Date of Filling:      16.02.2017

                                                                                                                       Date of Disposal:  30.10.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.27/2017

TUESDAY, THE 30^th DAY OF OCTOBER 2018

T.Chandrasekaran,

S/o.Late Thanikachalam,

Old No.2 New No.3,

Palani Andavar Koil Street,

Ayanavaram,

Chennai- 600 023.                                                             …Complainant.

//Vs//

1.Authorized Officer,

   ICICI Bank Limited,

   Plot No.24, Ambattur Industrial Estate,

   AIE Ambattur,

   Chennai -600 058.

2.Authorized Officer,

   ICICI Bank limited,

   Regd.Officer: Land Mark

   Vadodara 309 007.                                                      …….opposite parties.

This complaint is coming upon before us finally on 22.10.2018 in the presence of M/s.G.Latha, Counsel for the complainant and Thiru.E.Anandan, Counsel for the opposite parties and upon hearing arguments and having perused the documents and evidences on both sides, this Forum delivered the following.

ORDER

PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT

This complaint has been filed by the complainant Under Section 12 of the Consumer Protection Act-1986 against the opposite parties for seeking direction to execute by adopting the sale procedure the sale certificate No.1096/2014 registered before S.R.O and to pay a sum of Rs.1,00,000/- towards compensation for mental agony caused by the opposite parties due to the deficiency of service of the opposite parties.

2. The brief fact of the complaint are as follows:-

The complainant is the successful bidder on the auction for immovable property under SARFAESI ACT-2002, and the same, the complainant purchased the subject property by way of Sale Certificate vide Doc.No.1096/2014 dated 19.02.2014 on registered before S.R.O. Tiruvottiyor on executed by the 1^st opposite party.

3. The 2^nd opposite party is the superior to the 1^st opposite party who had issued the sale certificate under (rule 9(6) dated 3.1.2014 and before that the first opposite party had issued confirmation letter of sale of subject property in favour of complainant, and also assured the sale certificate will be issued after the completion of consider amount of sale Rs.2,50,000/-

4. The subject property was originally owned to M.S. Swanaprakash who availed the financial facility in the nature of loan @ Rs.5,65,000/- offered by opposite parties and the same was defaulted by M.S.Swarnapakash has to initiate the proceedings under Section 13 of SARFAESI Act-2002, but the opposite parties were not followed the proceedings for recovery of the subject property and took over the possession by due process of law and the same the opposite party straight away to brought the property into auction sale without following the procedure, which was mandatory in the eye of law under SARFAESI Act, so that the reason the schedule property and its measurement and boundaries were not found identically on the plot what was sold by opposite parties but in the sale certificate the opposite parties were mentioned that after the follows of the procedure then only the subject property has to come down to sale, but it is totally false and hide and seek formula adopt or sold out the subject property.

5. After the purchase that the competent authority had visited the site of subject property and the same usable to locate the flat on the said lay out, and finally that the complainant had found the said flat 932B and after knowing the facts that somebody else encroach the flat an extent of 420sq.ft. (12x20) then the complainant had given representation before the opposite parties dated 05.09.2014 but no reply till 02.10.2015 and finally the complainant had submitted complaint before Banking ombudsman dated 05.12.2015 as No.20151600 6003885 but the same was rejected after the reply the opposite parties is arbitrary without consider of the facts and circumstances and the said complaint was rejected on 08.02.2016 and the opposite party reply on 03.02.2016 within 5 days the complainant’s complaint has been rejected by Bank ombudsman but ultimately the complainant have liberty to file this complainant on negligence of service rendered by opposite parties and moreover the opposite parties reply on the consideration of shortage of measurement but the complainant’s grievances is that the opposite parties were not following the SARFAESI Act for recovery of possession through due process of law, but on different view the opposite party and the Bank Ombudsman rejected the complaint.  The complainant had sent the legal notice to the 1^st opposite party who is the competent authority dated 01.12.2016 for compensation but there is no reply.  Hence this complaint.

