State Consumer Disputes Redressal Commission
Central Bank Of India & Anr. vs Amit Kumar Suhane on 27 November, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/452
Instituted on : 16.06.2017
1. Manager, Zonal Office,
Central Bank of India, First Floor,
Block C, Bombay Market, G.E. Road,
Raipur,Tehsil & District Raipur (C.G.)
2. Branch Manager,
Central Bank of India,
Main Branch, G.E. Road,
Durg, Tehsil & District Durg (C.G.) ..... Appellants (OPs)
Vs.
Amit Kumar Suhane,
S/o Shri Narayan Das Suhane,
House No.557, Behind Radhakrishna Mandir,
Samta Colony,
Raipur (C.G.) ..... Respondent (Complainant)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri R.K. Rastogi, Advocate for the appellants (OPs).
Shri Vipin Sharma, Advocate for the respondent (complainant).
ORDER
DATED : 27/November/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 22.04.2017, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No. C.C./2016/507. By the impugned order, learned District Forum, has partly allowed the complaint of the complainant and directed that :-
// 2 // (1) The O.P. No.1 & O.P. No.2 will jointly and severally give the possession of the house in question, to the complainant within one month from the date of order.
(2) The O.P. No.1 & O.P. No.2 will jointly and severally pay interest @ 12% p.a. on the deposited amount from the date of payment till date of filing complaint.
(3) The O.P. No.1 & O.P. No.2 will jointly and severally pay a sum of Rs.3,00,000/- (Rupees Three Lakhs) towards compensation for mental agony to the complainant.
(4) The O.P. No.1 & O.P. No.2 will jointly and severally pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to the complainant.
2. Briefly stated the facts of the case of the complainant are that the OPs proceeded against the loanee Ashok Kumar Jain and Smt. Kusum Jain under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) for recovery of debt. The notice for Auction Purchase was published on 12.12.2013 through E-Auction. The proposal was invited. The complainant was in need of a house for doing business for his livelihood, therefore, the complainant had participated in E- Auction. The bid of the complainant was Rs.19,50,000/- which was highest, therefore, his bid was accepted by the O.P.No.2. The intimation was given by the O.P. No.2 to the complainant through letter No.RO/RECV/2013-14/585. 25% amount was to be deposited by the complainant immediately in account No.3306906245 and remaining75% amount was to be deposited within 15 // 3 // days and after payment of entire amount, sale certificate will be provided to the complainant. The complainant deposited the entire amount of Rs.19,50,000/-. The O.P. No.2 provided Sale Certificate on 26.02.2014 to the complainant. Thereafter the complainant requested the O.P. No.2 to give possession of the house, then the O.P. No.2 assured the complainant that till 31.08.2014, in any case, the possession of the house in question will be given to the complainant, but the possession of the house was not given by the OPs to the complainant. Even after execution of sale deed the possession of the house was not given by the OPs to the complainant. The complainant was deprived to use the house in question for doing his business and he suffered financial loss, whereas the complainant had deposited the amount of Rs.19,50,000/- with the O.P. No.2 in respect of the house in question. The act of the OPs comes in the category of deficiency in service and unfair trade practice. Hence the complainant filed the instant complaint and prayed for granting reliefs as mentioned in the relief clause (Para 17) of the complaint.
3. The OPs filed their written statement and averred that the complainant purchased the house in question at the price of Rs.19,50,000/-. The complainant demanded possession of the house and also sought compensation for mental agony and other reliefs, therefore, the total amount comes to Rs.34,39,000/-, hence, the District Forum has no pecuniary jurisdiction to decide the matter. The complaint is barred by time. The matter was referred to the Collector, Durg for delivery of the possession of the house, but the Collector and Tahsildar did not give possession of the house, therefore, the Collector and Tahsildar are necessary party in the // 4 // instant complaint. The complainant himself avoided for execution of sale deed and ultimately sale deed was executed on 14.12.2015. The OPs are nationalised bank and they are governed by instructions and guidance of the Reserved Bank of India, Central Government and State Government. The matter was sent to the District Magistrate / Collector for providing possession of the house to the complainant, but the Collector and Tahsildar had not given peaceful possession of the house in question to the complainant. The Bank performed its duty according to the law and did not commit any deficiency in service. When the Collector & Tahsildar will acquire the possession of the house from the loanee, the possession of the house will be delivered to the complainant. The complainant has filed Civil Suit before competent Civil Court for delivery of the house, therefore, the District Forum has no jurisdiction to decide the matter and complaint is liable to be dismissed.
