IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD AT BERHAMPORE.
Case No. CC/121/2014
Date of Filing: 04.09.2014. Date of Final Order: 31.08.2015.
Complainant: Surab Molla, S/O Faju Molla, Vill.& P.O. Talgachi, Natungram,
P.S.& Dist. Murshidabad.
Vs
Opposite Party: 1. Branch Manager of Oriental Bank of Commerce,
126 No, Netaji Road, P.O. Khagra, P.S. Berhampore, Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for payment of Rs.3.40 lacs along with interest and compensation of Rs.3 lac for harassment.
The complainant’s case, in brief, is that the complainant opened a savings bank A/C No. 13212191013637 with OP No. 1 Bank. One Rudra Prasad Lahiri took commercial loan from OPNo.1 Bank for carrying on his business creating equitable mortgage delivering original deed in respect of Agricultural land measuring 06 dec. of Mouza Telgachi in Plot No. 636, Khatian No. 144 of district Murshidabad when the borrower Rudraprasad Lahiri had no possession over the impugned mortgage property and he did not deposit any money in the Loan Account. The OP No.1 in collusion with borrower- Rudra Prasad Lahiri created defective mortgage and had no transferable interest. Though the OP Nos. 1 & 2 had no legal right to dispose of and/or attached the secured property) under Sarfaesi Act, tried to sell the same through illegal process. The OP Nos. 1 & 2 published notice through daily newspapers i.e. Times of India and Bartaman for inviting quotation as for recovery of outstanding dues by way of transferring in respect of secured assets. They did not disclose anything regarding ownership, possession and valid mortgage before dropping quotation. Also, they did not take possession of secured property before publication for auction. For the request of Ops and for paper publication with full trust upon OPs , the complainant intended to purchase the secured property though auction, on 3.9.13 the complainant attended the OP-Bank premises and submitted quotation paper and the same was opened in presence of other bidder and the same was accepted. The Ops realized 10% of the quotation money from the complainant and without prior permission withdrawn Rs.3,05,600/- from the savings A/C of the complainant to exhaust the said bidding process. The complainant sent notice on 16.12.13 upon the OPs asking refund of Rs.3.4 lacs along with the interest and damages as they had no saleable right, title and interest over the secured property but in vain. Then, the complainant has filed this complaint. Hence, the instant complaint case.
The written version filed by the Ops, in brief, is that the OP No.1 created a valid and enforceable mortgage upon the said property and after declaring the Loan A/C as NPA the Opposite Party had taken recovery action as per provision of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Thereafter, the Opposite Party published Sale Notice on 18.07.2013 in two daily news papers for the purpose of Sale of the said property as per provision laid down in the said Act. Being interested about the property the Complainant came to the banking authority and stated that he had personally visited the property, and thereafter being an interested party he had gone through the documents of the title of the property and also collected information about mortgage and being satisfied about the title of the property, saleable right of the bank and about the possession of the property he had participated into the bidding process (E-auction) held on 03.09.2013. The complainant was the highest/successful bidder and by a letter dt. 06.09.13 the Opposite Party No. informed him that he had become the successful bidder and the Opposite Party No.1 also requested the complainant to deposit the balance amount within 15 days, otherwise the EMD amount would be forfeited and the bank would not issue sale letter. Thereafter, the complainant deposited sufficient amount into his savings A/C and as per his instruction and as per usual norms on 28.09.2013 bank debited the balance amount of bid price from his savings A/C . Bank also intimated him by a letter dt. 19.12.2013 about the said debiting from his a/C and he acknowledge the same by putting his signature on the said letter. By a letter dt. 09.11.2013 the complainant confirmed the payment of the entire bid price of the property and he requested the Opposite Party Bank to make arrangement for registration of deed. On 10.10.13 the OP No.2 issued Sale Certificate in favour of the complainant who acknowledged receipt on 24.10.13. The borrower, Rudra Prosad never used the mortgage property for agricultural purpose and he used the same for non-agricultural purpose. The complainant has challenged the validity and enforceability of the mortgage but this Ld. Forum has no jurisdiction to decide about validity and enforceability of the said mortgage. There is no negligence or deficiency of service on the part of the OP and for that the complaint is liable to be dismissed. Hence, the instant written version.
