COMPLAINT FILED: 27.06.2009 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 06th OCTOBER 2009<br /> <br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.1506/2009<br /> <br /> <br /> COMPLAINANTS Mr. S.K.Lakshminarasimha,<br /> Major,<br /> Srinidhi Souharda Pattina Sahakari Niyamitha,<br /> 80/81, Sampige Road,<br /> 17th Cross, Malleswaram,<br /> Bangalore – 560 003.<br /> <br /> Advocate: Sri S.S.Srinivasa Rao <br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES The Chief Manager,<br /> Bank of Baroda,<br /> M.G. Road Branch,<br /> P.B.No.5010,<br /> Bluemoon Complex,<br /> #66, M.G. Road,<br /> Bangalore – 560 001.<br /> <br /> Advocate: Sri Gopalakrishna <br /> R.Hegde <br /> <br /> O R D E R<br /> <br /> The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P) the reimburse the sum of Rs.96,000/- deposited by the complainant towards portion of the sale consideration, to pay sum of Rs.20,000/- as compensation for the negligence, deficiency in performing the part of obligation and misrepresenting the facts thereby causing inconvenience, loss and mental agony to the complainant; on the allegations of deficiency in service on the part of OP. <br /> <br /> 2. In the complaint it is stated that the complainant being guided by newspaper advertisement dated 06.03.2009 published on behalf of OP regarding public auction sale of few immovable properties listed therein and he participated in auction and bid to purchase the residential flat No.4044, 4th block, 3rd Floor, Janapriya township, Kadabagere village, Machohalli Panchayath, Dasanapura Hobli, Bangalore North Taluk. The complainant was declared the highest bidder for having quoted to purchase the said property for Rs.3,81,000/-. Out of the said sum of Rs.3,81,000/-; the complainant deposited a sum of Rs.96,000/-. Further the complainant by his letter dated 30.03.2009 requested the OP to provide with the copies of the documents pertaining to the property as he had approached the financial institution for financial assistance. The complainant’s banker addressed a letter dated 22.04.2009 to OP calling for details of the documents. By letter dated 28.04.2009 the OP has listed out certain documents and set of the copies said documents were provided by the OP. The complainant’s banker has got the said documents scrutinized by a legal advisor and got her report. The legal advisor pointed out that the original builder has conveyed only the undivided share of land only in favour of Mr. S.Narayan, the vendor of Mrs. V.J.Chabria; the mortgagor of the property. There is no document referring to conveyance of the flat which is the subject matter of the present transaction on hand. No scrap of paper made available by the OP demonstrating the ownership of Mr. S.Narayan in respect of the said flat. Hence the complainant’s banker requested the OP by its letter dated 05.05.2009 to furnish the copies of the documents with regard to the said flat. However by the letter in reply dated 14.05.2009 OP has declared that except the copies of the documents vide letter dated 28.04.2009 OP has no documents in respect of the property. The complainant’s banker addressed a letter on 06.06.2009 to the complainant stating that though the loan of sum of Rs.3,50,000/- is sanctioned; the same shall not be disbursed unless the demonstrating clear title in respect of the flat are furnished. The sale deed pertaining to conveyance of the undivided share of the land in favour Mr.S.Narayan cannot be construed as a deed of conveyance in respect of the flat which is the subject matter of the present transaction. In such event the property has no marketability for having no clear title. The notice dated 27.05.2009 by the OP calling upon the complainant to remit the balance sum of Rs.2,85,000/- on or before 10.06.2009 or else the OP forfeiting the money deposited by the complainant is a bolt from the blue to the complainant. The OP being a nationalized bank, deliberately withheld the said defect and advertised in a newspaper as if the said property is a piece of cake; induced the complainant in purchasing property by investing his hard earned money. The title in respect of property is not clear and marketable; the complainant is not liable to purchase the same with such defect in title by paying huge sums of money. The complainant in his reply dated 09.06.2009 has called upon the OP either to furnish the copies of documents demonstrating clear and marketable title of the property or to refund the entire sum of Rs.96,000/- deposited with the OP towards the part of the bid amount. Despite having received the said reply; the OP neglected to act upon the said communication of the complainant. The complainant as a bonafide purchaser offered to purchase the property with clear title; OP has neglected and failed to perform its part of obligation thereby breached the contract. The OP by will full misrepresentation made the complainant to waste his time, money, energy on this issue thus it is alleged that there is deficiency in service on the part of OP. Hence, the complaint.