4. The complainant has filed documents. Annexure A-1 is notice dated 16.5.2016 sent by the Advocate of the complainant, Annexure A-2 is postal receipt, Annexure A-3 is acknowledgement of the O.P. No.1, Annexure A-4 is acknowledgement of O.P. No.2, Annexure A-5 is advertisement published in daily newspaper by the Central Bank of India, Annexure A-6 is letter dated 23.1.2014 sent by the Central Bank of India, Raipur to the complainant, Annexure A-7 is details of the amount deposited in the Bank, Annexure A-8 Sale Certificate dated 26.02.2014 provided by the Central Bank of India, Raipur to the complainant, Annexure A-9 is copy of registry, Annexure A-10 is affidavit of witness Raman Bichpuria.
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5. The OPs have not filed any documents.
6. Learned District Forum, after having considered the material placed before it by the complainant, has partly allowed the complainant and directed the OPs to jointly and severally pay the amounts to the complainant, as mentioned in the para 1 of this order.
7. Shri R.K. Rastogi, learned counsel for the appellants (OPs) has argued that the complainant purchased the house in question at the price of Rs.19,50,000/-. The complainant demanded possession of the house and also sought compensation for mental agony and other reliefs, therefore, the total amount comes to Rs.34,39,000/-, hence, the District Forum has no pecuniary jurisdiction to decide the matter. The complainant purchased the house in question for commercial purpose. The complaint is barred by time. The matter was referred to the Collector, Durg for delivery of the possession of the house, but the Collector and Tahsildar did not give possession of the house, therefore, the Collector and Tahsildar are necessary party in the instant complaint. The complainant himself avoided for execution of sale deed and ultimately sale deed was executed on 14.12.2015. The OPs are nationalised bank and they are governed by instructions and guidance of the Reserved Bank of India, Central Government and State Government. The matter was sent to the District Magistrate / Collector for providing possession of the house to the complainant, but the Collector and Tahsildar had not provided peaceful possession of the house in question to the complainant. The Bank performed its duty according to the law and did not commit any deficiency in service. When the Collector & Tahsildar will // 6 // acquire the possession of the house from the loanee, the possession of the house will be delivered to the complainant. The complainant has filed Civil Suit before competent Civil Court for delivery of the house, therefore, the District Forum has no jurisdiction to decide the matter. The impugned order passed by the District Forum is erroneous and is liable to be set aside. The appeal filed by the appellants (OPs) may be allowed.
8. Shri Vipin Sharma, learned counsel appearing for the respondent (complainant) has argued that the complainant had purchased the house in question from the appellants (OPs) through open auction, but the possession of the house was not delivered to the respondent (complainant), whereas the respondent (complainant) had deposited the entire amount of Rs.19,50,000/- with the O.P. No.2. The respondent (complainant) asked the appellants (OPs) several time for delivery of possession of the house in question and for registration of sale deed. The appellants (OPs) avoided for execution of sale deed, and ultimately sale deed was registered in favour of the respondent (complainant) on 14.12.2015, but till date the possession of the house in question was not delivered to the respondent (complainant). The respondent (complainant) deprived to use the house in question as well as his money. The respondent (complainant) suffered mental agony due to the act of the appellants (OPs). The respondent (complainant) is entitled to get the possession of the house in question from the appellants (OPs) and is also entitled for getting compensation for mental agony, interest and cost of litigation. The impugned order passed by the District Forum, is just and // 7 // proper and does not call for any interference by this Commission. The appeal of the appellants (OPs) be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
10. The appellants (OPs) have raised objection that the District Forum has no pecuniary jurisdiction. The total value of the relief sought by the respondent (complainant) is Rs.34,39,000/- whereas the District Forum has only jurisdiction to decide the matter upto value of Rs.20,00,000/-. The learned counsel for the respondent (complainant) has argued that the respondent (complainant)only sought relief i.e. possession of the house and other relief, which is below Rs.20,00,000/-, therefore, the District Forum, has pecuniary jurisdiction to decide the matter.
11. The respondent (complainant) pleaded that he purchased the house in question through E-Auction and the total cost of the house is Rs.19,50,000/-. In para 17 of the complaint, the respondent (complainant) sought reliefs against the appellants (OPs) to direct them to give possession of the house in question to the respondent (complainant). The respondent (complainant) also sought interest @ 22% p.a. for 22 months on the entire amount which was deposited in advance, which comes to Rs.4,29,000/-, Rs.5,00,000/- towards compensation for mental agony, Rs.5,50,000/- towards financial loss.
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12. In Abhishek Kumar & Anr. Vs. Nitesh Urban Development Pvt. Ltd., IV (2017) CPJ 418 (NC), Hon'ble National Commission has observed thus :-
"4. .........
(i) Jasvinder Kaur v. Parsvanath Developers Ltd., II (2017) CPJ 215 (NC) = CC No.282 of 2015, decided on 8.2.2017 (NC). It has been held that :
"4. Section 17 of the Consumer Protection Act confers jurisdiction upon the State Commission to adjudicate a complaint where the aggregate of the value of the goods or services as the case may be, and the compensation if any claimed in the complaint exceeds Rs.20 lakh but does not exceed Rs.1 crore. As held by a three - Members Bench of this Commission vide order dated 7.10.2016 in CC No.97 of 2016, Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd., the value of the services in such cases would mean the sale consideration agreed to be paid by the flat buyers to the builder. Admittedly, the agreed sale consideration in this case was more than Rs.1 crore, as is also evident from the application form. Therefore, the State Commission did not have the requisite pecuniary jurisdiction to entertain the complaints which were earlier initiated by the complainant. The orders passed in the previous complaints being without jurisdiction, a fresh complaint before a competent Forum is not barred."
(ii) CC No.97 of 2016, Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC) = decided on 7.10.2016 (NC), wherein it has been observed :
14. Reference order dated 11.8.2016 Issue No.(i) It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it the value of // 9 // the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is the Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.100 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore."
13. We have carefully considered the arguments advanced by the parties and pleadings of the respondent (complainant).
// 10 //
14. The learned District Forum the OPs to jointly and severally handover the possession of the house in question to the complainant. According to the complainant he purchased the house from the OPs at the cost of Rs.19,50,000/- . The complainant sought other reliefs, therefore, the aggregate value of the reliefs comes to more than Rs.20,00,000/-, therefore, the District Forum has no pecuniary jurisdiction to take cognizance in the matter.
15. According to the appellants (OPs) and the respondent (complainant), E-Auction notice was published in the newspaper and the respondent (complainant) participated in E-Auction. The respondent (complainant) was highest bidder and his bid was accepted by the appellants (OPs). It appears that the respondent (complainant) purchased the house in question in open auction.
16. 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 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 // 11 // 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."
17. 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."
18. 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., // 12 // 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."
19. 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 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."
20. 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."
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21. In the instant case, the respondent (complainant) purchased the house in question in auction sale and the price of the house was fixed at Rs.19,50,000. The respondent (complainant) was highest bidder and he was declared as successful bidder and sale certificate (Annexure A-9(1) was issued by the appellants (OPs) to the respondent (complainant, in which it is mentioned that "..... and handed over the delivery and possession of the scheduled property. The sale of the scheduled property was made free from all encumbrances known to the secured creditor listed below."
22. In the instant case, the house in question, which was purchased by the respondent (complainant) was belonging to Ashok Kumar Jain and Smt. Kusum Jain. They did not pay the loan amount to the appellants (OPs), therefore, their property was sold in open auction by the Bank and the respondent (complainant) purchased the house in question. The loanee had not vacated the possession of the house in question, then the appellants (OPs) sent letter to the concerned Collector for taking possession of the house in question from the loanee. It shows that the appellants (OPs) tried their level best to obtain possession of the house in question from the loanee. According to the appellants (OPs) the Collector and Tahsildar could not take possession of the house in question from the loanee, therefore, possession of the house in question, could not be delivered to the auction purchaser. The respondent (complainant) purchased the house in question in 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 // 14 // property in an auction, therefore, on the basis of above cited judgments, the respondent (complainant) is not a "consumer".
23. Therefore, we are of the firm view that the impugned order dated 22.04.2017, passed by the District Forum, erroneous and is not sustainable in eye of law and the same is liable to be set aside.
24. Hence, the appeal filed by the appellants (OPs), is allowed and the impugned order dated 22.04.2017, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent (complainant), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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