State Consumer Disputes Redressal Commission
State Bank Of India Branch Kranti Chowk, ... vs Jitendra Kumarrao Wadgaonkar on 21 March, 2016
1 F.A..No.:820/14 & 19/15
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing :19.12.2014
Date of order :21.03.2016
1) FIRST APPEAL NO. :820 OF 2014
IN COMPLAINT CASE NO.: 06 OF 2014
DISTRICT CONSUMER FORUM : AURANGABAD
1. State Bank of India,
(Earlier State Bank of Indore),
Kranti Chowk Branch,
Aurangabad.
2. State Bank of India,
Through its Zonal AGM,
Region IV, Zonal Office,
CIDCO, Aurangabad. ...APPELLANTS
VERSUS
Jitendra Kumarrao Wadgaonkar,
R/o N-9, K-30/3, Pawan Nagar,
CIDCO, Aurangabad. ...RESPONDENT.
Date of filing :07.01.2015
Date of order :21.03.2016
2) FIRST APPEAL NO. :19 OF 2015
IN COMPLAINT CASE NO.: 06 OF 2014
DISTRICT CONSUMER FORUM : AURANGABAD
Jitendra Kumarrao Wadgaonkar,
R/o N-9, K-30/3, Pavan Nagar,
CIDCO, Aurangabad,
Tq. & Dist.Aurangabad 431 003. ...APPELLANT
VERSUS
1. State Bank of India,
(Earlier State Bank of Indore),
Through its Branch Manager,
2 F.A..No.:820/14 & 19/15
Branch No.01716,
Branch office at Kranti Chowk,
Hotel Amarpreet Compound,
Aurangabad-431 001.
2. State Bank of India,
Through its Zonal AGM,
Region IV, Zonal Office at N-5,
South CIDCO,
Aurangabad-431 003. ...RESPONDENTS.
CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Mr.P.B.Paithankar for State Bank of India, Adv.Mr.M.P.Bhaskar for org.complainant.
O R A L JUDGMENT (Delivered on 21st March 2016) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Challenge in both these appeals is the judgment and order dated 17.11.2014 passed by District Consumer Forum Aurangabad partly allowing complainant's claim in C.C.No.6/2014 directing appellants bank/org.opponent banks to refund amount of Rs.1,21,500/- with 12% interest and further to pay Rs.2 lakhs to the complainant towards loss and mental agony and cost of the proceedings etc. (For the sake of brevity State Bank of India Branch Kranti Chowk, Aurangabad and Zonal Office, Cidco, Aurangabad appellants in appeal No.820/2014 and respondent in appeal No.19/2015 are herein after referred as opponent bank and appellant Shri.Jitendra Wadgaonkar appellant in appeal No.19/2015 and respondent in appeal No.820/2014 is hereinafter referred as complainant)
2. Brief facts giving rise to these appeals are that:-
3 F.A..No.:820/14 & 19/15On 12.12.2008 complainant Jitendra purchased flat No.6 from Bajrang Apartment, Plot No.61, Satyam Nagar, CIDCO from opponent bank in auction sale proceeding. His highest bid for Rs.6 lakhs was accepted by opponent bank. As per terms and conditions of auction- sale, he paid 25% amount of Rs.1,21,000/- by demand draft to the opponent bank. He was also ready to pay balance amount of consideration within the stipulated period. However, by letter dated 26.3.2009 he was informed by opponent bank that it has appointed MITCON Consultancy Service Ltd. to take possession of the flat in question and would take the possession in the first week of April 2009. Thereafter complainant continuously gave reminders to the opponent bank for giving possession of flat by accepting balance amount of consideration. But the opponent bank avoided to comply his demand. Therefore lastly he made application under Right to Information Act and obtained information about the loan account of original owner of the flat and came to know that owner committed default in payment of loan. However, by letter dated 5.3.2012 opponent bank informed him that they have settled the matter with the original owner and as per the settlement, attachment of flat is released and its possession is given to the original owner by receiving amount of dues etc. At the same time opponent bank returned demand draft to him and while returning demand draft revalidated it for six months. But six months period was already over. Thus according to complainant, opponent bank committed deficiency in service cancelling auction-sale in collusion with the original owner of the flat.
