Sh.Anoop Sharma, Presiding Member

1.       Smt.Vivek Sethi  has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that Sh.Om Parkash son of Amar Nath, Smt.Kiran wife of Sh.Om Parkash and Smt.Santosh Rani wife of Ramesh Kumar, residents of 162,Jawahar Nagar, Batala Road, Amritsar  had filed a complaint before this Forum against Opposite Parties  alleging that they had availed a loan facility of Rs.10 lacs in the year 2004 by mortgaging  one property having an area of 168.7 square yards situated at Gali bankey Behari, Khoo Kande Wala, Parkash Vihar, Amritsar from Opposite Party No.1 having loan account No. 10049839547 with file No.3392, but due to the bad financial conditions, they failed to square up their loan account which was declared NPA on 30.9.2009 and then Opposite Party No.1 branch had transferred the said loan account of said persons to Opposite Party No.2 which is specifically established by State Bank of India to resolve/ recover NPA accounts of the branch at Amritsar centre and the Opposite Party No.2 in order to recover the outstanding amount of loan account of said persons, had initiated proceedings against them under the SARFAESI ACT, Opposite Party No.2 had fixed the reserve price of the mortgaged property of said persons as Rs.13.50 lacs while auctioning the same and in the auction, Opposite Party No.2 had fetched an amount of Rs.19 lacs of the mortgaged property which had taken price on 25.5.2001 and thereafter, the account of said persons was duly squared and the remaining amount after sale confirmation comes to Rs.5.50 lacs and the said persons had claimed this amount from the bank Opposite Party to which they were not entitled to. On coming to know about the filing of said complaint by Om Parkash etc. against the Opposite Party, the present complainant had moved an application in that complaint before this Forum for impleading her as a party to that complaint on the averments that during the period of said property in question was lying mortgaged with the Opposite Party, the aforesaid persons  Om parkash etc. had sold this very property to the present complainant Smt.Vivek Sethi without disclosing the fact of mortgage with the Opposite Party by playing fraud with the complainant for a valuable consideration of Rs.5.72 lacs and had delivered the possession of the same to the complainant vide sale deed dated 3.6.2010, but whereas it was auctioned by the Opposite Party lateron i.e. on 25.5.2015 in favour of Ankush Bhalla son of Kuldip Bhalla, resident of 17, Race Course Road, Amritsar and as such, this complainant was not aware about the mortgage of this property by Om Parkash etc. with the bank and she had purchased the same in good faith and bonafide manner and the sale certificate regarding auction of this property was issued by the bank in favour of said auction purchaser Ankush Bhalla on 20.6.2011. It is  worthwhile to mention over here that during the proceedings under the SARFAESI Act, the bank had taken possession of the said property without knowledge of the complainant and the bank had delivered its possession to the auction purchaser. Since the sadi persons Om Parkash etc. were left with no right, title or interest in the sadi property after its sale to the complainant, therefore on coming to know about the application of the complainant for impleading her as a party in their complaint, they malafidely withdrew their complaint and as such, the application of the complainant stood automatically rejected as it was not disposed off by this Forum and the complainant was not  made party in the earlier complaint.  On account of the sale of the said property by the previous owners Om Parkash etc. for valuable consideration in favour of the complainant, she had stepped into their shoes and as such, she is legally entitled to receive the  surplus amount of Rs.4,10,000- which is lying with Opposite Party and they are liable to refund this amount to the complainant. The complainant approached the Opposite Party number of times and requested them to make payment of Rs.4,10,000/- to her being the surplus amount after recovering their dues but firstly they put off the matter on one pretext or the other but finally few days ago, they have flatly refused to pay the amount to her.                  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties may be directed to pay a sum of Rs.4,10,000/- to the complainant being the surplus amount lying with them alongwith Rs.20,000/- as compensation and Rs.10,000/- as litigation expenses besides any other relief to which she is found legally entitled.          

Hence, this complaint.

