State Consumer Disputes Redressal Commission
Himantak Chaudhary vs B.M. Allahabad Bank & Anr. on 5 February, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2015/576
Instituted on : 06.11.2015
Himantak Chaudhary, Age 26 years,
S/o Shri Vijay Rao Chaudhary,
R/o : House No.678/41, Subhash Nagar, Durg,
Tehsil and District Durg (C.G.) ... Appellant
Vs.
1) Branch Manager,
Allahabad Bank, Branch - In front of Bunkar Sangh,
Durg, Tehsil and District Durg (C.G.)
2) Authorized Officer,
Allahabad Bank, Zonal Office, Raipur,
Near Disha College, New Shanti Nagar, Raipur,
Tehsil and District Raipur (C.G.). .... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Mahendra Shukla, for appellant.
None for the respondent.
ORDER
Dated : 05/02/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 24.09.2015, passed by the District Consumer Disputes Redressal Forum, Durg (C.G). (henceforth "District Forum" for short), in Complaint Case No..C.C/2015/97. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
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2. Briefly stated, the facts of the case are that the respondents (OPs) published E-Auction sale notice in daily newspaper Nav Bharat on 08.11.2014 for sale of five houses. The appellant (complainant) purchased the house of one Babulal Sahu in open auction at the cost of Rs.15,55,000/-. The appellant (complainant) initially deposited a sum of Rs.1,53,000/- at the time of auction and thereafter he went to the respondents (OPs) along with bank draft no. 844620 dated 24.12.2014 and requested to deposit the same and asked the respondents (OPs) regarding giving physical possession of the house because he has to obtain finance facility from the bank and the bank will not finance any amount to him till he receives possession of the house, then the respondents (OPs) told him that they cannot specify any time limit to give possession, because a case is pending before the Collector, Durg for vacating the house and after passing the order by the Collector, Durg, the possession of the house will be given to the appellant (complainant). The appellant (complainant) contacted the respondents (OPs) several time and asked to give possession of the house. The appellant (complainant) purchased the house from the respondents (OPs) and paid the amount of Rs.1,53,000/-, but the possession of the house was not delivered to him because Babulal Sahu did not hand over possession of the house to the respondents (OPs) and a case is pending before the Collector, Durg for taking possession of the house. The Collector, Durg issued notice to Babulal // 3 // Sahu for vacating the house. The appellant (complainant) asked the respondents (OPs) to refund the amount deposited by him, but the respondents (OPs) did not refund the amount to the appellant (complainant). Therefore, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting relief as mentioned in the complaint.
3. The respondents (OPs) filed their written statement and averred that the appellant (complainant) purchased the house in question in auction, therefore, the appellant (complainant) is not a "consumer" and dispute between the parties is not a "consumer dispute". The District Forum, has no jurisdiction to decide the matter. The appellant (complainant) did not follow the terms and conditions of the E-Auction, therefore, he is not entitled for refund of the amount deposited by him. The appellant (complainant) only deposited 10% of Rs.15,55,000/- towards bid amount and he had not deposited the balance amount of Rs.2,35,750/-. Letter was issued by the respondents (OPs) to the appellant (complainant) for depositing the balance amount of Rs.2,35,750/-, but the appellant (complainant) did not deposit the balance amount, therefore, under the provisions of the, "The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002)", the complaint is not maintainable and the District Forum has no jurisdiction to decide the matter, therefore, the complaint is liable to be dismissed.
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4. Learned District Forum, after having considered the material placed before it, has dismissed the complaint.
5. The appellant (complainant) has filed documents. Annexure 1 is Notice for E-Auction Sale published in Nav Bharat daily newspaper, Annexure 2 is Bank Draft of Allahabad Bank dated 08.12.2014, Annexure 3 is letter dated 12.12.2014 sent by Allahabad Bank to the appellant (complainant) on 12.12.2014, Annexure 4 & 4A are letter dated 23.12.2013 sent by the appellant (complainant) to Allahabad Bank, Annexure 5 is bank draft of Allahabad Bank, Annexure 6 are postal receipt and email, Annexure 7 and 7A are letters dated 27.12.2014 and 12.12.2014 sent by the Allahabad Bank to the appellant (complainant), Annexure 8 are registered notice dated 22.01.2015 , acknowledgement etc., Annexure 9 are Certificates, Annexure 10 is pass book, Annexure 11 is No Dues Certificate, Statement of Account, etc., Annexure 12 is Statement of Account, Annexure 13 is Statement of Account.
