Date of Filing : 15/09/2016

Order No.  20  dt.  15/01/2018

          The case of the complainant in brief is that the o.p. in accordance with the provisions of SARFAESI Act, 2002 published possession-cum sale notice in the Times of India with the intention of selling the property being Flat No.101, 1^st floor Syndicate Enclave, 12, Dhananjoy Bhattacharjee Street, P.O. Bally, Howrah. The complainant submitted a sealed tender with a demand draft of Rs.41,000/- as bid money wherein the complainant quoted an amount of Rs.9,13,690/-. The tender submitted by the bidders were opened on 21.12.2010 and the complainant was selected and acceptance letter was issued. After the settlement of the said transaction a sale certificate was issued and delivery and possession of the scheduled property was handed over. But actually  scheduled property was not handed over. The complainant requested the o.p.bank deliver the possession but the same was not provided. The o.p.bank requested the complainant to deposit a sum of Rs.16,429/- towards the police cost at the SBI, Howrah Branch and came to learn that the Commissioner of Police demanded the amount from the bank not from the complainant. The bank has fraudulently obtained the said amount from the complainant. The complainant got the possession of the said flat on 21.03.2014 and during that period the complainant paid rent to the landlord to the tune of Rs.1,30,500/-. On the basis of the said fact the complainant prayed for direction upon the o.p. to pay an amount of Rs.6,97,715/- and compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/-.

                O.p. contested the case by filing w/v and denied all the material allegations of the complaint. It was stated that since the said property was mortgaged to the bank and the borrower failed to pay the loan amount and as per SARFAESI Act, 2002 the possession was taken by the bank and the same was put on sale by publication of sale in the newspaper. As per the said notice e-auction was held in respect of the said flat and complainant being the highest bidder his bid was accepted and sale certificate was issued in favour of the complainant. The District Magistrate by his order dated 17.10.2011 directed for taking possession of the flat in question. As per order of the DM the complainant was asked to deposit the amount. After depositing of amount the bank authorities along with District Commissioner went to take possession of flat and on reaching there it was found that Mrs Ratna Goenka was there and she was in ailing condition for which she could not dispossessed on humanitarian ground. The Hon’ble High Court had also issued an order in respect of writ application filed by the original owner of the flat. The complainant thereafter filed a writ application before the Hon’ble High Court and the Hon’ble Court directed the o.p. to handover the possession, though the complainant claimed for damage but no such order was passed by Hon’ble High Court. It was further stated that as per section 34 and 35 of SARFAESI Act, 2002 no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any of the matter which the Debts Recover Tribunal or Appellate Tribunal is empowered by or under this act. On the basis of the said fact the o.p. prayed for dismissal of the case.

                On the basis of the pleadings of the respective parties following points are to be decided :-

1. Whether the complainant purchased the property through an auction sale?
2. Whether by getting possession of the purchased property by the complainant attracts deficiency in service on the part of the bank?
3. Whether the complainant will be entitled to get any relief as prayed for?

Decision with reasons :-

                All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

                Ld. Lawyer for the complainant argued that the o.p. in accordance with the provisions of SARFAESI Act, 2002 published possession-cum sale notice in the Times of India with the intention of selling the property being Flat No.101, 1^st floor Syndicate Enclave, 12, Dhananjoy Bhattacharjee Street, P.O. Bally, Howrah. The complainant submitted a sealed tender with a demand draft of Rs.41,000/- as bid money wherein the complainant quoted an amount of Rs.9,13,690/-. The tender submitted by the bidders were opened on 21.12.2010 and the complainant was selected and acceptance letter was issued. After the settlement of the said transaction a sale certificate was issued and delivery and possession of the scheduled property was handed over. But actually  scheduled property was not handed over. The complainant requested the o.p.bank deliver the possession but the same was not provided. The o.p.bank requested the complainant to deposit a sum of Rs.16,429/- towards the police cost at the SBI, Howrah Branch and came to learn that the Commissioner of Police demanded the amount from the bank not from the complainant. The bank has fraudulently obtained the said amount from the complainant. The complainant got the possession of the said flat on 21.03.2014 and during that period the complainant paid rent to the landlord to the tune of Rs.1,30,500/-. On the basis of the said fact the complainant prayed for direction upon the o.p. to pay an amount of Rs.6,97,715/- and compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/-.

                Ld. Lawyer for the o.p. argued that since the said property was mortgaged to the bank and the borrower failed to pay the loan amount and as per SARFAESI Act, 2002 the possession was taken by the bank and the same was put on sale by publication of sale in the newspaper. As per the said notice e-auction was held in respect of the said flat and complainant being the highest bidder his bid was accepted and sale certificate was issued in favour of the complainant. The District Magistrate by his order dated 17.10.2011 directed for taking possession of the flat in question. As per order of the DM the complainant was asked to deposit the amount. After depositing of amount the bank authorities along with District Commissioner went to take possession of flat and on reaching there it was found that Mrs Ratna Goenka was there and she was in ailing condition for which she could not disposed on humanitarian ground. The Hon’ble High Court had also issued an order in respect of writ application filed by the original owner of the flat. The complainant thereafter filed a writ application before the Hon’ble High Court and the Hon’ble Court directed the o.p. to handover the possession, though the complainant claimed for damage but no such order was passed by Hon’ble High Court. It was further stated that as per section 34 and 35 of SARFAESI Act, 2002 no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any of the matter which the Debts Recover Tribunal or Appellate Tribunal is empowered by or under this act. On the basis of the said fact the o.p. prayed for dismissal of the case.

                Considering the submissions of the respective parties it is an admitted fact that the complainant purchased a property through Auction Sale. It is also found from the materials on record the flat in question was mortgaged by bank wherefrom the loan was provided to the borrower for purchasing the flat. During the continuance of the loan amount the property purchased by the borrower was mortgaged to the bank. Since the borrower failed to pay the loan amount as per SARFAESI Act, 2002 the authorized officer took possession of the flat and issued a sale notice through newspaper. The complainant being attracted with the said advertisement submitted the tender along with bid money and his tender was accepted and the sale notice was issued. At the time of taking flat in question it was noticed that Mrs Ratna Goenka was there and she was in ailing condition for which she could not dispossessed on humanitarian ground. The Hon’ble High Court had also issued an order in respect of writ application filed by the original owner of the flat. The complainant thereafter filed a writ application before the Hon’ble High Court and the Hon’ble Court directed the o.p. to handover the possession, though the complainant claimed for damage but no such order was passed by Hon’ble High Court. It is relevant to mention here that the complainant purchased the property through auction and in this respect we can rely on a decision as reported in 2017 (2) CPR 110 (NC) wherein it was held that auction purchaser do not come under category of consumer. It appears from the materials on record the complainant though filed a writ application praying for direction upon the respondents to deliver the possession of the flat in question and also prayed for damages against the complainant but no such order was passed by Hon’ble High Court. It is pertinent to mention here that as per section 34 and 35 of SARFAESI Act, 2002 no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any of the matter which the Debts Recover Tribunal or Appellate Tribunal is empowered by or under this act. In view of discussion as stated hereinabove and relying on the decision of 2017 (2) CPR 110 (NC) we hold that the case filed by the complainant has got no merit and the complainant will not be entitled to get the relief as prayed for.

                Thus all the points are disposed of accordingly.

                Hence, it is ordered,

                that the case no.67/2016 is dismissed on contest without cost against the o.p.

                Supply certified copy of this order to the parties free of cost.