Considering the pleadings of both parties the following points have been framed for the disposal of the case.
Points for decision
- Whether the complaint is maintainable in law and fact?
- Whether there is any cause of action to the present case?
- Whether the complainant is a consumer or not?
- Whether the complaint is barred by law of limitation or not.
- Whether the complainant is entitled to get any relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get.
Decision with reasons.
Point Nos. 2 & 4.
Both the points are taken up together for the sake of convenience.
During hearing of argument the Ld. Lawyer for the OP has not raised any objection against those points.
Considering the materials on record we do not find anything adverse against those points and as such both the points are disposed of in favour of the complaintant.
Point Nos. 1,3,5 & 6.
All the points are taken up together for the sake of convenience.
The complainant has filed the instant complaint praying for refund of Rs.3.4 lacs along with interest plus compensation of Rs.3 lacks.
The complaint’s case is that the complainant has saving bank a/c with OP-Bank where one Rudra Prasad Lahiri took commercial loan creating equitable mortgage by mortgaging title deed in respect of Agricultural land which was not repaid and for recovery the loan A/C came under SARFAESI Act and for auction-sale of the property. , Paper publication was there where the complainant participated and his auction-bid was accepted and without consent of the complaint the auction purchase money was withdrawn by the OP/Bank from the savings A/C of the complainant. The possession of the property was not taken by the OP/Bank before auction sale and the impugned equitable mortgage of Agricultural and for that loan is illegal and invalid and for that the OP-Bank has no transferable interest over the mortgage property and for that the complainant is entitled to get refund of the amount paid in auction purchase along with interest and compensation.
On the other hand OP’s case, in brief, is that The written version filed by the OPs, in brief, is that the OP No.1 created a valid and enforceable mortgage upon the said property and after declaring the Loan A/C as NPA the Opposite Party had taken recovery action as per provision of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Thereafter, the Opposite Party publishes Sale Notice on 18.07.2013 in two daily news papers for the purpose of Sale of the said property as per provision laid down in the said Act. Being interested about the property the Complainant came to the banking authority and stated that he personally visited the property, and thereafter being an interested party he had been all the documents of the title of the property and also collected information about mortgage and being satisfied about the title of the property, saleable right of the bank and about the possession of the property he had participated into the bidding process (E-auction) held on 03.09.2013. The complainant was the highest/successful bidder and by a letter dt. 06.09.13 the Opposite Party No. informed him that he had become the successful bidder and the Opposite Party No.1 also requested the complainant to deposit the balance amount within 15 days, otherwise the EMD amount would be forfeited and the bank would not issue sale letter. Thereafter, , he deposited sufficient amount into his savings A/C and as per his instruction and as per usual norms on 28.09.2013 bank debited the balanced amount of bid price from his savings A/C . Bank also intimated him by a letter dt. 19.12.2013 about the said debiting from his a/c and he acknowledge the same by putting his signature on the said letter. By a letter dt. 09.11.2013 the complainant confirmed the payment of the entire bid price of the property and he requested the Opposite Party Bank to make arrangement for registration of deed. On 10.10.13 the OP No.2 issued Sale Certificate in favour of the complainant who acknowledging receipt on 24.10.13. The borrower, Rudra Prasad Lahiri never used the mortgage property for agricultural purpose and he used the same for non-agricultural purpose. The complainant has challenged the validity and enforceability of the mortgage but this Ld. Forum has no jurisdiction to decide about validity and enforceability of the said mortgage.
In this case both parties have filed documentary evidence in support of their respective case.