6. The contention of written version of the opposite parties are briefly as follows:-

The opposite parties have denied all the allegations made in the complaint and except that there are specifically admitted herein.  That since the property is a vacant plot, it is the responsibility of the buyer to check the measurement before buying in auction and complainant had approached the bank after buying the property.

7. That the complainant had approached the bank and the opposite party had requested the complainant to approach the registrar office for the dispute to get the entire portion of the land as the land plotting and survey No’s are marked by government authority and the person who originally sold it and not the bank.  Hence, Bank is not responsible for the shortfall in measurement and the opposite parties would not be able to restore the shortfall land of 420sq.ft.

8. That the complainant had also filed a complaint before banking ombudsman on 05.12.2015 vide number 20151600 6003885 and the opposite party filed a reply on 03.02.2016 and the said complaint was rejected on 08.02.2016.

9. By auction sale by the opposite party, the complainant purchased the said plot, after succeeding in bid and the bank accepted bid amount in full and give the delivery of possession of plot after following all the process.  No relief can be granted since transaction of allotment is as per bid, the part of the condition in the bid it is one of the straight sale of immovable property at on auction.

10. As the matter of fact the consumer forum must deal with the complainant on merit only if the complainant has been filed within 2 year from the date of cause of action.  Further this complaint has been filed in this Forum which do not have jurisdiction

11. The opposite parties reiterate and confirm that they have followed the proceedings for recovery of the subject property and took over the possession by due process of law and sold the property under SARFAESI Act.

12. That the opposite parties have followed the due process of law and it is reiterated and confirmed that the said property was sold as in where bases and as what bases only.  The complainant is not entitled to any compensation from the opposite parties.  It is denied that any cause of action has arisen to file this complaint and this Forum has the jurisdiction to try this complaint against this opposite party.  And also the said complainant is filed beyond the limitation period. Hence this complaint is liable to be dismissed with costs.

13. In order to prove the case, on the side of the complainant, the proof Affidavit submitted for his evidence and Ex.A1 to Ex.A18 were marked.  While so, on the side of the opposite parties proof Affidavit submitted for his evidence and Ex.B1 to Ex.B4 on their side.

14. At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties as alleged by the complainant in the complaint?

2. To what other reliefs, the complainant is entitled to?

15. Written argument filed on both sides and oral argument also adduced on the side of the opposite parties but complainant side was closed.

Point No.1:-

16. As per the averments of the complaint, it is learnt that after purchase of the alleged property on auction sale conducted by the opposite parties Under SARFAESI ACT and to that effect the sale certificate was issued by the opposite parties by not followed the sale procedure properly and thereby the complainant could not identify the said property/plot No.932B because of the negligence made by some third parties to the extent of 420sq.ft and in this connection the opposite parties have failed to hand over the property as per the auction sale and caused damaged which clearly amount for deficiency of service.

17. While being so, all the allegations made in the complaint by the complainant are false and denied by the opposite parties and in fact the Bank sold the alleged property through auction sale and SARFAESI ACT by following the correct sale procedure and immediately sale certificate was issued on 02.01.2014 itself and land extend measure 2400 square feet as per the Government Regards and in fact since the property is a Vacant plot, it is the responsibility of the buyer that is the complainant to check the measurement before buying in auction.  While, the complainant has come forward this complaint after a long period and further stated that the said property was sold AS IN WHARE IS BASIS AND AS WHAT BASIS ONLY.  Therefore there is no deficiency of service on the part of the opposite parties.

