This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that after going through one advertisement of OP Bank, regarding sell of one flat of M/s. Amtech (electrical division), proprietor Smt. Mitra Das of B.H. 130 Salt Lake, Sector –II, Kolkata – 700 091, situated at 246, Netaji Colony, P.S. Baranagar, measuring super built area of 970 sq. ft. more or less, 3 bed rooms, one kitchen, one dining, one verandah, one drawing room with easement right on common matters of the flat building except community room together with undivided and impartible proportion share of land on which the flat building stands. The above flat constructed on a land measuring 1 cottah 14 chittak 35 sq. ft. more or less in E/P No.246, Netaji Colony, Baranagore, Municipality ward no.27, holding no.297, under P.S. Baranagore, Sub-Registry-Cossipore, Dum Dum being butted and bounded in the name of Smt. Mitra Das, w/o. Ashis Kumar Das and price fixed at Rs.9.32 and earnest money deposit was Rs.94,000/-.
Complainant was in need of one flat for dwelling purpose, so complainant deposited Rs.94,000/- by a pay order no.002221 drawn on United Bank of India, Anandapur Branch, Kolkata – 700 107 dated 18-12-2013 for purchase of the said flat OP confirmed to the complainant as highest bidder by e-auction on 03-01-2013 and the complainant was asked to deposit 25 percent of the bid amount on 04-01-2013.
After the said auction when complainant went for physical inspection of the said property one notice dated 18-12-2012 was pasted on the wall by Union Bank of India, reporting that the said flat had already sold and possession has been given to the prospective purchaser and the sale certificate dated 18-12-2012 Ref No.RO; KOL;LAW;429/12TB was annexed there. After initial shock on physical inspection of the flat possessed by a party, by virtue of sale by Unionn Bank of India, complainant approached the OP and demanded refund of Rs.94,000/- of earnest money deposit and declined to deposit 25 percent of bid money due to fraudulent practice of the OP, as OP is not in a position to give physical possession of the said flat transfer of title deed was also questionable. Complainant complained before the OP that e-bidding done by the OP Bank after the same flat had been sold by Union Bank of India should be considered as illegal and of fraud practice but the OP refused to entertain any complaint from the complainant and asked the complainant to deposit the rest amount. Thereafter, complainant lodged a complaint against the OP for deficiency of service and fraudulent practice to RBI, by email for mal-practice adopted by the bank and RBI acknowledged the same through a letter dated 29-01-2013 by one Sri Biswajit Nandy, Assistant Manager who informed that they have started proceedings against OP.
Complainant further stated that complainant received one letter dated 23-02-2013 from OP Allahabad Bank stating “you have failed to deposit, we therefore provide you one more opportunity to deposit within 9th March, 2013, failing which the earnest money shall be forfeited without any further communication. Bank is holding perfect title and also able to pass the bona fide title to you”. Complainant also appealed to the OP with copy for refund of earnest money on 09-03-2013 and complainant also assured the OP that the complainant was ready to pay the remaining amount if they would confirm in writing that they could give the complainant physical possession as well as transfer of the title deeds free from all encumbrances, solving all litigations.
On 16-03-2013 Allahabad Bank replied “the Bank is not in physical possession of the said property, the District Magistrate has heard the matter and we are likely to get appropriate order from the D.M. U/s.14 of the SARFAESI Act. The Authorized Officer shall be in a position to deliver physical possession only after receipt of DM’s order”.
Further in a letter dated 27-02-2013 Allahabad Bank confessed to RBI “the borrower had created valid and perfect mortgaged of the said property in favour of the Bank(Allahabad Bank) in the month of December, 2003 as security for the loan. Thereafter, the Borrower illegally transferred the property in favour of one Sri Amal Chandra Dutta in the year 2004 who created charge in favour of Union Bank of India in the year 2006. Our branch has filed application with the DM Court for taking physical possession of the property”. Said letter was also filed with the complaint.
Complainant submitted that as per auction terms 25 percent of the bid amount on 04-01-2013 but before going to deposit the amount complainant found that discrepancies and also transfer of the said property of the Union Bank of India on 18-12-2012 and possession has been handed over to which was found by the complainant and Bank has admitted the same but even this OP refused to refund the same and truth is that OP Bank admitted that possession is not with them in possession of the of the flat same has already sold by Union Bank of India and possession has been handed over perspective purchaser. So, in the above circumstances complainant has been deceived by the OP and practically the defence of the OP is completely disgusting and for their deficient and negligent manner of service and without getting proper service of the OP public auction deed which completely bid in law and in the circumstances complainant prays for refund of money including interest and also compensation etc.
On the contrary OP by filing written statement submitted that it is specifically submitted that bank is not in a position to physical possession of the property to be sold only symbolic possession has been taken by the Bank. However, DM has heard the matter and OP likely to get appropriate order from the DM u/s.14 of the SARFAESI Act and A.O. shall be in a position to deliver physical possession only after receipt of DM order and physical possession will be taken actually. Thereafter the purchaser will get perfect title and possession of the property after making entire payment of the bid amount.
OP has also admitted that Union Bank of India sold the flat but said sale is illegal. It is also admitted that complainant lodged a complaint to RBI and they submitted proper reply to RBI but from RBI they have not received any reply. Further it is submitted that OP had already informed the complainant that physical possession would be given after obtaining order of the District Magistrate and after receipt of the order from the DM the matter shall be reported to the complainant but complainant intentionally and deliberately has made all false plea before this Forum and it is specifically mentioned that Union Bank of India has made a second charge which is illegal and ultra vires but OP is the first mortgagee and Union Bank is the second mortgagee, as per law only preferential mortgagee is eligible to transfer the title of deed which is well known to the complainant. so, the entire allegation is false and fabricated for which the complainant is not entitled to get any benefit because the said amount has already been forfeited as complainant has not paid balance 50 percent of the paid amount as per auction clause and this OP has prayed for dismissal of this case.
Decision with Reasons
On proper study of the complaint including written version and also considering the argument as advanced by the Ld. Lawyer of both the parties and further considering the written version of the OP it is clear that complainant deposited Rs.94,000/- as advance money for e-auction as conducted by Assistant General Manager, H.P. Narula of Allahabad Bank and it is admitted fact that complainant deposited Rs.94,000/-. Further it is proved that at the time of physical inspection of the property by the complainant after depositing Rs.94,000/- as advance amount for bidding he found that the possession of the said disputed flat has already been handed over to successful buyer in respect of another e-auction which has already been conducted and completed by Union Bank of India and OP Bank has no possession in respect of the said property and complainant reported the matter to OP by a letter dated 16-01-2013 of the complainant that the bank is not physical possession only symbolic possession has been taken by the Bank however, DM has heard the matter and they are waiting for proper order from DM and thereafter till physical possession on receipt of DM’s order and thereafter, physical possession would be actually taken by them and after that purchaser will get perfect property on payment of the bid amount. Considering the above facts it is clear that at the time of e-auction practically OP had no possession in respect of the said property because symbolic possession is not actual legal possession so, OP had no capacity to deliver the khas possession of the property even after accepting the entire bid amount. Moreover, till final hearing of the case OP has failed to produce any order of the DM in respect of the dispute as arisen in respect of the present disputed flat when it is admitted by the OP that Union Bank of India had already sold away and handed over possession to the successful purchaser and fact remains that in respect of present property actual possession was delivered by Union Bank of India to his successful bidder and purchaser and that purchaser is in possession in that case DM has no legal authority to decide the matter in view of the fact only the matter can be adjudicated in Civil Court not by DM that means entire property which was placed for auction by the OP is not a property free from all incumbrances and no doubt the OP’s title over the property is invalid without a proper decree from the Civil Court so, OP cannot claim as owner of the property but they have their no right to sell it apparently when it is proved that at the time of auction the OP has no possession and title over the property. But may have some disputed title but it is the provision of law that in case of auction sale after deposit of the advance amount by the highest bidder, the Bank shall have to handover all such document to satisfy the highest bidder that OP has his actual physical possession, actual legal title over the property and no doubt any auction if it is not proved by the OP in that cse the highest bidder can refuse to accept the said property on payment of entire amount and to that effect the allegation of the complainant is quite correct and no doubt OP has also admitted that fact and it is also proved from letter dated 16-03-2013 issued by AGM, Allahabad Bank because in that letter AGM has admitted that the purchaser will get perfect title and possession of the property after making the entire property of bid amount but at the same time it is specifically mentioned that the authorized officer shall be in a position to physical possession only after receipt of DM’s order and physical possession shall actually be taken by the OP after receipt of the DM’s order and in that letter Assistant Manager expressed their expecting such order from DM.
Most interesting factor is that till the final hearing of the argument of this order OP has failed to produce proper DM’s order to show that OP has got possession of the property actually and they have their good title so it is clear that this property is no doubt a complicated property but it is true whatever may be the position, the Union Bank of India already sold away the property to the successful bidder cum purchaser and possession has been delivered to the purchaser also and that purchaser is in possession. In the above situation we are inclined to hold that as per auction sale condition if after deposit of the advance amount by the highest bidder, seller fails to produce such valid document to show that they have their right, title interest and actual physical possession on the property in that case a dissatisfied bidder may pray for refund of the entire advance amount and in that case the seller bank are legally bound to refund that advance amount along with banking interest but in this case OPs have tried to convince that they shall invariably deliver khas possession and they shall have to prove their perfect title but that is not the provision of law and truth is that in this case till today i.e. up to the date of passing judgment OP bank has failed to produce any DM’s order to show that actual possession has been taken by DM and it was handed over to the OP bank and previous deed of sale executed by Union Bank of India in favour of their highest bidder has been cancelled by the DM, so, it is proved that up to this stage the OP Bank has their no legal right to take any possession when that possession is legally transferred by the UBI to its highest bidder cum seller who is in possession of the property and at the same time it is proved OP has failed to prove its clear and valid title in respect of the property by any means whatsoever. Then it is clear that OP placed a disputed property in auction in respect of which the two banks that is the OP Bank and Union Bank of India claimed their right and it is admitted position that Union Bank of India had already sold away the property in auction and possession had already been handed over to their highest bidder purchaser who is in possession. Further from the copy of the letter dated 18-12-2012 issued by authorized officer of Union Bank of India it is clear that vide their letter they have reported to their seller and handed over final sale certificate under Rule 9(6) stating that Union Bank of India sold away their said property in favour of M/s. SPT International of Kolkata – 700 001 and description of the property is same as found in the present case also and by that sale certificate it is also declared that that sale was conducted being authorized by the Union Bank of India as per Surfaesi Act, 2002 and u/s.13 with Rule 12 of security interest (Enforce Rule, 2002) so, it is clear that sale certificate in respect of the property had already been issued by the authorized officer of Union Bank of India as per Surfaesi Act and, in fact, under any circumstances, as per Surfaesi Act sales certificate which was issued cannot be declared void etc. by DM and if it is required to be changed etc it must be decided by the Debts Recovery Tribunal or by Civil Court and considering certificate it is clear that OP has no legal right in respect of their said property up to this stage and said sale certificate has not been declared invalid by any competent authority so it is proved that in respect of the present property actually the auction purchaser M/s. SPT International Finance Ltd. is the owner and the officer of the OP may file case against them along with Union Bank of India and after disposal of the said matter the OP’s right to sell the present property in auction may be determined but not before that and considering that fact we are convinced to hold that entire publication as made by the OP for auction sale was against the rule and in fact the renowned doctor the complainant due to such publication and such baseless auction of the property was misguided when it is palpably proved from the sale certificate issued by the officer of Union Bank of India dated 18-12-2012 that that property had already been sold to M/s. STP International and Finance Ltd. on 18-12-2012 and that STP International and Finance Ltd. is the actual owner and actual possesser of the property.
In the light of the above observation we are convinced to hold that entire act of the OP to forfeit the said amount is completely beyond their jurisdiction and truth is that OP’s version that they have their symbolic possession are completely baseless at this stage. In view of the above fact complainant rightly pointed out the fact in respect of no title or possession of the OP in respect of the present auction property and when that is the fact then invariably OP had no other alternative but to refund said amount along with banking interest but that has not been done and, as such, act of OP is completely uncalled for, illegal and negligent in manner.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OP Bank.
OP Bank is hereby directed to pay Rs.94,000/- the advance deposited money along with 6 percent interest over the same from the date of the receipt of the said amount sends by the OP and till its full payment to the complainant.
For causing mental pain, agony and for harassing the complainant in such a manner by the OP, OP is hereby directed to pay a compensation of Rs.10,000/- to the complainant also.
Litigation cost, compensation, refund of money, interest etc. shall be paid within 15 days from the date of this order by the OP failing which for disobeyance and non-compliance of the Forum’s order OP shall have to pay penal interest at the rate 200/- per day till full compliance of the Forum’s order and if it is collected it shall be deposited to Forum’s account OP is directed to comply the order very strictly failing which penal action against him may be taken for which further penalty and fine may be imposed.
