DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No. 131 of 19.4.2017

                                      Decided on:      28.12.2018

Raman Gupta son of Sh.Madan Lal Gupta , Rresident of Syndicate House, 1^st Floor, Lahori Gate, Patiala .

                                                                   …………...Complainant

                                      Versus

State Bank of Patiala ( Now State Bank of India), SARB, Phase-II, Urban Estate, Patiala through its Chief Manager.

                                                                   …………Opposite Party

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M.P.Singh Pahwa, President

                                      Smt. Neelam Gupta, Member

                                      Sh.Kanwaljeet Singh, Member         

ARGUED BY

                                       Sh.Dhiraj Puri, counsel for complainant.

                                      Sh.Anand Puri, counsel for OP.                                    

 ORDER

                                    SH. M.P.SINGH PAHWA,PRESIDENT          

1. This is the complaint filed by Sh. Raman Gupta (hereinafter referred to as the complainant) against State Bank of Patiala ( Now State Bank of India) hereinafter referred to as the OP.
2. Briefly, the case of the complainant is that the OP through E-auction proposed to sell the property No.2570, Urban Estate, Phase-II, Patiala alongwith terms and condition dated 1.10.2016.Complainant being interested to buy the property handed over the details of bidder alongwith cheque No.247876 dated 1.10.2016, drawn on State Bank of Patiala, Chowk Fort, branch Patiala of  Rs.2,82,000/- towards participation fees.
3. Being the highest bidder, the complainant was successful to bid for the property. As such to deposit 25% of  the initial bid amount he sent cheque No.247881 dated 5.10.2016 drawn on SBOP of Rs.4,24,750/- alongwith letter dated 5.10.2016 to the OP. The OP promised that the property shall be handed  over to the complainant on receiving 25% of amount. Hence the complainant requested the OP to handover the possession of the property No.2570, Urban Estate, Phase-II, Patiala but no action was taken by the OP for the reason best known to it.
4. The complainant through various e-mails requested the OP to handover the possession but to no avail. The complainant through various letters dated 21.11.2016, 22.12.2016 and 23.2.2017 also informed the OP to handover the possession and silence of the OP was causing acute mental anxiety and harassment. He is suffering from huge financial loss.
5. The complainant also requested the OP to intimate the tentative date of handing over of the possession so that he could marshal his finances to deposit the 75% balance amount towards the bid amount. He also requested in the alternative to refund the amount of Rs.7,06,750/- i.e. 25%  deposited already.
6. It is alleged that the complainant through his source came to know that the OP was never in possession of the property but still with ulterior motive and to deceive the complainant OP had tried to sell out the property through E-Auction. This act of the OP amounts to deficiency in service and unfair trade practice.The OP without any intimation or permission deposited the 25%  i.e. Rs.7,06,750/- in the account maintained with OP immediately through mail on 4.4.2017. Complainant requested the OP as to how the amount deposited in the account of the complainant without prior information and without legal settlement. The complainant received the amount under protest reserving legal right.
7. It is also alleged that the act of the OP is arbitrary, against the principle of natural justice, which amounts to deficiency in service and unfair trade practice. The complainant has also been suffering from mental pain and agony for this deficiency.
8. On this background of the facts, the complainant  has filed this complaint with the prayer for following direction to the OP:

1. To pay Rs.4,00,000/- as deficiency in service, mental agony and harassment;
2. To pay Rs.33000/-as litigation expenses
3. To pay the interest on the amount being kept with the OP and on the amount kept separately by the complainant i.e. 75% of the amount of the property in different accounts of the complainant.

Hence this complaint.