2.       Upon notice, opposite parties appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that the complainant is not covered under the definition of consumer as per C.P.Act, the complaint as such is not maintainable;   that the complaint is not maintainable being hopelessly time barred. The property stood sold in auction in May 2011, certificate of sale stood issued on receipt of auction money from the auction purchaser in June, 2011 by the answering Opposite Party even to the knowledge of the complainant, but however, the complainant as per the litigation between herself and Om Parkash etc. the complainant and the auction purchaser Ankush Bhalla, the answering Opposite Party and Ramesh Kumar etc. the brother of the complainant, as stood sold to auction purchaser in 2011 through auction followed by issuance of sale certificate in the year 2011 itself leaving, no title or right in relation to the mortgaged property so sold, the present complaint, in the circumstances deserves dismissal being not maintainable; that there are disputed and complicated questions  of facts and law involved as per the allegations contained in the complaint, same can not be adjudged by this Forum and requires adjudication from the civil court; that the complainant has deliberately not disclosed the facts that the complainant though unlawfully got transferred the title in relation to the mortgaged property with the bank vide sale deed dated 3.6.2010 from Om Parkash etc without any notice to the answering Opposite Party. However, the loan account of Om Parkash became NPA and accordingly the Opposite Party in exercise of its power under the SARFAESI Act proceeded for recovery of the outstanding dues as charge on the mortgaged property, which in fact stood sold as defective title favour said complainant.  The complainant since filed a civil litigation in different courts of law arraying the said seller Om Parkash as the defendants, the auction purchaser Ankush Bhalla, the brother of said seller Ramesh Kumar as well as the answering Opposite Party alleging that the said seller since sold the property mortgaged  to him for some consideration in the year 2010 itself, whereas  the bank proceeded with auction in the year 2011 and sold the property  in auction on 25.5.2011 i.e. on which date no interest was left over with the present complainant. The present complaint so far as the complainant is concerned is without any right of auction, in the circumstances not maintainable, and is liable to be dismissed being false frivolous. On merits, the Opposite Parties took almost same and  similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C7  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties tendered into evidence the affidavit of Sh.Krishan Kishore, Assistant General Manager Ex.Op1,2/1A alongwith copies of documents Ex. Op1,2/1 to Ex.Op1,2/18 and closed the evidence on behalf of the Opposite Parties.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       Ld.counsel for the complainant has submitted the arguments in which he has  reiterated the facts as detailed in the complaint. It was averred that Sh.Om Parkash son of Amar Nath, Smt.Kiran wife of Sh.Om Parkash and Smt.Santosh Rani wife of Ramesh Kumar, residents of 162,Jawahar Nagar, Batala Road, Amritsar  had filed a complaint before this Forum against Opposite Parties  alleging that they had availed a loan facility of Rs.10 lacs in the year 2004 by mortgaging  one property having an area of 168.7 square yards situated at Gali bankey Behari, Khoo Kande Wala, Parkash Vihar, Amritsar from Opposite Party No.1 having loan account No. 10049839547 with file No.3392, but due to the bad financial conditions, they failed to square up their loan account which was declared NPA on 30.9.2009 and then Opposite Party No.1 branch had transferred the said loan account of said persons to Opposite Party No.2 which is specifically established by State Bank of India to resolve/ recover NPA accounts of the branch at Amritsar centre and the Opposite Party No.2 in order to recover the outstanding amount of loan account of said persons, had initiated proceedings against them under the SARFAESI ACT, Opposite Party No.2 had fixed the reserve price of the mortgaged property of said persons as Rs.13.50 lacs while auctioning the same and in the auction, Opposite Party No.2 had fetched an amount of rs.19 lacs of the mortgaged property which had taken price on 25.5.2001 and thereafter, the account of said persons was duly squared and the remaining amount after sale confirmation comes to Rs.5.50 lacs and the said persons had claimed this amount from the bank Opposite Party to which they were not entitled to. On coming to know about the filing of said complaint by Om Parkash etc. against the Opposite Party, the present complainant had moved an application in that complaint before this Forum for impleading her as a party to that complaint on the averments that during the period of said property in question was lying mortgaged with the Opposite Party, the aforesaid persons  Om parkash etc. had sold this very property to the present complainant Smt.Vivek Sethi without disclosing the fact of mortgage with the Opposite Party by playing fraud with the complainant for a valuable consideration of Rs.5.72 lacs and had delivered the possession of the same to the complainant vide sale deed dated 3.6.2010, but whereas it was auctioned by the Opposite Party lateron i.e. on 25.5.2015 in favour of Ankush Bhalla son of Kuldip Bhalla, resident of 17, Race Course Road, Amritsar and as such, this complainant was not aware about the mortgage of this property by Om Parkash etc. with the bank and she had purchased the same in good faith and bonafide manner and the sale certificate regarding auction of this property was issued by the bank in favour of said auction purchaser Ankush Bhalla on 20.6.2011. It is  worthwhile to mention over here that during the proceedings under the SARFAESI Act, the bank had taken possession of the said property without knowledge of the complainant and the bank had delivered its possession to the auction purchaser. Since the said persons Om Parkash etc. were left with no right, title or interest in the said property after its sale to the complainant, therefore on coming to know about the application of the complainant for impleading her as a party in their complaint, they malafidely withdrew their complaint and as such, the application of the complainant stood automatically rejected as it was not disposed off by this Forum and the complainant was not  made party in the earlier complaint.  On account of the sale of the said property by the previous owners Om Parkash etc. for valuable consideration in favour of the complainant, she had stepped into their shoes and as such, she is legally entitled to receive the  surplus amount of Rs.4,10,000- which is lying with Opposite Party and they are liable to refund this amount to the complainant. The complainant approached the Opposite Party number of times and requested them to make payment of Rs.4,10,000/- to her being the surplus amount after recovering their dues but firstly they put off the matter on one pretext or the other but finally few days ago, they have flatly refused to pay the amount to her. 

