This Complaint coming up before us for hearing on 24-03-11 in the presence of Sri K.B. Prasad, advocate for complainant and of             Sri M.V. Subba Rao, advocate for opposite party, upon perusing the material on record and after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint U/S 12 of the Consumer Protection Act seeking refund of Rs.8,45,000/- with interest @24% pa., Rs.1,00,000/- towards damages/compensation and for costs.

2.      In brief the averments of the complaint are these:  

        The complainant purchased the housing bearing D.No.25-12-47 in T.S.No.512, Old ward No.17, new ward No.22, block No.18 in an extent of 76.28 sq. yards, in the auction held by the opposite party on 01-10-09 being the highest bidder.   The complainant deposited Rs.2,12,000/- on the date of auction and Rs.6,33,000/- on 06-12-09 by way of cheque.   For repeated demands the opposite party issued a sale certificate in favour of the complainant.   The complainant on several times requested the opposite party to register the property in his name.   On 01-03-10 the opposite party sent a letter informing the complainant that Debt Recovery Tribunal, Visakhapatnam had set aside the auction conducted by the opposite party.   The opposite party suppressed the Court proceedings and conducted the auction due to which the complainant sustained heavy loss by participating in the said auction.   The opposite party is not in a position to register the property to the complainant in the near future.   The complainant therefore issued a notice claiming refund of the amount paid besides compensation of Rs.1,00,000/-.   The complaint therefore be allowed.

3.    The contention of the opposite party in brief is hereunder:  

        The complainant did not come under the definition of consumer and no services were hired from the opposite party.   This Forum has no jurisdiction.   The complainant purchased the said property in question in the auction held by the opposite party under the provision of SARFAESI ACT and a sale certificate was issued on 14-10-09 in favour of the complainant.   There is no provision under the said Act warranting the registration of sale certificate by the bank.   The contractual relationship between the bank and auction purchaser ceases to exist once the sale certificate was issued under the provisions of SARFAESI Act.   The borrower namely Koppuravuri Siva Pulla Rao and Smt Koppuravuri Venkata Lakshmi Swarajyam filed S.A.No.155 of 2009 before the Debt Recovery Tribunal, Visakhapatnam.   The opposite party received the notice on 20-10-09.   The Debt Recovery Tribunal set aside the auction held by the opposite party by its order dated 17-02-10 on the ground that the borrower was prepared to pay Rs.8,70,000/- to the bank instead of the auction sale amount of Rs.8,45,000/-.   The opposite party communicated the order of DRT to the complainant as a matter of gesture.   The complainant sent a legal notice with false averments.   The opposite party filed RA.SA.No.102 of 2010 before the Debt Recovery Appellate Tribunal, Chennai challenging the order of DRT, Visakhapatnam.   The opposite party did not commit any deficiency of service.  The complaint therefore be dismissed.

4.   Exs.A-1 to A-8 on behalf of complainant and Exs.B-1 and B-2 on behalf of opposite party were marked.

5.   Now the points that arose for consideration are:

1. Whether the opposite party committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

6.    Undisputed facts in this complaint are:

          1. The complainant became the highest bidder in the auction                    held by the opposite party on 01-10-09 in respect of house          bearing D.No. 25-12-47.

          2. The complainant paid the entire bid amount.

        3. The opposite party issued sale certificate (Ex.A-4)

        4. The opposite party served copy of DRT, Visakhapatnam                                on the complainant (Ex.A-5 = Ex.B-1).

          5. There was exchange of notices between the parties                             (Exs.A-2, A-6 and A-8).

7.   POINTS 1 & 2:-  In page 2 of his complaint the complainant mentioned as detailed infra:

                “The complainant is no way concerned with the proceedings.  The opposite party has suppressed the Court proceedings and conducted the auction thereby the complainant has sustained heavy loss by participating in the said auction.  It appears that the opposite party is not in a position to register the property in the complainant’s name in near future.   In these circumstances the complainant has issued a notice by calling upon the opposite party to repay the entire auction amount along with interest at 24% p.a., besides damages/compensation of Rs.1,00,000/- at an early date”.  

