DATE OF FILING : 20-09-2011.
DATE OF S/R : 14-12-2011..
DATE OF FINAL ORDER : 31-05-2012.
Sri Bimal Kumar Choudhury,
son of late Sanat Kumar Choudhury,
residing at 6/9, Netaji Subhas Road ( 4th floor ),
P. S. and District –Howrah--------------------------------------------------- COMPLAINANT.
Versus -
1. Allahabad Bank,
having its zonal office at
17, R.N. Mukherjee Road ( 3rd floor ),
Kishori Bhavan,
Kolkata – 700001.
2. Authorized Officer,
Allahabad Bank,
Zonal Office, Recovery Department,
having its office at 17, R.N. Mukaherjee Road ( 3rd floor ),
Kishori Bhavan,
Kolkata – 700001.
3. The Manager,
Allahabad Bank,
Howrah Maidan Branch,
33, G.T. Road,
Howrah – 711101.-------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Smt. Samiksha Bhattacharya.
Member : Shri P.K. Chatterjee.
F I N A L O R D E R
The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant has prayed for refund of the sum of Rs. 70,000/- together with interest, litigation cost and damages.
Pursuant to the advertisement in the Ananda Bazar Patrika dated 06-03-2011
for sale of a property at 4/7 Priya Nath Ghosh Lane, P.S. Shibpur, Howrah, the complainant being interested offered a price of Rs. 7 lac against reserved price of 3,79,000/- on condition that the property shall be free from any encumbrances and vacant possession was to be delivered after execution of the deed of conveyance and to refund the sum of Rs. 70,000/- as deposited by him as earnest money if his offer was not accepted by the o.ps. bank. The o.ps. bank in their letter dated 02-05-2011 advised to deposit 25% of the offered amount within 15 days failing the earnest money ( Rs. 70,000/- ) was to be forfeited. In reply the complainant by his letter dated 04-05-2011 requested the bank to reject his offer and refund the earnest money, as on his visit to the property in question he found the premises occupied by some persons who virtually drove him out without allowing him to inspect the same. Hence the case.
3. In their written version the o.ps. denied all material allegations made in the complaint and contended interalia that the advertisement clearly stated that the sale process was to be valid on ‘as is where is basis’ ; that the self-imposed conditions of the complainant was turned down as those were not legally tenable ; that the offer of the complainant was accepted by the o.ps. ; that the earnest money got automatically forfeited as 25% of the offer price was not deposited within 15 days. So no question for refund of the earnest money does arise. The complaint should be dismissed.
4. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
5. Both the points are taken up together for consideration. The instant case reminds us of the unique story of the Fables of the jackal who fell in the well and the goat who ultimately jumped in the well being lured by the campaign of the jackal over the sweet and tasty water of the well.
6. The O.P. Allahabad Bank publicized one advertisement on 6th March, 2011 inviting application from the intending purchasers for sale of the property as per SARFAESI Act of the property as mentioned above. The complainant being the sole bidder offered Rs. 7 lac as against the reserved price of Rs. 3,79,000/-. Accordingly he was directed to deposit Rs. 70,000/-. The complainant in response to the direction of the bank deposited the same and visited the property as the time span as granted by the bank was very short. After visit of the premises he found that the property was occupied by some persons who never allowed him any access into it. Complainant realized that the property was like warm-eaten fruit and not free from encumbrances. Soon he wrote a letter on 05-04-2011 stating that the offered price is subject to the condition that the property shall be free from encumbrances. The O.P. bank by their letter dated 02-05-2011 stated that such condition was not acceptable as the sale was on ‘as is where is basis’.
7. Now the question arises whether the contract was incomplete or it was part performed. The copy of the advertisement dated 06-03-2001 enjoins that if the tender was not acceptable the earnest money deposited was to be refunded. It is our common experience that all such terms are bound to be unilateral and the buyer shall have no choice to exercise his discretion. The time span is fixed for a shorter period as it conveniently suits the purpose of the proposer. Here in the instant case the complainant at the time of depositing earnest money stated in unequivocal terms that the property shall be free from any encumbrances and only then the price of Rs. 7 lac was to be offered. On the other hand the O.P. bank authority, bent upon to dispose of a fully encumbered property to the bidder only to fleece the desire money in hot-haste, fixed a date for depositing 25% of the offered price lest the sole bidder, the complainant should slip away and informed him that his condition was not acceptable. To save their face the o.ps. held the stipulations of the advertisement high and reminded him that the sale was on ‘as is where is basis’.
8. If the contention of the bank authority is to be accepted then precisely it stands that the buyer through bidding cannot have any discretion or ultimate choice to frame his mind for the purchase even if it is litigated, occupied by trespassers or otherwisely mortgaged. Whatever be the principle of ‘as is where is basis’. it cannot be a beneficial stipulation and it is chosen by the bank authority only to dupe the buyers and to reap away the desire money from such buyers. On the whole it is thoroughly unilateral and cannot be acceptable from the humanitarian point of view.
9. Section 2(a) of the Indian Contract Act, 1872 deals with ‘proposal’. Proposal is defined as “when one person signifies to another his willingness to do or to abstain from doing any thing with a view to obtain the assent, he is said to make a ‘proposal’. For a valid offer, the party making it must express his willingness to do or not to do some thing. Section 2(b) of the said Act states that acceptance must be absolute and unqualified. An agreement must be supported by a lawful consideration on both sides. All agreements are contracts if they are made by the free consent of parties competent to contract.
10. Naturally its stands that a person or a buyer cannot be compelled to by certain property if it is encumbered in the eye of law. In the instant case though the complainant deposited the earnest money as per requirement, soon came to realize that the property was not free from encumbrances. The complainant realized after his visit to the property that the purchase of the same by investing his hard-earned money of Rs. 7 lacs would amount to spoiling the same money in the water. Because he was not allowed access into the property by some ruffians or trespassers. If he cannot have the access into the property, what is the use of purchasing the same by investing such huge money ? His hard-earned money is not meant to oblige the bank authority who are only concerned of the money and nothing else. The advertisement dated 06-03-2011 cannot be as sacrosanct as the religious scriptures so as to protect its sanctity at the cost of the complainant’s money. Nor the o.ps. cannot have any escape from the regours of law. Whatever adamancy they adopt in the garb of the phrase ‘as is where is basis’ this phrase is used as it suits their purpose and ulterior motive to fleece the money in lieu of encumbered property. This conduct on the part of the o.ps. can simply be defined as ‘unfair trade practice’ within the meaning of Section 2(1)( r ) of the C.P. Act, 1986. We also trace gross deficiency in service on their part within the meaning of Section 2 ( 1 ) ( g ) of the said Act.
11. We therefore arrive at the irresistible conclusion that the o.ps. bank authority cannot withhold the amount of Rs. 70,000/- deposited towards earnest money. They shall have to refund the same to the complainant.
In the result the complaint succeeds. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 73 of 2011 ( HDF 73 of 2011 ) be allowed on contest with costs against all the O.Ps.
The O.Ps. be directed to refund the sum of Rs. 70,000/- to the complainant together with the interest @ 12% per annum from 04-05-2011 when the complainant through his letter requested the o.ps. to refund the EMD, till full satisfaction.
The complainant is entitled to a compensation / damage of Rs. 50,000/- from the o.ps. for his mental agony, harassment and prolonged tension and a litigation cost of Rs. 5,000/-. The o.ps. do pay the aforesaid awarded amount within 30 days from the date of this order failing the total amount shall carry interest @ 18% per annum till full satisfaction.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
