State Consumer Disputes Redressal Commission
Shailendra Tiwari vs Mp Sah. Krishi Evam Gramin Ikas Bank on 21 February, 2018
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 29/2014 FILED ON 14.03.2014 DECIDED ON 21.02.2018 SHAILENDRA TIWARI, S/O SHRI M. B. SHARMA, R/O M-179, GAUTAM NAGAR, BHOPAL. ... COMPLAINANT Versus 1. M.P.SAHAKARI KRISHI AVAM GRAMIN VIKAS BANK MARYADIT, THROUGH ITS MANAGING DIRECTOR, OLD JAIL ROAD, BHOPAL (M.P.) 2. JILA SAHKARI KRISHI AVAM GRAMIN VIKAS BANK, THROUGH ITS CHAIRMAN, TEHSIL-HUZUR, IN FRONT OF OLD SECRETARIATE, BHOPAL (M.P.). 3. JILA SAHKARI KRISHI AVAM GRAMIN VIKAS BANK, THROUGH ITS BRANCH MANAGER, TEHSIL-HUZUR, IN FRONT OF OLD SECRETARIATE, BHOPAL (M.P.) ... OPPOSITE PARTIES. BEFORE : HON'BLE SHRI S. D. AGARWAL : PRESIDING MEMBER
HON'BLE DR. MRS MONIKA MALIK : MEMBER COUNSEL FOR PARTIES: Shri Sudhir Telang, learned counsel for the complainant. Shri S. P. Tiwari, learned counsel for opposite parties. O R D E R (Passed On 21.02.2018)
The following order of the Commission was delivered by Shri S. D. Agarwal, Member:
Complainant Shailendra Tiwari has filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties Madhya Pradesh Sahakari Krishi Avam Gramin Vikas Bank Maryadit, Bhopal & -2- Ors alleging unfair trade practice and deficiency in service, besides cheating and fraud claiming Rs.50,00,000/- towards compensation under different heads.
2. The brief facts of the case as narrated by the complainant are that the opposite party no.3 auctioned some agriculture land in village-Samaspura, of one Laeek Mohammad who was granted loan in the year 1986 and became chronic defaulter due to non-payment. Complainant participated in the auction held on 05.04.2007 with a view to start agriculture business for earning and to maintain his livelihood. He was declared a successful bidder being highest bid of Rs.2,50,000/- for the said auction of land. On demand being made, the complainant deposited amount of bid Rs.2,50,000/- to opposite party vide receipt no. 023773 dated 05.04.2007. Thereafter, on receipt of the amount, the opposite party through Vikraya Adhikari completed the formalities of sale transaction and executed a sale-deed in favour of complainant in respect of the auctioned land of Village-Samaspura. It is stated that this sale transaction and execution of sale-deed of auctioned land in favour of the complainant by the opposite party established the relation of Buyer and Seller between the complainant and the opposite party and the complainant is established as a consumer within the purview and definition of Consumer Protection Act, 1986.
3. It is alleged that after execution of sale-deed, the applicant approached several times to opposite parties for completing other remaining formalities such as transfer of land, physical possession of land, demarcation of land and mutation of land in the name of complainant in revenue record but the opposite party did not initiate any action for mutation, physical possession. It is further alleged that there were various complaints against the opposite party bank for several irregularities, frauds, conducted in auction of agricultural land, therefore, the Government of MP ordered for enquiries/investigations through various agencies. The complainant therefore obtained information regarding land in question through RTI and came to know that the said land has already been transferred in the name of Shri Aurindhi Tiwari and mutation of land is also in his -3- name. The position of physical possession (kabja) of land is not clear. It is therefore alleged that it is a great example of restrictive and unfair trade practice and cheating done by the opposite parties.
4. It is further alleged by the complainant that he was shocked by knowing this fraud, cheating, illegal act done by the opposite party and he was facing mental agony torture, etc since then. The complainant then in July-2013 applied to Tehsildar, Huzur under RTI for obtaining khasra of Village-Samaspura from the year 1984-85 with a view to know correctness and verify the factual position of auctioned land which was received on 04.09.2013. On obtaining khasra and verifying the details, applicant was depressed very much to know that no survey number 3/3 measuring land 6 acres exist in the name of Laeek Mohammad. It is further submitted in the complaint that the complainant was under great shock, pressure, mental agony on account of cheating and fraud perpetrated by the opposite parties for sale of land for which they do not hold legal and valid title and received Rs.2,50,000/- from the complainant by way of fraud. This amount is still with the opposite parties being held illegally since 05.04.2007. This action of the opposite party tentamounts to be an unfair trade practice and deficiency in service under the Consumer Protection Act, 1986.
5. The complainant therefore filed the present complaint claiming Rs.2.50 lacs with interest @12% p.a. He claimed Rs.50 lacs under different heads. It is mentioned in the complaint that cause of action arose in the year 2013 when the applicant heard through local newspapers that lot of frauds, irregularities, misappropriation of money have been committed in auction of land done by the opposite parties during the period 2007-2008 and investigation has been done by various government agencies.
