O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> These complaints are filed by the same complainant against the same Op with similar grievance and deficiency in the service of the Op though facts are varying from one case to other. However, in order to avoid repetition of certain facts which are common are taken for disposal by a common order.<br /> The brief facts of the first complaint are that the complainant purchased an apartment No.B/10, 3rd Floor, Block-B of Model Terrace apartment, Malleshpalya, Bangalore for an amount of Rs.20.00 lakhs. The Op offered that property and stated that apartment have car space facility. Believing the said statement he purchased the property paid an advance amount of Rs.2.00 lakhs, dividend of Rs.50,000/- towards EMD amount and Rs.1,50,000/- towards advance. That he had agreed to pay the balance amount of Rs.18.00 lakhs. The Op on 05/07/2006 sent a letter demanding payment of balance amount of Rs.18.00 lakhs. That he after depositing EMD of Rs.50,000/- and Rs.1,50,000/- towards advance, went to find out the premises and on enquiry came to know that the car space provided was not pertaining to the apartment he intended to purchase. Then when he demands from the Op, the Op did not allot or show the car space. Then he on 25/10/2006 gave a requisition to Op for cancellation of the proposed sale of the flat. But the Op till date has not returned Rs.2.00 lakh paid by him. Thereafter, he met with an accident on 02/11/2006 he could not pursue the matter and in the mean time, his Power of Attorney Holder visited the Op and requested for refund of Rs.2.00 lakhs but Op has not refunded and therefore, has prayed for a direction to OP to refund EMD of Rs.50,000/-, advance of Rs.1,50,000/- with interest and to award damages for Rs.3.00 lakhs with costs.<br /> <br /> Op through his advocate has filed objection contending that the complaint is liable to be dismissed and complainant is not entitled for any relief. It is further stated that the complainant participated in the purchase of the flat in the auction sale on the basis of as is where is and accepted to purchase the flat for Rs.20.00 lakhs and had paid EMD amount and advance amount thus there is no question of them showing car space and agreed to provide car space which is all false and stated that one H.V. Balaji and Smt H.P.Padmini availed housing loan from them for purchase of that flat and thereafter when they failed to re-pay the loan then they on the basis of mortgage of the title deed of the flat and considering non-performance of the act, legal notice was issued to those loanees under the provisions of SARFAESI Act calling upon them to re-pay the loan within the stipulated period and even then when they failed to repay the loan, under the act possession, notice was issued, took over possession when that flat was brought to auction in the public sale, the complainant as a highest bidder, bid in auction for Rs.20.00 lakhs and on his paying balance amount of Rs.18.00 lakhs sale was to be confirmed and when the complainant did not pay balance auction price of Rs.18.00 lakhs, they issued a letter on 05/07/2009 and when the complainant failed to pay the balance amount on or before 25/07/2006, the EMD and advance amount was forfeited and therefore denying their liability to the complainant have submitted for dismissal of the complaint.<br /> <br /> Coming to the brief facts of the second complaint that he purchased a site bearing No.5 in Survey No.491 of Kodigehalli Village, Yelahanka Hobli measuring 30’ X 40’ in an auction sale held by the Op for consideration of Rs.6,10,000/-. In the sale held under SARFAESI Act, and that Op had issued sale certificate on 08/08/2006 and registration was done accordingly. In the sale certificate, Op had described the auctioned property as site No.5 and Katha No.733/144/05 where as in the covering letter sent with the sale certificate khatha number is shown as No.733/144/05 of Kodigehalli which has resulted in the discrepancy in the description of the property. That he after coming to know the wrong description of the property in the covering letter requested the Op to issue a changed covering letter but later on he fell ill and was not in a position to pursue it. Thereafter, he had authorized his power of Attorney holder to approach the Op for obtaining corrected covering letter addressed to the name of his General Power of Attorney holder. But Op who had told to contact later on despite contact has failed to issue corrected covering letter in the name of the Power of Attorney holder. Therefore, contending that there is no clear title to the purchased property he under went mental agony and thus attributing deficiency to the Op has prayed for a direction to the Op to refund sale consideration amount with interest and as an alternative to issue covering letter in the name of power of attorney holder and to award compensation with cost.<br /> <br /> Op has appeared through his advocate and filed version admitting to had sold the site in public auction under the provisions of SURFAESI Act for total consideration of Rs.6,10,000/- has denied other allegations of the complainant. Then Op further denying that site number had been erroneously described in the covering letter has also denied that complainant’s power of attorney holder approached them for issue of corrected letter. The Op has further contended, absolutely there is no difference in the title of the property purchased by the complainant. That one Mohammed Ashraf who had availed loan from them by mortgaging the site, when failed to repay the loan, action was taken under the SURFAESI Act for recovery of the loan amount and that site in question was sold for recovery of the amount due from that Mohammed Ashraf in a public auction which was purchased by the complainant in the public auction after ascertaining the salable title and denying any right of one Raghavendra Naidu and M.S. Prasad in the sold site denied any deficiency and has prayed for dismissal of the complaint.<br /> <br /> In the course of enquiry into this complaint, one Mahalingam GPA holder of the complainant and on behalf of Op, the Manager have filed their affidavit evidence reproducing what they have stated in the respective complaints and version. The complainant in the first complaint has produced copies of certain correspondences, copy of power of Attorney and a copy of legal notice he got issued to the Op. Later on complainant has also produced copies of some hospital records evidencing his treatment. In the second complaint he has produced a copy of sales certificate, declaration and copies of previous sale deeds. We have heard the counsel for both parties and perused the records. <br /> <br /> On consideration of the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainants proves that OP has caused deficiency in his service in not refunding the advance money paid in the first complaint and in not refunding sale consideration of the site in the second complaint.<br /> 2. To what relief the complainant is entitled to?<br /> <br /> Our findings are as under:<br /> <br /> Point No.1 : In the negative<br /> Point No.2 : See the final order<br /> <br /> REASONS<br /> <br /> Answer on point No.1: As found from the admission of the complainant and the contention of Op, the complainant participated in the auction sale held by Op in exercise of their powers vested in them under SARFAESI Act for realization of the loan amount from the borrowers who committed default in repayment of the loan amount and in that public auctions, the complainant participated and became the highest bidder in both these cases and he bid the flat of the first complaint for Rs.20.00 lakhs and the site of the second complaint for Rs.6,10,000/- and thereafter, the complainant who paid advance amount of Rs.2.00 lakhs to the Op did not pay the balance amount and he paid entire consideration of the property of the second complaint and got even sale certificate issued and registered. Therefore, these two transactions are of transactions done in the public auction as such the complainant who had intend to purchase the first property and purchased the second property in the auction sale will not become a consumer and such a transaction can not be questioned before the consumer forum as such the complaints are liable to be dismissed on this ground alone as not maintainable.<br /> <br /> Coming to the merits of the first complaint, as found from the admission, the complainant was the highest bidder bid to purchase the flat for Rs.20.00 lakhs and had paid Rs.2.00 lakhs as advance which is inclusive of EMD Rs.50,000/-. After that bidding complainant says, thereafter an enquiry he came to know that the flat he had intend to purchase was not having car space facility as stated by the Op and therefore stated to had expressed his unwillingness to finalize the sale transaction and therefore had asked for refund of the advance money. But the complainant has not placed any material before us in this Op having had offered to provide car space or agreeing to provide car parking facility. As contended by the OP, we find that the flat was put up for public auction on the basis of as is where is. It is also not in doubt, the flat proposed to be sold was belonging to two defaulters, defaulted in repayment of the amounts to the Op and for realization of that amount flat was brought for sale in a public auction. Therefore, it was for the complainant before participating in the auction to ascertain all the pros and cons of the auction, description and the facilities of the flat and then to bid for it. The complainant who bid for purchasing that flat took part in the bidding and having bid for it on the basis of as is where is cannot complain anything about non-availability of some facilities and go back from the contractual obligation. The complainant who after paying the initial bid amount failed to pay the balance auction sale prices losses his right and the Op has rightly forfeited the advance amount including EMI if any under the procedure of auction sale which cannot be held as illegal or deficient. Therefore, the complainant in our view is not entitled for refund of that money. Hence, the first complaint is liable to be dismissed on merits also.<br /> <br /> Coming to the merits of the second complaint, the grievance of the complainant looks funny and base less. The complainant has alleged as if there was discrepancy in the property number which he had purchased in the sale certificate issued and the covering letter with which it was sent. Complainant has admitted of his paying the entire sale consideration, sale was finalized, sale certificate was issued and the property was also registered in his name, but stated there was some discrepancy in the property number in the sales certificate and in the covering letter sent to him. What the complainant means is he has admitted that the property brought to auction was site No.5 of Survey No.491 of Kodigehalli Village and its khata Number was 733/144/05. The complainant’s do not dispute the correctness of the property, its description he has taken over the possession. But has stated as if in the covering letter sent by the Op khata was described as number 733/145/05. In the covering letter according to him instead of showing khata number as 733/144/04 is wrongly written as 733/145/05 and therefore that is the deficiency he attributing to Op.<br /> <br /> The complainant later on alleged to had requested his power of attorney holder to take up the issue with the Op for issuing a corrected covering letter further requesting the OP to issue that corrected letter in the name of GPA holder. Here, we should bear in mind that the complainant has no where stated that because of the error find in the covering letter he has suffered in any way. It is not his case that there is error in the title of the property sold to him. When no such harm is caused to him and no loss is caused to him, we do not find as to why this complainant is harping upon correctness of the covering letter and that to a request for Op to issue that corrected covering letter in the name of his GPA. The complainant in the prayer column has asked for refund of sale consideration or as an alternative issue corrected covering letter in the name of power of attorney holder which in our view cannot be acceded. Because when the complainant is not able to prove any deficiency in transferring the title of the purchased property by the Op he cannot be directed to refund the sale consideration particularly when the property was registered in his name and possession was delivered. Secondly, he cannot also compel the OP to issue a corrected covering letter in the name of his GPA holder. Refusal of Op to accede to the request of the complainant in this complaint in our view is not at all a deficient act. As such, we find no merits in this complaint also and we are constrain to hold that the complainant finds it as a luxury to come up with these unsustainable complaints which has resulted in taking away the forum’s time and dragging the Op for litigation. The complaints in our view are to be dismissed with costs. With the result, we answer point No.1 in the negative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Both the complaints are dismissed by imposing cost of Rs.1,000/- each on each of these complaints payable to the Ops.<br /> <br /> The original order shall be kept in complaint No:1565/09 and the copy of the same shall be kept in the other complaint.<br /> <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 3rd July 2010.<br /> <br /> <br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br />