UTPAL KUMAR BHATTACHARYA, PRESIDING MEMBER
Filing the instant Appeal u/s 15 of the C.P. Act, 1986, the Appellants/OPs challenged the judgment and order Dt.18.08.2015 passed by the Ld. District Forum, North 24 Parganas in Complaint Case No. 672/2014 allowing the complaint on contest against the Appellants/OPs .
The Appellants /OPs were directed to refund the cost for the excess area being the difference between 418 sq.ft., the area as per notice and 172 sq.ft., the actual area handed over to the Respondents /Complainants within two months from the date of the impugned order.
The Appellants/OPs were further directed to pay compensation and litigation cost of Rs.10,000/- and Rs. 5,000/- respectively to the Respondents /Complainants again within two months from the date of the impugned order, failing which , as ordered , Appellants/OPs would have to pay a punitive damage @ Rs. 100/- per day from the date of the impugned order till its realization and the said amount of punitive damage , on collection , was ordered to be deposited by the OPs in the State Consumer Welfare Fund.
The facts, in brief, of the complaint were that the OPs who used to provide financial assistance to the borrower keeping the properties of the borrower / guarantor in mortgage , extended loan to a party keeping in mortgage a shop room , stated to be the guarantor’s property. The said loan , due to non- repayment , was turned to NPA and the Appellants/OPs had to issue the Demand Notice u/s 13 ( 2 ) of the SARFAESI Act and then, after certain interval, to issue notice u/s 13(4) ibid and to take thereafter the symbolic possession of the property .
The borrowers , however, did not prefer to avail itself of any relief before the DRT or from any other legal Forum . The Appellants/OPs then were left with no alternative but to put the property in open auction with a view to realising the outstanding dues .
The auction was published in daily leading newspaper with the area of the shop recorded therein as 418 sq.ft., the Respondents /Complainants , after contracting the OP No.2 being the Branch Manager of the OP No. 3 Bank, gathered information that Rs. 15,00,000/- was fixed as the minimum offering rate in respect of the property on auction , offered a price of Rs. 15,10,000/- , acceptable to the Appellants/OPs and completed the payment with last instalment of Rs. 4,50,000/- being paid on 20.07.2012 as per memo of consideration shown at running page 50 of the case record, inner page 12 of the agreement.
The Appellants/OPs, as alleged , allowed the Respondents/Complainants to inspect the auction property not before 25.07.2012 when the doors of the shop rooms , after the full price was paid and sell letter to the Respondent/Complainant issued, were opened. The Respondents /Complainants, then , on measurement of the subject property , became astonished to see that the area of the subject shop was more or less 172 sq.ft., and not 418 sq.ft. , as published in the notice.
The Respondents /Complainants , realizing the facts that the existing space of the subject shop was hardly having the capacity to accommodate the stock of medicines and also realizing that they had been deceived by the Appellants/OPs through their deceptive and unlawful trade practices , filed the complaint case before the Ld. District Forum. The impugned judgment and order arose from the said complaint case.
Heard Ld. Advocates appearing on behalf of either side .
The Ld. Advocate appearing on behalf of the Appellants/OPs submitted that the area of the subject property was quoted as 418 sq.ft., instead of 172 sq.fit., through mistake and the matter was brought to the notice of the Respondents/Complainants before signing of the deed of conveyance .
Drawing attention to running page No. 41 , inner page No. 3 of the aforesaid Deed at 2nd para , the Ld. Advocate mentioned that the actual area of the shop was quoted therein as 172 sq.ft., and the matter was more elaborated at running page 44 of the case record , inner page -6 of the Deed where the reason for misquoting the area as 418 sq.ft., instead of 172 sq.ft., was unambiguously recorded as a mistake on the part of the Appellants/OPs .
The schedule of property at running page 48 , inner page 10 of the agreement and the approved plan at running page -51 indicated that the area of the subject property was 172 sq.ft., . The Respondents/Complainants, as submitted , signed the Deed with full knowledge about the matter with no objection and thereafter , filed the complaint case on expiry of the statutory period for filing which rendered the complaint barred by limitation. The activities of the Respondents/Complainants, as contended , were an effort to derive unlawful benefit in the given circumstances.