<br /> <br /> 3. OP after appearance filed version contending that the complaint is not maintainable; the complainant is not a consumer within the definition of section 2(1)(d) of CP Act. The complainant is not a customer of the bank nor any service is availed from the OP bank. The complainant is third party so far as the OP bank is concerned. It is admitted that complainant has participated in the auction proceedings and his bid for Rs.3,81,000/- was accepted and he has deposited sum of Rs.96,000/-. It is admitted that except the copies of documents mentioned vide letter dated 28.04.2009, the OP has no documents in respect of the property in question. It is contended that the undivided share is valid conveyance and sale deed executed in favour of Mrs. C.J.Chabria the conveyance of flat and undivided share is clearly mentioned. OP is a nationalized bank, has proceeded in accordance with law to sell the mortgaged property under the SARFAESI Act. The complainant voluntarily participated in the auction proceedings as per the advertisement published in the newspaper as such there is no deficiency in service on the part of the OP. There is no provision in the SARFAESI Act to refund the part amount paid by the successful bidder. The complainant to perform his part of obligation by paying the balance amount within the stipulated period. Moreover the auction sale was taken place on a condition that ‘AS IS WHERE IS BASIS’. It is the duty of the complainant to verify the documents available in the OP bank before participating in the auction proceedings. Being a reputed public sector bank the OP has no intention to sell the property with defective title as alleged by the complainant. It is denied that OP has deliberately withheld the information about defect in the title and put the property for auction. The OP is in no way connected about the furnishing of the documents which is not available with it. There is no bonafide on the part of the complainant in filing the complaint with baseless allegations. Hence, it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 4. The complainant along with the complaint produced documents; affidavit is filed to substantiate the complaint allegations. OP filed documents with the version and Chief Manager of OP filed affidavit evidence. Written arguments filed by OP. Heard on both sides. <br /> <br /> 5. After perusing the pleadings and the documents produced and affidavit evidence the following points arise for our consideration:<br /> <br /> Point No.1:- Whether the complainant is a consumer<br /> as defined under section 2(1)(d) of CP Act<br /> and the dispute arisen can be <br /> adjudicated under the Act? <br /> <br /> Point No.2:- Whether the complainant is entitled for<br /> the relief’s claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. Our findings to the above points are: <br /> <br /> Point No.1:- Negative. <br /> <br /> Point No.2:- In Negative.<br /> <br /> Point No.3:- As per final Order. <br /> <br /> <br /> R E A S O N S<br /> 7. It is not in dispute that the complainant being the highest bidder for a sum of Rs.3,81,000/- of the property brought for sale in public auction held on 23.03.2009 by OP bank for recovery of an amount due by one Mrs. C.J. Chabria, deposited sum of Rs.96,000/-. In the paper advertisement dated 06.03.2009 published regarding public auction to be conducted, the terms of auction stipulated are the sale is on ‘AS IS WHERE IS BASIS’ the participants are required deposit an amount of Rs.50,000/- as an EMD and 25% of the bid amount is to be deposited on the spot after accepting the bid and the balance amount is to be deposited within 15 days of the receipt of the communication of the acceptance of the bid. The complainant participated in the auction after duly understanding the terms and conditions and had deposited an amount of Rs.96,000/-. Thereafter the complainant sought the title documents relating to property purchased in the auction for availing the bank loan for depositing the remaining bid amount. OP bank provided the documents available with it but the complainant’s banker were not satisfied with these documents and the loan was sanctioned subject to the conditions of releasing the same on production of the valid title documents of the property sold in auction. The complainant claims that OP bank knowing fully well that the documents available are not valid documents of title induced the complainant to participate in the auction and made him to deposit an amount of Rs.96,000/-. Thus the complainant claims that he is entitled for refund amount of Rs.96,000/- along with the compensation of Rs.20,000/- for the negligence and deficiency in the service on the part of OP; causing inconvenience and mental agony. <br /> <br /> 8. It may noted that as per the principles laid down in 2009(1) CCC page 480(NS) Rajasthan Financial Corporation vs M.K.Bhoot and another no consumer dispute can arise out of a relationship of a seller and purchaser in an auction under the provision of the Consumer Protection Act 1986. The National Commission in Panjim Planning and Development Authority vs Mrs. Rashmi A. Sisat and others (1986-95 Consumer 8(NS) and in Tamil Nadu Housing Board vs R.Sivasubramaniayan 1998(2) CCC 97(NS) [1986-99 CONSUMER 3587(NS)] held that the purchaser of a property in public auction cannot be considered as a ‘consumer’ under the Act and no relief can be granted with regard to dispute arisen out of auction sale. As per the principles laid down in these cases it becomes clear that auction purchaser purchasing the property in the public auction cannot become a ‘consumer’ as defined under the CP Act. There is no arrangement of any service for consideration to be rendered by OP bank. Under these circumstances we are of the view that complaint is devoid of merits; the complainant is not entitled for the reliefs claimed. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed as not maintainable. Under the circumstances considering the nature of the dispute no order as to costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 06th day of October 2009.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Snm:<br /> <br />