The complainant has also adduced evidence –on-affidavit.
The complainant has filed the following documents in support of his case.
- Auction notice of OP-Bank giving description of land of the proprietor for which sale.
- Statement of bank A/c of the complainant with OP-bank showing debit of Rs.3, 05,600/- which is the remaining bid money of the auction.
- LR record of the impugned land for actu9on land of Kh. No. 2854 showing the nature of the land as Aush means Agricultural land.
- Letter of OP-bank dt. 6.9.13 requesting the complaint to deposit balance amount of the final amount of successful bid within 15 days of that letter failing which the E.M.P amount will be forfeited.
- Advocate notice of the complaint dt. 12.12.2013 mentioning the complainant’s case.
The ld. lawyer for the complaint has advanced argument that OP-Bank cannot give commercial loan to the complainant mortgaging Agricultural land and the OP –bank had no possession over the mortgaged property, the said property was physically possessed by one club.
He has advanced argument that OP-bank gave loan on defective property and as such SARFAESI notice is defective and also there is no document that said SARFAESI notice was served upon the borrower –Rudra Prosad Lahiri u/s 13(2) of SARFAESI Act.
Regarding service of said SARFAESI notice upon the borrower it appears from the document filed by the complainant that the said notice was E-Auction Sale notice and for that there is no question of giving notice by hand, the notice was given on –line i.e. through internet.
Further, in this case the borrower Rudra Prasad Lahiri is not a party and there is no case that said borrower has challenged this auction as defective and illegal.
Also, this is also not the case of the complainant that Rudra Prasad Lahiri has refused to give delivery of possession of the auction sale property.
The ld. lawyer for the complainant has categorically advanced argument that having knowledge of defective security the OP-bank advertised for auction sale only to cheat.
He has also advanced argument categorically that OP-bank had no authority to advertise for auction sale.
He has further argued that without getting prior permission of the complainant the OP –bank realized the entire remaining amount of final price of successful bid money from the bank a/c of the complainant.
In this regard from the letter dt. 6.9.13 written by the OP Bank to the complainant filed by both parties it is clear that the auction was held on 3.9.13 and this request letter was written on 6.9.13 requesting the complaint to deposit the remaining balance amount the final price of the successful bid of that auction within 15 days from that letter failing which the EMD amount will be forfeited.
Thereafter, from the bank statement of the passbook of the complainant filed by him it is clear that this bank A/c was opened on 30.08.13 by depositing Rs.1000/- only and he deposited Rs.1.7 lac and Rs.1.5 lac on 5.9.13 and 9.9.13 respectively in his said savings bank A/c and OP-Bank debited Rs,.3,05,600/- on 28.9.13 corroborated by the acknowledgment receipt signed by the complainant on 19.12.2013 in the letter dated 19.12.13 written by the OP to the complainant stating that as asked by the complainant OP debited Rs.3,05,600/- on 28.09.13 towards e-auction a/c Jayashree Traders.
In this regard the ld. lawyer for the OP has advanced argument referring the letter dt. 9.11.2013 written by the complainant to the OP-bank requesting for registration of his name as owner stating that he has already got the deed and sale certificate.
In the body of the sale certificate dated 10.10.13 the complaint has written in his own handwriting on 24.10.13 acknowledging receipt of the original deed along with other relevant papers connected with the deed which was lying with the bank. During the above period relating to different stages of e-auction sale the complainant never took any steps to challenge the auction sale or asked for to stop withdrawal of amount towards auction sale.
From the above discussions there is no scope to justify the complainant plea that OP Bank debited Rs.3,05,600/- without prior permission of the complainant.
There is no question of prior permission because the complainant participated in the auction on 03.09.13 on the basis of e-auction notice on as is where in basis and is what is basis and after demand for payment by OP by letter dated 06.09.13 the complainant deposited money in the savings bank A/c twice on 05.09.13 & 09.09.13 and thereafter issued sale certificate delivering deeds and documents acknowledged receipt duly by the complainant and thereafter complainant on 09.09.13 requested for registration and thereafter on 19.12.13 the OP informed complainant about debiting the amount for auction as asked for by the complainant.
