Madhya Pradesh

StateCommission

A/19/1468

SANTOSH KUMAR GUPTA - Complainant(s)

Versus

PUNJAB NATIONAL BANK - Opp.Party(s)

MS.SHABINA ALI

04 Apr 2022

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

 

                                    FIRST APPEAL NO. 1468 OF 2019

(Arising out of order dated 09.07.2019 passed in C.C.No.616/2017 by the District Commission Jabalpur-1)

 

SANTOSH KUMAR GUPTA,

S/O LATE SHRI GAURI SHANKAR GUPTA,

GARHA PHATAK, JABALPUR (M.P.)                                                     …          APPELLANT

 

Versus

                 

PUNJAB NATIONAL BANK,

THROUGH BRANCH MANAGER/AUTORISED OFFICER,

BRANCH-CANT, JABALPUR (M.P.)                                                       …         RESPONDENT.

            

BEFORE:

 

                  HON’BLE DR. (MRS) MONIKA MALIK    :      PRESIDING MEMBER

                  HON’BLE SHRI S. S. BANSAL                :      MEMBER      

                 

COUNSEL FOR PARTIES :

      Ms. Shabina Ali, learned counsel for the appellant.

      Shri Yash Vidyarthi, learned counsel for the respondent.

                                                                               

                                                            O R D E R

                                       (Passed On  04.04.2022)

                   The following order of the Commission was delivered by Dr. Monika Malik, Presiding Member:

 

                        This appeal by the complainant/appellant is directed against the order dated 09.07.2019 passed by the District Consumer Disputes Redressal Commission Jabalpur-1 (for short the ‘District Commission’) in C. C. No. 616/2017 whereby the complaint filed by the complainant/appellant has been dismissed.

2.                Briefly put, facts of the case as narrated by the complainant/appellant are that the complainant had purchased a residential

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house through e-auction for a sum of Rs.10,84,000/- of which sale-letter was given by the opposite party on 14.07.2014. It is alleged by the complainant that even after giving sale letter and despite repeated assurances physical possession of the house was not given.  It is alleged that there was a dispute between one Govind Prasad Patel and the opposite party bank regarding the house in question and therefore, the opposite party is not giving the possession of the house to the complainant.  The complainant therefore, filed a complaint alleging deficiency in service and unfair trade practice on part of the opposite party seeking refund of deposited amount Rs.10,84,000/- with interest @ 18% p.a. along with Rs.4,00,000/- towards expenses incurred under different heads.  The complainant also sought a sum of Rs.2,00,000/- towards compensation with Rs.25,000/- as costs.

 3.               The opposite party/respondent resisted the complaint stating that the complainant after going through all the conditions of auction of the property under the caption ‘As is where is’, which was advertised in newspaper, had purchased the house in question.  The opposite party never gave any assurance regarding physical possession of the house. It is further submitted that the complainant has filed frivolous complaint which is time barred also.  The jurisdiction of the matter is vested with Debt Recovery Tribunal under the Securitization and Reconstruction of Financial Assets

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and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’) and not with the ‘Consumer Protection Act’. 

4.                Heard. Perused the record.

5.                Learned counsel for the appellant argued that the District Commission has erroneously passed the impugned order and dismissed the complaint holding that since the complainant had purchased the house in question in auction under the SARFAESI Act, therefore the complainant is not a consumer.  She submits that the auction purchaser is a consumer. She therefore prayed for allowing this appeal. In support of her contention she relied upon the decisions of the National Commission in Devinder Kumar Anand & Ors Vs Haryana Urban Development Authority & Anr 2017(2) CPR 905(NC), Vijay Shankar Singh Vs Divisional Forest Officer & Ors 2016 (3) CPR 276(NC), Kunj Bihari Lal (Since deceased) through his LRs & Ors Vs Urban Improvement Co. Pvt. Ltd. 2014(1) CPR 557 (NC) and State Bank of India Vs Eid Mohammad Khan & Ors 2016 (1) CPR 309 (NC).  She further argued that the Bank cannot auction encumbered property relying on the decision of the National Commission in Jaswinder Singh Vs Corporation Bank 2013 (3) CPR 379 (NC).

6.                Learned counsel for the respondent supporting the impugned order argued that since the appellant had purchased the house in question in auction under the SARFAESI Act, therefore, the District Commission has

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no jurisdiction to entertain the complaint and the jurisdiction is vested with Debt Recovery Tribunal under the SARFAESI Act.  The complainant is not a consumer.  In support of his contention he relied on the judgments of the Supreme Court in Agarwal Tracom Pvt. Ltd. Vs Punjab National Bank & Ors. I (2018) BC 3 (SC)= 2018 (2) MPLJ 648, U.T.Chandigarh Administration & Anr. Vs Amarjeet Singh & Ors. II (2009) CPJ 1 (SC), and in Jagdish Singh Vs Heeralal & Ors. 2014(2) MPLJ 560 and judgments of the National Commission in Abhay Kumar Singh Vs Bank of Maharashtra & Ors II (2019) CPJ 543 (NC), Karnataka Bank Ltd. & Anr Vs Deverasetty Venugopal & Anr I (2017) CPJ 358 (NC), Subhash Infra Engieers Pvt.Ltd. Vs Haryana Urban Development Authority I (2015) CPJ 41 (NC), Rajasthan Financial Corporation Vs M. K. Bhoot & Anr III (2009) CPJ 10 (NC), Chief Manager/Authorized Officer, State Bank of Mysore Vs G.Mahimaiah CDJ 2015 (Cons) Case No.685 (NC) and in Harianandan Prasad Vs State Bank of India III (2012) CPJ 237 (NC) and judgment of Chhatisgarh State Commission in Vijay Lal Mourya Vs Bank of Baroda & Anr I (2015) CPJ 117 (Chhat) and the judgment of Debt Recovery Appellate Tribunal, Delhi in Uma Devi Vs Bank of India & Ors IV (2020) BC 135 (DRAT) and the decision of the High Court of M.P. in Century 21 Town Planners Pvt. Ltd. Vs J. M. Finance Assets Reconstruction 2018 (4) MPLJ 697.

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7.                We have gone through the impugned order as also the record of the District Commission.  The complainant/appellant has alleged that even after issung sale letter and despite repeated requests made by him, the opposite party/respondent gave false assurances but physical possession of the house was not given to the complainant/appellant.  It is alleged that there was a dispute between one Govind Prasad Patel, the previous owner of the property in question and the opposite party bank regarding the said house and therefore, the opposite party is not giving the possession of the house to the complainant.

8.                On going through the record, we find that exhibit R-1 is the notice dated 30.05.2014 regarding e-auction, published in newspaper.  In the said auction notice it is clearly mentioned that the property will be sold as per terms and conditions of the SARFAESI Act on ‘As is Where is’ basis. It is further mentioned that the bidder is required to inspect the property before the date of auction. Later on, no claim/demand of the bidder will be entertained. Further it is mentioned that if the property is in possession of borrower/tenant or any other person, then there is no responsibility of the bank to get it free from possession. The successful bidders themselves will have to get it evicted. The bidder had to purchase the property with aforesaid condition.

 

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9.                So far as the contention of the complainant/appellant that the possession of the house was not given is concerned, we find that the auction of the property by bank was offered on ‘As is where is basis’. It was for the complainant to be satisfied about correctness of title of the land.  It was purely a sales transaction, with bank offering sale of certain properties under SARFAESI Act, 2002.  Potential risks in such a transaction should have been apparent to the complainant.  There is no contract for service. It is not for the complainant, to accuse the bank of deficiency in service or unfair trade practice under the scope of ‘Consumer Protection Act’ later especially when the relevant clause in the sale certificate reads as “The sale of the scheduled property was made free from all encumbrances known to the scheduled creditor listed below on deposit of the money demanded by the undersigned.”

10.              Hon’ble Supreme Court in U. T. Chandigarh Administration & Anr Vs Amarjeet Singh & Ors. II (2009) CPJ 1 (SC) has held that Purchaser/lessee in public auction cannot be said to be a consumer. Owner is not a trader or service provider.  Any grievance by purchaser will not give rise to complaint or consumer dispute. The Fora under the Consumer Protection Act, has no jurisdiction to adjudicate complaint by auction purchaser/lessee against owner holding auction of site. Hon’ble National Commission in Abhay Kumar Singh (supra) and in Karnataka Bank Ltd

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& Anr (supra) have clearly highlighted the clause of ‘As is where is’ basis in the transaction held between the purchaser and the bank.  Hon’ble National Commission in Chief Manager (supra) has held that purchaser was not a consumer under the Consumer Protection Act, 1986 and consumer complaint was not maintainable on this ground alone. Notwithstanding, the facts of the cases of the judgments relied upon by the counsel for appellant are different from that of the case in hand and are thus not applicable in the instant matter.

11.              In view of the foregoing discussion, we reach a conclusion that this consumer complaint is not maintainable on the ground that complainant is not a ‘consumer’ as there is no contract for service and the property in question was sold in auction under the SARFAESI Act and the complainant is required to approach before the Debt Recovery Tribunal under the SARFAESI Act. 

12.              In this view of the matter, we are of a considered opinion that this appeal filed by the complainant/appellant is devoid of any merit.  It is accordingly dismissed. However, no order as to costs. The complainant/appellant is free to approach appropriate court, or redressal of his grievance with liberty as may be available to him, in accordance with law.  

            (Dr. Monika Malik)                           (S. S. Bansal)              

           Presiding Member                               Member