6. The opposite parties resisted the complaint stating that the complainant is not a consumer as defined under Consumer Protection Act, 1986, and therefore, he is not entitled to file a consumer complaint. The complainant is a rich businessman whose business is to purchase lands of poor farmers on low -4- rates and to sale the same on higher rates. The complainant in collaboration with the sales officers of the opposite party bank purchased the land in auction on lower rates. When this fact came in the knowledge of the bank, the bank appointed an Investigation Officer Shri K. P. Chourasia, who after making investigation submitted his report on 04.04.2011 and on that basis, the Auction cum Sales Officer Shri Harihar Prasad Mishra was punished of compulsory retirement. It is further submitted that the small farmers who took the loan for agriculture purposes from the opposite party bank and could not repay the loan amount, their lands were auctioned by the bank. Out of them so many farmers have filed various writ petitions before the Hon'ble High Court of MP, Jabalpur. It is further submitted that the complainant after going through all necessary documents of the land in question participated in auction, if any other land was going to be sold, he ought not to have participated in the auction. The complainant ought to have raise objection at the time of confirmation of sale of property and could have refused to get the sale-deed executed.
7. It has been further submitted that registration of sale certificate of the sold property had already been made on 07.06.2007 and on the basis of said certificate, the complainant had right over that property until and unless any competent court declared the said sale letter as null and void and since the rights of the property are still with the complainant, therefore, sale amount cannot be returned to the complainant. It has been further submitted that the complainant has filed the present complaint on frivolous grounds hiding the real facts. The complainant has also filed a complaint before the Deputy Registrar, Co-operative Societies and Joint Registrar, Co-operative Societies, Bhopal. It has been further submitted that complainant is not a consumer, the complaint is time barred also. The complainant has not filed copy of cheque which he alleged to have deposited. The complainant neither contacted the bank officials nor has filed documents along with complaint. The process regarding possession of agricultural land, mutation in -5- revenue records is not the work of the bank. The complainant is not entitled to get any relief, therefore prayed for dismissal of complaint as not being maintainable.
8. We have heard learned counsel for the parties and gone through the complaint, preliminary objections and documents filed on record. The question arose before us whether complainant is a consumer and his complaint is maintainable or not.
9. First of all, we find that this complaint has been filed under Section 12 of the Consumer Protection Act, 1986 whereas it ought to have been filed under Section 17 (1) (a) (i). The second point which comes for our consideration is regarding maintainability of complaint. The complainant himself in his complaint has stated that he purchased the property in dispute, in auction. The Hon'ble National Commission in Subhash Infra Engineers Pvt. Ltd. Vs Haryana Urban Development Authority I (2015) CPJ 41 (NC) relying on its earlier decisions has clearly held that for the reason that the complainant had purchased property in a public auction, he is not a consumer. Similar view has been taken by the National Commission in Revision Petition No. 1996 of 2011 Pritam Pass Vs HUDA and Anr. decided on 09.05.2012 and the said order was affirmed by the Hon'ble Apex Court in Special Leave to Appeal (Civil) No. 28866 of 2013. Thus we are of considered view that since the complainant has purchased the property in dispute, in public auction, he is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.
10. Thirdly, the complainant in his complaint has repeatedly alleged cheating and fraud against the opposite parties, here we would like to refer that the complaints alleging cheating and fraud cannot be entertained by the consumer courts under the provisions of the Consumer Protection Act, 1986.
11. Fourthly, we find that the complainant in Paragraph 7 of his complaint himself has stated that he participated in auction for the property in dispute on 05.04.2007 and thereafter the sale-deed was executed in his favour on 07.06.2007 but despite repeated approaches and requests, the opposite party did not initiate -6- any action for mutation, physical possession and false assurances were given that the same would be done shortly. Thus the cause of action arose in the year 2007 and the present complaint has been filed on 14.03.2014 i.e. beyond the prescribed period of limitation of two years, which ought to have been filed till 2009 as prescribed limitation for filing complaint is two years under the Consumer Protection Act, 1986. The complainant, just to bring the complaint within prescribed time limit, in paragraph 12 of his complaint has stated that cause of action arose in the year 2013, when the complainant came to know through local newspapers that lot of frauds, irregularities, misappropriation of money have been committed in auction of land, done by the opposite parties bank during the period 2007-2008 and investigation has been done by various government agencies. He kept mum for a long period of six years i.e. till 2013 for his rights, grievances. There is no application under Section 24 A of the Act for condonation of delay in filing complaint. Thus we find that the complaint is hopelessly barred by limitation.
12. Even otherwise, looking to the fact, that the complainant in his complaint, has alleged, cheating, fraud, irregularities, misappropriation of money, and also the fact that various writ petitions were filed before the High Court of M.P. and the complainant had also filed complaints before the Deputy Registrar & Joint Registrar, Cooperative Societies, Bhopal as also the fact that the Government of Madhya Pradesh ordered for enquiries/investigations through various agencies and also ordered the Collector, Bhopal to form a committee to investigate into the irregularities/complaints etc, we find that this matter has a number of complex issues and technicalities, which cannot be decided in summary jurisdiction. There are so many questions regarding fact and law on which elaborate inquiry on both facts and law and also detailed evidence is required, such disputes cannot be entertained by the Consumer Fora established under the Consumer Protection Act, 1986.
13. Considering all the facts and circumstance of the case and in view of the above discussion we are of the considered view, that since the complainant -7- purchased the property in dispute in auction, and has alleged cheating & fraud and the compliant is barred by more than six years and the complaint involves complex issues of facts and law, the complainant is not a consumer and the dispute filed by him cannot be entertained by this Commission.
14. Accordingly, the complaint is dismissed with no order as to costs. The complainant is free to take recourse of such other remedy as may be available to him in law.