State Consumer Disputes Redressal Commission
Canada Bank, Gandhinagar Branch, ... vs Kaneti Durga Prasad, Paloncha on 5 December, 2012
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 809/2011 against CC 67/2010 on the file of the District Consumer Forum-1, East Godavari District at Kakinada. Between : Canara Bank, Gandhinagar Branch, Kakinada rep. by its Manager.. Appellant/Opp. Party And Kaneti Durga Prasad, S/o. Apparao, Age 30 yrs, Electrical Engineer, R/o. Navabharath Ventures Ltd., Paloncha, R/o. Qrtr. No. E-74, Nava Nagar Colony, PALONCHA 507 154 Respondent/complainant Counsel for the Appellant : M/s. Deepak Bhattacyarjee Counsel for the Respondent : M/s. ESR Prasad Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Wednesday, the Fifth Day of Decemnber Two Thousand Twelve Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. This is an appeal preferred by the opposite party as against the orders dated 25.08.2011 in CC 67/2010 on the file of the District Consumer Forum-1, East Godavari District at Kakinada . For convenience sake, the parties as arrayed in the complaint are referred to as under :
02. The brief facts of the complaint are that the opposite party gave public notice Ammakapu Prakatana to sell House bearing No. 11-4-129 consists of RCC Building with 2 rooms, 1-Hall, 1 kitchen by public auction taken over by them from One S.Nagamani, W/o. Apparao of Radhalapeta, Pithapuram Mandal, in Andhra Jyothi, dated 16.12.2009 and the tenders will be opened on 20.01.10. The complainant quoted Rs.3,00,500/- on 19.01.2010. After the tenders were opened the complainant has been declared as successful bidder and he advised to pay an amount of Rs. 75,125/- as per the written directions issued by the opposite party vide Ref. No. R.L.C.O. VSPS. Act. 265 2010 RVS dated 27.01.2010 on the tender amount including EMD. The complainant has paid an amount of Rs. 2,25,375/- by way of cheque No. 447477 dated 04.02.2010. As per the terms and conditions of the auction, the complainant has performed his part of contract by complying all the terms and conditions and paid the entire sale consideration. The complainant approached several times and requested to deliver the vacant possession of the property but the opposite party failed to deliver the said property. The complainant had borrowed an amount of Rs.1,00,000/- from V. Satyanarayana and repay the same along with interest @36% p.a. to said V.Satyanarayana and borrowed an amount of Rs.1,00,000/- from Grandhi on 26.01.2010 by executing the promissory note and to repay the same along with @36% p.a. in his favour. After that the complainant borrowed Rs.1,00,000/- from his friend on 10.01.10 and repaid the same along with interest @ 36%p.a. He also gave notice to the Op either to deliver the possession of the property or to return the amount with interest @ 36% pa besides compensation, damages and costs but there is no response. Hence the complaint.
03. OP filed counter opposing the claim of the complainant and denying the allegations made in the complaint and disputing the claim and the brief facts of the counter are as under :
Although, it is not their obligation to deliver vacant possession of the property still this opposite party in order to assist the complainant approached the Collector / District Magistrate for assistance to deliver the property and in pursuance thereof the Collector & District Magistrate, East Godavari District issued proceedings authorizing the Tahsildar, Pithapuram to exercise powers under section 14 of the SARFAESI Act 2002 and deliver possession of the property to this opposite party and the said order was issued on 17.03.2010. Thereupon the opposite party bank along with the Revenue officials and the police went to take possession on 27.03.10 and the borrower requested for one month time and the revenue officials stated that since the property is situated in a sensitive area namely Harijanpeta taking possession forcibly may cause law and order problem and therefore allowed Smt. S.Nagamani months time. Thereupon a 2nd attempt was made on 16.12.2010 to take possession along with the revenue officials and with the police protection but Smt. S.Nagamani locked herself with the children in a bed room and threatened with self-immolation and in the said circumstances the second attempt also proved abortive. Thereafter, the police and revenue officials one more attempt was made by the police and revenue officials to take possession and at that time Smt. S.Nagamani gave an undertaking in writing that she will deliver the property on or before 25.10.10. In the said letter dated 08.09.10 she further stated that on 16.08.10 she sustained a fracture while returning from the agricultural work where she is working and is bed ridden. She clearly stated that the entire amount will be repaid by 21.10.10 and if it is not repaid she herself will deliver vacant possession of the property. Since S.Naga Mani gave a positive undertaking that in view of the fact that she sustained facture taking forcible possession would result in adverse media reaction and also as she gave a letter stating that she will repay the entire amount the opposite party was advised to accept the letter and not to take forcible possession. The same would clearly show that although the complainant is fully aware that the property was in the possession of the defaulter having inspected the same before submitting his bid the complainant having bid is estopped from contending that the opposite party has an obligation to deliver the property.
