Tamil Nadu

South Chennai

260/2010

S.Rajesh & K.Masilamani - Complainant(s)

Versus

The Authorised Officer, Asset Recovery Management Branch, Indian Bank - Opp.Party(s)

M/s. V. Balaji

05 Sep 2017

ORDER

                                                                        Date of Filing :  29.06.2010

                                                                        Date of Order :  05.09.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.260/2010

TUESDAY THIS 5^TH DAY OF SEPTEMBER 2017

 

1. S.Rajesh,

No.39,  Subbarayan Street,

Nammalwarpet,

Chennai 600 012.

 

2. K. Masilamani,

NO.70, Ashoka Nagar,

Arumbakkam,

Chennai 600 106.                                                        .. Complainants

                                        ..Vs..

 

The Authorized Officer,

Asset Recovery Management Branch,

Indian Bank,

Circle Office Buildings,

No.55, Ethiraj Salai,

Chennai 600 008.                                              .. Opposite party.

 

Counsel for Complainant          :    Mrs. V.Balaji & V.G. Sureshkumar   

Counsel for opposite party       :    M/s. N.S.Revathi & another.    

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to refund the sale value of Rs.63,250/- & Rs.73,250/- with interest and also to pay a sum of Rs.50,000/- as damages  to the complainants.

 1. The averment of the complaint in brief are as follows:

         The complainants submit that  on 17.8.2009 when the opposite party conducted a Tender cum Public auction under the provisions of Sarfaesi Act 2002, the complainants 1 & 2 were successfully bid  the plot No.10  of an extent of 2400 sq. ft.  for a sum  Rs.2,53,000/- and Rs.2,95,000/- respectively.   Before bidding the properties the complainants approached the opposite party and requested the title deeds to ascertain the clearance of titles; but the opposite party refused and neglected to issue title deeds.   After verifying the documents the complainants had applied for certificates of encumbrance in relation to the properties auctioned; to their shock and surprise it was found that in so far as plot No.12 is concerned there had been two deeds of sale registered on 30.1.1991 and 1.2.2007 and the debtor was not competent to mortgage the said property with the bank and the title in the said plot had already passed.  

2.     Further the complainants state that  when they visited the plots for which they had bid in the auction they were further surprised to find that a huge board has been erected in the said plots by M/s. Chandrasekara Reddy and Ramana Reddy, Advocates having office at Francis Joseph Street, Chennai; who had purportedly put up a public notice.   In the notice it was stated that the property comprised in survey No.323 including the subject plots auctioned, do not belong to M/s. Arun Enterprises and purchase by any party would be at their own risk.     The complainants further state that all the above were brought to the notice of the bank and the matter was being handled by one Mr. Davidson an office of the bank.   He assured them that in view of the problems as stated above, the bank would refund the deposit made by the complainants.    Therefore the opposite party was not able to complete the process.     As such the act of the opposite party clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

3. The brief averments in Written Version of  the opposite party    are as follows:

        The opposite party denies each and every allegation except those that are specifically admitted herein.  The opposite party submit that  the complainants are successful bid in the tender cum public auction conducted by the opposite party under Sarfaesi Act and paid the 25% of the initial amount.   Further the opposite party also state that he conducted such tender cum public auction as per Rule 6(2) and Rule 8 (6) of the Sarfaesi Act 2002.  Hence the District Consumer Disputes Redressal Forum has no jurisdiction to entertain the present case. The opposite party further state that the property originally belonging to one Mr.K.Kamalanathan, Proprietor of Arun Enterprises has availed loan from the opposite party and deposited the title deeds related to the property and created the equitable mortgage as a power of attorney executed by the original owners of the said property with the opposite party.  Subsequently, Mr.K.Kamalanathan, Proprietor of Arun Enterprises has promoted the said land into housing plots and illegally sold out the property to the third parties without the consent and knowledge of the opposite party.    The opposite party also state that after due tender cum auction sale the 3^rd parties and the Judgment debtor approached the Hon’ble High Court and obtained stay which was duly vacated.    Hence there is no deficiency in service on the part of the opposite parties and they are not bound to carry out any work in the flat or to pay any compensation as claimed in the complaint.  Therefore this complaint is liable to be dismissed.

4.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as their evidence and documents Ex.A1 to Ex.A7 marked.  Proof affidavit of opposite party filed and Ex.B1 to Ex.B9 marked on the side of the opposite party.  

5.   The point for the consideration is:  

1. Whether the complainants are entitled to a sum of Rs.63,250/- and Rs.73,750/- respectively with interest at the rate of 18% p.a. as prayed for ?

 

2. Whether the complainants are entitled to a sum of Rs.50,000/- as damages with cost as prayed for?

 

6. POINTS 1 & 2 :-

          The opposite party after filing written arguments has not turned up to advance any oral arguments  for long time.     The learned counsel for the complainant contended that on 17.8.2009 when the opposite party conducted a Tender cum Public auction under the provisions of Sarfaesi Act 2002, the complainants 1 & 2 successfully bid the plot No.10 of an extent of 2400 sq. ft.  for a sum  Rs.2,53,000/- and Rs.2,95,000/- respectively as per Ex.A1 & Ex.A2.   Before bidding the properties the complainants approached the opposite party and requested the title deeds to ascertain the clearance of titles; but the opposite party refused and neglected to issue title deeds.  Thereafter due bidding and payment of 25% of the initial amount the complainants applied for certificate for Encumbrance certificate in relation to the properties  auctioned; after receipt of the Encumbrance certificate to utter shock and dismay the complainants found that plot No.12 was sold repeatedly on 30.1.1991 and 1.2.2007 proves that the opposite party sold the property under Encumbrance.   It is further proved that the properties were mortgaged already.   Further the learned counsel for the complainants contended that during the visit of the plots it is further surprised that there are huge board erected into plot by  Mr. Chandrasekara Reddy and Ramana Reddy, Advocates stating that the properties do not belong to Arun Enterprises; the Judgment debtor in Sarfaesi Act.  The learned counsel for the complainants further contended that the fact has been informed to one Mr. Davidson an officer of the bank; he  assured that he will set right the things and do the  needful to refund  the initial  deposit amount namely Rs.63,250/- & Rs.73,750/- respectively.   The learned counsel for the complainants further contended that the opposite party is duty bound to bring auction sale of the property being mortgaged wtih title deeds but in this case the opposite party suppressed the real facts of the Encumbrances  and the possession of the property with 3^rd parties  and sold in auction to the complainants thereby the complainants are put to great hardship and mental agony.  The complainants are claiming a sum of Rs.63250/- and Rs.73750/- and a sum of Rs.50,000/- for mental agony with cost.

7.     The learned counsel for the complainants cited a decision reported 

In the Supreme Court of India

Civil Appellate Jurisdiction

Civil Appeal No.9290 of 2014

(S.L.P.(C ) No.14172/2013)

SANJAY KUMAR JOSHI

..Vs..

MUNICIPAL BOARDS, LAXMANGARH & ANR

 

The contention of the opposite party is that admittedly the complainants are the successful builders in the tender cum public auction conducted by the opposite party under Sarfaesi Act and paid 25% of the initial amount.   The opposite party conducted such tender cum public auction as per Rule 6(2) and Rule 8 (6) of the Sarfaesi Act 2002.  Hence the District Consumer Disputes Redressal Forum has no jurisdiction to entertain the present case.   Further the contention of the opposite party is that after the perusal of title deeds and clearance of titles the opposite party sanctioned loan to Arun Enterprises; but none of the documents filed before this forum.   Further the contention of the opposite party is that after due tender cum auction sale, the 3^rd parties and the Judgment debtor approached the Hon’ble High Court and obtained stay which was duly vacated;  to prove such contention also no document filed before this forum.   Further the contention of the opposite party is that as per the Sarfaesi Act Sec. 32  & 34 are  as follows:

Protection of action taken in good faith – No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for any things done or omitted to be done in good faith under this Act”.  Therefore the present complaint is not maintainable by law.

Section 34: Civil Court to have jurisdiction – “No Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which  a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this act to determine and no injections shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this act or under the Recovery of Debts due to Banks and financial Institutions Act, 1993 (51 of 1993). “

Considering  the facts and circumstances of the case this forum is of the considered view that the opposite parties are liable to pay a sum of Rs.63,250/- & Rs.73,750/- (i.e.) totaling Rs.1,37,000/- with interest at the rate of 9% p.a. from the date of this complaint  i.e. 29.6.2010 to till the date of this order i.e. 5.9.2017 and also to pay compensation of Rs.20,000/- for mental agony and cost of Rs.5,000/- to the complainants and the points are answered accordingly.

        In the result the complaint is allowed in part.   The opposite party is liable to pay a sum of Rs.63,250/- & Rs.73,750/- (i.e.) totaling Rs.1,37,000/- (Rupees one lakh and thirty seven thousand only) with interest at the rate of 9% p.a. from the date of this complaint  i.e. 29.6.2010 to till the date of this order i.e. 5.9.2017 and also to pay compensation of Rs.20,000/- (Rupees Twenty thousand only) for mental agony and cost of Rs.5,000/- (Rupees Five thousand only) to the complainants.

        The above  amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  5^th    day  of  September  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 14.8.2009  - Copy of payment made by the 1^st complainant.

Ex.A2- 14.8.2009  - Copy of payment made by the 2^nd complainant.

Ex.A3- 17.8.2009  - Copy of Sale confirmation issued by the opposite party.

Ex.A4- 17.8.2009  - Copy of sale confirmation issued by the opposite party.

Ex.A5-         -       - Copy of Certificate of encumbrance.

Ex.A6- 9.3.2010    - Copy of notice issued by the complainant’s lawyer.

Ex.A7- 15.3.2010  - Copy of reply issued by the opposite party.

Opposite party’s side document: -  

Ex.B1 – 11.7.2009          - Copy of tender cum auction for the 1^st complainant.

Ex.B2- 11.7.2009  - Copy of tender cum auction for the 2^nd complainant.

Ex.B3- 17.8.2009  - Copy of sale confirmation duly signed and received by the

                               2^nd complainant.

 

Ex.B4- 17.8.2010  - Copy of the sale confirmation duly singed and received by

                              the 2^nd complainant.

 

Ex.B5- 6.7.2010    - Copy of the vacate the interim order dt. 6.7.2010.

Ex.B6- 10.8.2010  - Copy of the letter sent to the 1^st complainant.

Ex.B7- 10.8.2010  - Copy of letter sent to the 2^nd complainant.

Ex.B8- 1.11.2010  - Copy of final call letter sent by the opposite party.

Ex.B9- 1.11.2010  - Copy of final call letter sent by the opposite party.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.