RESERVED
State Consumer Dispute Redressal Commission, Uttar Pradesh
Lucknow
Appeal No. 809 of 2015
Punjab & Sindh Bank & Another
….Appellants
Versus
Om Prakash Srivastav
……Respondent
Present:-
- Hon’ble Sri Udai Shanker Awasthi, Presiding Member.
- Hon’ble Sri Mahesh Chand, Member.
Sri TJS Makker, Advocate for the Appellants.
Sri T.H. Naquvi for the Respondent.
Date: 27-04-2016
Judgment
Sri Mahesh Chand,Member-This Appeal has been filed by Punjab & Sindh Bank through its senior manager, against the Judgment &order dated 30.3.2015, passed by learned District Consumer Dispute Redressal Forum, Kanpur Nagar, in complaint case No 254/2013Om Prakash SrivastavR/o 127/130, O-Block, Nirala Nagar, Kanpur V/s Punjab & Sindh Bank through it Senior Manager, Gadarian Purva Branch, K-622, Kanpur and Another.
In brief the Complainant’s case is that hehad purchased a property, plot No-12, Arazi No 193, situate in village Jarolli, Kanpur through an auction-cum-tender system conducted by the opposite party . In the advertisement published in the newspaper namely, Sahara dated 1.4.2012, the plot area was mentioned to be 188.93 sq. mts. in area. The auction was held on 4.5.2012 and it was finalized in favour of the complainant. The complainant deposited the entire auction amount Rs654,000/- as per terms and conditions of the auction-cum-tender. Consequently, sale letter was written by the auctioneer bank in favour of the auction-purchaser/the complainant. In this letter it was also mentioned that the possession
-2-
of the auctioned property is also handed over to the auction-purchaser. The area of auctioned property has been mentioned as 107.28 sq. mts instead of 188.93 sq. mts. No physical possession of the auctioned property was actually given to the complainant/auction purchaser. The Opposite Party/the auctioneer could have not given the possession as it was not in their possession also. The complainant has alleged in his complaint that the opposite party has indulged in unfair trade practice. It has charged the value for the full area of 188.93 sq. mts while the sale letter is being given for 107.28 sq. mts. only. The auctioneer bank was never in possession of the said property then how they could talk about handing over the possession of it to the complainant. It is case of deficiency in service. So being aggrieved with this act of bank, the complainant has filed the complaint and prayed for delivery of possession of the auctioned property and also for refund of excess amount Rs209,773/-for the deficient area of 50.57 sq.mts along with 10.5% interest on the total amount of Rs654,000/- from the date of deposit to the date of actual delivery of possession and realization of money and cost of Rs100,000/- for mental agony and Rs10,000/- for legal expenses . In response to the complaint case the opposite party filed the written objections before the learned District Forum denying all the averments of the complainant. The opposite party have admitted in their written objections that there was a mistake in advertisement. It was the mistake of publication. They admitted that the actual area was only 107.28 sq. mts. They have also said that there was no deficiency in service and offered that if the auction purchaser is not satisfied with the process of auction, he can take refund of his money deposited.
After hearing the learned counsels of both the parties, the learned District Forum have passed the impugned order directing the opposite party to deliver the possession of the property in question or refund the total amount Rs654,000/- deposited by the complainant along with the 12% interest on it. Being aggrieved
-3-
with the impugned order the opposite party/appellant have filed this appeal. In response to the appeal, the respondent/complainant have filed the written arguments.
The case was put up before us for hearing. We have heard the arguments of both the parties and perused the record on file. The main argument of the appellant was that the property in question pertains to the proceedings under SARFAESI Act 2002 and it was purchased by the complainant in the auction proceeding. The learned District Forum could not adjudicate in this matter. They have referred to the cases –Vijay Lal Mourya vs Bank of Baroda I (2015)CPJ117 (Chh) and Shiv Shanker Lal Gupta vs Kotak Mahindra Bank Ltd. II(2013) CPJ56 (NC). We have seen both these references. In instant case learned District Forum have not interfered in any proceedings under the SARFAESI Act 2002. The bank has auctioned the property after taking recourse to the recovery proceedings against third person who was the bank’s defaulter. This auction might be the culmination of proceedings under SARFAESI Act 2002.The facts of this case are independent of SARFAESI Proceedings, if any. The bank has misled the people and the complainant in particular by giving wrong facts regarding the measurement of the property in question in the advertisement and have admitted the error in the objections filed before the Forum below. If they were in know of the facts, they should have corrected the mistake before asking the auction purchaser to deposit the bid money and executing the sale letter.The reference to the above mentioned case laws does not help the appellants. The complainant is consumer in this case and the learned District Forum has the jurisdiction. The appellant should have specifically told the auction purchasers and mentioned in the advertisement that they will not be able to deliver the possessions of the property in question along with the caption of advertisement- “ As is-What is, As is -Where is , As is -What ever there is”. The opposite party / appellant have
-4-
suppressed this important information regarding the non-delivery of the physical possession from the participant auction-purchasers, before auction bid. They should have at the very outset of auction bidding told the bidders participating in the auction-cum-tender proceeding that the bank will not be responsible for delivery of possession. Thus the Appellant/ Opposite party have incurred deficiency in service and resorted to unfair trade practice. They have admitted that if the auction-purchaser is not satisfied with the auction proceedings, he can take refund of his money. But what about he mental ago, the complainant has to undergo all this period. The opposite party have to compensate it. The learned District Forum rightly allowed the complainant case. We do not find any thing to interfere in the impugned order. The Appeal is liable to be dismissed.
Order
In the light of above discussion sand observations the Appeal is dismissed. Parties will bear own costs. Hence No order to the costs.
(Udai Shanker Awasthi) (Mahesh Chand)
Presiding Member Member
S.k. st. c-४
