Andhra Pradesh

Nellore

CC/47/2016

Kilari Varun Kumar, son of Venkataswamy naidu - Complainant(s)

Versus

1. The manager, state bank of India - Opp.Party(s)

T.V.Srinivasa Rao

14 Nov 2017

ORDER

Date of Filing     :04-03-2016

                                                                             Date of Disposal: 14-11-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

 

Tuesday, this the 14th day of NOVEMBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.47/2016

 

 

Kilari Varun Kumar,

S/o Venkataswamy Naidu,

Hindu, aged 28 years,

Residing at 26/13/213, B.V.Nagar,

Nellore-4.                                                                            ..… Complainant      

                                                             Vs.

 

1. The Manager,

    State Bank of India,

    Stressed Assets Management branch,

    5^th floor, Rear Block, HMWSSB  Compound,

    Khairatabad (Secunderabad),

    Hyderabad.

 

2.  The Chief Manager,

     State Bank of India,

     Barracks, Nellore-1.                                                 ..…Opposite parties

 

                     . 

          This complaint is coming before us for hearing in the presence of                Sri T.V.Srinivasa Rao, advocate for the complainant and                                    Sri  P.Gangadhar Reddy,  advocate for the opposite party No.1 and the 2^nd opposite party remained absent and having stood over for consideration till this day and this Forum passed the following:

 

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

1.  The complainant filed this complaint against the opposite parties           1 and 2 under section of Consumer Protection Act, 1986 to direct the opposite parties 1 and 2 to pay E-auction amount of Rs.7,80,000/-  and a compensation, damages and mental agony of Rs.7,20,000/- with subsequent interest on Rs.15,00,000/- @ 24% p.a. from the date of lawyer notice till the date of realization and submits to allow the complaint with costs.
2. The brief averments of the complaint are as follows:

 The complainant submits that the 1^st opposite party given vide publications bring the properties of M/s.Venkata Subbaiah impleading the complainant’s father as guarantor to the schedule property item No.5 and 6 situated in Nellore City and he participated in the E-Auction for the schedules 5 and 6 by paying necessary amount as envisaged in opposite party terms and conditions of E-Auction sale notice dated       10-5-2015.  The complainant submits that after participating in the E-Auction at Nellore city the complainant made a E.mail letter dated        10-09-2015 seeking to refund 10% cash paid to the E-Auction participation for a sum of Rs.3,80,000/- bearing UPR No.ANDBH 15252407600 and another sum of Rs.4,00,000/- bearing  UPR No.ANDBH 15252407637 and the 1^st opposite party failed to refund the amount to the complainant and the complainant made specific requests in this regard.  But, in vain.  The complainant humbly submits that on 15-10-2015 the complainant sent a letter to the 1^st opposite party to refund the EMD amounts and on 26-10-2015 the 1^st opposite party gave  a reply to the complainant with false and allegations and on 28-11-2015 the complainant issued a lawyer’s notice through his advocate to 1^st and 2^nd opposite parties calling upon to pay the E-auction amounts and the 1^st opposite party sent a reply notice to the complainant in nutshell stating that the mortgaged properties belonged to K.Venkata Swamy Naidu and Smt.Kilari Vanajakshi and that the auction participant i.e., the complainant herein is related to them as son and further expressed to drag on the issue further rather than  with any real intention of E-Auction the complainant participated E-Auction and it can’t be presumed so, why because, with predetermine mind of knocking auction, no one will participate.  It is only a chance of opportunity.  The complainant submits that if other bidders go high price automatically the complainant has to come out.  It is simple logic of auction pattern which opposite party known pretty well.

3. The complainant further submits that firstly there is no prohibition in participating by the close relatives under auction terms and conditions published by 1^st opposite party.  Secondly if, any objection of allowing close relative, the 1^st opposite party is supposed to reject his auction application prior to the auction with due payment of the amount made by participating person and thirdly if any such discrepancy is found and 1^st opposite party is at liberty to deduct auction expenses only on the day of auction and refund the amount unconditionally to such participant.  Inspite of that keeping third party amount with the 1^st opposite party will amounts to wrongful custody of the complainant money for which bank is liable to refund the same together with interest and compensation for causing mental agony.  Mere keeping in mind that it is a bank and it can legally fight to any extent without any personal pocket money which word are used by the local bank persons, is not good practice and that the  officer concern shall see the practically also.  However, the complainant submits that he came to know that 1^st opposite party bank again without any delay called for fresh auction likely to be held on      16-12-2015 and that no hindrance or loss is caused to the bank by withdrawing by complainant.  Therefore, once opposite party opted for fresh auction it is deemed that earlier auction was cancelled.  IP so facto complainant is entitled for refund of amount which is in opposite party wrongful custody is deficiency in service.  Although the 1^st opposite party have wrongful custody complainant amount shall refund by the 1^st opposite  party and the 1^st opposite party shall pay an amount of Rs.7,80,000/- E-auction amount and a compensation of Rs.7,20,000/- to the complainant towards  damages and mental agony and the complainant gave a legal notice to the 1^st opposite party through his advocate on 28-11-2015 calling upon to pay E-auction participating amount of Rs.7,80,000/- and the notice was served on the 1^st opposite party and acknowledged the same and neither the opposite party gave a reply nor to pay any amount due to complainant.  As the 1^st opposite party shall pay the E-auction participating amount of Rs.7,80,000/- and compensation of Rs.7,20,000/- to the complainant towards damages as the 1^st opposite party unnecessarily detained illegal custody of the amount all these days.  The complainant submits that he is the beneficiary under section 2(1) (d) (2) g of the Consumer Protection Act, 1986 and the complainant is the consumer and he is entitled to receive the compensation amount due to deficiency in service of the 1^st opposite party and the complainant submits to allow the complaint with costs.

 

4. On behalf of the opposite parties 1 and 2, no written version was filed.

 

5.  On behalf of the complainant, the affidavit of PW1 filed and Exs.A1 to A8  marked.

 

6. On behalf of the opposite parties 1 and 2, the affidavit and additional affidavit of RW1 filed and no documents were filed.

 

7. Written arguments on behalf of the complainant not filed.

 

8.        Written arguments on behalf of the opposite party No.1 filed.

 

9. Written arguments on behalf of the opposite party No.2 not filed.

 

10. Arguments on behalf of the learned counsels for the both parties heard.

 

11. Now the points for consideration are:

1. Whether the complaint filed by the complainant under section 12 of consumer protection Act, 1986 alleging deficiency of service against the opposite parties 1 and 2 is maintainable?
2. To what relief the complainant is entitled?

 

12.   POINT NO.1:    The learned counsel for the complainant submits by relying upon evidence of PW1 and Exs.A1 to A8 that the complainant with an intention to participate in the E-Auction, paid a sum of Rs.7,80,000/-  and subsequently the complainant withdrawn from the said E-auction as the complainant is not having  account money but the value of the properties which are brought for sale are higher than market value and inspite of receiving of legal notice, the opposite parties failed to return the E-auction amount of Rs.7,80,000/- and hence the complaint filed by the complainant against the opposite parties 1 and 2, to direct the opposite parties 1 and 2  for return of E-auction amount of Rs.7,80,000/- and Rs.7,20,000/- for subsequent interest @ 24% p.a. on total amount of Rs.15,00,000/- and submits to allow the complaint with costs.

 

13.     On the other hand, the learned counsel for the opposite parties submits that the Forum has no jurisdiction to entertain the complaint and originally the opposite parties filed DRT OA No.150/2011 on the file of Debts Recovery Tribunal at Visakhapatnam for recovery of the due amount and the said O.A.No.150/2011 was allowed and when the properties was brought for sale, the complainant submits his proposal to participate in E-Auction by depositing Rs.7,80,000/-  and later at the time of auction, the complainant withdrawn to participate E-auction and hence the sale was postponed and the complainant submitted E-auction proposal to participate in E-auction and with an intention that to dragon the proceedings, as the complainant is son of the opposite party and as the same has no jurisdiction to entertain the complaint and submitted for dismissal of the complaint with costs and the opposite parties further submitted that the same has no relationship with the opposite parties and hence as there is no deficiency of service and submits for dismissal of the complaint with costs.

 

14.  In view of the arguments submitted by the learned counsels for the both parties and as seen from the records, it is an admitted fact that the complainant is a son of the opposite party against whom the opposite party filed O.A.No.150/2011 and on the file of Debts Recovery Tribunal at Visakhapatnam and the said petition was allowed and recovery proceedings in R.P.No.154/2013 are initiated against the opposite parties, who are the parents of the complainant and the complainant after perusing the sale notice is submitted the proposal before the Debts Recovery Tribunal at Visakhapatnam with an intention to participate in E-Auction and deposited an amount of Rs.7,80,000/- and prior on the date of auction, the complainant withdrawn from the auction by showing that he has no account money and market value of the auction properties are higher. In the light of the above said fact, the case of the complaint has to be withdrawn.

 

15.   Though the complainant submitted that this Forum has got jurisdiction to entertain the complaint by showing that he is the consumer under section 2(1)d(2)g of the Consumer Protection Act, 1986 but there is no consumer relationship between the complainant and the opposite parties,  we are of the that the complainant after seeing the notification in his appearance published in Indian Express, Nellore and Prakasam Districts dated 10-05-2015, the complainant himself sent the proposal through E-mail to participate in            E-auction by depositing an amount of Rs.7,80,000/- , the complainant did not approach the opposite parties 1 and 2 before sending his any proposal to participate in E-auction after showing the paper publication which was printed in Indian Express, Nellore and Prakasam on 10-05-2015. As there is no consumer relationship between the complainant and the opposite parties, the question of deficiency of service against the complainant by the opposite parties does not arise.  In

           Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi

AIR 2000 SC 331,

      Wherein the Hon’ble Apex Court held that the beneficiary for whose benefit, the services are hired or availed is a consumer within the meaning of section 2(1)(d)(ii).

    Following the above decision, we are of the opinion that the complainant does not come within the definition of  “Consumer”, as there is no consumer relationship between the complainant and the opposite parties and hence the complaint filed by the complainant against the opposite parties, alleging that the opposite parties failed to render the service is not maintainable.

         Further, as seen from the records, the father of complainant filed  O.A.No.150/2011 on the file of Debts Recovery Tribunal at Visakhapatnam for recovery of the amount due against the father of the complainant and after passing the order as the opposite parties failed to recover the due amount, hence opposite parties filed proceedings in R.P.No.154/2013 and the opposite parties brought the properties mortgaged by the father of the complainant and when the properties were brought for sale, the complainant submitted his proposals under E-auction by depositing an amount of Rs.7,80,000/-.

                                                IN

 

State Bank of India Vs.Anurag Textiles

 

2015 (III) CPJ 86 (NC)

 

         Wherein, the Hon’ble National Commission held that “when recovery proceedings under securitization and reconstruction of financial assets and enforcement of Security Interest Act, 2002 had already been initiated and in view of section 34 of SARFAESI Act, 2002, jurisdiction of this commission barred.

                                                IN

                    Indo Pacific Housing Finance Ltd. Vs. Gopal Shetty

                                     II (2014) CPJ 638 (NC)

 

        Wherein the Hon’ble National Commission held that under section 18 – Jurisdiction – Recovery for debt amount and section 18 of SARFAESI Act, clearly bars jurisdiction of any Civil Court or Authority to entertain the complaint/suit relating to recovery of loan amount by bank or financial institutions – complaint filed under Consumer Protection Act not maintainable.

 

          Following the above decisions and the facts of the petition, as the proceedings are pending before Debt Recovery Tribunal, Visakhapatnam, we are of the opinion that this Forum has no jurisdiction to entertain the complaint. 

       In view of the above said discussion and the facts of the complaint, we answered this point accordingly.

 

16. POINT NO.2:   In view of our answering on point No.1 accordingly against the complainant, we are of the opinion that this Forum has no jurisdiction to entertain the complaint and hence as this Forum has no jurisdiction the complaint filed by the complainant has to be returned to the complainant to represent the same in proper Forum.

       In the result, the complaint is returned to the complainant to represent the same before proper authority for necessary relief.

        With this observation, the complaint is returned to the complainant but in the circumstances no costs.

          Dictated to Stenographer, transcribed by her corrected and pronounced by us in the open  Forum, this the  14th day of  NOVEMBER, 2017.

 

               Sd/-                                                                    Sd/-

        MEMBER                                                              PRESIDENT

 

                                      APPENDIX OF EVIDENCE

Witnesses Examined for the complainant

 

P.W.1  -

24-11-2016

Kilari Varunkumar, S/o.VEnkataswamy Naidu, Hindu, aged about 28 years, business, residing at 26/13/213, B.V.Nagar, Nellore-4.

 

Witnesses Examined for the opposite parties

 

R.W.1  -

28-12-2016           07-11-2017

Md.Shafi Ulla Khan, S/o.Late Abdul Kareem Khan, aged about 51 years, Occupation: Assistant General Manager, State Bank of India, SAM Branch-II, 3-4-1013/A, TSRTC Bus Complex KAcheguda, Hyderabad – 500027   NVVSC GUPTA SUTAPALLI, S/o.PAPAA RAO SUTAPLLI, aged about 44 years, Occupation: Manager, State Bank of India, SAM Branch –II, 3-4-1013/A, TSRTC Bus Complex, KAcheguda, Hyderabad – 500027.

 

                           EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1	-	Photostat copy of E-Auction sale notice.
Ex.A2	09-09-2015	Photostat copy of counterfoil of Andhra Bank for Rs.3,80,000/-.
Ex.A3	09-09-2015	Photostat copy of counterfoil of Andhra Bank for Rs.4,00,000/-.
Ex.A4	10-09-2015	Photostat copy of letter of E-mail sent by the complainant to the opposite party withdrawal from auction.
Ex.A5	15-10-2015	Letter to the General Manager, State Bank of India, to refund of EMD paid on 09-09-2015 (1) Rs.3,80,000/-.
Ex.A6	26-10-2015	Reply letter received from State Bank of India to the complainant.
Ex.A7  -	28-11-2015	Office copy of the lawyer’s notice issued by the advocate for the complainant to the 1st opposite party along with regd.post receipt.
Ex.A8 -	-	Served acknowledgement.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

NIL -

                                     

 

                                                                                          Id/-

                                                                                       PRESIDENT

 

 

 

Copies to:

 

1.	Sri T.V.Srinivasa Rao, Advocate, 16/681, opp: Saibaba Temple, Gandhi Nagar, Nellore.
2.	Sri P.Gangadhara Reddy, Advocate, D.No.23/826/1, Ramesh Reddy Nagar, Nellore – 524 003.
3.	The Chief Manager,  State Bank of India, Barracks, Nellore-1.

 

Date when free copy was issued: