BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 08th March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.102/2016
(Admitted on 26.03.2016)
1. B.Srinivas Pai,
S/o B.Venkatesh Pai,
Door No.1-S-19-1310/18,
Yashasvi Nagar, Hoige bail,
Mangaluru 575006.
2. Lata Srinivas Pai,
W/o B.Srinivas Pai,
Door No.1.S.19.1310/18,
Yashasvi Nagar, Hoigebail,
Mangaluru 575006.
……… Complainants
(Complainant by : In person)
VERSUS
The Assistant General Manager,
Bank of Baroda,
Mangalore Main Branch,
Milagres Centre, Hampankatta,
…. Opposite Party
(Advocate for Opposite Party by Sri.PCB)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- This complaint is filed under section 12 (a) of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainants showed interest in bidding for the property published in Udayavani daily dated 18.4.2015 and contacted Opposite Party manager Sundaram. On enquiry confirmed that the said property was 6 cents and all the relevant documents were held by the Opposite Party all taxes, dues relating to the said property were paid up to date and the Opposite Party would deliver all the property documents against full payment to the successful bidder in the auction. After that the complainants deposited Rs.10,70,000/ on 18.5.2015 for participate in the e-auction dated 19.5.2015. On 19.5.2015 the Opposite Party confirmed that the complainants were successful bidders for the said property measuring 6 cents and also confirmed their bid for Rs.1,07,10,000/ and the complainants paid to the Opposite Party the demanded amount of Rs.16,07,500 on 20.5.2015. On verification, while making further payment as demanded by the Opposite Party, it was discovered that the actual extent of the said property was 5.74 cents so that the complainants spoke to the Opposite Party on phone for cancellation of the bid and refund of the amount already paid but Opposite Party threatened to forfeit the amounts already paid if the complainant did not pay the balance of Rs.80,32,500/ by 2.3.2015 hence complainant issued notice to Opposite Party on 30.5.2015 but there is no response from the Opposite Party side. In order to avoid forfeiture by the Opposite Party compelled to make balance payment on 2.6.2015 for Rs.80,32,500/. After that Opposite Party delivered a sale certificate on 3.7.2015 describing the extent of the properly as 5.74 cents, further find that the door number of the property shown in the sale certificate and not delivered required papers such as original copy of the Mangalore city development Corporation order dated 26.2.2011 up to date receipts for water and electricity payments. After that lot of follow up Opposite Party executed rectification deed for that complainants had to incurred cost of registration hence complainant issued notice to the Opposite Party for refund for short delivery of 0.24 cents of property sold and compensation but Opposite Party denied their liability hence the above complaint filed by the complainants before this forum under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction from this Fora to the Opposite Parties to refund the proportionate price of the property with 15% interest from 19.5.2015 till the date of payment and all to sum of Rs.6,72,339/ as compensation cost and litigation expenses.
II. Version Notice served to the opposite party by RPAD and filed version stating that the provisions of Consumer protection Act of 1986 is not applicable to the facts of the case and the complainants are not the Consumers as defined under Act and further the Forum is having no jurisdiction to try the case as the question involved is not one of allotment of plots as part of the scheme for providing housing facilities to the public but one of straight sale of immovable property at an auction.
The facts that the immovable property bearing R.S.No.52/1P2 of Boloor Village (middle portion) measuring 0.06 acres (6 Cents ) was purchased jointly by one Mr.B.C. Khadghapani and his wife Mrs. C.G.Shashikala by availing housing loan on the security of the said property from Bank of Baroda/ Opposite Party here in on 9.9.2010 and on the same day the said purchasers mortgaged the said property in favour of Opposite Party as a security for housing loan of Rs.13,75,000/ as per registered mortgage deed dated 9.9.2010 which has been enhanced subsequently from time to time. The copies of said sale deed in favour of said purchasers Subsequently the said purchasers have constructed residential building have ground and 1 floor in the said property after getting approved the said property as a single house site on the file of MUDA dated 26.2.2011 by gifting the western portion measuring 0.00.24 acres out of aforesaid 0.06 acres to Mangalore City Corporation through a registered deed of gift for road widening purposes as per the terms of aforesaid order of MUDA dated 26.2.2011. However still the said 0.00.24 acres of land referred to above is within the boundary walls of the aforesaid purchaser. On default of aforesaid borrowers the Opposite Party has initiated proceeding under SARFAESI Act of 2002 for possession and sale of aforesaid mortgaged properties for recovery of its dues and in pursuance of the said proceedings issued sale notice of the above property on 18.4.2015 in daily newspaper Udayavani i.e. sale through e-auction only. The main terms and conditions of said sale notice the property is sold in As is and where is and no complaint basis.
The complainants after going through the aforesaid conditions the said documents have moved for registration. The complainants had inspected the property physically along with the Bank officials, their own Advocates and surveyors of their own choice on 13.5.2015 itself and the exact extent of land available for purchase out of 6 cents was made known to them by the surveyors by measuring the plot with reference to title deed, mortgage deed as well as deed of gift for road widening purposes. However even though 0.00.24 acres was gifted to the Government, and since the government has not yet taken actual possession and it is still which the compound wall of the owners, the complainants have knowingly prepared to purchase the aforesaid 0.5.76 acres, which is their own voluntary Act and no one much less that the Opposite Party has compelled the complainants to purchase the property. The complainants had purchased the property voluntarily after satisfying about the extent etc. by searching the records of aforesaid gift, encumbrances before the SRO office and no one has compelled them to purchase. The complainants had an opportunity to cancel the bid immediately after inspection of the property i.e, on 13.5.2015 while they came to know about the actual extent available for sale and they had an opportunity to ask for the refund of the bid amount instead of moving for registration of sale certificate for to which they have not opted. The total reserve price was fixed for the site and building together and not on the basis of cents.
III. In support of the above complaint the complainant B. Srinivas Pai, filed affidavit evidence as CW1 and answered the interrogatories served on him and documents produced got marked Ex.C1 to C11. On behalf of the opposite parties Sri. Akhilesh Kotian, (RW1), Officer, Bank of Baroda, of opposite party also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked Ex.R1 to R8.
IV. In view of the above said facts, the points for arise for our consideration in the case are:
- Whether the complainant is a consumer as per Consumer Protection Act 1986?
- Whether the Complainant proved that the Opposite Party committed deficiency in service?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
We have considered the arguments submitted by the complainant and Opposite Party and also considered the materials that was placed before the Fora and answered the points are as follows:
Point No. (i) : Negative
Point No. (ii) : does not arise
Point No. (iii) : does not arise
Point No. (iv): As per the final order.
REASONS
V. POINTS No. (i):
In order to substantiate the allegations in the complaint filed evidence as well as documents in support of his case. The documents produced by the complainant marked as Ex.C1 to C11. On careful security of the documents placed by the complainant Ex.C1 is the sale notice published in Udayavani dated 18.4.2015. Ex.C2 to Ex.C6 documents relating to the property purchased by the complainant though auction sale. Ex.C7 notice by in complainant to the Opposite Party. Ex.c8 reply dated 18.2.2016. Ex.C9 electricity, bills Ex.C10 tax challans , Ex.C11 acknowledgment of receipt of original documents dated 7.7.2015. The above documents clearly reveals that the complainants purchased property mentioned in the complaint by e-auction sale is proved. Now points for our consideration is whether the complainants are consumer as per consumer Protection Act 1986? The Opposite Party has initiated proceedings under SARFAESI Act of 2002 for possession and sale of aforesaid mortgaged properties for recovery of its dues and in pursuance of the said proceedings issued sale notice of the above property on 18.4.2015 in daily newspaper Udayavani i.e. Ex.C1 sale though e auction one of the condition of the sale notice is the property is sold in as is and where is and no complaint basis The complainants after going through the aforesaid condition have agreed to purchase and participated in the bid. The complainant to prove as a consumer produced 2009 Honble S.C. Reported in Civil Appeal No.5165/09 in this case Appellant was an auction purchaser of truck taken loan from Self Employment Scheme and in appellant herein would fall in the category of a consumer as he had brought the truck for a consideration which was paid by him but in this case the appellant had mentioned categorically that he had brought the said truck to be used exclusively by him for the purpose of earning his livelihood by means of self employment. But case in our hand sale under SARFAESI Act 2002 property strictly on As is where is basis. On go though the Ex.C1 sale notice terms and conditions No.1 it mentioned that in property sold in As is and where is and no complaint basis and condition No.2 mentioned that property can be inspected on 13.5.2015 between 11.00 AM and 2.00 and condition no.17,18,19 it clearly mentioned the terms and conditions of sale notice. The complainant had inspected the property along with bank officials and his Advocate as Surveyor on 13.5.2015 is not disputed and no one compelled the complainant to purchase the property by knowingly the complainant showed interest in bidding for the property it is the bounden duty of the complainant to verify all the material facts regarding the property. Hence the reported case produced by the complainant does not benefit and the facts of the case is also different from the case in our hand. Accordingly in connection of the above the Honble Nationonal Commission referred to the relevant paragraphs of the Apex Court is Judgement in the U.T. Chandigarh Administration case
Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to public auction of existing sites (as contrasted from sites to be formed), the purchase/lessee is not a consumer, the owner is not a trader or service provider and the grievance does not relate to any matter in regard to which a complaint can be filed. Therefore, any grievance by the purchase/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchase/lessee against the owner holding the auction of sites.
Another citation II (1991) CPJ 537.
The Hon’ble state Commission decided that Consumer Protection Act 1986 Section 2(1)(d) Consumer-Outright sale of immovable property at an auction sale complaint by the highest bidder for directions against B.D.A. either to allot the site or to pay interest on the amount deposited by him-maintainability of complaint Not maintainable complainant not a hirer of services for consideration cannot be called a consumer under the Act.
Hence the transaction of the above said property is outside the preview of the consumer Act 1986 and an auction purchaser of an immovable property is not a consumer under the Act and the complaint is not maintainable. In view of the above discussion, we are of the considered opinion that the point No.1 is negative and discussing point No.2 and 3 in this case does not arise.
In the result, accordingly we pass the following Order.
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 10 directly dictated by Member to the Stenographer typed by him, revised and pronounced in the open court on this the 8th March 2017)
MEMBER PRESIDENT
(LAVANYA M RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 B. Srinivas Pai
Documents marked on behalf of the Complainants:
Ex.C1: Sale Notice in Udayavani dated 18.4.2015 in original.
Ex.C2: Bid Confirmation Email dated 19.5.2015 copy.
Ex.C3: Email by complainant to Opposite Party dated 29.5.2015.
Ex.C4: Notice to Opposite Party dated 30.5.2015.
Ex.C5: Sale certificate dated 3.7.2015.
Ex.C6: Rectification deed dated 6.8.2015.
Ex.C7: Notice to Opposite Party dated 30.1.2016.
Ex.C8: Reply by Opposite Party dated 18.2.2016.
Ex.C9: Electricity bills dated 18.5.2015 and 17.7.2015 and water bill dated 30.8.2015.
Ex.C10: Property tax challans 612033,612034,612036 and 612037.
Ex.C11: List of documents received from Opposite Party dated 7.7.2015.
Witnesses examined on behalf of the Opposite Party:
RW.1: Sri. Akhilesh Kotian, Officer, Bank of Baroda,
Documents marked on behalf of the Opposite Party:
Ex.R1: Original of sale notice in Udayavani dated 18.4.2015.
Ex.R2: Attested copy of sale deed dated 9.9.2010, Reg. as Doct.No.3002/2010-11 in favour of B.C.Khadgapani and another.
Ex.R3: Attested copy of mortgage deed dated 9.9.2010 by B.C.khadgapani and another in favour of Opposite Party.
Ex.R4: Attested copy of Khatha extract in the name of B.C.Khadghapani and another.
Ex.R5: Attested copy of single site approval order dated 26.2.2011.
Ex.R6: Original of notice dated 30.1.2016 by complainants to Opposite Party.
Ex.7: Copy of the lawyers reply notice by Opposite Party to the complainants dated 18.2.2016 with postal receipt.
Ex.8: Original acknowledgement of complainant No.1 dated 19.2.2016
Dated: 08.03.2017 MEMBER