Thus, this objection as to debiting the amount without permission has no legs to stand upon.
The ld. lawyer for the OP-Bank has advanced argument that the impugned auction sale is under SARFAESI Act.
Regarding the question of illegality in granting loan mortgaging agricultural land the ld. lawyer for the OP-bank has advanced argument that Non-Agricultural Tenancy Act has been repealed on 09.09.1980 and now there is no distinction between Agricultural and non-agricultural land after repeal of non-Agricultural Tenancy Act and the same is now considered as per provisions u/s 7 of the WBLR Act.
Regarding notice u/s 13(2) and 13(4) under SARFAESI Act and possession of mortgaged property by the OP bank for auction sale it appears from E-auction Sale notice filed by the complainant that notice issued u/13(2) of the SARFAESI Act and has right to sell on “As is where is Basis and as is what is basis u/s 13(4) of the SARFAESI Act and had taken possession of the property proposed for auction sale and for that the argument of the ld. Lawyer for the complainant that for non-compliance of the provision u/S 13(2) & 13(4) of the SARFAESI Act as to service of notice the impugned auction sale is illegal, has no legs to stand upon.
The ld. lawyer for the OP has advanced argument referring the reported decision in I(2015)CPJ -41(NC) –Subhas Infra Engineers Pvt. Ltd-Vs.-Haryana Urban Development Authority that the complaint being purchaser of auction properly is not a consumer as per provision under C.P.Act.
In the aforesaid reported decision where the complainant purchased the property by auction and it has been observed by the Hon’ble National Commission in Para-16 that it was well settled that in the public auction, the complainant cannot qualify the criteria of being a consumer and in that case the complaint was dismissed.
On the same point the ld. lawyer for the OP-Bank has referred another reported decision in I(2015) CPJ 117 (Chha) where the complainant was auction purchaser and he purchased house in auction in outright sale and it has been held that he is not a consumer of OP 1 –Bank.
Regarding to the aforesaid reported two decisions referred by the ld. lawyer for the OP Bank the ld. lawyer for the complainant has advanced argument that the aforesaid reported decisions are not applicable in this case as the auction purchase by the complainant in this case is not for commercial purpose. In this regard he has also advanced argument that the provisions of SARFAESI Act being not complied with the aforesaid ruling referred by the ld. Lawyer for the OP/Bank as to bar of jurisdiction of this case will not come in question.
Rather, he has referred a reported decision in AIR 2010 Bombay 150 in support of his case.
The ld. lawyer for the complainant has advanced argument relying upon para-17,19 and 29 of this reported decision.
In the aforesaid reported decision in para-17 it has been observed that ld. counsel for respondent nos. 3 to 6 contended that in view of the provisions of Sec 31(i) of the SARFAESI Act, the provisions of this Act shall not apply to any security interest created in agricultural land of the aforesaid reported documents has been observed that in para 19 of the ld. Counsel for respondent nos. 3 to 6 further contended that the application of the provisions of the SARFAESI Act do not apply to any security interest created in agricultural land.
In para-29 of the aforesaid reported decision it has been observed that the jurisdiction exercised by the Magistrate under Section 14 of the SARFAESI Act being limited only to assist the secured creditor in taking possession of the secured assets, has no jurisdiction or authority to adjudicate and decide the issue about the status of the lands and exclude them from the purview of the SARFAESI Act as provided under Section 31(i) of the SARFAESI Act since DISTRICT MAGISTRATE has no jurisdiction to entertain any dispute relating to secured assets.
