty to the complainant to approach appropriate Court/Forum/Commission on the same cause of action. Copy of this order be sent to the complainant free of costs, as per rules. File be consigned to the record room after due compliance. Announced on: 01.01.2018 (D.N. ARORA) President (PUSHPENDER KUMAR) Member (ANAMIKA GUPTA) Member