18. At this juncture, on careful perusal of the rival submissions put forth on either side, this Forum has to be decided, as to whether the complainant has proved the allegation made in the complaint beyond all reasonable doubt through reliable evidence. First of all, it is learnt from the evidence adduced on the side of the complainant that after purchased the alleged plot through auction sale conducted by the opposite parties Under SARFAESI ACT, the sale certificate letter and the sale certificate were issued by the opposite parties to the complainant are marked as ExA8 and Ex.A9 respectively and the Registrar sale certificate is marked as Ex.A10 and along with the Ex.A8 to Ex.A10 (1) copy of the original sale deed,(2) Settlement deed,(3) patta4: plan, Documents 5,6,7 encumbrance certificate and other documents were given by the opposite parties to the complainant.  In this regard there is no dispute at all.  If it is so, it is further learnt that after purchase of the said property when the complainant was attempted to measure the alleged property with the help of the surveyor, it is found that the instead of the measurement on the eastern side and western side 40 square feet it is 33 square feet and therefore the complainant wrote a letter to the 2^nd opposite party is marked as Ex.A11.  Again, the grievances form was sent by the complainant to the 1^st opposite party which is marked as Ex.A13 but there is no response and the complainant wrote another letter to the 2^nd opposite party (Ex.A14) and the reply notice has given by the 2^nd opposite party which is marked as Ex.A15 and for which the Bank ombudsman rejected the compliant made by the complainant and to that effect the rejection orders marked as Ex.A16. Hence, the complainant sent a legal notice Ex.A17 to the opposite parties and the same is acknowledged, the acknowledgement card is marked as Ex.A18.

19. At the outset, it is seen that in respect of the documents adduced on both sides, the Ex.A8, Ex.A9, Ex.A10, ExA15 and Ex.A16 are all admitted one and the similar document also are marked as Ex.B1to Ex.B4 by the opposite parties, which is also not disputed at all.

20. At this point of time, the main point before this Forum has to be taken into consideration is that as per the allegations as to whether it is true that the sale certificate has not been issued or not.  From the evidences and documents produced on both sides, it is crystal clear that the registered sale certificate Ex.A10 has been marked on the side of the complainant, Which is similar, the Ex.B2 marked on the side of the opposite parties.  Therefore, the basic allegations that the sale certificate has not been produced by the opposite parties become futile.

21. The next point is that the possession of plot not given properly by the 1^st opposite party.  It is pertinent to note that in the complaint as well as proof Affidavit, it is categorically stated by the complainant that after purchase of the plot the complainant has attempted to measure the alleged property with the help of the surveyor it is found that there is only 33 square feet is available instead of 40 square feet as per the sale registration certificate.  If it is so, without delivery of position, how could, the complainant attempted to measure the property is in question?  Further, for non-delivery of the possession the complainant not produced any reliable evidences or documents before this Forum.

22. At this instance, this Forum wants to enlighten that it is the primary duty of the complainant who being purchaser of the alleged property before purchasing the property the complainant ought to have verified and checked the measurement in the initial stage but in fact the complainant failed to do so.  Moreover, it is pertinent to note that as per the documents given to the complainant by the 1^st opposite party, the bounders and measurements are given and the same has not been disputed.  Further, as already narrated in the previous paragraphs and documents produced on both sides, it is crystal clear that the sale certificate was issued by the 1^st opposite party and the same was received by the complainant.  More so, in respect of the allegations that the 1^st opposite party has not followed the sale procedure properly Under SARFAESI ACT there is no iota of evidence produced on the side of the complainant.  Further on going through the Ex.A16 the Bank ombudsman had passed order and so there is no illegality in Ex.A16.

23. In the light of the above other facts and circumstances, this Forum has come to conclusion that there is no cause of action to reveal the prima facie case against the opposite parties and the allegations made in the complaint have not at all proved by the complainant by means of reliable and consistent evidence.  Further, it is found that the prayer itself is very much ambiguous and vogue manner which clearly shows that the complainant has not moved this Forum with clean hands.  Therefore this Forum hold that there is no deficiency of service on the part of the opposite parties 1and 2.  Thus the point no.1 is answered accordingly.

Point No.2:-

24. As per the decisions arrived in point No.1 the complainant is not entitled for any relief as prayed in this complaint.  Thus, the point No.2 is answered accordingly.

In the Result, this Complaint is dismissed.  No costs.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 30^th October 2018.

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MEMBER                                                                     PRESIDENT

            List of document filed by the complainant:-

List of documents filed by the opposite parties:-

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            MEMBER                                                                                  PRESIDENT