BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Bhavna Verma,w/o Sh.D.S. Verma, r/o #1065/2, Sector 39-B, Chandigarh

…..Complainant

                           V E R S U S

Corporation Bank, SCO No. 137-138, Sector 8-C, Madhya Marg, Chandigarh-160018 through its Assistant General Manager

                                  ……Opposite Party

CORAM:  SH.JAGROOP SINGH MAHAL PRESIDENT

              SH.SIDDHESHWAR SHARMA  MEMBER

DR.(MRS) MADHU BEHL       MEMBER

Argued by: Sh.Krishan Singla, Adv. for complainant.

OP ex-parte.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

             Succinctly put, the complainant purchased a property at Khewat/Khatoni No. 1384/1524, Khasra No. 44/6/2,6/3,44/7/1 & Khewat/Khatoni No. 1383/1524, Khasra No. 44/3/3.4/5.5/ 5.5.5/7 in revenue record of Kharar Distt. Mohali at ward No.1, Jai Guru Estate, Punjab, in auction, in account of Shri Ashok Kumar, which was held on 16/10/08 in OP bank premises. The complainant made the highest bid for Rs.5,03,000/- against the bid for the property which was accepted by the OP bank. The auction was confirmed and a confirmation letter for the same was also issued to the complainant by the OP bank. The complaint made full and final payment on 27.10.08 for an amount of Rs.3,78,000/- which was acknowledged by the OP bank and a sale certificate dated 26.02.09 in the favour of the complainant was also issued by the OP bank.  The complainant found some doubtful things in the revenue record and moved an application to Tehsildar Kharar, to inspect the record of mutation in the name of earlier owner. Thereafter the complainant found that no intkal stands in the name of Ashok Kumar in the revenue record and was informed by Halka Patwari that intkal could not be entered in her name now. The complainant served a letter dated 6.07.09 to the OP bank to take some appropriate steps in entering the name of the complainant in the revenue record as per OP sale certificate but the OP bank did not reply anything for the same. The complainant served a legal notice dated 13.09.09 and 24.10.09 to the OP bank but OP bank ignored the complainant’s written as well as oral submissions.   Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. The complainant has prayed that the OP bank be directed to refund his money and costs of litigation along with compensation for the mental agony and physical harassment caused to him.

2.             Notice was served to the OP. None appeared on behalf of the OP. Accordingly, OP was proceeded ex-parte.

3.             The complainant led evidence in support of his contention.

4.             We have heard the Learned Counsel for the complainant and have also perused the record. 

5.             It appears the OP bank sanctioned  a loan to one Ashok Kumar son of Bahadur Chand, age 34 years resident of # 501, Sector 20 –A, Chandigarh in lieu of which the property mentioned in para 2 of the complaint (which was owned by one Bahal Singh) was mortgaged with the OP bank.  The complainant has placed on file a copy of the legal opinion now marked as Annexure C-9 given by Amar Vivek, Advocate, in column number 7 of which it was mentioned that “the only document primarily required for creating an equitable mortgage therefore is the sale deed yet to be executed in favour of Ashok Kumar by Bahal Singh”. It was further opined that as soon as the sale deed is executed which ought to be executed in the presence of the bank officials, the receipt from the office of Sub-Registrar should be collected by the bank and the bank should personally collect the sale deed from the said office.  There is no evidence to suggest if any such sale deed was executed in favour of Ashok Kumar and if he further mortgaged it in favour of the OP bank. A notice was issued to the OP bank but they preferred not to contest this complaint.  It shows that no sale deed has been executed by Bahal Singh in favour of Ashok Kumar nor has it been registered with the Sub-Registrar.  Needless to mention that Ashok Kumar did not pay back the loan, the property mentioned in para 2 of the complaint and affidavit was possessed by the bank and was sold by public auction as Annexure C-1 and it was confirmed vide Annexure C-2. The complainant has since paid the full amount of sale and the OP bank issued a sale certificate Annexure C-4 in his favour. However, when he went to get the sale certificate registered with the Sub-Registrar, it was found that there was no mutation sanctioned in favour of the aforesaid Ashok Kumar and that Bahal Singh continued to be the owner of the said property.  The complainant then served a notice Annexure C-7 and C-8 on the OP, to which no reply was sent by them.  Ultimately when the complainant filed the present case, a notice was served by this Forum also but the OP has not come forward to challenge the contention of the complainant and preferred to be proceeded against exparte.  It shows that they have no stand to make against the contentions of the complainant. When the complainant was confronted with this position about owner ship of Ashok Kumar, he produced the copy of Jamabandi now marked as Annexure C-10, which shows that the sale if any by Bahal Singh in favour of Ashok Kumar was not reported to the revenue authority and no mutation has been sanctioned in his favour. Since Ashok Kumar is not recorded as owner in the revenue record the OPs do not derive any title to the property which was not owned by Ashok Kumar and therefore the OPs were not competent to sell the same as the said property is proved to be owned by Bahal Singh.  The OP bank has not produced any sale deed if any executed by Bahal Singh in favour of Ashok Kumar to clothe him with ownership rights with respect to the property in question. It is therefore clear that the OPs have sold the property of somebody else(namely of Bahal Singh) to the complainant of which they had no right to be in possession of or to transfer the ownership rights therefrom to the complainant. The entire process adopted by the OP bank is wrong.  They granted loan to Ashok Kumar on his mortgaging the property which was not by then owned by him.  There is no sale deed executed in his favour by Bahal Singh nor the said property is shown to have been mortgaged with the OP bank.  The sale or the mortgage were not reported to the revenue authority and no mutation was got sanctioned by the OP bank in its favour. This is precisely the deficiency in service on the part of the OPs that they acted illegally and did not perform their part of duty, that is of verifying before granting loan and before taking over possession of the property that the same should belong to Ashok Kumar, which could be proved only either by a sale deed executed by Bahal Singh in favour of Ashok Kumar or by Jamabandi Annexure C-10 showing an entry about sanctioning of mutation in favour of Ashok Kumar. The OPs have therefore deprived the complainant of a sum of Rs.5,03,000/- under the garb of clothing him with the ownership rights of the said property.  Since Ashok Kumar is not proved to be owner of the property in question and consequently bank could not possess the same or sell it through public auction to the complainant and therefore the complainant would not become the owner of the said property due to lack of ownership rights in Ashok Kumar or the OP bank. Since the OPs have not conveyed the owner ship of the said property to the complainant, they have no right to retain a sum of Rs.5,03,000/- received from the complainant.

6.             In view of the above discussion, we are of the opinion that the present complaint must succeed.  The same is accordingly allowed. The OPs are directed to refund the amount of Rs.5,03,000/- to the complainant alongwith interest @9% p.a. since 27.10.08 and Rs.5,000/- as costs of litigation.

7.             It is a case in which the OPs by not adopting proper procedure have caused mental and physical harassment to the complainant.  They are also adopting unfair trade practice of granting loan when the loanee had not even become owner and selling the property which they have no right to occupy or to sell.  We are therefore of the opinion that the OPs must pay a compensation of Rs.25,000/- to the complainant for this harassment. The entire amount is to be paid within 30 days of the receipt of the copy of this order, failing which they would be liable to pay penal interest @12% p.a since the filing of the present complaint i.e. 9.11.09, till the amount is actually paid to the complainant.

8.             The amount of compensation and costs of litigation may be recovered by the OP bank at its discretion from the defaulting official’s, of course after adopting proper procedure as prescribed by rules.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.