Per Sri A. Hazarath Rao,  President:-    

          The complainant filed this complaint u/s 12 of the Consumer Protection Act  seeking a direction to the opposite parties for execution of regular sale deed in favour of the complainant with true or real boundaries in respect of the sale certificate property, payment of Rs.50,000/- towards mental pain and suffering, Rs.1,00,000/- as compensation and for costs.

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

          The opposite parties auctioned the properties of M/s Balaji Cotton Corporation and Raghavendra Rice Mill on 23-12-03 in which the complainant became the highest bidder.   The authorised officer of SBH, Guntur on                     09-01-04 issued sale certificate in favour of the complainant.   The opposite parties could not execute regular sale deed in favour of the complainant as the original documents of the defaulted borrower were held up at the Debt Recovery Tribunal, Visakhapatnam in OA No. 446 of 2012.   In December, 2011, the concerned bank authorities received the documents concerned i.e., original gift deed dated 17-02-99 and link document dated 14-12-73 and handed over them to the complainant.   After receiving those documents while preparing draft sale deed the complainant noticed a discrepancy in the boundary columns between those two documents.   As per settled law, the original/parent/link property documents will prevail.  The competent authority i.e., town surveyor inspected, surveyed the said property prepared a sketch with true boundaries and they tallied with the boundaries in parent document.      There was no response from the opposite parties for execution of regular sale deed with true boundaries though the complainant sent copy of survey report.   After lot of correspondence the 3^rd opposite party on 28-06-12 sent a letter describing the schedule property with revised boundaries as a corrigendum to the sale certificate dated 09-01-14.   Again the complainant noticed an error in describing two boundaries even in the corrigendum.   The 2^nd opposite party on 10-07-12 wrote a letter with untenable objections which clearly revealed a malafide intention in dodging the execution of regular sale deed in favour of the complainant.   The above action of the opposite parties amounted to deficiency of service.    The complainant suffered a lot mentally and financially on account of the above deficiency of service of the opposite parties.   The complaint therefore be allowed.

3.  The opposite parties 2 and 3 filed memo adopting the version of the 1^st opposite party and their contention in brief is hereunder:

          The complainant is not a consumer as contemplated under the Consumer Protection Act and the relief sought for is a declaratory one and the complainant is therefore is not maintainable.   One M/s Balaji Cotton Corporation and Raghavendra Rice Mill availed credit facility from the 1^st opposite party.  One Grandhi Venkata Ravi Kumar and Grandhi Siva Satish Venkata Pavan Kumar guaranteed repayment of the said loan and created equitable mortgage by depositing their title deeds.   Authorised officer of the opposite parties resorted to the proceedings under the SARFAESI ACT, 2002 and issued demand notice.   As the borrowers failed to comply with the demand of payment authorised officer issued possession notice by making publication in two leading newspapers sale notice in news papers clearly mentioning the schedule of the property proposed to be sold which is identical with the schedule of the property shown in the sale certificate.   The complainant verified the property, participated in the auction, paid the amount.   The opposite parties issued sale certificate on 09-01-04.   The complainant received the sale certificate, took possession of the property and enjoyed the same as owner for the last nine years without any objection regarding the schedule of property and its boundaries.   The link document dated 14-12-73 contained 4 items whereas the gift deed dated 17-02-99 related to a part of the property.   The complainant had a responsibility to get the sale certificate registered.   The complainant for the reasons best known to him did not get the sale certificate registered.   The authorised officer has no objection to co-operate in getting the sale certificate registered, if law permits.   The SARFAESI ACT is a self contained document having a procedure laid down therein for conducting auction.   Neither the bank nor its authorised officer has any power to change boundaries of the property as not being its owner.   The complainant has been harassing the opposite parties personally and through his advocate.   The complainant approached the banking ombudsman.   The banking ombudsman rejected complainant’s contention on merits.   The complainant on 21-03-13 got issued notice with unwarranted, illegal personal allegations against the officers of the bank.   Under SARFAESI ACT, sale certificate will be issued by a bank which itself is the title deed and it is for the complainant to get it registered the same by the authorised officer in the concerned sub-registrar’s office.    The question of preparation of draft sale deed did not arise.   The complainant was in possession and enjoyment of the subject property as a tenant even prior to purchasing in the auction.   On 28-01-12 the 1^st opposite party sent a letter enclosing the sale certificate for registration and not the sale deed.   The opposite parties did not commit any deficiency of service.    The present complaint is misconceived and therefore is liable to be dismissed.

