BEFORE THE DAKSHINA KANNADA DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                                                 MANGALORE       

Dated this the 28^th November 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HONBLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : MEMBER

ORDER IN

C.C.No.9/2014

(Admitted on 3.01.2014)

Mr. Ahmed Saleem K,

S/o K.M.Hussain,

Aged 52 years,

R/at K.K.Steel Compound,

Mahakalipadpu, Jeppu

Mangalore  575 002.

                                         ….. COMPLAINANT

(Advocate for the Complainant: Sri SRK)

VERSUS

The Authorised Officer,

State Bank of India (SARC)

Essel Tower, 3^rd Floor,

Bunts Hostel Circle,

Mangalore  3.

                                  ….....OPPOSITE PARTY

 (Advocate for the Opposite Party: Sri. BNK)

ORDER DELIVERED BY HONBLE MEMBER

T.C. RAJASHEKAR:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against Opposite party claiming certain reliefs to receive a sum of Rs.7,00,000/ from  the complainant and issue sale certificate in respect of the property situated at Konaje village of Mangalore Taluk in Sy.No 154/1/p measuring 0.11.50 and register the same in favour of complainant, to pay a sum of Rs.50,000/ as compensation and pay a sum of Rs.5,000/ cost of complaint.

The brief facts of the case are as under:

     We perused the complaint and the version of the parties. This dispute is with regard to auction sale conducted by Opposite party wherein the complainant is the successful bidder. On completion of bid the Opposite party has not concluded the sale and sale certificate not issued. As per complaint allegation the complainant is the bidder and successful also in the sale of immovable property auctioned by the Opposite party . The Opposite party has concluded the auction and announced the complainant as successful bidder but on contacting many number of times Opposite party has not executed the sale deed and postponed with one or other reasons and finally said the auction is cancelled on the false ground that the complainant had not made the payment of 10% for security deposit and 15 % on concluding  of the bid on the reserved amount. In contest there of the Opposite party contended that the complainant is neither the consumer nor the Opposite party is the service provider and the complaint not maintainable. The Opposite party also contended that the security deposit paid through the cheque is not encashed and on concluding of the bid the complainant is bound to pay 25% of the bid amount Rs.175000/ but there was no sufficient balance in the account on 16.11.2011 to honor the cheque hence we have cancelled the bid as per SARFAESI Act hence there is no deficiency of service from their part. Also the SARFAESI Act bars the jurisdiction of the consumer Forum.

POINTS FOR ADJUDICATION

     On study of the records it shows the admitted facts are the auction notice given, the auction sale conducted, and the complainant is the participant and the successful bidder, the security deposit of Rs 70000/(10% of reserved amount) by way of cheque and on completion of bid another cheque issued for Rs 105000/ to make it 25% of the bid amount of Rs 175000/. It is not admitted that the complainant is a consumer and the maintainability of complaint in this forum. It is also denied that the complainant had paid the amount of Rs 175000/ by stating that there was no balance in the account of the complainant on 16.11.2011 the day the amount due for payment. It is also admitted that the cancellation of auction by the Opposite party later. These being the facts of the dispute we consider the following points to be adjudicated in resolving this dispute.

1. Whether the complainant is a consumer and Forum has jurisdiction to resolve the dispute?
2. Whether the complainant proves the deficiency in service?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

 On considering the rival submission and the superior courts decisions we answered the above points as under:

1. In the negative.
2. Does not arise.
3. Does not arise.
4. As per delivered order.

REASON

POINT NO 1: It is admitted fact that the complainant is a customer of the bank and having an Account in the Opposite party bank. But in deciding  whether there is a relation of consumer and the trader/service provider  between complainant and the Opposite party  we have to look into the facts of the case in relation to deficiency alleged and the relief sought. Depending on facts the prima facie relation is the complainant is the proposed purchaser of an immovable property meant to be sold in auction and the Opposite party is the proposed seller of the said property. Suppose the sale is completed the complainant becomes the purchaser of an immovable property and the Opposite party will be seller of the immovable property. It is right moment to make distinction between the immovable property sold by developers and the property already in existence through sold through the auction sale. In the former case there is promise of amenities and service of developing where it is absent in the later. So in the case on hand the complainant will be a just purchaser of the immovable property from the bank through the mode of auction sale. We observed the prayer of relief. The complainant is praying for conclusion of sale and sale certificate of the property with other compensatory relief. The main relief seems to be in the nature of specific performance sought from the Opposite party for not performing their part the complainant being ready to perform his part of payment. There is no any pleading with regard to deficiency in service in relation to banker and the customer pertinent the account maintained by the complainant with opposite party. These being the facts it is difficult to hold the complainant as consumer and to assume jurisdiction. In Auction, sale would take place on the system of as is where is basis all participants are free to inspect the property and decide upon to the price, quality and decide what price the bid will be or to bid or not. There will be no promise element before sale. In the instant case the property to be auctioned is an old property and not newly developed. Hence without giving any scope of doubt we hold the complainant is not a consumer under the Consumer Protection Act 1986 and the banker primarily engaged in banking activity and now selling the property on which they have right to sell because of default in payment by another customer, is not a trader/service provider in immovable property. To ameliorate our adjudication and buttress our decision we rely on our Honorable National commission decision in Revision Petition 729 of 2011based on our Honorable Apex court decision   in The Union Territory of Chandigarh Administration and Another versus Amarjeet Singh and Others { (2009) 4 SCC 660}  it is held that in public auction of existing land sites, purchaser/lessee is not a consumer as defined in the Consumer Protection Act 1986. Relying on this judgment, we are inclined to conclude that the auction purchaser in the auction of an immovable property by a bank is not a consumer. The relevant part of the judgement in the Apex court decision is engrossed here below

   But where existing sites are put up for sale or lease by public auction by the owner, and the sale/lease is confirmed in favour of the highest bidder, the resultant contract relates to sale or lease of immovable property. There is no hiring or availing of services by the person bidding at the auction. Nor is the seller or lessor, a trader who sells or distributes goods. The sale price or lease premium paid by the successful bidder of a site is the consideration for the sale or lease, and not consideration for any service or for provisions of any amenity or for sale of any goods.

20.     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.

21.     With reference to a public auction of existing sites (as contrasted from sites to be ‘formed’), the purchaser/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 purchaser/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-purchaser/lessee against the owner holding the auction of sites”. With this we conclude the complainant herein is not a consumer and the dispute is not a consumer dispute to entertain under the Consumer Protection Act 1986. Hence we answered the point no 1 in the negative.

POINT NO 2& 3: Since we held the complainant is not a consumer and this Forum has no jurisdiction, these points need no adjudication and hence we answered in the negative.

POINT NO 4: In the light of above discussion and adjudication of points as above we pass the following :

ORDER

          The complaint is dismissed. No order as to cost. The complainant is at liberty to file fresh complaint before appropriate authority by taking advantage under sec. 14 of the limitation Act.

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Typed by member revised and pronounced in the open court on this the 28^th November 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 Mr. Ahmed Saleem

 Documents marked on behalf of the Complainant:

ExC1:  12.10.2011    : Copy of paper Publication

ExC2:  16.11.2011    : Copy of Bid sheet

ExC3: 09.03.2013    : Copy of letter written by Complainant

ExC4:  16.03.2013    : Copy of letter written by complainant

ExC5:  28.03.2013    : Copy of letter written by complainant

ExC6:  16.04.2013    : Copy of letter by OP

ExC7:                       : RTC               

Ex.C8:  04.06.2012     : Receipt

Ex.C9:  04.06.2012     : Letter by complainant                   

Ex.C10: 09.03.2013    : letter by complainant

Ex.C11: 16.03.2013    : letter by complainant

Ex.C12: 28.03.2013    : letter by complainant

Ex.C13: 29.04.2013    : letter by complainant

Ex.C14: 21.10.2013    : letter by complainant

Ex.C15: 16.11.2013    : letter by OP

Ex.C16: 07.01.2014    : letter by OP

Ex.C17: 10.12.2013    : letter by OP

Ex.C18: 13.09.2008    : Valuation Certificate

Ex.C19:                     : Eye sketch

Ex.C20:                     : Photos

Ex.C21: 15.12.2014    : letter by complainant

Ex.C22: 29.12.2014    : letter by OP

Ex.C23: 18.07.2014    : letter by OP

Ex.C24: 26.02.2015    : letter by OP

Ex.C25:                     : Attendance sheet

Ex.C26:                     : Quotation details

Ex.C27: 30.03.2015    : letter by OP

Ex.C28: 16.05.2015    : letter by OP

Ex.C29: 16.06.2015    : letter by OP

Ex.C30: 07.08.2015    : letter by OP

Ex.C31: 26.11.2015    : letter by OP

Ex.C32:                      : Account Particulars

Ex.C33: 16.04.2013     : Letter by Op

Ex.C34: 09.05.2013     : Acknowledgment

Ex.C35: 10.05.2013     : Letter by OP

Ex.C36: 29.10.2013     : Complainant letter

Ex.C37: 30.10.2013      : Complainant letter

Ex.C38: 08.08.2014      : Letter by OP

Ex.C39: 21.08.2012      : Letter by OP

Ex.C40: 20.12.2012      : Letter by OP

Ex.C41: 25.02.2013      : Survey sketch No.154

Ex.C42:                        : RTC of Placid Levis

Ex.C43: 23.09.2013      : Letter by OP

Ex.C44: 21.03.2013      : Letter by OP

Ex.C45: 04.04.2013      : Letter by OP

Ex.C46: 09.05.2013      : Letter by OP

Ex.C47: 25.09.2012      : Receipt

Ex.C48: 17.01.2013      : Receipt

Ex.C49: 17.01.2012      : Receipt

Ex.C50: 29.11.2011      : Cheque Photo Copy

Ex.C51: 06.01.2012      : Decree

Witnesses examined on behalf of the Opposite Party:

Rw1: Mr. Babu Ghatage

Documents markedon behalf of the Opposite Party:

Nil

Dated:  28.11.2016                             MEMBER