BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.751/2015

DATED ON THIS THE 2^nd December 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed by the complainant for a direction to the opposite party to pay consolidated amount of Rs.9,99,000/- towards complainant’s sufferings, medical and other expenses with interest and costs.
2.     The brief facts alleged in the complaint are that the complainant is a practicing doctor in Mysuru.  In response to the publication published by the opposite parties, he has participated in E-auction held on 10.03.2015 relating to property bearing No.251, 1^st Stage, Thyagaramarga, 6^th Cross, Siddarthanagara, Nazarbad Mohalla, Mysuru.  He was advised to pay a sum of Rs.23,53,806/- which is the 25% of the bid amount immediately.  Accordingly, the complainant, consolidating all his resources, remitted the said amount on the same day.  The complainant is ready to pay the remaining balance in 15% days advised by the bank.
3.    Without disclosing the pendency of proceedings before the DRT, went on assuring that the auction property would be left with him and also impressed him by saying that they have not seen any debtor got back the property, by repaying the amount.  With great difficult, the complainant has arranged the 25% of the bid amount which repaid after long lapse of 6 months.  The opposite parties have repaid 25% of the bid amount without interest.  The complainant had undergone lot of stress, physical strain and mental agony and mental loss.  Hence, this complaint is filed for compensation.
4.   Both opposite parties served with notice, opposite party No.2 absent, placed exparte. Opposite party No.1 alone was filed following version:- The complaint is not maintainable and the complainant is not a consumer as defined under the C.P.Act.  On that ground alone complaint is to be dismissed.
5.    One M.N.Mohan Gupta and Smt.Gayathri Mohan availed loan of Rs.60,00,000/- for purchase of property bearing No.251, 1^st Stage, 6^th Cross, Thyagamarga, Siddarthanagara, Mysuru, they have secured property by depositing the title deeds by executing a document on 06.03.2014.  They did not pay the amount.  Thereby, the property was auctioned in favour of the present complainant, the same was challenged by the borrowers.  But, there was no stay.  Thereby, sale was held on 03.02.2015.  The opposite parties offered the property for sale on “as is where is and as is what is” basis and it is for the complainant to verify the documents relating to the property.  But, now though the amount was refunded, the complainant has filed this complaint, which is not maintainable.  As such, opposite party No.1 sought for dismissal of the complaint.
6.     On the above contentions, this matter is set down for evidence.  During evidence, complainant has filed his affidavit evidence and further evidence closed.  Likewise, on behalf of opposite party No.1 – Bank Manager, has filed affidavit evidence and further evidence closed.  After hearing arguments, this matter is set down for orders.
7.     The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant establishes that there is deficiency in service on the part of opposite parties, thereby, the complainant is entitled for the reliefs claimed?
3.  What order?

8.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- Does not survive for consideration

Point No.3 :- As per final order for the following

:: R E A S O N S ::

9.    Point No.1:- The first and foremost question raised by the opposite party is complainant is not a consumer as defined under the C.P.Act.  Thereby, the complaint is not maintainable.  In this regard, the opposite party No.1 contention is that complainant has participated in E-auction i.e. a public auction conducted by the opposite party bank and he is successful bidder and he has deposited the amount, since he is an alleged auction practioner for any relief complaint cannot be filed before the Consumer Forum since the alleged auction purchaser is not a consumer under the said Act.
10. Whereas, counsel representing the complainant submits that with an intention to acquire a property, the complainant has invested huge sum and participated in the E-auction conducted by the opposite party deposited a sum of Rs.23,63,806/- by arranging funds through so many sources with great difficult.  The opposite party without disclosing the pendency appeal before DRT has conducted the auction and caused deficiency in service.  Thereby, the complainant become the consumer since he has deposited the amount in participating in auction conducted by the opposite party.  But, such submission of the advocate for complainant cannot be accepted, since auction purchaser is not a consumer as defined under section 2(1)(d) of C.P.Act.  Thereby, the complainant cannot pursue his complaint since the same is not maintainable.  Hence, point No.1 is answered in the negative.
11. Point No.2:- In view of the findings recorded on point No.1, point No.2 does not survive for consideration.
12. Point No.3:- In view of the findings recorded on point No.1, complaint is not maintainable since the complainant is not a consumer.  Hence, we pass the following order:-

:: O R D E R ::

1. The complaint is dismissed as not maintainable.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 2^nd December 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER