JUDGEMENT

          Complainant by filing this complaint has submitted that op/Bank on 27.06.2012 through newspaper namely Times of India and Aajkal for sale of all part and parcel of flat No.1, Ground Floor, Western Side of area of 653 sq. ft. with two garages being No. A facing southeast side area 187 sq. ft. and no. B facing eastern side of area 151 sq. ft. at Jagannath Apartment at premises Plot No. 24, holding no. 1190 (old 790), is under Sahid Hemanta Kumar Basu Sarani, Kolkata – 700074, under south Dum Dum Municipality, Ward No. 18, Mouza Khalidaha, JL No. 23, G.D. 1, Subdivision 16, RS No. 16, Touzi No. 1298/2833, C.S Dag No. 1554, CS Khatian No. 613, RS Dag No. 4579, RS Khatian No. 6913, P.S. Dum Dum location near Dijoo Shawl House on as is where is basis under the possession of the op crocked by the op through Standard procedure as laid down under SARFAESI Act 2002, because of the repayment o the op’s loan credited to M/s Sree Krishna Impex under proprietorship of Sri Narendra Agarwal son of late Dwarkadas Agarwal residing at first floor of premises No. P 101/2, Kalindi Housing Estate P.S.- Lake Town, Kolkata – 700089, who was the guarantor for the said loan.

          That complainants being interested to purchase the said property submitted their offer as per the terms and condition of the op on 28.07.2012 as well as inspected the said property where the complainants found the flat and garages.  But the authorized officer of op vide letter dated 30.07.2012 intimated the complainants that the offer was given by the complainants was accepted by the op and the op further requested the complainants to deposit a further sum of equivalent to another 15% of the offered price within 31.07.2012 and to pay the balance and final sum within 15 days from 30.07.2012.

          It is pertinent to mention that the cost of the said flat no.1, ground floor, western side of area of 653 sq. ft. with two garages being No. A facing southeast side area 187 sq. ft. and No. B facing eastern side of area 151 sq. ft. was Rs. 11,00,000/-.  That on 03.09.2012 on receipt of the final sum equivalent to 75% of offered price the op’s authorized officer issued the sale certificate as also handed over the Original Sale Deed being No. 08826 for the year 2008 of the said property kept under the custody of op as security where also the said property was shown as flat and garage in the conveyance plan attached to the said Sale Deed.

          Thereafter by another letter issued by the op on 27.12.2012 op requested M/s S.D. Agency Pvt. Ltd. of 36/C, Nanda Mallick Lane, Kolkata – 700006 to hand over the physical possession of the said property and finally on 06.02.2013 complainants received the physical possession of the said property.  On receipt of the possession of the said property the complainants proceeded for mutation in the South Dum Dum Municipality and surprisingly found and realized that the said property sold to the complainant by the authorized officer of the bank does not comprise of one flat and two garages but the entire property which is sold to the complainants is only space for garages and the construction of the flat which the op sold to the complainants is purely illegal construction which is liable to be demolished at any time.

          That now if the complainants want to convert the sanction plan from the municipality they would have to bear a huge amount of nearly Rs.6 lacs to regularize the plan due to the unfair trade practice on the part of op and that proves utter unfair trade practice on the part of the ops as service providers cannot escape from their liabilities and as such the op is duty bound to regularize the sanction plan with the municipality in similarity with the sale of the property made with the complainants as the complainants are consumer and since the ops committed deficiency in service and adopted unfair trade practice for which the Forum has appropriate jurisdiction to entertain the complaint and settle the grievances of the complainants and for which the present complaint is filed for redressal.

          Practically the cause of action of the instant case was arose on the date of 06.02.2013 when the physical possession of the said flat and the two garages were given to the complainants and the complainants approached the municipality for mutation and it is found that the entire property which is sold to the complainants is only space for garages and the construction of the flat which the op sold to the complainants is purely illegal construction which is liable to be demolished at any time and in the circumstances complainant has prayed for compensation to the extent of Rs.6,00,000/- for physical, mental harassment and entire loss amount for regularized the plan.

          On the other hand op/Bank by filing written statement submitted that the complainant being the inhabitants of the building on the 3^rd floor named Jagannath Apartment were well conversant about the facts and circumstances and about existence of the flat and two garages on the ground floor of the said building and fact remains complainants duly inspected the property thoroughly before intending to purchase before joining in the tender on maintaining of all kinds of formalities for sale and chief manager of the bank being authorized officer of Allahabad Bank accepted the offer made by the complainants on 28.07.2012 to purchase the property in question and practically complainants were only bidders to purchase the flat and two garages for auction sale as property with full knowledge complainants after inspection and enquiry appeared in the auction bidding and thereafter he knowing fully well of the status of the flat and garages purchased it.  So, the op has no liability in case of mis-record in the record register of any authority/office in any manner and after sale flats and garages were handed over to the complainant along with original deeds and complainants took possession of the two garages and flat finally and practically bank officials were aware of the fact and they have their no duty to regularize the matter even if it is found that it is illegal construction and regarding mutation and payment of mutation fees, it is absolutely the matter of the complainant not the matter of the op and complainants for the purpose of collecting huge money with bad intention in order to reach their expected illegal object, this false case is filed.  So there is no question of unfair trade practice or deficiency of service on the part of the op and for which the complaint should be dismissed.

                                                  Decision with reasons

          On proper consideration of complaint and written version and also the evidence including the documents, it is clear that Bank authority has tried to say that no trustworthy act has been done by the bank or its branch and flat and garages had been sold as per norm.  But after consideration the entire materials on record it is found that op as per their advertisement intended to sell two garages and one flat and complainant intended to purchase it and on the locality same are garages and flat no doubt.  But at the time of sale, op did not supply the sanctioned plan of the said garages and flat along with deed.  But it is a fact that in case of any sale by any auction by any authority, it is the duty of the authority to sale such property having its legal valid title and sanctioned plan as per municipal sanction plan and truth is that at the time of taking mortgage of any property bank must be satisfied about the good title of the mortgage.  Then it is clear that invariably bank was satisfied about the status of the said garages and flat on the ground floor of the said premises and invariably bank authority before taking mortgage of the property from the gurrantor or the lonee member was satisfied that there was sanctioned plan of the municipality in respect of its status of two garages and flat.

          But truth is that the bank authority did not supply all the material documents in support of the valid title and its status as garages and flat as per sanctioned plan which was not handed over to the complainant.  But relying upon the declaration of the op/bank complainant purchased it as bidder but bank authority did not supply all the valid documents in respect of the said purchase deed of the vendors Narendra Nath Agarwal.  But at this stage it is found that as per Municipal plan it is neither garage nor flat but it was unauthorized construction which was detected at the time of final application for mutation by the present complainant who purchased it in auction.  Then invariably as per law, auction purchaser must not be deprived by the authority who is selling the same because it is mandatory for auction selling authority to be satisfied that they have marketable title in respect of property which is being sold by them and invariably intended purchaser must not be deprived by the auction seller.  In this regard practically there is no defence of the op/bank against complaint.  But considering the entire materials it is found that the whole banking administration took mortgage of the property without verifying any documents and also its title status as per municipal plan etc. and such sort of nexus was there at the time of granting loan in favour of one person or business man by the banking authority and in most of the cases non-marketable title deeds are accepted by the banking authority and loan is granted against some bribe.

          Truth is that op/bank has failed to justify that they sold the property in respect of which there is a sanctioned plan of property which was sold as valid construction as per municipal sanctioned plan.  No sanctioned plan has been filed by the op/bank or no such documents were supplied to the complainant at the time of sale or subsequent to that.  Then it is clear that the property which was mortgaged in favour of the bank and property which was accepted by the bank as mortgage property is not actually garages or flat on the ground floor, because as per West Bengal Housing Regulation 2006 amended up to date and also as per judgement of the Hon’ble Supreme Court any construction which have such status G+4 as per sanctioned plan, the ground floor cannot be treated as flat or garages.  But overlooking the status in all respect and municipal or any corporation valid sanction plan in respect of ground floor for construction of any flat it was mortgaged and in the present case it is proved that in respect of sanctioned plan, the ground floor is a car parking space.  But unauthorized flats are created and garage was created and in respect of that deed, it was created and that was deposited and banking authority received it and released loan in lieu of bribe which is proved in this case and considering the whole conduct of the op, it is clear that banking authority sold the goods to complainant but though advertisement in their auction birding as garages and flat.  But in respect of that no sanction plan was handed over by the op/bank and invariably such an act on the part of the op no doubt is a deceptive manner of selling and fact remains that banking authority cannot sell any such property in auction in respect of which bank has no legal title and bank has failed to prove that there is sanctioned plan in respect of property which are going to be sold in auction.

          So considering the advertisement made by the bank and also document as supplied by the op to the complainant it is proved beyond any manner of doubt that the mortgage was taken by the banking authority who have verified the title and status of the property on the locality but also without considering the sanction plan.  Then invariably advertisement as made by the op for selling the same in auction was completely false and fabricated and it was not verified what is the status as per sanctioned plan and the said mortgage property in the municipal as per sanctioned plan.  So, no doubt the advertisement as made in respect of this item, the property made by the op was fictitious and only for the purpose for deceiving the intended purchasers in auction and no doubt in this case complainant has been deceived by the op and complainant has no fault because that status was two garages and one flat.  No doubt finally it is found that complainant took possession in respect of that and there is no validity as per sanctioned plan of the municipality that means suppressing all the above fact and non-existence of the sanctioned plan in respect of two garages and one flat op/bank sold it and knowing fully well after selling the purchaser shall have to face the consequences and fact remains op did not supply all the documents in support of good title of the vendor/merchant and also mortgagee and practically the whole affairs regarding granting of loan as sanctioned by the op is full of misdeeds of the banking authority and that is common practice which are being followed in almost all the cases loan has been sanctioned in favour of such business men who are very close customers of the bank employees.

          Considering the above fact we are convinced to hold that it is the duty of the bank to handover the good title in respect of the property sold when auction purchaser has paid a good money to the bank for purchasing the same and for which as mortgagee banking authority must have to satisfy the good title in respect of property, otherwise op/bank shall have to regularise by giving relief to the complainant what he has received by deceiving the intended purchasers.  But in this case it is clear that op has not tried to convince this Forum either expressing in broadly in their written version or evidence that they supplied all valid papers in support of its validity and status of two garages and one flat as per sanctioned plan.  At the same time they have not denied the allegation of the complainant that the said ground floor is only car parking space and there is no sanctioned plan in respect of two garages and one flat which are actually prepared and in respect of which possession is handed over to the complainant.

          Then it is clear that op has admitted that in respect of property which has been sold by the op/bank as mortgagee has no legal and valid sanction of the municipal authority.  Then it is proved that op sold some vexatious property to the complainant and for which invariably op/bank is liable for making its good title, otherwise op/bank shall have to refund the said amount along with interest @ 8% p.a. over the said amount from the date of receiving of the amount from the complainant.  Particularly in this case Ld. Lawyer for the op again and again tried to say that it was sold in auction, so the seller/bank has no liability and it is the liability of the complainant.  But in our view such an argument is found without any foundation.  But malpractices as made by the banking authority is well proved and deceptive manner of advertisement had been practiced by the banking authority from its inception for which in the written version or in the evidence ops are very silent about the status of the property which has been sold as per sanctioned plan and copy of sanction plan has not been produced.

          So, it is proved that complainant by purchasing the said articles has been deceived by the banking authority and in fact same are not the garage and flat as per sanctioned plan, it is neither garage nor a flat but same had been prepared otherwise illegally and for which mutation has not been made in respect of that and municipality rightly repudiated that and for the purpose of regulating the same invariably huge amount is required.  But invariably it is impossible for the complainant to do that and if any further amount is required to validate the same invariably in such a situation it is proved that op/bank has their no valid title even then when op sold away to auction purchaser, he cannot anyway dent his liability to the purchaser.  But that is the common practice of the dishonest bank administration and bank administration at the time of taking mortgage are not in a mood to verify the title, status of the land or property as per sanctioned plan after verifying the record because they got some documents from the dishonest persons who are taking loan and sanctioned loan without verifying documents and in this case same thing is happened and for the laches and deceptive manner of practice practically complainant has been deceived by the op and as auction purchaser, op is also liable to handover the good title in favour of the complainant.

          But in this case op has failed to handover the good title in respect of the property.  So, invariably op acted illegally by adopting unfair trade practice and their service is proved negligence and deficient in manner for which the complainant is entitled to such compensation as prayed for regularizing the said construction as per municipal rules and regulations and in this regard complainant is no doubt entitled to get such relief.  When the allegation as made by the complainant is not denied specifically in the written version or in the evidence.

          In the result, the complaint succeeds.

          Hence, it is

                                                           ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the ops.

          Complainant is hereby directed to regularize the sanctioned plan with the municipal in respect of the property at their own cost and make it a valid construction in respect of two garages and flat and for that purpose if any cost is required that shall be paid to the municipality which shall be paid by the op and if op is unwilling to do that in that case op shall have to pay Rs.6,00,000/- as compensation to regularize the said sanctioned plan and for sufferings.

          Op shall have to comply the order within one month from the date of this order and op may adopt one of the alternative relief as granted in favour of the complainant but it must be complied by the op/bank within one month from the date of this order failing which for non-compliance and disobeyance of the Forum’s order, op shall have to pay penal interest @ Rs. 500/- per day till full satisfaction of the decree.

          Further op for adopting unfair trade practice and deceitful manner of service and also for rendering negligence and deficient manner of service, op is imposed punitive damages of Rs.25,000/- which shall be paid to this Forum and it is imposed to check such sort of malpractices by the ops/bank in selling such mortgage property in auction to the intended buyers.

          Op is hereby directed to comply the order of this Forum very strictly within one month failing which penal action shall be started against them and further penalty and fine may be imposed upon them for which ops shall be liable.