4.  Exs.A-1 to A-22 and Exs.B-1 to B-8 were marked on behalf of complainant and opposite parties respectively.

5.  Now the points that arose for consideration in this complaint are:

          1. Whether the complainant is a consumer?

          2. Whether the opposite parties committed deficiency of service as                        alleged by the complainant?

          3. Whether this Forum has no jurisdiction to entertain the complaint?

          4. Whether the complainant is entitled to compensation?

          5. Whether the complainant is entitled to damages?

          6. To what relief?

6.   Admitted facts in this case are these:

1. The complainant became the highest bidder in the auction held by the authorised officer of the opposite parties under the provisions of SARFAESI ACT in respect of defaulted borrower’s property.
2. The opposite parties on 09-01-04 issued sale certificate to the complainant (Ex.A-1).
3.  The opposite parties on 28-06-12 sent a letter enclosing sale certificate for registration with amended boundaries (Ex.A-9).

7.   POINT  No.1:-   The registry raised an objection regarding the status of the complainant as a consumer.   This Forum on hearing the complainant’s counsel satisfied prima facie and registered the complaint as the Consumer Protection Act is a beneficial legislation.  

8. The decisions relied on by the complainant reported in Lucknow Development Authority vs. M.K. Gupta 1993 (3) CPJ 7 (SC), Ghaziabad Development Authority vs. Yogendrapaul Tyagi Revision petition Nos.1544 of 2001 and 2516 of 2002 decided by  NCDRC on                           05-01-11, Nagpur Improvement Trust, Nagpur through its Chairman vs. Anoop singh First Appeal No.A524/2008 decided by State Consumer Disptues Redressal Commission, Maharashtra State, circuit bench, Nagpur on 05-07-13, Kerala State Housing Board and others vs. P. Ramachnadran 2014 (1) CPJ 281 (Kerala), Janachaitanya Housing Limited vs. Lavu Anuradha 2014 (1) CPJ (AP), Gulshanlal Bhatia vs. Chandigarh Administration and another 2001 (2) CPJ 469 related to housing construction/building activity by either a private or statutory body and as such the decisions have no application to the facts of the case.

9.         The decision reported in Bangalore Development Authority                  vs. Sri Varghese George P. First Appeal No. 8/2005 decided on 14-11-11 by National Commission dealt with the question whether a complaint is entitled to seek refund of the money deposited by him at the time of bidding the auction.   The decision reported in Biopolymers Systems vs. Haryana Financial Corporation 2001 (2) CPJ 330 the question that arose was regarding non refund of excess bid amount to the complainant.   As the complainant paid consideration to the opposite party for purchasing the property in question in the auction held under SARFAESI ACT, we are of the opinion that the complainant is a consumer and answer this point in favour of the complainant.    

10.  POINT No.2:-   To bring an action under the Consumer Protection Act one has to establish that opposite party committed deficiency in service.   Mere coming under the purview of consumer alone is not sufficient to attract jurisdiction of this Forum. Burden is on the complainant to prove that the opposite parties committed deficiency in service.

11.    The complainant sought the relief of a direction to the opposite parties to arrange/execute regular sale deed in favour of the complainant with true/real boundaries in respect of sale certificate property.   The relevant portion in the complaint in para 3 is extracted below for better appreciation:

                     “The bank authorities i.e., authorised officer, SBH, Guntur

issued a sale certificate dated 09-01-2004 in favour of the complainant by duly received the auction amount from him…………………………However ultimately in December, 2011 the bank authorities received the said documents from the Debt Recovery Tribunal, Visakhapatnam and handed over the said documents to the complainant i.e., the original gift deed dated 17-02-1999 and parent/link document dated 14-12-1973.  After receiving the same the complainant initiating steps for preparation of draft sale and then found that there                                is a discrepancy in the boundary columns in                            between the gift deed dated 17-02-1999                                   and the parent/link document dated                                               14-12-1973……..……………………………………Further the competent authority i.e., town surveyor inspected, surveyed the said property and prepared a sketch with true boundaries which are tallied with the parent document (Emphasis supplied).

12.   In para 3(b) of his complaint the complainant further mentioned the following:

“However after lot of correspondence the 3^rd opposite party on 28-06-2012 sent a letter clearly stated that describing schedule property with revised boundaries as a corrigendum to the sale certificate dated 09-01-2004.  But it is also contained error in two boundaries columns”.                                     

13.  The above averments of the complaint are to the effect that the complainant intends to have the description of boundaries as per the survey report.  If really a mistake crept in describing the boundaries by the donor in his gift deed can the authorised officer of the 3^rd opposite party rectify it is the question before this Forum.   In our considered opinion the 3^rd opposite party cannot rectify the boundaries mentioned in the gift deed.   It is not the case of the complainant that the boundaries mentioned in auction notice and sale certificate differed.   The 3^rd opposite party issuing a corrigendum rectifying the boundaries in its letter dated 28-06-2012 is not within its jurisdiction as rightly contended by the learned counsel for the opposite parties.   The 3^rd opposite party exercised the right conferred on him under sections 13(4) and (6) of SARFAESI ACT and auctioned the property in question belonging to defaulted borrower.  The 3^rd opposite party issued sale certificate on 09-01-04 (Ex.A-1) according to rule 9(6) of Security Interest enforcement rules, 2002.   It is for the complainant to verify the boundaries mentioned in the auction notice and then participate in the auction.   Having failed to do so, the complainant cannot blame that the opposite parties committed deficiency in service.    We therefore answer this point against the complainant. 

14.  POINT No.3:-   The 1^st opposite party on 28-01-12 addressed a letter to the Assistant General Manager, Region-IV, Guntur for arranging registration in favour of B. Sai Ram (complainant) and B. Satyanarayana (Ex.A-2).    Under Ex.A-3 notice dated 08-02-12 the complainant requested the concerned authority seeking co-operation in execution of regular sale deed in his favour with boundaries mentioned in the document dated                   14-12-73 (Ex.B-2).  The Assistant General Manager on 22-02-12 (Ex.A-4) expressed its inability to execute sale deed as per boundaries shown in   Ex.B-2.   In Ex.A-5 notice the complainant mentioned that the boundaries in the publication as well as sale certificate are not tallied on ground. 

15.    The Assistant General Manager on 10-07-12 (Ex.A-11) informed the complainant that his request for registration of sale certificate cannot be considered at this belated stage in view of sections 23 to 25 of the Registration Act being belated one.   The complainant approached the banking ombudsman and the banking ombudsman passed an order on               25-02-13 and informed the complainant (Ex.A-14)  “In view of the fact that already nine years have elapsed after issuance of sale certificate, we regret our inability to get the sale certificate registered (with amendments) at this stage”.   

16.    The complainant got appointed a surveyor and got the property surveyed and measured on 04-08-12 and wanted to have sale certificate with those boundaries mentioned in Ex.A-13.  As already observed that the 3^rd opposite party not being owner of the property sold cannot rectify the boundaries other than the one mentioned in the gift deed (Ex.B-1).  The maxim ‘A mortgagee is always a mortgagee’ is squarely applicable to the facts of the case.  Even this Forum also cannot direct any authority to execute registered sale deed against the provisions of the Registration Act in our considered opinion.        

17.  Section 17 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 reads as follows:

      Right to appeal:-

1. Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken: PROVIDED that different fees may be prescribed for making the application by the borrower and the person other than the borrower.

Explanation: For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this sub-section.

18.    The above definition is an inclusive one and it includes an auction purchaser also.   Since he is an auction purchaser of the property which was brought to auction under the SARFAESI ACT, 2002 in our considered opinion an auction purchaser comes within the purview of the above definition.

19.  Section 34 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 reads as follows:

          Civil Court not to have Jurisdiction: No civil court shall have jurisdiction to entertain any suit or proceeding “in respect of any matter” which a Debts Recovery Tribunal or an Appellate Tribunal is empowered by or under the Securitization Act to determine and no injunction 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).

20.     In Standard Chartered Bank through its authorised officer vs. Veerendra Roi 2013 (2) CPR 168 (NC) held that a civil court has no jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or the appellate tribunal is empowered by or under the SARFAESI ACT to determine and no injunction shall be granted by any court or other authority in respect of any action taken in pursuance of any power covered by or under this act due to Banks and Financial Institutions Act. 

21.    Under section 17 of the SARFAESI ACT the complainant has to approach Debt Recovery Tribunal but not this Forum.   The contention of the complainant regarding the additional remedy u/s 3 of the Consumer Protection Act is without substance in view of the above decision. We therefore answer this point against the complainant.

22.  POINTS 4 & 5:-   In view of our findings on points 2 and 3, the complainant is not entitled to any damages.   We therefore answer these points also against the complainant. 

23.  POINT No.6:-   The complainant is quite aware that the opposite parties are not the executants of the gift deed.   The complainant in our considered opinion approached this Forum instead of proper authority to avoid payment of court fee.  Under those circumstances, awarding Rs.10,000/- as exemplary costs will meet ends of justice.

24.  In the result the complaint is returned for presentation before proper authority; the complainant is directed to pay Rs.10,000/- (Rupees ten thousand only) to the Consumer Welfare Fund within six weeks from the date of receipt of the copy of the order.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 29^th day of March, 2014.

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

MEMBER                                  MEMBER                                PRESIDENT

 APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:  

                                                                                                                                       Sd/-XXX

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.