FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The complainants were interested in buying a shop room as advertised in the Newspapers Telegraph and Sambad Pratidin dated 09.02.2018. The reserve price of the property was Rs.38,48,000/- and the earnest money deposit for the said property was fixed at Rs.3,84,800/-. The complainants submitted a Bid Application Form dated 23.02.2018 with a DD of Rs.3,84,800/- in favour of the OP 1 and requested the OP 5 to issue an ID and Password to take part in the e-auction. The same was allowed by the OPs. The OP 5 informed the complainants vide letter dated 28.02.2018 about their successful bidding and advised them to deposit Rs.5,80,500/- accordingly. The complainant No. 1 paid the sum of Rs.5,80,000/- vide DD dated 27.02.2018. The balance amount is required to be paid within 15 days from the date of e auction. The complainant No 1 requested the OP 3 time and again to provide them with copies of relevant documents so that they can conduct necessary searches of the property in question. The complainants sent letter to the OP 1 dated 07.03.2018 to provide them relevant papers so that they can avail loan to pay the outstanding dues. On 14.03.2018 the OP 5 handed over the copy of Title Deed, copy of sanction plan, Mutation Certificate in the name of the previous owner. The complainant found the property in question as a shop in the Title Deed whereas in the Mutation Certificate it is shown as ‘Land’. In the sanctioned plan the entire ground floor is shown as garage only. The complainant sent letter dated 21.03.2018 seeking revised sanctioned plan to be submitted to the PNB to avail loan to pay the residual amount. The OP 5 sent a notice dated 27.03.2018 to the complainant that they have sent all the documents of the auctioned property and refer to their letter dated 14.03.2018 which the complainant did not receive. The OP 5 thereafter sent another letter dated 29.03.2018 to the complainants informing that the amount deposited in this connection stands forfeited due to non-payment of the remaining amount within the stipulated period.
The answering OPs have contested the case by filing their Witten Version contending inter alia that the complaint petition is misconceived and the same is liable to be rejected with cost. The flow of events as per terms and conditions of the Advertisement dated 09.02.2018 is as follows.
- 09.02.2018 – Date of Advertisement in the newspaper.
- 16.02.2018 – Intending purchasers / bidders are allowed inspection (Cl. 13)
- 20.02.2018 – Intending purchasers / bidders are allowed inspection(Cl. 13).
- 23.02.2018 – Intending purchasers/ bidders to complete independent enquiries regarding the title and to submit EMD etc ( Cl. 12)
- 28.02.2018 – Date of Mega e – auction (Cl. 11)The highest bidder must deposit 25 percentof the sale price with the Authorised Officer (Cl.2)
- Thereafter the sale is to be confirmed.
- Thereafter within 15 days of confirmation of sale 75 percentof the sale price to be deposited with the Authorised Officer.
The OPs submit that as pert clause No. 12, the bidders were to satisfy by causing and effecting independent enquiries regarding the title before submitting EMD, etc. They were also to take inspection of the Title Deeds and property on the dates 16.02.2018 & 20.02.2018. The letter dated 07.03.2018 issued by the complainant is belated and the same should have been done on or before 20.02.2018 and certainly before submitting EMD on 23.02.2018. The complainants should not have participated in the bid without arranging the fund for purchase. The sale was “ as is where is” and “ as is what is basis”. The complainant had already taken inspection on 16.02.2018 and 20.02.2018 and only being satisfied with all inspection and independent enquiry they submitted EMD on 23.02.2018. The complainant should have approached for loan and after being sure of such sanction they should have participated in the e auction. The complainants were well aware of the facts of the procedure. At the time of taking possession of the property from the erstwhile owner the place was used as shop and in the KMC record it was mention as shop room. The complainant had caused enquiries and participated in the auction after being satisfied that the place is mentioned as shop room and not as garage. There is no scope to request the OP 5 to provide him with a copy of revised sanctioned plan of the said property. The auction sale is always on the basis of as is where is and the intending purchaser / bidder is to satisfy himself of the title before submitting EMD and participating in the auction. The OP 5 did never refuse the complainant or asked the complainant to visit him another time. The complainant has not furnished any document from the Bank authority pointing outthat the documents supplied being contradictory and loan could not be sanctioned. The letter of the complainant dated 21.03.2018 seeking for revised sanctioned plan is unnecessary and out of time as the auction seller will not run to fetch the alleged documents required for loan. The OPs also deny the allegation of not receiving the letter dated 14.03.2018 as they have the proof of the same. The OPs have denied all allegation against them. In reality there might have been a delay in sanction and disbursal of loan which has caused the complainant to find baseless faults in the title of the property in order to get back the money deposited and save it from forfeiture.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. The complainant & the OPs have filed their respective Evidence supported by affidavit. They have also filed replies to the questionnaire set forth by their adversaries. They have also submitted their BNAs.
The complainants participated in the e-auction conducted by the OPs related to the sale of a shop in the name of M/S Sarson Restaurant at 50/1B, Purna Das Road, Kolkata - 700029 under serial No. 5 of the Mega E-Auction Advertisement dated 09.02.2018 published in the newspaper the Telegraph and Sangbad Protidin. The reserve price of the property was Rs. 38,48,000/-. The EMD paid by the complainant was Rs. 3,84,800/-. On receipt of notice dated 28.02.2018 from the OP 5 about the successful biding the complainants further deposited Rs. 5,80,500/- by DD dated 27.02.2018 with their letter dated 28.02.2018. As such, the total amount paid by the complainants was Rs. 9,65,300/-. It is fact that the procedure of e-auction has been clearly mentioned by the OPs in their advertisement dated 09.02.2018. It is also the obligation and responsibility of the intending purchasers/bidders to go by the rules and regulations as mentioned in the advertisement. While perusing the terms and conditions of Mega E-Auction it is observed under point No. 8 that
“e-auction is being held on AS IS WHERE IS BASIS AND AS IS WHAT IS BASIS ” and it is also observed from point No. 2 of the said terms and conditions that failure to deposit the total sale price within the stipulated period would entail in forfeiture of the whole amount, already deposited. It is submitted by the complainant that he wanted to avail loan from his banker, Punjab National Bank, Ballygunge Branch, Kolkata for which he submitted before the OPs vide letter dated 07.03.2018 to supply him some more documents which seems to have not been received by the complainant though the complainant has not produced any letter from his banker Punjab National Bank, Ballygunge Branch, Kolkata. But the fact is the complainant could not be able to deposit the balance 75 percentof the reserve price of Rs. 38,48,000/- as advised by the OPs vide their letter dated 28.02.2018. In consequence of non-payment of balance 75 percent within the stipulated period i.e. on or before 14.03.2018 the OPs vide their letter dated 29.03.2018 informed the complainant that amount deposited by him so far stands forfeited in terms of SAFAESI Rules and the auction sale of the impugned property is cancelled. The bare truth of the case is that the complainants wanted to purchase the impugned property for which they have paid Rs. 9,65,300/- to the OPs and had a sincere intention to pay the balance amount by availing loan from his Bank. Unfortunately, he could not arrange the fund of the balance amount for which the OPs have forfeited the amount of Rs. 9,65,300/- as per the terms and conditions of the advertisement dated 09.02.2018. On perusal of the complaint petition, it is observed that the complainant No. 1 is a small scale businessman and owns a shop in Gariahat Market and the complainant No. 2 is a housewife. The amount of Rs. 9,65,300/- paid by the complainants is a very substantial amount which has been forfeited by the OPs. Though the auction sale of the impugned property was cancelled, the OPs are very much owning the said property which they can sell it any time afterwards. This has been admitted by them in their letter dated 29.03.2018 addressed to the complainant which means that the OPs have lost nothing whereas the complainant has lost everything. Neither he has been able to procure the property nor he has been refunded the substantial amount of Rs.9,65,300/-deposited as earnest money. An individual is being exploited by a group of individuals represented by the mighty Bank (SBI) of the Country for his unintentional lapses. The mighty organization is gaining at the cost of misery/ sufferings of an individual. The individual cannot sustain such huge loss. Under the circumstances how can we forget the principles of Natural Justice. It is fact that the OPs have incurred expenses towards administrative cost of conducting the e-auction where there were so many properties to be sold through the said e-auction. As such proportionate cost of administrative expenses is to be borne by the complainants in the instant case. It would be very much unjustified if the OPs are allowed to consume the entire amount out rightly by showing their so called terms and conditions framed unilaterally of their own where there is no option of the party at the other side. The OPs cannot wash out their hands by citing the so called terms and conditions where there is no chance of any option/opinion of the party at the other side.
In view of the above observation, we are of the considered view that the complainants have established the case in part against the OPs.
All the points under determination are answered accordingly.
In the result, the Consumer Complaint succeeds in part
Hence,
Ordered
That the complaint case be and the same is allowed in part on contest against the OPs with the following directions:-
1. The OP-1 is directed to refund Rs.9,65,300/- to the complainants after deducting 10 percentas administrative charges incurred for conducting the e- auction.
2. The OP-1 is also directed to pay Rs. 10,000/- to the complainants as litigation charges.
The above order is to be complied with within a period of 30 days from the date of the order in default the complainants will be at liberty to put the order into execution.