3. It is further submitted that by the complainant that as he is deprived from getting possession of the flat, he was required to purchase another flat for more price i.e. for Rs.26 lakhs by obtaining loan Rs.21,90,000/- from opponent bank and thereby sustained loss at Rs.20 lakhs. Thus alleging deficiency in service on the part of 4 F.A..No.:820/14 & 19/15 opponent bank he filed consumer complaint claiming possession of the flat and also compensation Rs.19 lakhs towards loss sustained by him by purchasing another flat and compensation Rs.60,000/- more towards mental agony, harassment and cost of the proceedings.
4. Opponent bank by its written version resisted the complaint on the following among other grounds:-
It is not disputed that the flat in question was put for auction sale by giving advertisement and in the auction sale complainant agreed to purchase it for consideration of Rs.6 lakhs. It is also not disputed that as per the terms and conditions of the auction sale complainant had paid 25% amount of consideration by handing over the demand draft and he was also ready to deposit the balance 75% amount of consideration. It is also not disputed that subsequently opponent bank by accepting amount of outstanding dues from original owner of the flat cancelled auction sale and returned demand draft to the complainant as averred by the complainant. However, it is denied that it has illegally cancelled the auction sale in collusion with original owner of the flat. It submitted that consumer complaint is not maintainable. It is submitted that since opponent bank initiated recovery proceeding under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(hereinafter referred as 'Securitisation Act') against the borrower/original owner of the flat, in view of provision of Section 34 of said Securitisation Act', except D.R.T., no other court or forum has jurisdiction to entertain the complaint etc. It has denied all other adverse averments made by complainant and submitted to dismiss the complaint.
5. On hearing both side and considering evidence on record District Consumer Forum held that opponent bank has committed deficiency in service by avoiding to hand over the possession of the 5 F.A..No.:820/14 & 19/15 flat to the complainant by accepting balance amount of consideration. It is also held that opponent bank has illegally cancelled the auction sale in collusion with original owner of the flat without notice to the complainant etc. Forum has negativated the contention of opponent bank that consumer complaint is not maintainable. In keeping with these findings Dist.Consumer Forum partly allowed the complainant's claim as noted above.
6. Feeling aggrieved by that judgment and order, opponent bank came to this Commission by filing appeal No.820/2014. Whereas complainant not being satisfied with the amount of compensation awarded by the Forum also came to this Commission by filing appeal No.19/2015.
7. Since both the appeals are filed challenging the same judgment and order, we have decided to dispose of both these appeals by this common judgment.
8. We heard counsel for both side at length and perused the written notes of argument submitted by them. We have also perused the copy of impugned judgment and order, copies of complaint , written version and copies of other documents including terms and conditions of the auction sale, demand draft, notice etc.
9. Almost all the facts except the maintainability of the consumer complaint and amount of compensation towards loss sustained to the complainant are not disputed. Therefore the crux in this matter is as to whether consumer complaint is maintainable and further whether complainant sustained loss more than Rs.2,00,000/- as claimed by him or not?
10. Mr.Paithankar learned counsel appearing for the opponent bank pointing out the provisions of Section 13 & 34 of Securitisation Act 6 F.A..No.:820/14 & 19/15 submitted that since undisputedly proceeding U/s 13 of the same Act was initiated against borrower i.e. original owner of the flat, as per provision of Section 34 of the same Act except the D.R.T. no other Forum or Court has jurisdiction to entertain the complaint challenging auction sale etc. Per contra, Mr.M.P.Bhaskar learned counsel appearing for the complainant submitted that though recovery proceeding U/s 13 of Securitisation Act was initiated against borrower, when complainant agreed to purchase the flat in auction sale, it has no concern with the proceeding initiated U/s 13 of Securitisation Act.
11. Considering undisputed facts that complainant had agreed to purchase the flat in auction sale, we find much force in the submission of Mr.M.P.Bhaskar learned counsel for the complainant. Because auction sale is being separate proceeding, it has no concern with the proceeding initiated U/s 13 of Securitisation Act. In the consumer complaint it is necessary to consider whether auction sale purchaser is a consumer of opponent bank who had put property in auction sale or not? And further whether opponent bank is committed deficiency in service or not?
12. When undisputedly the highest bid of complainant was accepted by opponent bank and further opponent bank had accepted 25% amount of consideration and was ready to pay balance amount , it was obligatory on the part of the opponent bank to hand over the possession of flat to the complainant by accepting balance amount of consideration.