8.     The above averments revealed that the opposite party conducted the auction suppressing the proceedings before the DRT, Visakhapatnam.   Ex.A-5(=Ex.B-1) is the copy of order in SA.No.155/09 on the file of Debt Recovery Tribunal, Visakhapatnam.    In the preamble the date was mentioned as 17-02-09 while it was mentioned at the bottom of the order (i.e., 6^th page) dictated to the Personal Assistant, transcribed by him, corrected and pronounced by me in the open Court on this 17^th day of February, 2010.    The purport of SA.No.155/09 is to declare the alleged auction notice dated 17-09-09 issued U/S 13 clause 4 of SARFAESI Act as illegal and arbitrary.   When the auction notice itself was on 17-09-09 the date of order covered by Ex.B-1(=A-5) could be on 17-02-10 but not on 17-02-09.   It has therefore to be inferred that the order covered by SA.No.155/09 was passed on 17-02-10.  

9.     Ex.A-5(=Ex.B1) did not disclose when SA.No.155/09 was filed.The complainant also did not file certified copy of proceedings in SA.No.155/09 to know when it was filed and when the opposite party entered appearance.   The complaint and affidavit of the complainant was also silent on this aspect.   Relevant portion in para 3 of the order in SA.No.155/09 is extracted below to ascertain when it was filed:

                “It is further stated that when the applicants knowing the fact recently 3 days back rushed to the respondent bank and enquired about the fact whether the property was auctioned and then respondent bank informed and served a copy of the paper publication to the applicants and informed that the item No.1 of the petition schedule property was auctioned on 01-10-09”.

10.   The said observation in SA.No.155/09 leads us to draw an inference that the petitioners in SA.No.155/09 filed it after the auction was held.   Therefore the contention of the complainant about the opposite party suppressing the Court proceedings and conducting auction is devoid of merit and cannot be accepted. 

11.   The complainant got issued notice for the first time on 21-11-09 (Ex.A-2) and another notice on (Ex.A-6) 05-03-10.  In the Ex.A-2 notice issued by him on 21-11-09 the complainant did not mention about the opposite party suppressing the court proceedings and holding the auction by the opposite party.   Ex.A-6 notice was issued by the opposite party on 05-03-10 after Ex.A-5 (furnished by the opposite party).   In Ex.A-6 notice the complainant mentioned that the opposite party suppressed the Court proceedings and conducted the auction.   The said averment was made by the complainant after     Ex.A-5 notice. Copy of sale certificate was marked as Ex.A-4.  According to the opposite party it was delivered on 14-10-09 while according to the complainant it was after Ex.A-2 notice.   But Ex.A-4 revealed that it was prepared on 14-10-09.   The complainant also did not place any material to show when he received it. 

12.   This Forum already observed that the opposite party did not suppress the Court proceedings prior to conducting auction.   The opposite party on 25-03-11 filed copy of notice issued by the complainant on 31-12-10 in response to the letter dated 27-12-10 and it reads as follows:

                “I am in receipt of your referred letter, I never engaged any advocate in R.A.(S.A.) 102/10.  Moreover I am not at all a party to those proceedings in R.A(S.A.) 102/10.   In such circumstances why you are sending this type of letters to me.  Please let me inform that who instructed you to intimate that it will be decided in my absence and the date of adjournment.

                If any proceedings are initiated in the alleged R.A. (S.A.) 102/10 on my behalf I will take all necessary steps against the concern.   So I request you to drop a line.   I also request you that the Bank has cheated me by all means i.e., without disclosing the DRT Visakhapatnam proceedings and I being an auction purchaser have sustained huge loss”.         

13.   Under those circumstances, we are of the opinion that the opposite parties did not commit any deficiency of service in conducting the auction.   Under the above circumstances, the complainant is not entitled to any compensation.   For the afore mentioned discussion, these points are answered in favour of the opposite party.

14.    POINT No.3:-   In view of the above discussions, the complaint is dismissed without costs.   

Dictated to Junior Steno, transcribed by her, corrected by me and pronounced in the open Forum dated this the 11th day of April, 2011.

    Sd/-XXX                                        Sd/-XXX                             Sd/-XXX

MEMBER                                                   MEMBER                                 PRESIDENT

APPENDIX OF EVIDENCE

    DOCUMENTS MARKED

For Complainant:

For opposite party:        

                                                                                                                 PRESIDENT