Haryana

Ambala

CC/29/2022

Simranjeet Singh Saini - Complainant(s)

Versus

Authorized Signatory Bank of Baroda - Opp.Party(s)

01 Dec 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	29 of 2022
Date of Institution	:	01.02.2022
Date of decision	:	01.12.2023

 Simranjeet Singh Saini S/o Sh. Hollinder Singh, R/o 15 Partap Nagar, Mahesh Nagar, Ambala Cantt, Haryana

          ……. Complainant.

                                                Versus

1. Authorized Signatory, Bank Of Baroda, Baroda Bhawan, RC Dutt Road, AlkaPuri, Baroda 390-007
2. Regional Manager, Bank Of Baroda ZOSARB, Branch at SCO No. 905, 2nd Floor NAC, ManiMajra, Chandigarh
3. Chief Manager, Bank Of Baroda, Naraingarh Branch Near Panjlasa Chowk Sadhaura Road, Naraingarh, Distt. Ambala

                                                                                   ….…. Opposite Parties.

Before:       Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.           

 

Present:      Shri S.K. Mehandiratta, Advocate, counsel for the complainant.

                    Shri Saravjeet Singh, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, Presiden.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

 (i) To refund Rs.605000/- along with Rs.42350/- i.e. Stamp duty along with Rs.10000/- as miscellaneous expenses including transportation charges etc.

(ii) To pay compensation of Rs.50000/- for physical and mental harassment suffered by the complainant

 (iii) To pay Rs.10000/- as litigation charges

(iii) To execute the sale deed in favour of the complainant qua the property in question..…” 

                   OR

Grant any other relief which this Learned Commission may deems fit.