6. Shri Mahendra Shukla, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) has purchased the house in question from the respondents (OPs) through open auction, but the possession of the house was not delivered to him. The appellant (complainant) asked the respondents (OPs) several time for delivery of the possession of the house in // 5 // question. Even specific time was not fixed by the respondents (OPs) for delivery of the possession of the house in question to the appellant (complainant). The appellant (complainant) paid bid amount before respondents (OPs), therefore, the appellant (complainant) is consumer. The possession of the house in question was not delivered by the respondents (OPs) to the appellant (complainant), therefore, the appellant (complainant) is entitled to get possession of the house in question from the respondents (OPs). The appeal of the respondents (OPs) may be allowed and impugned order of the District Forum, may be set aside.
7. None appeared for the respondents (OPs) on 03.02.2016 when the case is fixed for final hearing.
8. We have heard learned counsel for the appellant (complainant) and have also perused the record of the District Forum.
9. In Shiela Constructions Pvt. Ltd. vs. Nainital L.D.A. & Anr. III (1996) CPJ 11, Bench of 5 Members of Hon'ble National Commission has observed thus :-
"8. We have purposely noted the above facts briefly as we are not inclined to go into the merits of the complaints for two reasons. Firstly as would be seen from the above facts the complainants have purchased the said plots in an auction held on 17th September, 1991 conducted by Nainital Lake Development Authority. The allotment of the plots have been made for the amount of highest bid in the auction held on 17.9.91 // 6 // on the terms and conditions contained therein. There is no hiring of services for consideration when it is an outright sale of immovable property in an auction. Secondly, this Commission is not inclined to go into the complicated questions of fact arising in this case based on voluminous documentary and oral evidence within the time bound proceedings before this Commission. The Act does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and detailed scrutiny and assessment of such evidence. The FORA constituted under the Act have no doubt the power to examine witnesses and to take evidence but such power should be exercised in such cases where issues are simple as to any shortcoming or inadequacy in the quality, nature and performance of service which the opposite party had contracted to perform for consideration. The Consumer FORA can decline to exercise jurisdiction in other cases and refer the party to its ordinary remedy by way of suit."
10. In Ashok Tayal & Anr. vs. Delhi Development Authority & Ors. II (1995) CPJ 3 (NC), Hon'ble National Commission has observed thus :-
"3. We are of the opinion that as the complainants have purchased the plot in dispute in an auction sale where there is no element of hiring of service and this transaction will not fall under the Consumer Protection Act. Therefore, this complaint cannot be entertained by this Commission. It is an outright sale of immovable commercial property in a public auction and therefore, the complaint is not maintainable. In this respect, reference can be made to the decision of this Commission given in Allied (Garments) Exports Industries Pvt. Ltd. v. Delhi Development Authority, I (1991) CPR 580. Hence, no relief can be granted to the complainants."
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11. In Subhash Infra Engineers Pvt. Ltd. vs. Haryana Development Authority, I (2015) CPJ 41 (NC), Hon'ble National Commission has observed thus :-
"16. This must be borne in mind that this land was purchased by auction. Our intention was not invited towards any covenant that something was yet to be done by the opposite party. It is well settled that in the public auction, the complainant cannot qualify the criteria of being a consumer.
17. It must be borne in mind that the property was purchased in a public auction. For that reason too, the complainant is not a consumer. Similar view was taken by this Commission in Pritem Pass v. HUDA and anr., Revision Petition No.1996 of 2011 decided on 9.5.2012. Against that order, Special Leave to Appeal (Civil) No.28866 of 2013 was filed before the Apex Court and the same was dismissed as withdrawn on 2.9.2013."
