Haryana

Yamunanagar

CC/219/2012

Chunni Lal Gupta S/o Sumer chand Gupta - Complainant(s)

Versus

Indian Overseas Bank. - Opp.Party(s)

Anil Aggarwal

23 May 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 219 of 2012.

                                                                                                Date of institution: 01.03.2012

                                                                                                Date of decision: 23.05.2017.

Chunni Lal Gupta aged about 40 years son of Shri Sumer Chand Gupta, resident of 668, Sector-17, HUDA, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                              …Complainant.

                                    Versus

1. Indian Overseas Bank, Regional Office, SCO No.11, Sector 7-C, Madhya Marg, Chandigarh through its Regional Manager.
2. Indian Overseas Bank, Branch Gobindpuri, Yamuna Nagar through its Branch Manager.
3. Mahesh Jain, Manager, Indian Overseas Bank, Branch Gobindpuri, Yamuna Nagar.                             

 

                                                                                                                …Respondents.

BEFORE:       SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh. Anil Aggarwal Advocate, counsel for complainant.

               Sh. Chander Mehta, Advocate, counsel for respondents.  

 

ORDER   (ASHOK KUMAR GARG PRESIDENT)

 

1.                          Complainant has filed the present complaint under section 12 of the Consumer Protection 1986 amended up to date.  

2,                     Brief facts of the present complaint, as alleged by the complainant are that respondents (hereinafter respondents will be referred as OPs Bank) had got published a news item in Punjab Kesari and The Tribune on 14.12.2009 regarding auction of a residential plot situated at Hanuman Gate, Chaneti Road, Jagadhri measuring 375 sq. yards i.e. 313.53 sq. meters owned by Rajesh Kumar son of Shri Manmohan vide registered sale deed No. 1897, 1898 and 621 dated 12.07.1995 and 07.05.1996 and minimum reserve price was fixed as Rs. 8,43,000/- and earnest money was shown as Rs. 85,000/-  and last date was 22.01.2010 upto 4.00 P.M. Thereafter, the complainant contacted the OPs No.2 & 3 and they showed their documents to the complainant i.e. valuation report approved by Valuer and Chartered Engineers and road map of land. Accordingly, the complainant wrote a letter dated 05.02.2010 to the Op Bank according to which balance 75% amount of the plot auctioned on 22.01.2010 vide cheque No. 184627 dated 05.02.2010 for Rs. 6,37,500/- was given and the OP No.3 received this banker cheque under his signature. Thereafter, the OPs Bank wrote a letter to the complainant on 22.06.2010, according to which he had confirmed the receipt of total amount of Rs. 8,50,000/- of the plot and a sale certificate dated 04.03.2010 was issued to the complainant by the OPs Bank. The plot which was sold to the complainant by the OPs Bank and shown in the sale certificate, was not existing at the spot, upon which, the complainant wrote letter dated 05.03.2010 and reminder on 21.07.2010 to the OP No.2 and requested him to give the possession of the plot but the officials of the OPs bank did not give any satisfactory reply. After that, complainant applied for information under Right to Information Act but the OPs Bank wrote a letter to the complainant that the required information cannot be given. After that, complainant visited so many times and sent the letters to the OPs Bank that the Ops Bank have usurped the amount of Rs. 8,50,000/-. Upon which, the official of the OPs Bank handed over a report of Tehsildar on 08.06.2011 to the complainant, in which it was mentioned that there was no such plot at the spot. The official of the OPs Bank were very much clear and it was within their knowledge that the possession of the plot sold in public auction was not with the bank, but some other plot was shown to the complainant at the spot and the ownership of the plot mentioned in the sale certificate has been transferred in the name of complainant, but the possession of the same was never handed over to the complainant and even amount of Rs. 8,50,000/- has been usurped by the official of the Op Bank and when the complainant asked the OPs Bank that if they are unable to handover the possession of the plot to the complainant then amount of Rs. 8,50,000/- alongwith interest should be returned to him, but the official of the OPs Bank linger on the matter on one pretext or the other. It has been further mentioned that the complainant had arranged the money for purchase of the plot in question by selling gold of 600 gms. of his mother.  Lastly, prayed for directing the OP Bank to pay a sum of Rs. 17,00,000/- alongwith interest at the rate of 24% per annum to the complainant i.e. Rs. 8,50,000/- received by the official of the OPs Bank from the complainant as cost of plot and Rs. 8,50,000/- as damages suffered by the complainant at the hands of the official of the OPs Bank and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs Bank appeared and filed its written statement jointly by taking some preliminary objections such as complaint is not maintainable as the complainant has not hired any services of the OPs Bank and he has only purchased the mortgaged property with the OPs Bank in open auction, the complainant has concealed the true and material facts from this Forum; there is no cause of action has arisen in favour of the complainant because the OPs Bank have always been ready and willing to deliver  the possession of the properties purchased by the complainant. There was no hurdle pertaining to the verifying of the property which was totally verified by the complainant and only after verifying all the facts and figures, the complainant participated and deposited the amount pertaining to the sale consideration of this property. This Forum have no jurisdiction to entertain and try the present complaint as the complainant has filed the present complaint before this Forum considered it as Civil Court for recovery, which is bad at this platform of consumer Forum. The suit for recovery can only be filed by the complainant before the Civil Court and even the Civil Court has no jurisdiction when the matter is under SARFAESI ACT and no other Forum has also got any jurisdiction to adjudicate the matter falling under the SARFAESI ACT; the complaint is barred as section 34 of SARFAESI ACT in which it is clearly written that Civil Court shall have no jurisdiction to entertain any suit or proceedings in respect of any matter which is under Debt Recovery Tribunal or under SARFAESI ACT. The OPs Bank auctioned the property and have initiated the proceedings after serving demand notice under Sub Section 2 of Section 13 of the SARFAESI ACT, 2002 after serving demand notice to the principal borrower and the guarantor respectively and on merit it has been admitted that property in question was duly approved and valued by Yamuna Engineers with all the Photographs of the possession of the plot which were taken. It has been further admitted that one Rajesh Kumar son of Sh. Man Mohan was the owner of the property in question relating to the sale deed No. 1897, 1998 and 631 dated 11.07.1995 and 07.05.1996 respectively. It has been further mentioned that the existence of the property was duly approved by the jamabandi of village Jagadhri HB No.400 vide farad jamabandi for the year 1994-1995 in which the name of seller Sh. Hans Raj and Chhitter and others name have been duly incorporated in the column of ownership. Further, it has been mentioned that it was the burdened of the complainant to go through all the terms and conditions before participating in the auction for buying the property in question. Rest contents of the complaint were denied being wrong and incorrect and matter of record. Lastly, prayed for dismissal of complaint.

4.                     In support of his case, learned counsel for the complainant tendered into evidence short affidavit of complainant as Annexure CW/A and documents such as photo copy of notice inviting tender from the public as Annexure C-1, Photo copy of valuation report of Yamuna Engineers as Annexure C-2 to C-4, Photo copy of sale certificate dated 22.01.2010 issued by the Op Bank as Annexure C-5, Photo copy of application for depositing the balance amount of 75% as Annexure C-6, Photo copy of sale certificate as Annexure C-7 and C-8, Photo copy of application for demarcation as Annexure C-9 and C-10, Photo copy of letter dated 09.08.2010 as Annexure C-11, Photo copy of information under RTI Act and demarcation reports of revenue authority as Annexure C-12 to C-28 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs Bank tendered into evidence photo copy of cheques dated 15.05.2013 as Annexure R-1 and R-2 and closed the evidence on behalf of OPs.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     The only version of the complainant is that he purchased the residential plot measuring 375 Sq. Yards i.e. 313.53 sq. meters owned by one Rajesh Kumar in auction from the Ops Bank on 22.01.2010 and paid Rs. 8,50,000/- as cost of the plot to the OPs Bank but the OPs Bank failed to handover the possession of the plot in question as the plot in question did not exist at the spot according to his own knowledge as well as, as per report of Revenue Authority. Learned counsel for the complainant draw our attention towards the information obtained under RTI Act Annexure C-26 and argued that Revenue Authority has specifically mentioned that no such plot is in existence at the spot in the concerned Khewat Number and Khasra Number. Learned counsel for the complainant further argued that the OPs Bank have filed a false and vague reply/written statement even the official of the Ops Bank has not admitted in their written statement that the complainant had deposited entire cost of plot of Rs. 8,50,000/- with the OPs Bank. Learned counsel for the complainant further draw our attentions towards the letter dated 22.01.2010 according to which the plot in question was auctioned in favour of the complainant for a sum of Rs. 8,50,000/- and the complainant deposited the entire amount which is duly proved from the sale certificate issued by the OPs Bank on 22.02.2010 Annexure C-7. Learned counsel for the complainant further argued that the version of the OPs Bank that the complaint of the complainant is not maintainable as the complainant has purchased the property involved in the SARFAESI ACT but the provision of the SARFAESI Act are not applicable in the case of the complainant as there was no proceeding between the complainant or the OPs Bank under the SARFAESI ACT. Lastly, learned counsel for the complainant argued that due to the malafide intention and fraud played by OPs Bank, the complainant has suffered mental agony, harassment as well as financial loss.