2.           Brief facts of the case are that the  OPs  got published information regarding e- Auction of property bearing Khewat/Khatuni no. 1148/1353 (as per jamabandi for the year 2013-14) @ Khewat/Khatauni 1240/1459 (as per jamabandi for the year 2018-19), Khasra No. 51//17/1(4-0) of 8/720 Share i.e 00M-08S i.e 25.67 Sq. Yards waka Moza no. 190 registered vide transfer deed 1726 dated 03/10/2016 situated at Village Dera. Tehsil Naraingarh Distt Ambala in the name of Mr. Ankur Mehta S/o Ashok Mehta. The  OPs  had also assured and confirmed that the above said property was secured, mortgaged at the time of loan availed by M/s Shree Ganesh Poly Plast Pvt. Ltd. and the said account of Borrower was classified as non-performing asset (NPA) on 27/01/2019 and further on default in repayment of loan, the bank being "Secured Creditor" issued demand notice under section 13(2) under SARFAESI Act 2002 on 03/04/2019. On failure of M/s Shree Ganesh Poly Plast Pvt. Ltd. (i.e Borrowers & Guarantors) to repay the loan amount along with interest within stipulated time, the OPs  through their authorized officer took measures under Section 13(4) under SARFAESI Act 2002 on 11/12/2020 and had taken over actual and physical possession of all the "Secured assets" and as per the procedure under SARFAESI Act,2002 read with provision of Security Interest Enforcement Rules, 2002, the said mortgaged property were put to public e-auction sale, after giving due proclamation/notice in the widely circulated newspaper on 03/02/2021. On the basis of above said proclamation done by the  OPs, the complainant was the successful bidder in the auction sale held on 24/02/2021 in respect of the scheduled property and the said bid was accepted by the  OPs  being " Secured Creditor". The complainant was the highest bidder and deposited Rs.605000/- with the OPs and the sale of the said property  was confirmed in favour of the complainant and further sale certificate dated 16/11/2021 was also issued. At the time of bidding for the scheduled property, and at the time of conducting e-auction the OPs had disclosed and assured the complainant that the scheduled property is free from all type of encumbrances and litigations. He was asked by the OPs to purchase stamp paper for execution of sale deed for which the complainant purchased stamp duty of Rs.42350/- on 08/03/2021 to get execute sale deed in his favour. However, the complainant was surprised and shocked when the revenue authorities disclosed that sale deed could not be executed as there is injunction orders regarding scheduled property. The OPs failed to disclose this fact at the time of E-auction bidding and illegally, wrongly and with malafide intention got deposited amount of Rs.605000/- from the complainant. It has also come into the knowledge of the complainant that Gram Panchayat of the locality is also claiming the scheduled property/land mentioned above is of Gram Panchayat and further have also installed a sign board at the spot that the shops will be damaged form the spot and civil litigation is also pending in this regard which was also not disclosed to the complainant by the  OPs. Under those circumstances, the complainant served legal notice dated 03/01/2022 to the  OPs but no positive steps were taken in the matter. Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version wherein they raised preliminary objections to the effect that the present complaint is not maintainable; the complainant is not a consumer;  the complainant has alleged fraud upon him, therefore only civil court can decide this complaint; the property is sold on "As is where is", "As is what is", and "Whatever there is" was based on the terms and conditions contained in the auction notice etc.  On merits, it has been stated that before buying the said property, the complainant should have made his own discreet independent inquiries & verify the concerned Registrar/SRO/Revenue Records/ other Statutory authorities regarding the encumbrances and claims/rights/dues/ charges of any authority such as Sales Tax, Excise/GST/Income Tax besides the Bank's charge and satisfy themselves regarding the, title nature, description, extent, quality, quantity, condition, encumbrance, lien, charge, statutory dues, etc over the property in question. The e-auction advertisement does not constitute any commitment or any representation of the bank. The account of the borrower M/s Shree Ganesh Polyplast was classified as NPA as per the guidelines issued by the RBI on the subject and accordingly the Bank initiated the recovery action including action under SARFAESI Act. Earlier Sale Certificate was issued to the complainant on 05.03.2021 after making the full and final payment of the auction amount to the Bank. The complainant never approached the Bank for execution of Sale Deed till November, 2021, for the reasons best known to him. In November, 2021, the complainant approached the OPs and requested for issuance of fresh Sale Certificate vide his letter dated 16.11.2021 and to incorporate the complete address of the auction purchaser and the recital as per latest Jamabandi for the year 2018-19 in the Sale Certificate. Accordingly, revised Sale Certificate was issued by the Bank dated 16.11.2021 on the request of the complainant. As per available record the property in question was free from all encumbrances and there was no stay or restraint order from any Court w.r.t. auction of the mortgaged property by the Bank. No notice from any Court as alleged has been received by our Bank restraining the Bank to auction the property in question. On perusal of the online Jamabandi for the year 2018-19 it is observed that there are two Rapats regarding stay passed by the Court of Smt. Guneet Arora (ACJ) SD in 2016 and 2018. As per the record available with the Branch, no stay/restraint order is received from any Civil Court at Naraingarh or from the Court of Smt. Guneet Arora (ACJ) SD in 2016 and 2018. As per record available with the OPs the property in question was mortgaged by the Owner Mr. Ankur Mehta and original registered title documents were deposited in the Bank for Creation of Mortgage. The registration of the title documents itself is sufficient to show that the property was owned by the Mortgagor and not by the Gram Panchayat as alleged by the complainant. Further, there is no mention of ownership of Gram Panchayat in the latest online Jamabandi for the year 2018-19. Rest of the averments of the complainant were denied by the answering OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-8 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs tendered affidavit of Ankush Kalia, Senior Manager, Bank of Baroda as Annexure OP/A alongwith documents Annexure OP-1 to OP-7 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the complainant and learned counsel for the OPs and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by selling the property in question which was not free of all encumbrances and at the same time, concealing this fact at the time of selling the same, the said act amounts to deficiency in providing service by the OPs.
7.           On the other hand, learned counsel for the OPs while reiterating the objections raised in the written version submitted that since the property in question stood purchased by the complainant in e-auction as such he does not fall within the definition of consumer. He further submitted that the property in question was sold on as is where is basis and as such, the complainant cannot raise any dispute at later stage. He further submitted that the complainant never requested the OPs, for execution of sale deed in respect of the property in question. He further stated that as per record available with the OPs the property in question was mortgaged by the Owner Mr. Ankur Mehta and original registered title documents were deposited in the Bank for Creation of Mortgage. He further stated that the registration of the title documents itself is sufficient to show that the property was owned by the Mortgagor and not by the Gram Panchayat as alleged by the complainant. He further stated that there is no mention of ownership of Gram Panchayat in the latest online Jamabandi for the year 2018-19.
8.           Since, admittedly, the present dispute is qua non registration of sale deed in respect of the property in question, on the ground of injunction orders thereupon, which had been purchased by the complainant from the OPs in e-auction, as such, the question which needs to be decided by this Commission is, as to whether, he falls within the definition of consumer or not?  It may be stated here that it is settled law that a purchaser of goods in an auction cannot be treated as a ‘consumer’ in terms of the judgment of the Hon’ble Supreme Court in U T Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors. (2009) 4 SCC 660 wherein it was held that an auction purchaser cannot be termed as a consumer under the Consumer Protection Act for the following reasons:-
   • Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would of er a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would of er a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites (as contrasted from sites to be `formed'), the purchaser/lessee is not a consumer, the owner is not a `trader' or `service provider' and the grievance does not relate to any matter in regard which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchaser/lessee against the owner holding the auction of sites…”
9.           The above-said view has recently been reiterated by the Hon’ble National Commission in URBAN IMPROVEMENT TRUST & ANR Vs. MAGHA RAM, REVISION PETITION NO. 3053 OF 2018, decided on 03 August 2023. Relevant part of the said order is reproduced hereunder:-

“……15. The orders of the lower fora are concurrent on facts. Both the District Forum and the State Commission have reached concurrent findings based on the pleadings by both the sides. The petitioner has, however, raised the issue of jurisdictional error in that the late Ratan Lal as an auction purchaser was not a ‘consumer’ qua the petitioner in terms of the judgment of the Hon’ble Supreme Court in U.T. Chandigarh Administration and Anr. (supra). In view of the settled law in regard to an auction purchaser not being entitled to be treated as a ‘consumer’ under the Act, the lower fora have certainly acted without jurisdiction in entertaining and adjudicating in this matter in the Consumer Complaint and First Appeal respectively. 16. In view of the facts and circumstances of the case and for the aforesaid reasons, the revision petition is found to have merits and is liable to succeed. Accordingly, revision petition no.3053 of 2018 is allowed. The impugned order of the State Commission as well as District Forum is set aside. Parties shall bear their own costs. Pending IAs, if any, stand disposed of with this order….”

10.           Since, as stated above, in the present case also, dispute is qua non registration of sale deed in respect of the property in question which had been purchased by the complainant from the OPs in e-auction, as such, the principle of law laid down by the Hon’ble Supreme Court and the National Commission afore-discussed is squarely applicable to the present case. The complainant therefore does not fall within the definition of consumer.   
11.           For the reasons recorded above, this complaint stands dismissed with no order as to cost. However, the complainant is at liberty to avail any other legal remedy, if any, available to him under the law. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced:- 01.12.2023

 

	(Ruby Sharma)	(Neena Sandhu)
	Member	President