BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    03^rd DAY OF MAY 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to refund amount of Rs.61,305/- with interest at 18% p.a deducted by the OP from the complainant account, to pay compensation of Rs.9,00,000/- towards deficiency of service and unfair trade practice and cost of the proceedings.

2. The brief allegations made in the complaint are as under:

That the complainant bonafidely believing the contents of the paper advertisement of OP and personally visited the OP office and advertised paper publication of Hindu & Udayavani daily news paper on 18.07.2012 & 09.08.2012, in respect of the schedule property bearing site No.7, survey No.109, situated at Kathraguppe Village, Utharahalli Hobli, Byrappa Garden, Banashankari 3^rd Stage, behind Chowdeshwari Circle, measuring 750 square feet (duplex house).  The said described property the OP have advertising the said property on sale action mentioned reserve price of Rs.46,00,000/- and EMB of Rs.4,60,000/-.  On the said satisfaction in the OP advertisement the complainant has approached the OP and paid EMID of Rs.4,70,000/- and also Rs.7,11,250/- dated 24.08.2012 & 23.08.2012 as same may be referred in the OP notice dated 22.08.2012.  That the complainant is law abiding citizen and hard worker and also OP Bank has granted loan of Rs.15,00,000/- in favour of the complainant in respect of the same property as given collateral security.  After satisfied all the formalities of proceedings the OP has been adjusted loan amount in favour of the complainant  for a sum of Rs.31,63,695/- shown on letter dated 28.01.2013, in the said letter the OP has made a loan amount of Rs.15,61,305/- instead of Rs.15,00,000/- remaining amount of Rs.61,305/- the OP has taken back as extra amount from the complainant.  The OP has cheated the complainant and misusing the authority without consent and knowledge of the complainant.  OP has taken extra amount of Rs.61,305/-.  The complainant legally entitled the said amount and OP has also responsible for return of the said amount to the complainant with interest per month.  The complainant paid sum of Rs.32,25,000/- to the OP.  But OP returned sum of Rs.31,63,695/- only, due amount of Rs.61,305/- not paid to the complainant.

That the OP has not disclosed earlier sale action or any previous litigation in respect of the schedule property until finalization of the proceedings and thereafter finished the above formal procedure.  The OP intentionally never fulfilled obligations in respect of the schedule property as procedure established by law.  That even after paying the full amount the Bank has not issued the sale certificate and prolong the issues for several months.  The Bank has ignored court order and caused loss to the complainant by selling the said property.  It clearly shows that Bank wanted to wash hands with problematic accounts and make profit at the cost of customers.  OP has suddenly informed to complainant that on 11.01.2013, the order passed in case SA No.502/2012 of judgment dated 28.12.2012 passed Debt Recovery Tribunal at Bangalore to set aside the said sale auction or notice dated 14.07.2012 & 22.08.2012 in respect of the same schedule property.  The said order is against OP and in favour of land lord or earlier owners.  In that aspect the OP has never challenged the said order passed by the said authority till today.  The said order is final and conclusive order.  Now there is no any dispute regarding the said order.  It clearly shows that negligence of OP part and misuse of official power prescribed by law.  It shows that crystal clearly violating the principles of natural justice and taking undue advantages of the innocence of complainant.  Hence this complaint.   

3. After issuance of notice, OP did appear and filed version.  The sum and substance of the contents of the version are, that the complaint is false and frivolous.  The averments made in the complaint are false and incorrect to own knowledge of the complainant.  The complaint is nothing but an attempt of the complainant to make wrongful gain if possible.  That OP has not disclosed earlier sale action or previous litigation in respect of the property sold.  It is also denied that OP has ignored court order or there is negligence and misuse of official power by OP.  It is denied that OP has taken extra money and misused and cheated the complainant.  It is also denied that the OP caused loss to the complainant and ignored court order.  The averment that the Bank wanted to wash hands with problematic accounts and make profit at the cost of customers is hereby denied.  The immovable property bearing No.7, Sy. No.109, situated at Katriguppe Village, Uttarahalli Hobli, Byrappa Garden, Banashankari 3^rd Stage, measuring to an extent of 750 sq. ft was mortgaged to Indian Bank, SSI Branch, Peenya as security to a loan availed by borrowers by name M/s.Foils & Print Solutions and others.  Since the borrowers have committed defaults in repayment of loan, as prescribed under law, the Indian Bank has brought the said property for sale under the provisions of Securitisation Act by issuing sale notice dated 14.07.2012, fixing the sale of secured asset on 20.08.2012 and it was published in news papers.  However, 20.08.2012 was declared as general holiday on account of Ramzan and therefore the OP has postponed the auction sale to 22.08.2012 by issuing a corrigendum on 09.08.2012.  The corrigendum was duly published in news papers.  In the meanwhile challenging the sale notice, the borrowers M/s.Foils and Print Solutions have approached the Debt Recovery Tribunal, Bangalore by filing S.A No.502/2012 was filed before DRT on 14.08.2012.  However, there was no interim order in S.A No.502/2012 and accordingly, the OP has proceeded to sell the property in auction on 22.08.2012.