9.  Upon notice, OP appeared through counsel and contested the complaint by filing the written reply. In reply the OP raised preliminary objections that this Forum has no jurisdiction to try and decide the complaint; that the complaint filed is not maintainable; that the complainant has no cause of action to file the complaint. He has not come to the court with clean  hands, He has suppressed the material facts from this Forum. That the complainant has no locus standi to file the complaint and that the complaint is false, frivolous and vexatious to the knowledge of the complainant. There is no deficiency in service. Complainant has violated the terms and conditions of the auction proceedings and has not deposited the remaining 75% of the sale price as per the terms and conditions of the auction.As such the complaint is liable to be dismissed.
10. On merits, it is not denied that the complainant was successful bidder through E-Auction. It is further mentioned that the complainant was to deposit 25% of the initial bid amount. As such he sent letter dated 5.10.2016 alongwith cheque as referred in the complaint.
11. It is denied that the OP has promised that the property shall be handed over on receiving of 25% of the amount. It is denied that the complainant requested OP to   handover the possession of property in question .It is further mentioned that as per terms and conditio0ns of the bid, complainant had to deposit entire balance amount of 75% with the OP on or before 15^th day of sale and thereafter possession of the property was to be delivered to the complainant. Since the complainant failed to pay the entire amount as per the terms and conditions of the auction, the OP returned back 25%  initial amount to the complainant  by depositing the same in his account. The OP has right to forfeit the bid amount deposited by the complainant but the OP refunded the amount to keep cordial relation with the complainant. The complainant himself was not ready to deposit the entire amount with the OP.
12. It is denied that the complainant through e-mails requested to handover the possession. The receipt of letters referred by the complainant is also denied. All other averments of the complainant are denied. In the end, the OP prayed for the dismissal of the complaint.
13. Parties were afforded opportunity to produce their evidence.
14. In support of the complaint, the complainant tendered into evidence his affidavit, Ex.CA, copy of auction notice clipping, Ex.C1, copy of declaration by bidder, Ex.C2, copy of cheque, Ex.C3, copy of performa details of bidder, Ex.C4, copy of letter dated 5.10.2016, Ex.C5, copy of cheque dated 5.10.2016, Ex.C6, copies of e-mails/reminders Exs.C7 to C17, copy of statement of account, Ex.C17.
15. The OP tendered into evidence affidavit, Ex.OPA, copy of public auction notice, Ex.OP1, copy of details of bidder, Ex.OP2, copy of declaration by bidder, Ex.OP3 and closed the evidence,
16. The complainant has also submitted written arguments. We have heard the ld. counsel for the parties and also gone through the record of the case, carefully.
17. The ld. counsel for the complainant has reiterated his stand as taken in the complaint. It is further submitted by the ld. counsel for the complainant that the factual position is not disputed. It is not disputed that the complainant opted for purchase of the property in question and deposited 25% of the amount. The main averment of the complainant is that OP was not in possession  of the property. In auction notice,Ex.C1, the OP has rather claimed that their authorized officer has taken possession of the property. Therefore, the OP was claiming in possession of the property.  OP was unable to hand over the possession of the property. The OP has not produced any documentary evidence to prove legal possession of the property.As the OP was not in possession of the property, therefore, it was not having any right to put the same to auction.
18. The OP  has refunded the earnest amount. This act itself shows that the OP was not able to hand over the possession otherwise OP was not having any reason to refund the earnest money.The OP has used the amount of earnest money received from the complainant.Complainant remained debarred from using this amount.Therefore, the complainant was also entitled to interest on this amount. The OP has unnecessary caused harassment to the complainant. Hence complainant is also entitled to the compensation/damages as claimed for.
19. On the other hand, the ld. counsel for the OP after reiterating its stand as taken in the written version, has submitted that the complainant himself has placed on record copy of the auction notice, Ex.C1, which contains the material terms and conditions. It is categorically mentioned that the successful bidder shall  have to deposit25% of the sale price within 24 hours of acceptance of bid price.The balance 75% of the sale price was to be paid on  or before 15^th day of sale or within such extended period. In case of default in payment by successful bidder, the amount already deposited was liable to be forfeited and property shall be put to re-auction. This document belies the submission of the complainant that the OP promised to hand over the possession on receiving 25% of the amount. There is nothing to show that the complainant ever opted for the deposit of 75% amount. Only thereafter, the complainant was having right to claim possession. It is also mentioned in this notice that the earnest money deposited shall not bear any interest.
20. The complainant has also relied upon his declaration Ex.C2 dated 1.10.2016. Whereas the last date and time of submission of the bids was 3.10.2016. This declaration by the complainant is apparently before submission of bid. In paragraph 7 of this declaration, the complainant had agreed that he will inspect the assets and will satisfy himself about its specifications and area etc. before submitting to bid. Complainant has also declared that he has fully understood the terms and conditions of the auction and agreed to be bound by the same.
21. Of course, the complainant has produced on record various letters to prove that he used to ask for delivery of possession but the complainant was not  having right to claim possession without deposit of the remaining amount. As such these letters were only an attempt to delay the payment of balance amount and to safe himself from the consequences of failure in depositing the remaining amount. The OP was having right to forfeit the amount received from the complainant. Despite this fact, the OP has refunded the amount to the complainant. Therefore, no deficiency in service can be attributed on the part of the OP.
22. We have given careful consideration to the submissions
23. The admitted facts are that the OP issued public notice for auction of moveable/immovable property. Complainant opted for purchase of property and he was successful bidder. Complainant deposited 25% of the bid amount as per terms and conditions of auction notice.
24. As per the complainant he repeatedly asked the OP to hand over the possession and expressed readiness to deposit the remaining amount but the OP failed to  hand over the possession.
25.  The version of OP is that as per terms and conditions, the complainant was firstly required to deposit the balance amount within the stipulated period and only then he was having right to claim possession. The complainant has violated the terms and conditions.
26. Therefore, the controversy lies in very narrow campous  to the point whether the complainant was to deposit remaining amount of 75% before claiming possession or the amount was to be deposited after taking possession.
27. This controversy is to be solved on the basis of terms and conditions mentioned in the auction notice. Of course, as per auction notice the OP has claimed that   its authorized officer has taken  possession of the property put to auction. At the end of the public notice, it is further mentioned that the successful bidder shall have to deposit 25% of the sale price within 24 hours of the auction of the bid price and balance 75% of sale price on  or before 15^th day of sale or within such extended period as agreed upon .
28. The perusal of this auction notice reveals that complainant was required to deposit 75% of the amount within 15^th day of sale   from the acceptance of the bid. It is not the case of the complainant that he deposited 75% of the amount. It is also not the case of the complainant that he was ever willing  to deposit the 75% of the amount.
29. In the complaint, the repeated averment of the complainant  is that the OP promised that the possession shall be handed over on receiving 25% of the amount. Hence the complainant requested the OP to hand over the possession. This averment leaves no manner of doubt that the complainant was claiming possession of the property but without depositing remaining 75% of the amount.
30. The complainant  has also relied upon declaration made by him on 1.10.2016 before last date of submission of bid. Complainant has declared that he  will inspect the assets which has been put on sale and will satisfy himself about its specifications , area, etc. before submitting the bid. He has also declared that he has fully understood the terms and conditions of the auction and agreed to be bound by the same.Therefore, this document also proves that the complainant was aware  of the terms and conditions and he  had also accepted the same.
31. The OP has refunded the earnest amount received from the complainant. Now the complainant  is claiming interest on the bid amount deposited by him and compensation. As the complainant himself has violated terms and conditions, therefore, he cannot claim interest on the amount paid by him, which has already been refunded to him.
32. In these circumstances, the complaint is considered to be without merit and stands dismissed with no order as to costs. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:28.12.2018     

 Kanwaljeet Singh                   Neelam Gupta             M. P. Singh Pahwa

       Member                                 Member                                      President