The Ld. Advocate laid greater stress upon the fact that the subject property, being repossessed and put on auction by the Appellants/OPs under SARFAESI Act , was beyond the purview of the C.P. Act , 1986.
In the above context , the Ld. Advocate referred to the decision of the Hon’ble Apex Court in Civil Appeal Nos. 1994 and 1995 of 2006 along with others with SLP © Nos. 25250 of 2007 with others . [UT Chandigarh Administration and Anr. –vs- Amarjit Singh and Ors.] reported in 2015 (3) CPR 4 (SC) wherein the Hon’ble Apex Court was pleased to observe that there was no hiring or availing of services by a person bidding in auction.
The Ld. Advocate further cited the decision of the Hon’ble National Commission in Revision Petition No. 3614 and 3615 of 2013 [ Sunil Kr./ and Anr.-vs The Administrator , New Mandi Township] reported in 2014 (2) CPR 401 (NC) wherein the Hon’ble National Commission was pleased to observe that the Consumer Forum had no jurisdiction to try cases of open auction.
Moreover, as continued , the Respondents / Complainants purchased the property for establishing one medicines shop, a purpose which was commercial in nature.
The Ld. District Forum , as continued , passed the impugned order without proper appreciation of the case. The Ld. Advocate, accordingly, prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondents/Complainants , per contra , submitted that the Respondents / Complainants could inspect the subject shop room not before 25.07.2012 and then only they could a ascertain that the actual area of the shop room was more or less 172 sq.ft., as against 418 sq.ft., recorded in the notice.
As submitted , although the Respondents/Complainants wanted to get the shop room inspected prior to the finalization of the purchase process , they were prevented from doing so by playing trick on them by the Appellant /OPs. Every time the Appellants/OPs avoided to show them the shop room on one pretext or the other .
As submitted, the Respondents/Complainants, ultimately had to execute the Deed of Conveyance yielding to the misdeeds on the part of the Appellants/OPs only to ensure prevention from any mis-recording of the property particulars in the Deed of Conveyance.
The Ld. Advocate , with the submission, prayed for the Appeal to be dismissed affirming the impugned judgment and order .
Perused the papers on record . It appeared that the Respondents/Complainants , admittedly , had knowledge about the fact that the actual area of the shop room was lesser than that published in the notice .
The Deed of Conveyance appeared to us to be more acceptable document where the wrong printing of a bigger area was admitted as a mistake on the part of the Appellants/OPs. The plan attached to the Deed of Agreement also reflected the actual area of the shop room. Since the Respondents/Complainants signed the Deed with full knowledge of the issue , they should not plead their ignorance or any other reason to disown their liability or to violate the terms of the agreement which were binding upon the parties.
Moreover, the Respondents/Complainants , as appeared , received possession of the property on 25.07.2012 and filed the complaint on 12.12.2014 . Their long silence for more than 2 years only indicated their indifference in filing the Appeal within time even being aware of the fact as to the as to the shortage of the area of the shop room . Further, from above , it became clearly evident that the Respondents/Complainants took more than 2 years in filing the Appeal since the day on which the cause of action was initiated and thereby made the complaint barred by limitation.
Above all, the property in question was re-possessed and put on auction by the Appellants/OPs under SARFAESI Act. It is a settled issue that the such properties are beyond the purview of the Consumer Protection Act , 1986 we keep our reliance to the decisions of the Hon’ble National Commission and Hon’ble Apex Court cited by the Ld. Advocate of the Appellants /OPs at the time of his submission .
Above being our observations , we are of the view that there was material irregularity in the order passed by the Ld. District Forum and the Appeal has merit to be favourably considered . Hence,
Ordered
That the Appeal be and the same is allowed . The impugned order stands set aside . No order as to costs.