12. In The Union Territory Chandigarh Administration and Another Vs. Amarjeet Singh And Others (2009) 4 S.C.C. 660, Hon'ble Supreme Court has observed that "in public auction of existing land sites, purchaser / lessee is not a consumer as defined in the Consumer Protection Act, 1986. Relying on this judgment, we are inclined to conclude that the auction purchaser in the auction of an immovable property by a bank is not a consumer." The Hon'ble Supreme Court has further observed thus :-
"With reference to a public auction of existing sites (as contrasted from sites to be "formed"), the purchaser / lessee is not a a consumer, the owner is not a "trader" or "service provider" and the grievance does not relate to any matter in regard to which a complaint // 8 // can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction-purchaser/lessee against the owner holding the auction of sites."
13. In Chief Manager / Authorized Officer, State Bank of Mysore Vs. G. Mahimaiah, 2015 (4) CLT 488, = 2016 (1) CPR 107 (NC), Hon'ble National Commission has observed thus :-
"13. Based on the above discussion and examination, we are of the view that first of all the Respondent auction purchaser was not a consumer under Consumer Protection Act, 1986 and the consumer complaint was not maintainable on this ground alone. Moreover, it was highly time barred also. We are convinced that the possession of the auctioned property could not be handed over to the respondent on account of various litigation cases."
14. In the instant case, the appellant (complainant) purchased the house in question in auction sale and the price was fixed at Rs.15,55,000/-. The appellant (complainant) was highest bidder andhe was declared as successful bidder. A letter dated 12.12.2014 (Annexure A-3) was issued by the respondents (OPs) to the appellant (complainant) in which it is mentioned thus :-
"This is to inform you that the bid lodged by you in the above auction ld - 60416 of Rs.1550000.00 is the highest bid as per the report of the e-auction. Description of the property is as under:-
All the part and parcel of property consisting of Land and Building in the Name of Shri Babulal Sahu S/o Late Shri // 9 // Rikhiraj Sahu, Situated at Muuza-Pachari Para, P.H.No.16 Khasra no.1082/17, Plot Area 600 Sq. ft., Tehsil & District Durg (C.G.).
Boundaries North Road, South Land of Baya, East House of Pardeshi, West house of Kachara Bai.
You have been declared as the successful bidder. You have to deposit 25% of the bid amount Rs.388750.00 Less EMD price Rs.153000.00 i.e. Net Rs.235750.00 immediately in this regard.
The sale certificate will be issued to you as soon as you deposit the remaining 75% of the bid amount thereafter but not later than 27/12/2014, otherwise the bid will be cancelled and the amount deposited by you will be forfeited."
15. It appears that 75% of the bid amount was not deposited by the appellant (complainant) at the time of auction. Annexure A-7 is letter dated 27.12.2012 sent by the Authorised Officer, Allahabad Bank, Zonal Office, Raipur to the appellant (complainant) in which it is mentioned that :-
"Please refer to our letter no.Zor/Sarfaesi sale/258 dated 12.12.2014 by which you were required to deposit 25% of the bid amount Rs.3,88,750.00 Less EMD price Rs.1,53,000.00, i.e. Net Rs.3,25,750.00 immediately in this regard and remaining 75% within 15 days of date of E-Auction. However, the said amount has not been deposited by you till date.
We once again remind you that as per rules and regulations of the E-Auction which were already accepted by you at the time of participation in the said bid, on the failure of the bidder to // 10 // deposit the said amount, the Bank will forfeit the amount already deposited by the bidder in this regard.
Hence, it is to bring to your notice that the amount already deposited by you cannot be refunded to you. The Bank is only left with the option of forfeiting the amount already deposited by you as per terms and conditions of E-Auction."
16. In the instant case, the house in question, which was purchased by the appellant (complainant) was belonging to one Babulal Sahu and Collector, Durg issued notice to Babulal Sahu for vacating possession of the house in question. From the documents filed by the respondents (OPs), it appears that the appellant (complainant) himself did not deposit the remaining bid amount Rs.2,35,750/- to the respondents (OPs). The appellant (complainant) purchased the said house in an open auction and it was outright sale of immovable property in auction. There is no hiring of services for consideration when it is an outright sale of immovable property in an auction, therefore, on the basis of above cited judgments, the appellant (complainant) is not a "consumer".
17. We are of the view that the impugned order dated 24.09.2015, passed by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality, hence does not call for any interference by this Commission.
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18. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /02/2016 /02/2016 /02/2016 /02/2016