State Consumer Disputes Redressal Commission
Bank Of India vs Dr Manjit Singh on 22 November, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.428 of 2018
Date of Institution : 31.07.2018
Order Reserved on: 15.11.2018
Date of Decision : 22.11.2018
Bank of India, Branch Gurdaspur, through its Chief Manager,
Gurdaspur.
.....Appellant/opposite party
Versus
Dr. Manjit Singh s/o S. Jaswant Singh resident of Trimmo Road,
Gurdaspur, Tehsil and District Gurdaspur (Pb).
.....Respondent/complainant
First Appeal against order dated
04.06.2018 passed by the District
Consumer Disputes Redressal Forum,
Gurdaspur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Kiran Sibal, Member Present:-
For the appellant : Sh. Vivek Dawar, Advocate
For the respondent : Sh. Dheeraj Mahajan, Advocate
............................................ J.S. KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 04.06.2018 of District Consumer Disputes Redressal Forum Gurdaspur (in short the 'District Forum'), partly allowing the complaint of respondent of this appeal by directing appellant to pay Rs.95,515/- for the loss caused to him and further to pay Rs.10,000/-
as cost and compensation to him. The appellant of this appeal is opposite party (OP) before the District Forum in the complaint and respondent of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience. First Appeal No.428 of 2018 2
2. The short facts of the complaint filed by complainant u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OP are that pursuant to advertisement for Mega E-Auction for the sale of immovable property of OP as published in Hindustan Times dated 11.12.2015, he entered into an E-bid of shop 9x9 equal to 18 square feet situated at Adarsh Nagar, Mandi Gurdaspur, which was owned by one Veena Mahajan, bearing Deed no.16 dated 03.04.2016, Khasra No.6R/10/2/2(5-5), which was equitably mortgaged with OP and taken over by it under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (no.54 of 2002). The reserve price of this shop was Rs.4,20,000/- and the earnest money was Rs.42,000/-. He deposited Rs.42,000/- with OP as earnest money, as per the advertisement, which was 10% of the reserve price fixed by it. E-Auction was held on 29.02.2016 and he was declared as highest bidder for the bid value of Rs.4,35,000/- and he deposited the balance amount equivalent to 25% of the total bid value on 29.02.2016. Thereafter, he wrote a letter to OP on 03.03.2016 and requested it that he was ready to deposit the balance 75% of the total bid amount and further requested for actual physical possession of the shop. In reply thereto, OP wrote a letter with reference No.GSP/ADV/2015-2016 dated 14.03.2016 addressed to him to deposit the balance 75% amount subject to physical possession within 7 days and the same was to be deposited within 7 days from the actual delivery of the physical possession of the shop to him. OP did not take steps to First Appeal No.428 of 2018 3 obtain the physical possession of the shop in question from the District Magistrate, Gurdaspur, despite his request and OP also failed to issue him the sale certificate and to execute the sale deed of the shop in question in his favour. OP asked their Zonal Head Office to issue the necessary directions. Instead of issuing the sale certificate and to execute the sale deed in his favour, OP started harassing him and illegally demanded the excess amount from him on the pretext that the reserve price mentioned in the advertisement has been wrongly mentioned by OP Bank. OP bank recovered amount of Rs.5,10,000/- and also further recovered the amount of Rs.12,265/- illegally as interest thereupon. The complainant alleged deficiency in service in recovering the excess amount of Rs.87,265/- over and above the confirmed bid price from him. He was forced to pay Rs.8250/- extra on account of Stamp Duty and Registration Charges, total Rs.95,515/-. He issued a legal notice dated 06.09.2016 to OP, but to no effect. The complainant prayed that OP be directed to refund the amount of Rs.95,515/- charged in excess from him against the confirmed bid price with interest @18% per annum, besides compensation of Rs.50,000/- for mental harassment and Rs.20,000/- for deficiency in service.
3. Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is not maintainable in the present form. No services were hired by complainant from OP and as such there is no deficiency in service on the part of OP in this case. The matter is not cognizable within the domain of the Act. The First Appeal No.428 of 2018 4 complainant is estopped from filing the complaint, because he himself deposited the amount of reserve sale price as fixed by NBH after going through the details of reserve price. The OP bank has every right to cancel the bid without any reason. The price was quoted as Rs.4,20,000/- being incidental mistake while publishing, which was rectified against the reserve price fixed by the NBH as Rs.5,10,000/-. On the request of the complainant, that he was ready to pay the reserve price, as fixed by NBG, the above bid was not cancelled by OP bank. The complainant deposited the reserve price fixed by NBG to the tune of Rs.5,10,000/0 of his own free consent in this case and now he is estopped from challenging it to the contrary. The OP also controverted the other averments of complainant even on merits in the written reply by specifically denying that any element of service is involved in this case to bring the matter within the jurisdiction of Consumer Forum. The OP prayed for dismissal of the complaint of complainant.
4. The complainant tendered in evidence his own affidavit Ex.CW-1 with documents Ex.C-1 to C-10 and closed the evidence. As against it, OP tendered in evidence affidavit Ex.OP-1 with documents Ex.OP-2 to Ex.OP-4 and closed the evidence. On conclusion of evidence and arguments, the District Forum, partly accepted the complaint of the complainant, as referred to above. Aggrieved by above order of the District Forum Gurdaspur, the OP, now appellant has directed this appeal against the same. First Appeal No.428 of 2018 5
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The forceful submission raised by counsel for the appellant is that there is no element of hiring of service by the complainant from OP in this case and as such matter is not cognizable by the Consumer Forum. On the other hand, counsel for the complainant argued that there was confirmed reserve price in E-auction of the shop in question, to be auctioned by OP Bank and as such subsequently OP cannot raise the reserve price thereof. The counsel for complainant termed it as unfair trade practice on the part of OP bank. We have examined the record of the case and also perused the material evidence on the record. The factual controversy unfolded in this case is that OP E-auctioned the property in question acquired by it under the SARFASI Act, 2002. The complainant participated in the auction and gave the highest bid therein by depositing 25% of total bid amount. The complainant deposited the rest of 75% of the balance sale amount and sought the possession thereof as sworn in affidavit of Sham Lal Chief Manager of OP Bank Ex.OP-1. The possession of the auctioned shop was delivered to complainant. He stated that due to some inadvertent mistake, the reserve price of the shop was mentioned as Rs.4,20,000/-, which was rectified as Rs.5,10,000/- thereafter. The complainant deposited the entire amount and the possession has been delivered to him with sale certificate as well. The case in hand as gathered by us from perusal of pleadings and evidence on the record of parties is that this is a case of sole First Appeal No.428 of 2018 6 purchase of shop by the complainant in E-auction proceedings. The shop was purchased by complainant on as is where is basis. The counsel for the complainant could not point out to our notice as to what was the service which was provided by OP bank to him and which was deficient in this case, as contemplated by Section 2(o) of the Act. This is a case of purchase of auction shop by complainant on as is where is basis only. No service was provided by OP Bank to complainant in this case. As held by the Apex Court in "U.T. Chandigarh Administration & another Vs. Amarjeet Singh & others" 2009(2)R.A.J./494-495, since, no amenities were to be provided by the Bank to complainant and the purchase of the shop by complainant in auction from OP does not make this case to be a consumer dispute. Consumer Forum has no jurisdiction to entertain the complaint where no amenity or service was to be provided by OP bank to complainant. In this case, as held by the Apex Court in the above referred authority, there is no service to be provided by OP bank to the complainant. A person interested can inspect the site offered and choose the site, which he wants to acquire and participates in the auction only in regard to such site. Before bidding the auction he knows or is in a position to ascertain the conditions and situation of site, he knows about existence of lack of amenities as also. A person purchases the property in auction with open eyes and he cannot be therefore heard to say that he would not pay the balance price or penalty or delayed payment of interest. He is not consumer as held by the Apex Court in the above referred authority. First Appeal No.428 of 2018 7 The law laid down by the Apex Court in the above referred authority has also been approved by the National Commission in "Chief Manager of State Bank of Mysore Vs. G. Mahimaiah"
2015(4)CLT-488. Our own State Commission has also held in "Allahabad Bank Vs. Jasbir Singh" in F.A. No.234 of 2015, decided on 10.06.2016 that the purchaser in auction of immovable property- held by Bank- is not a consumer. As against it, counsel for complainant referred to law laid down by this Commission in "Jaswant Singh Vs. PUDA" in F.A. No.1176, decided on 21.10.2011. Law laid down by the Apex Court in "U.T. Chandigarh Administration & Another Vs. Amarjeet Singh & other" was not brought to the notice of the concerned Bench of this Commission in the cited authority, which runs contrary to thread of law laid down by the Apex Court in the above referred authority. Even otherwise, in the cited authority, the basic amenities were not provided in that area, which was found to be deficient in service by this Commission. Herein, no basic amenities were to be provided by the Bank to the complainant and as such the complainant is not consumer of OP in this case, so as to bring the case within the parameters of the Act. The District Forum has not followed the correct principle of law in coming to the conclusion in its impugned order in this case. The District Forum has overlooked this point that pricing factor is beyond the control of Consumer Forum for adjudication. The Consumer Forum has no jurisdiction to look into the pricing factor between the parties at all as per settled principle of law. The order passed by the First Appeal No.428 of 2018 8 District Forum dated 04.06.2018 is erroneous and unsustainable in the eyes of law and merits reversal in this appeal.
6. As a result of our above discussion, we accept the appeal of the appellant and set aside the order of the District Forum Gurdaspur dated 04.06.2018, resulting in dismissal of the complaint of the complainant.
7. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited the amount of Rs.27,758/- in compliance with order of this Commission. These amounts with interest, which accrued thereon, if any, be remitted to the appellant of this appeal by the Registry by way of crossed cheque/demand draft, after expiry of 45 days, subject to stay order, if any.
8. Arguments in this appeal were heard on 15.11.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
9. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER November 22, 2018 MM