It is also contended by the OP that the position under law is that the auction purchaser has to take his own steps to take possession and there is no obligation caste on the opposite party to deliver possession of the property to the complainant and that although there is no legal obligation the opposite party took all reasonable legal steps to assist the complainant in taking possession. In the circumstances there is no question of the opposite party failing to carry out their obligation of delivering possession. It is true that the complainant made an application for return of the amount for which the property was bid but in as much as the complainant has purchased in on bid was only right to take possession of the property and therefore there is no question of returning the amount and it is in correct to say that there was deficiency in service. The allegation that the complainant was put to mental agony or that he was subjected to financial inconvenience is not at all true. It is also not correct to say that he sustained loss of reputation. The allegation that the complainant is entitled to refund of the money together with the interest @36% and also damages and costs and compensation are not at all correct and the said claim are without any basis whatsoever. The opposite party is not at all aware that the complainant had borrowed the money in a sum of Rs. 1 lakh from E.Satyanarayana or that he borrowed another sum of Rs.1 lakh from one G.Venkateswarlu and further he borrowed another amount of Rs.1 lakh, Sri S.G.Vara Prasad. The complainant has right if any is against Smt. S.Nagamani and the complainant should have pursued the remedy against the said Smt. S.Nagamani to obtain possession of the property and instead of it he has wrongly instituted the present proceedings against the opposite party. In any view since S.Nagamani is in possession of the property, she is a necessary party to the proceedings and the present complaint without impleading her as party also bad for non-joinder of the party and thus prayed to dismiss the complaint.
4. Both sides filed her evidence affidavit reiterating their respective pleadings and Ex. A1 to A3 were marked on behalf of the complainant and Ex. B1 to B 9 were marked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum directed the opposite party to pay Rs.3,00,500/- with interest @ 9%pa from 05.02.10 with costs of Rs.5000/- within two months.
6. Feeling aggrieved with the said order the unsuccessful OP filed this appeal on several grounds and mainly contended that the District Forum has not appreciated the questions of fact and law in proper perspective and that the only remedy available to the complainant was under Section 17 of the SARFAESI Act 2002 before the Debt Recovery Tribunal having jurisdiction and that the order of the District Forum is liable to be set aside and thus prayed to allow the appeal and set aside the impugned order.
7. Heard both sides with reference to their respective contentions in detail.
8. Now the point for consideration is whether the order of the District Forum is sustainable ?
There is no dispute that the complainant attracted with the publication of sale notice in Andhra Jyothi newspaper dt. 16.12.2009 the complainant submitted open tender to purchase House bearing No. 11-4-129 consists of RCC Building with 2 rooms, 1-Hall, 1 kitchen by public auction taken over by them from One S.Nagamani, W/o. Apparao of Radhalapeta, Pithapuram Mandal, in Andhra Jyothi, dated 16.12.2009 for Rs.3,00,500/- and he has been declared as successful bidder and accordingly he paid Rs.70,125/- to OP on 27.3.2010 on the tender amount including EMD and thereafter paid Rs.3,25,375/- vide cheque dated 4.2.2010 within 15 days from the date of sale. The complainant contends that he fulfilled all the terms and conditions of the auction and paid entire sale consideration but OP did not deliver the vacant possession of the property and thus rendered deficient service and thereby he has been subjected to mental agony and financial loss. Whereas the contention of the Op is that it is not their obligation to deliver the vacant possession of the property and in spite of it to assist the complainant they approached Collector/District Magistrate, East Godavari in the said context and that the District Collector issued proceedings dated 17.03.2010 authorizing the Tahsildar, Pithapuram to exercise powers U/s.14 of SARFAESI Act, 2002 and deliver possession of the property to the OP and that thereupon the OP bank along with Revenue officials and police went to take possession of the property on 27.3.2010 and that borrower namely S. Nagamani, who, became defaulter in paying loan amount to the OP bank in respect of the said house created all sorts of hurdles and also threatened with self-immolation and that the complainant is fully aware of the fact that the property was in possession of the said defaulter having inspected the same before submitting his bid and therefore she is estopped from contending that OP has an obligation to deliver the property and that there is no deficiency on the part of the OP and therefore orders under appeal are not sustainable. The counsel for the appellant relied upon a decision in Bank of Baroda Vs Ranjeet Singh IV 2012 CPJ (NC); United Bank of India Vs. Satyawati Tondon and others (2010) 8 SCC 110. The complainant did not dispute that the proceedings under SARFAESI Act 2002 are initiated in the said matter and in such circumstances certainly the consumer Forum has no jurisdiction to entertain the complaint. The District Forum did not appreciate the said fact in proper perspective. Had such proceedings were not issued, the things would have been different and there was possibility of holding that the Consumer Forum has jurisdiction to entertain the complaint but when such proceedings were initiated certainly the recourse is only under special Act but not under CP Act therefore the Appeal is liable to be allowed setting aside the impugned order and consequently the complaint stands dismissed in this regard.
9. In the result, the appeal is allowed setting aside the impugned order and consequently the complaint stands dismissed. No order as to costs in the appeal.
MEMBER MEMBER DATED 05.12.2012.