7.       On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant is not covered under the definition of consumer as per C.P.Act, the complaint as such is not maintainable;   that the complaint is not maintainable being hopelessly time barred. The property stood sold in auction in May 2011, certificate of sale stood issued on receipt of auction money from the auction purchaser in June, 2011 by the answering Opposite Party even to the knowledge of the complainant, but however, the complainant as per the litigation between herself and Om Parkash etc. the complainant and the auction purchaser Ankush Bhalla, the answering Opposite Party and Ramesh Kumar etc. the brother of the complainant, as stood sold to auction purchaser in 2011 through auction followed by issuance of sale certificate in the year 2011 itself leaving, no title or right in relation to the mortgaged property so sold, the present complaint, in the circumstances deserves dismissal being not maintainable; that there are disputed and complicated questions  of facts and law involved as per the allegations contained in the complaint, same can not be adjudged by this Forum and requires adjudication from the civil court; that the complainant has deliberately not disclosed the facts that the complainant though unlawfully got transferred the title in relation to the mortgaged property with the bank vide sale deed dated 3.6.2010 from Om Parkash etc without any notice to the answering Opposite Party. However, the loan account of Om Parkash became NPA and accordingly the Opposite Party in exercise of its power under the SARFAESI Act proceeded for recovery of the outstanding dues as charge on the mortgaged property, which in fact stood sold as defective title favour said complainant.  The complainant since filed a civil litigation in different courts of law arraying the said seller Om Parkash as the defendants, the auction purchaser Ankush Bhalla, the brother of said seller Ramesh Kumar as well as the answering Opposite Party alleging that the said seller since sold the property mortgaged  to him for some consideration in the year 2010 itself, whereas  the bank proceeded with auction in the year 2011 and sold the property  in auction on 25.5.2011 i.e. on which date no interest was left over with the present complainant. The present complaint so far as the complainant is concerned is without any right of auction, in the circumstances not maintainable, and is liable to be dismissed being false frivolous. 

8.       Perusal of the documents shows that the dispute in question is with regarding to fabrication i.e. by getting the sale deed execution of the property which was lying with Opposite Party bank by way of mortgage loan. Not only this, the Opposite Party has already initiated proceedings under SARFAESI Act which is admitted one.     In fact it seems that there is some fabrication  made in the documents. In this regard, Hon’ble National Commision in case Vishamber Sunderdas Badlani and Anr. Vs. Indian Bank and 3 others in 2008(1) CPR 76 in Original Petition No. 24 of 2005 decided on 28.9.2007 has held that disputed questions of facts, relating to unauthorised representations made about paying high rate of interest- since requirement of recording voluminous evidence relating to forgery and conspiracy involved, thus the matter not adjudicable in summary proceedings and relegated to Civil Court- Complaint dismissed. The law is well settled that when there are allegations of fraud and cheating etc., the Consumer Court has got no jurisdiction and the matter is to be decided by the Civil Court. In this connection, judgment of Hon'ble Apex Court and that of Hon'ble Punjab State Commission in Oriental Insurance Company Ltd. vs. Munimahesh Patel , 2006(IV) CPJ-1 (SC) and Daljit Singh Dogra vs. ING Vysya Bank Ltd. and others 2009(4) CLT 22 respectively can be referred to with advantage. Not only this, the proceedings before this Forum under Consumer Protection Act are summary proceedings and the present complaint contains legal and technical aspects requiring full dressed trial, elaborate evidence and contentious issue of fact and this can be done only by Hon’ble Civil Court which is the proper Forum. Not only his, the Complainant has primarily sought relief by way of issuance of direction to the opposite party to  pay a sum of Rs.4,10,000/- to the complainant being the surplus amount lying  with them alongwith Rs.20,000/- as compensation and Rs.10,000/- as litigation expenses.  Complaint cannot be entertained on two grounds, firstly that immovable property does not fall within the scope of the Consumer Protection Act and secondly the remedy was available to the complainant by way of filing appeal u/s 17 of the aforesaid SARFAESI  Act. Purchase of immovable property in an open auction would neither fall within the definition of goods nor within the meaning of hiring of the services. Contention was sought to be raised that since housing dispute was covered in section 2(1)(O) in the definition of 'service', therefore, complaint would be maintainable.

9.       In view of the above observations and findings, it is held that this Forum has no jurisdiction to try the present complaint and as such, the same is dismissed. The complainant is relegated to the Civil Court to get his grievance redressed. In doing so, if limitation comes in his way, he can take advantage of decision of Hon'ble Supreme Court in the case of Laxmi Engineering Works vs. P.S.G.Industrial Institute II (1995) CPJ 1. No order as to costs. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum