Complainant Dr.Manjit Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite party be directed to refund Rs.95,515/- charged excess over and above the final bid amount of Rs.4,35,000/- to him alongwith interest @ 18% per annum from the date he has deposited this amount with opposite party till its date of payment. Opposite party be further directed to pay Rs.50,000/- for causing harassment, mental agony in addition to Rs.20,000/- on account of deficiency in service.
2. The case of the complainant in brief is that in response to the Advertisement for Mega-E-Auction for the sale of immovable properties published in the Newspaper i.e. Hindustan Times dated 11.12.2015 entered into an E-Bid of shop 9’ X 9’ = 18 Sq Feet, situated at Adarsh Nagar, Mandi Gurdaspur which was owned by Smt.Veena Mahajan bearing Deed No.16 dated 03.04.2016, Khasra No.6R/10/2/2(5-5) which was equitable mortgage with the opposite party and taken over by the opposite party under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (No.54 of 2002). The reserve price of this shop was Rs.4.20 Lacs and the earnest money was Rs.42,000/-. He deposited Rs.42,000/- with the opposite party as earnest money as per the Advertisement which was 10% of the reserve price fixed by the opposite party and thus he is consumer of the opposite party and the E-Auction was held on 29.2.2016 and he was declared as highest bidder for the bid value of Rs.4,35,000/- and he deposited the balance amount equivalent to 25% of the total bid value on 29.2.2016. Thereafter he wrote a letter to the opposite party on 3.3.2016 and requested the opposite party that he is ready to deposit the balance 75% of the total bid amount with the opposite party and the actual physical possession of the shop be given to him. In response to this letter, the opposite party wrote a letter reference No.GSP/ADV/2015-2016 dated 14.3.2016 addressed to him to deposit the balance 75% amount subject physical possession within 7 days and the same was to be deposited within 7 days from the actual delivering of the physical possession of the shop to him. The opposite party did not take steps to get the physical possession of the shop in question from the District Magistrate, Gurdaspur and he requested the opposite party to get deposit the balance 75% of bid amount and issue him the sale certificate and also get the sale deed of the shop in question executed in his favour but the opposite party putting off the matter pending with one pretext or the other. The opposite party asked their Zonal Head Office to issue the necessary directions. He has further pleaded that on his insistence to issue the sale certificate as well as to execute the sale deed in his favour, the opposite party started harassing him and started illegally demanding the excess amount from him on the pretext that the reserve price mentioned in the advertisement has been wrongly mentioned by the Bank. In the previous advertisement also for E-Auction of the immoveable properties, the reserve price of the shop in question was fixed as Rs.4,20 lacs by the opposite party and the opposite party is not legally entitled to recover the excess amount. Thus amounts to clear cut deficiency in service on the part of the opposite party. He has next pleaded that under the duress and coercion, the opposite party recovered the amount of Rs.5,10,000/- and also recovered a sum of Rs.12,265/- illegally on account of the interest. This act of the opposite party is illegal and also amounts to deficiency in service, in total the opposite party recovered a sum of Rs.87,265/- over and above the confirmed bid price, illegally from him. On this amount, he was forced to pay Rs.8250/- extra on account of Stamp Duty and Registration Charges, total Rs.95,515/-. He also issued a legal notice dated 6.9.2016 to the opposite party but they did not reply the same. Hence this complaint.
3. Upon notice, the opposite party appeared through its counsel and filed the written reply by taking the preliminary objections that complaint is not maintainable; the complainant is estopped from filing the present complaint in view of the fact that he himself deposited the amount of reserve also price which was fixed by NBG after going through the detail of reserve price fixed by NBG and thus he is estoped from challenging the same through present complaint which is not maintainable and the complainant is well aware of the fact that the Bank has every right to cancel the bid without any reason and although the price was quoted as Rs.4,20,000/- which was just an incidental mistake while publishing and when after the bid was over it came to the notice of opposite party that the reserve price was fixed as incorrect against the reserve price fixed by the NBG which was Rs.5,10,000/- and the other opposite party had decided to cancel the bid but on the request of complainant that he is ready to pay the reserve price as fixed by NBG and thus the amount of Rs.5,10,000/- was received from the complainant as price of the property put to auction with his own will and consent and now he has got no right to challenge the same through present complaint which is not maintainable. On merits, it was submitted that taking of possession of the property to be put to auction is a process and procedure to which the complainant is well aware of the same before participating in the E Auction. The opposite party had to go through the process of taking possession which was complied with as per procedure and the possession was delivered accordingly. It was further submitted that the reserve price of the property in question was fixed as Rs.5,10,000/- by NBG but the same could not be mentioned in the publication notice and in case the same price was not available it was the discretion of opposite party either to accept the bid or to reject, which is a condition of E Auction. In the present case it happened so and the opposite party had taken the decision to reject the bid as the reserve price was not available and when the complainant was explained about the reserve price of Rs.5,10,000/- and the opposite party is not going to accept the said price of the bid, the complainant opted to pay the reserve price and he paid accordingly and now he is stopped from claiming the refund of the amount in question and moreover the present complaint is not maintainable under the Consumer Protection Act. There is no deficiency in service on the part of the opposite party under any circumstances. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
- Complainant tendered into evidence his own affidavit Ex.CW-1/A alongwith other documents Ex.C1 to Ex.C10 and closed the evidence.
- Sh.Sham Lal, Chief Manager Bank tendered into evidence his own affidavit Ex.OP-1, alongwith other documents Ex.P-2 to Ex.OP-4 and closed the evidence.
6. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels for the litigating sides along with the incidental scope of adverse inference on account of non-presentation of some of the evidentiary documents that have been somehow ignored to be produced along with due notice that may be discretionarily/judicially drawn on account of the intentional non-production of the same; of course, in the very back-drop of arguments as put forth by the learned counsel(s) for the attending litigants.
7. We observe that the prime dispute (affidavit Ex.C1) prompting the herein deposed complaint pertains to the alleged deficiency in service on the part of Opposite Party Bank by way of first inadvertently publishing the incorrect reserve price of Rs.4.20 Lac (of the U/Auction Property) instead of the correctly fixed figure of Rs.5.10 Lac; and accepting the 25% earnest-money from the present complainant as the highest bidder @ Rs.4.35 Lac; and finally instead of the transferring the sold/auctioned property forcing the complainant to pay the OP Bank, its correctly fixed figure of Rs.5.10 Lac along with the additional stamp duty etc.
8. We find that the complainant has successfully and satisfactorily proved his context- complained allegations through his evidentiary documents (Ex.C1 to Ex.C10); Publication in the Hindustan Times (Ex.C1) of 11.12.2015, again (Ex.C2) on 25.01.2016 and again (Ex.C5) on 16.02.2016 i.e., three-times repeatedly confirming the questioned property’s Reserve Price at Rs.4.20 Lac; Complainant’s letter dated 03.03.2016 (Ex.C3) offering to deposit the balance 75% to the bid amount of Rs.4.35 Lac and in response the OP Bank’s reply (Ex.C4) dated 14.03.2016 acknowledging receipt of full earnest money @ 25% being Rs.1,08,750/- along with directive to further deposit balance 75% within 07 days of physical possession and that shows that the OP Bank did not rectify its allegedly inadvertent mistake as to the sum figure of reserve price published at Rs 4.20 Lac and bid acceptance at Rs.4.35 Lac.
9. The OP Bank have unreservedly admitted (vide affidavit Ex.OP1) its mistake as to its inadvertent erroneous quote of the property (under e-auction) reserve price at Rs.4.20 Lac instead of the correct sum-figure of Rs.5.10 Lac and its futile attempts to get its controlling office ratification(s) (Ex.OP2 to Ex.OP4) with the result that the complainant had to accept the altered reserve amount of Rs.5.10 Lac to avoid other collateral but complex situations including loss of paid funds/interest and reputation in the society etc.
10. Finally, we find that the complainant in order to avoid cancellation of his successful bid was made to pay the difference of Rs.75,000/- and interest of Rs.12,265/- besides an extra stamp duty of Rs.8,250/- on the enhanced consideration amount. (Sic!) Thus the complainant had to suffer a net loss of Rs.95,515/- for none of his own fault/default in addition to the unnecessary worry, tension and harassment and that lines up the OP Bank to one adverse statutory award under the applicable Consumer Protection Act, 1986. Lastly, we are of the considered opinion that the present complainant has been entitled to one full favorable statutory award under the applicable statute; of course under the legal jurisprudential norms of moderation that discourages undue enrichments as fruits of litigation.
11. In the light of the all above, we find that the titled opposite party has decidedly bruised the consumer rights of the present complainant and that certainly rakes/ lines it up for an adverse award under the applicable statute. We, therefore, partly allow the present complaint and thus ORDER the titled opposite party to pay Rs.95,515/- in order to fully make up for the loss caused to the complainant besides to pay him Rs.10,000/- as cost and compensation within 30 days of the receipt of the copy of these orders otherwise the aggregated awarded amount shall attract interest @ 9% PA from the date of the present orders till actual payment. Of course, it shall be at the OP Bank’s own discretion to recover the awarded amount (in full or in part) from its delinquent staff as per their own inter-se disciplinary rules/regulations/penal procedures/ inter-se arrangements etc.
12. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
June 04, 2018 Member.
*MK*