The above observation of the Hon’ble High Court, Bombay in AIR 2010 Bombay 150 regarding jurisdiction of the Magistrate u/S 14 of the SARFAESI Act as to taking possession of the secured assets and it has been held that DISTRICT MAGISTRATE has no authority to decide the status of the land and exclude the same for the SARFAESI Act where the notice u/S 13 of the SARFAESI Act and the territorial jurisdiction of the secured assets of the DISTRICT MAGISTRATE were not disputed.
In the aforesaid reported decision there is no dispute as to legality of the auction for the defective title of the secured property.
In this case the dispute is relating to validity of the auction sale for the defective mortgage and non-compliance of provisions of u/S 13(2) & 13(4) of the SARFAESI Act.
The dispute in the aforesaid reported decision in AIR 2010 Bombay 150 referred by the ld. Lawyer for the complainant was not raised before any Consumer Forum and also does not fully tally with the dispute of his case and for that the aforesaid reported decision is not applicable in this case.
In this case the dispute in an auction sale was raised on the basis of E-Auction as is notice where is basis and as is what is basis.
The complainant became the successful bidder in the auction held on 03.09.13 and thereafter the OP requested by letter dated 06.09.13 for deposit of balance bid amount in respect of E-auction dated 03.09.15 and in response to the request the complainant deposited the required money and the OP Bank withdrawn the same from the savings account of the complainant.
Thereafter, the OP issued sale certificate in favour of the complainant on 10.10.13 and in the body of that letter the complainant acknowledged receipt of original deed and other documents relating to that deed which were lying with the OP Bank by putting his signature with date on 24.1013.
Again, the complainant wrote to OP Bank on 09.11.13 requesting for registration in his name so that he can get ownership of the e-auction purchased property and in that letter he has stated that he has become a successful purchaser of that property by depositing the consideration money of that property amounting to Rs.3.40 lacs.
Further, on the body of the letter dated 19.12.13 written by OP Bank informing the complainant about debiting the amount Rs.3,05,600/-on 28.09.13 as asked by the complainant with his own handwriting and signature dated 19.12.13 as ‘Bujhia Pailam’.
This acknowledgement of the complainant on 19.12.13 was after sending the advocate notice dated 12.12.13 on 16.12.13 challenging the validity of the auction sale and claiming refund of entire money paid to OP Bank alongwith interest.
For the first time the complainant has raised the point that the OP Bank did not take possession of the secured property through legal process.
The complainant/s main case is that the borrower Rudra Prasad Lahiri had no possession over the property secured for taking commercial loan securing agricultural land illegally and for that mortgage is defective and the Op Bank had no transferrable interest. Also the OP Bank did not disclose to the complainant about ownership and possession of the disputed property before the auction.
Considering the fact of completion of auction we find that after getting original deed and sale certificate the complainant has sent Advocate notice to OP and the ld. Lawyer of the complainant as the complainant has not got possession of auction purchased properly and he filed this complaint.
In this case the complainant is the auction purchaser on the basis of E-auction notice ‘As is what is basis’.
But the complainant has not got possession of auction purchased property.
Then, he has raised this question as to validity of the auction being defect in mortgage and OP Bank had not transferrable interest.
Complainant being the buyer was supposed to watch his own interest by inspecting the property before bidding in auction.
Now the entire question raised regarding legality of auction, service of notice under section u/S 13(2) & 13(4) of the SARFAESI Act and possession taken by the OP Bank are question of law and fact and require evidence to decide.
Accordingly, the question will arise whether this Forum has jurisdiction to decide the same.
Considering the above discussions as a whole we find that this a Forum has no jurisdiction to decide the question of validity of the E-Auction Sale under SARFAESI Act and as such we find all these issues/points are disposed of against the complainant.
Considering the decision of all the issues/points together we find that the complainant is not entitled to get any relief in this Forum as prayed for and as such the complaint be dismissed.
Hence,
ORDERED
that the Consumer Complaint No. 121/2014 be and the same is hereby dismissed of on contest.
There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