8.                     On the other hand, learned counsel for the OPs Bank argued at length that the complaint of the complainant is not maintainable as the complainant had purchased the property in question after verifying all the documents and land in question prior to participate in the proceedings of auction and after satisfying himself, he deposited the amount of Rs. 8,50,000/- with the OPs Bank and now he cannot blame the official of the OPs Bank in any manner. Learned counsel for the OPs further argued that even the matter in dispute cannot be decided in a summary way as to decide such type of cases voluminous evidence is required to prove the facts. Learned counsel for the Ops further argued that it is a simple case of sale and purchase of the mortgage property and not the case of hiring any services of the OPs Bank. Learned counsel for the OPs further draw our attention towards the application filed for dismissal of the complaint on 24.08.2013 and argued that DRT (I) Chandigarh in which the case was pending under SARFAESI ACT against M/s Arjun Gases, it has been specifically mentioned in the order that auctioned conducted by the bank stands cancelled and the amount procured by the bank in auction should be returned back to the auctioner /purchaser with 8% interest and under para No.4 the OPs Bank has specifically mentioned that the OPs Bank wants to return Rs. 8,50,000/- with interest as per order of DRT (I) Chandigarh. Accordingly, the complainant was asked to supply the particulars of PAN Card but the complainant instead of cooperating with the bank gave a vague reply to the letter dated 30.04.2013 and refused to accept the auction money as per order of DRT (I) Chandigarh. Lastly, learned counsel for the OPs referred the case law titled as Mahendra Mahato & Another Versus The Central Bank of India & Others, Revision Petition No. 38111(W) of 2013 decided on 29.08.2014 and Shiv Shankar Lal Gupta Versus Kotak Mahindra Bank Ltd. and others, 2013 CJ page 530 National Commission and draw our attention towards the Section 34 of the SARFAESI ACT 2002.

9.                     After hearing both the parties we are of the considered view that there is a deficiency in service and unfair trade practice on the part of the OPs Bank as it is not disputed that the complainant deposited Rs. 8,50,000/- as entire cost of the plot in question with the OPs Bank purchased by him in auction on 22.01.2010 and the OPs Bank had issued sale certificate in this respect to the complainant which is duly evident from the copy of letter dated 22.02.2010 (Annexure C-7 ) and sale certificate (Annexure C-8). Further it is also not disputed that the plot in question did not exist at the spot due to which the OP Bank could not handover the physical possession of the plot in question to the complainant which is duly evident from the report of Revenue Authority (Annexure C-26). No doubt that the matter in dispute is relating to sale and purchase of plot in question to decide such type of cases, Civil Court is the best plate form but as the remedies before Consumer Fora are in addition not in derogation as per section 3 of the Consumer Protection Act. The present complaint is pending since March 2012 and the matter is relating to the period of 2010, so, we are of the considered view that it would not be appropriate to send the parties to the Civil Court. Further, more particularly when the OPs Bank has specifically admitted in his application filed on 24.08.2013 that the OPs Bank is ready to return the sale price i.e. cost of plot of Rs. 8,50,000/- deposited by the complainant alongwith interest at the rate of 8% per annum as per order of the DRT (I) Chandigarh ( though that order has not been placed on file by either the parties.) In view of this, it is clear that bank is ready to return the sale price deposited by the complainant alongwith interest. The arguments advanced by the counsel for the complainant that he has suffered financial loss to the tune of Rs.8,50,000/- extra to the cost of plot due to selling of the gold of his mother is not tenable as no cogent evidence has been placed on file to prove the same. Hence, the same is hereby declined. The citations referred by the counsel for the OPs are not disputed but every case has its own facts. In the present case, firstly the OPs Bank itself is ready to return the cost of plot i.e. Rs. 8,50,000/- alongwith interest at the rate of 8% per annum as mentioned in the application for dismissal of complaint; and secondly no proceedings under SARFAESI ACT is pending between the complainant or the OPs Bank. The proceedings whatsoever under SARFAESI ACT were between the previous owner and OPs Bank and the complainant was not having any concern whatsoever. So, the case law referred by the counsel for the OPs Bank are not applicable to the facts of the present case.

10.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OPs Bank to return the amount of Rs. 8,50,000/- alongwith interest at the rate of 8% per annum from the date of deposit of the amount till its realization and further the OPs Bank is also directed to pay Rs. 25,000/- as compensation for mental agony, harassment and unfair trade practice. The OPs Bank is further directed to pay Rs. 11,000/- as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copy of this order be sent to the parties concerned as per rules. File be consigned to the record room after due compliance.

Announced in open court.23.05.2017.

 

                                                                                    `(ASHOK KUMAR GARG)

                                                                                      PRESIDENT

                                                                                      DCDRF, YAMUNANAGAR.

 

 

 

                      (VEENA RANI SHEOKAND)             (S.C.SHARMA  )

                         MEMBER                                           MEMBER