That the complainant has participated in the auction sale conducted by Indian Bank by submitting the required tender along with EMD amount.  In the auction sale conducted on 22.08.2012, complainant was the successful bidder and accordingly, a letter dated 22.08.2012 was issued by OP.  Thereafter sale confirmation letter dated 14.09.2012 was issued to complainant and in the said sale confirmation letter, it was specifically mentioned that the confirmation of sale was subject to the outcome of S.A.502/2012 which is pending before DRT.  Complainant has acknowledged both the aforesaid letters and thereby the pendency of litigation was well within the knowledge of complainant.  Subsequently, by borrowing a housing loan of Rs.15,00,000/- from the OP and offering the property to be purchased as security, the complainant has paid entire sale consideration.  However, at that time, an interim order passed by DRT directing Indian Bank not to issue sale certificate was operating and therefore sale certificate was not issued.  Ultimately, by order dated 28.12.2012, DRT has allowed S.A No.502/2012, filed by borrowers and set aside the auction sale conducted by the Indian Bank.  Accordingly, OP has decided to refund the amount paid by complainant towards purchase of the property.  Since the sale in favour of complainant has not materialized and thereby complainant has not acquired title to the property, while refunding the amount to complainant, OP had no other option, but to appropriate a portion of the amount towards liability of complainant under housing loan availed by him.  Having availed a housing loan, complainant is liable to repay the loan amount with agreed interest thereon.  Accordingly, a sum of Rs.15,00,000/- towards principal and a sum of Rs.61,305/- towards interest, totally amounting to Rs.15,61,305/- was appropriated by OP while refunding the sale consideration to complainant.  There is no miscalculation or misappropriation of the amount.  In fact, the amount repayable to complainant by OP has been correctly calculated as shown in the letter dated 28.01.2013.  Accordingly, OP is not liable to pay any amount to complainant.  There is no deficiency of service on the part of OP and complainant is not entitled for any relief.  Hence on this ground and other grounds OP pray for dismissal of the complaint.   

4. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  On behalf of OP Sri.Gopalakrishna Kini, Branch Manager, Indian Bank, SSI Branch, Peenya, Bangalore submitted evidence by way of affidavit.  Both parties have produced certain documents.  Complainant has submitted written arguments.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1:- We have briefly stated the contents of the complaint as well as the version filed by OP.  The undisputed facts which reveals from the pleadings of the parties goes to show that, the complainant being the auction purchaser of site no.7, Sy. No.109, situated at Kathraguppe Village, Utharahalli Hobli, Byrappa Gaurden, Banashankari 3^rd Stage, behind Chowdeshwari Circle, measuring 750 sq. ft (duplex house) for the reserve price of Rs.46,00,000/- and EMB of Rs.4,60,000/-.  On the said satisfaction in the OP advertisement the complainant has approached the OP and paid EMID of Rs.4,70,000/- and also Rs.7,11,250/-.  It is also not in dispute that, complainant has obtained loan of Rs.15,00,000/- by OP in respect of the said property as given collateral security.  After satisfied all the formalities of proceedings OP has been adjusted loan amount in favour of complainant a sum of Rs.31,63,695/-.  The property so purchased by the complainant by way of auction is subject to the order passed in SA No.502/2012.  It is also not in dispute that the said SA No.502/2012 has been allowed by the Debt Recovery Tribunal and set aside the sale auction of the said property.  According to the complainant, OP has deliberately deducted an amount of Rs.61,305/- out of the purchase amount of the said property.  According to the version of OP the property purchased was subject to order passed in the SA No.502/2012.  The property purchased by the complainant was mortgaged to OP SSI branch, Peenya as security to a loan availed by borrowers by name M/s.Foils & Print Solutions and others.  Since the borrowers have committed defaults hence said property was taken for sale under the provisions of Securitization Act by issuing sale notice dated 14.07.2012 fixing the sale of secured asset on 20.08.2012 and it was also published in the newspapers.  In the meantime the said borrowers M/s.Foils and Print Solutions have approached the Debt Recovery Tribunal, Bangalore by filing S.A No.502/2012, the same was came to be allowed.  In the mean time the complainant has participated in the auction sale conducted by Indian Bank, i.e., OP by submitting the required tender along with EMD amount and the auction sale conducted on 22.08.2012, complainant being the successful bidder accordingly issued letter.  Thereafter the sale confirmation letter was also issued.  In this context, it was specifically mentioned that the confirmation of sale was subject to the outcome of the SA No.502/2012 which was pending before the DRT.  But any how the said case has been allowed by DRT.  OP has specifically stated that since the sale in favour of the complainant has not materialized and thereby complainant has not acquired title of the property, while refunding the amount to the complainant, OP had no other option but to appropriate a portion of the amount towards liability of the complainant under housing loan availed by him.  Having availed a housing loan, complainant is at liberty to repay the loan amount with agreed interest thereon.  Accordingly, a sum of Rs.15,00,000/- towards principal and a sum of Rs.61,305/- towards interest, totally amounting to Rs.15,61,305/- was appropriated by OP while refunding the sale consideration to the complainant.  When the complainant has availed the loan and the auction proceedings has been set aside, the said auction sale was subjected to result in SA No.502/2012 for which the complainant has agreed.  Under such circumstances the interest charged by the OP for Rs.61,305/- is just and proper.  In this context we do not find any illegality or regularity committed by OP.  Accordingly we answered point No.1 in the negative.      

8. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is dismissed devoid of any merits.  Looking to the circumstances of the case, we direct both the parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 03^rd day of May 2019)

MEMBER                                                              PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 09.01.2015.

Sri.B.V Srinivas.

Documents produced by the complainant:

  Witnesses examined on behalf of the Opposite party dated
  06.02.2015.

Sri.Gopalakrishna Kini.

Document produced by the Opposite party:

MEMBER                                                               PRESIDENT

Vln*