State Consumer Disputes Redressal Commission
Vijay Lal Mourya vs Branch Manager, Bank Of Baroda & Anr on 22 January, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.14/27
Instituted on : 15.09.2014
Vijay Lal Mourya, S/o Late Sujan Das Mourya,
Aged about 60 years,
R/o : Bank of India Colony, 2/9 Sector - 6,
Bhilai, Tehsil & District Durg (C.G.) ... Complainant.
Vs.
1. Branch Manager, Bank of Baroda,
Civic Centre,
Bhilai, Tehsil and District Durg (C.G.)
2. Smt. Saraswati Rai, W/o Late Nikhil Chandra Rai,
Aged about 52 years, R/o : 663/21. Sindiya Nagar,
Durg, Tehsil and District Durg (C.G.) ....Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Awadhesh Rai, for complainant.
Shri N.K. Shrivastava, for O.P.No.1.
None for the O.P.No.2.
ORDER
Dated : 22/01/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (but the complainant has wrongly mentioned under Section 12 of the Consumer Protection Act, 1986) against the opposite parties seeking compensation of Rs.36,34,450/-.
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2. The O.P.No.1 (Bank) filed preliminary objection and pleaded that the complainant is not consumer of the O.P.No.1 but the complainant has purchased the immovable property from O.P.No.1 under provisions of SARFAESI Act in a public auction and thus the complainant is a purchaser and O.P.No.1 is seller and under the provisions of the Consumer Provisions Act, 1986 neither the complainant is consumer of the O.P.No.1 nor he comes under the definition of the consumer as per provisions of the Consumer Protection Act, 1986. Therefore, the complaint of the complainant is not maintainable before this Commission and the same is liable to be dismissed. The dispute between the complainant and O.P No.1 (Bank) is not maintainable because the complainant is not a consumer of the O.P.No.1 (Bank), but the actual fact is that the authorized officer of the O.P No.1 (Bank) by using powers has invited auction for sale of the mortgaged property and as per terms of the auction the property was sold to the complainant. As per provisions of Section 17 of the SARFAESI Act, any person aggrieved by the act of the authorized officer has right to file appeal before Debts Recovery Tribunal. The complainant filed the complaint before this Commission belated i.e. on 15.09.2014 and he has not shown any reason for filing the complaint belatedly and the complaint is barred by limitation I.E. 3 years and is prima facie liable to be dismissed.
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3. Firstly, we shall examine whether the complainant is consumer and complaint is maintainable ?
4. Shri N.K. Shrivastava, learned counsel appearing for the O.P.No.1 (Bank) has argued that the complaint is not a consumer and complaint is auction purchaser. Under provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the tender was invited and property in question was sold by the O.P.No.1 (Bank) in open auction and the complainant purchased the said property and under provisions of Section 17 and 35 of the SARFAESI Act, this Commission has no jurisdiction to entertain the complaint. He further argued that complaint is barred by limitation. Therefore, the complaint of the complainant is not maintainable before this Commission and the same is liable to be dismissed.
5. Shri Awadhesh Rai, learned counsel appearing for the complainant argued that the complainant purchased the house in question from the O.P.No.1 (Bank) through open auction but the possession of the house was not delivered to him. The complainant asked for the O.P.No.1 (Bank) several times for delivering possession of the house in question. The complainant purchased the house from the O.P.No.1 and he paid the entire amount to the O.P.No.1 (Bank), therefore, the complainant is "consumer". The possession of the house in question was not delivered to the complainant, therefore, the // 4 // complainant is entitled to get possession of the house in question from the O.P. No.1. The complainant is consumer of the O.P.No.1. Under provisions of Section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (henceforth "SARFAESI Act" the Tahsildar, Durg issued a letter dated 10.07.2012 to O.P.No.2 to handover possession of house in question to O.P.No.1 (Bank), therefore, the complaint is within limitation. He placed reliance on judgment of Hon'ble National Commission in Revision Petition No.4662 of 2012 - Jaswinder Singh vs. Corporation Bank and Revision Peition No.4663 of 2012 - Sri Pradeep Kumar Gupta vs. Corporation Bank, decided by a common order dated 01st August, 2013.
6. We have heard learned counsel for both the parties and have also perused the documents produced by the parties.
7. In Jaswinder Singh vs. Corporation Bank & Sri Pradeep Kumar Gupta v. Corporation Bank (Supra) on being advertisement given by the Bank, the complainant purchased a flat but title was defective. The Hon'ble National Commission observed that the O.P. Bank was sell aware about the defective tile of the said auctioned property and the O.P. Bank with malafide intention not issued those documents to the complainant for verification of legal aspect of the title // 5 // and Revision Petitions were allowed and O.P. (Bank) was directed to refund the amount.
8. In Kunj Bihari Lal vs. Urban Improvement, 2014 (2) CLT 41, Hon'ble National Commission has observed thus : auction purchaser of the plot falls within definition of consumer. In that case offer of plots for sale to its customers with an assurance of development of infrastructure / amenities and not on "as is where is basis", was a service, therefore, the complainant is consumer."
9. 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 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 // 6 // 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."
10. 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."
11. 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 // 7 // 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., 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."
12. In the instant case, the complainant purchased double storey house no.663/21 situated at Khasra N.9/14 admeasuring 0.0.22 hectare (60 x 40 = 2400 Sq ft.), which was possessed and owned by O.P.No.2, in auction on 11.04.2009 and the complainant deposited a sum of Rs.24,10,000/- with the O.P.No.1. From the perusal of para 2 of the complaint, it appears that in the instant case the house in question was belonging to O.P.No.2 and there is no defective title. The complainant purchased the said house in an 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 property in an auction. Therefore, on the basis of judgment of Hon'ble National Commission passed in Shiela Constructions Pvt. Ltd. vs. Nainital L.D.A. & Anr. (Supra); Ashok Tayal & Anr. vs. Delhi Development Authority & Ors. (Supra); Subhash Infra Engineers Pvt. Ltd. vs. Haryana Development Authority (Supra), the complainant is not "consumer."
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13. The judgment cited by the complainant is distinguishable from the facts of the instant case. We hold that the complainant is auction purchaser and he purchased the house in question in auction in outright sale, therefore, he is not a consumer of O.P.No.1 (Bank).
14. Now we shall examine whether the complaint is barred by limitation.
15. We have perused the complaint and documents filed with the complaint.
16. According to the complainant, the complainant purchased the house in question in the year 2009 and deposited a sum of Rs.24,10,000/- on 16.05.2009, 25.05.2009 and 24.06.2009 and sale deed was registered in favour of the complainant on 10.09.2009. The mutation was also effected in name of the complainant.
17. It appears that the auction took place in the year 2009, the complainant deposited the amount in the year 2009 and the mutation was also effected in name of the complainant in the year 2009, therefore, it was necessary for the complainant to file the complaint within period of 2 years i.e. upto 2011.
18. In the instant case Tahsildar, Durg issued notice to the O.P.No.2 on 10.07.2012 and asked her to deliver possession of the house in // 9 // question to O.P.No.1 (Bank) till 23.07.2012, If we assume that after receiving notice of Tahsildar, the cause of action had arisen, then the cause of action had arisen on 23.07.2012, but the complainant filed this complaint before this Commission on 13.10.2014 i.e. after two years.
19. In Improvement Trust, Faridkot Through Its Executive Officer & Anr. vs. Bhupinder Kaur, II (2000) CPJ 56, Punjab State Consumer Disputes Redressal Commission, Chandigarh observed thus :-
"3. For the cause of action accruing prior to June, 1993 a period of three years limitation was prevalent and for the cause of action accruing thereafter the period of limitation is governed by Section 24-A of the Consumer Protection Act, which provides a period of two years limitation only. It may be observed that any correspondence between the parties will not give a fresh cause of action for filing the complaint. The auction took place in 1981 and as per allegations of the opposite party the plot was resumed on January 11, 1994. Even if there was some correspondence, sent by the complainant, that will not give fresh cause of action. On February 17, 1995 the Improvement Trust is alleged to have written a letter to the complainant to pay Rs.7,586/- and on doing so, they would issue the no dues certificate. Assuming that to be the date of cause of action, the complaint was required to be filed within a period of two years. The present complaint filed on December 2, 1997 is clearly barred by time."
20. In United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Honble National Commission has observed thus :-
// 10 // "6.......... correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred. In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 to 2007 and, thus claim being barred by limitation, learned District Form committed error in allowing complaint."
21. In Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has observed that "Mere correspondence does not extend limitation and complaint was to be filed within period of 2 years from first intimation."
22. In the instant case, the auction took place in the year 2009 and the last mount was deposited by the complainant in the month of June, 2009. The sale deed was registered on 10.09.2009, but the possession of the house in question was not delivered till 10.09.2009, therefore, the cause of action has arisen on 10.09.2009. On 10.07.2012 Tahsildar Durg issued notice to the O.P. No.2 for delivery of the possession of the house in question to O.P.No.1 (Bank) till 23.07.2012. If we assume that the cause of action has arisen on 23.07.2012 because the O.P.No.2 was asked by the Tahsildar, Durg to deliver possession of the house in question to the O.P. No.1 (Bank) till 23.07.2012, even then the complaint is barred by time because the complaint has been filed on 13.10.2014, which is clearly barred by limitation.
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23. In light of above discussions, it becomes clear that the complainant is not "consumer" and the complaint is time barred and is not maintainable. Consequently, the complaint filed by the complainant is dismissed on both the counts.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/01/2015 /01/2015