13. However, it is submitted by Mr.Paithankar advocate appearing for opponent bank that opponent bank has made every efforts to hand over the possession of the flat to the complainant by obtaining possession through District Magistrate by appointing MITCON Consultancy Services Ltd. But complainant has falsely alleged that 7 F.A..No.:820/14 & 19/15 opponent bank has avoided to hand over the possession. It is submitted that though in the advertisement which was published for auction sale, it was mentioned that the flat is in possession of the bank, but physical possession was not received by opponent bank. Opponent bank was having symbolic possession only therefore it was required to obtain possession through District Magistrate by appointing MITCON Consultancy Service. But we find little force in the submission of Mr.Paithankar appearing for the opponent bank. Because copy of newspaper publishing auction sale advertisement manifests that opponent bank had clearly mentioned in the advertisement that the flat which is in its possession is put for auction sale. It does not reflect that physical possession of the flat is not with the opponent bank. Therefore Mr.M.P.Bhaskar learned counsel appearing for the complainant submitted that if physical possession of the flat in question was not with the opponent bank, opponent bank gave false advertisement and thereby committed unfair trade practice etc. According to him if physical possession was not with the opponent bank it should have mentioned in the auction sale advertisement. If property i.e. flat was not in possession with the opponent bank, complainant would not have participated in the auction sale as he was in need of accommodation for his residence. Considering the undisputed facts that in the auction sale advertisement the opponent bank had shown that the flat is in its possession, we find much force in the submission of Adv.Bhaskar for the complainant. Therefore we have no hesitation to hold that opponent bank has committed deficiency in service and unfair trade practice by giving such false advertisement.
14. As far as maintainability of the consumer complaint is concerned, Adv.Bhaskar appearing for the complainant submitted that since opponent bank has failed to hand over the possession of the flat agreed to be purchased by complainant in auction sale, consumer complaint is maintainable. He has also supported his 8 F.A..No.:820/14 & 19/15 contention by relying on the authority of Hon'ble Apex Court in the case of 'Madan Kumar Singh(D) through L.R. -Vs- Dist.Magistrate, Sultanpur & Others, IV(2009) CPJ 3 (SC) in which it is held by Hon'ble Apex Court considering definition of 'consumer' as per provisions of Section 2(d)(i) of Consumer Protection Act held that when the auction purchaser agreed to purchase the property and partly paid amount of consideration and agreed to pay balance amount of consideration, he is consumer. It is further held that since auction seller failed to hand over the possession of the property immediately after auction sale and further failed to hand over the relevant documents of same property to the auction purchaser for about six months, it has committed deficiency in service and therefore consumer complaint is maintainable.
15. In view of undisputed facts of the present case that the opponent bank failed to hand over the possession of the property to the complainant immediately after auction sale though complainant was ready to pay balance amount of consideration and further opponent bank cancelled the auction sale that too without notice to the complainant by accepting amount of outstanding dues from borrower i.e. owner of the flat, authority of Hon'ble Apex Court in case of Madankumar (Supra) is perfectly applicable to the present case. Therefore we hold that opponent bank has committed deficiency in service and also unfair trade practice.
16. As far as complainant's claim for compensation towards loss alleged to have been sustained by him by purchasing house property for more price is concerned. Though the complainant was required to purchase another accommodation for a consideration of Rs.26 lakhs by obtaining loan of Rs.21,90,000/- from opponent bank, since the properties are different, such vague claim of complainant alleging that he was required to pay more amount for purchasing another property is being not sustainable, cannot be accepted.
9 F.A..No.:820/14 & 19/1517. However, since undisputedly complainant was required to pursue the matter claiming possession and further he was deprived from using his amount of demand draft of Rs.1,21,500/- which was paid to the opponent bank, for about 4 years, it is obvious that he sustained loss. Considering all these facts District Consumer Forum has rightly awarded compensation Rs.2 lakhs towards such loss in addition to the interest on the amount of demand draft.
18. For the foregoing reasons, District Consumer Forum has rightly partly allowed the complainant's claim. We find no glaring error or infirmity in the impugned judgment and order. Hence no interference is warranted. Therefore both appeals deserve to be dismissed. Hence the following order.
O R D E R
1. Both appeals bearing No.820/14 & 19/15 stand dismissed.
2. No order as to cost.
3. Copies of the judgment be supplied to both the parties.
Sd/- Sd/- K.B.Gawali, S.M.Shembole, Member Presiding Judicial Member Mane