DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 672/2014
Date of Filing: Date of Admission Date of Disposal:
12.12.2014 15.12.2014 18.08.2015
Complainants = Vs. = O.Ps.
Sri Amit Roy 1. The Chairman, UCO Bank
Sri Ashim Roy Head Office, 10, BTM Sarani
both are sons of Sri Anil Roy Brabourne Road, Kolkata-700001.
of Vill & P.O.-Ganadipayan, 2. The Branch Manager
P.S.-Habra, UCO Bank, Habra Branch
Dist-North 24 Parganas. Nagar Ukrah More,
P.O. & P.S.-Habra,
Dist-North 24 Parganas.
3. UCO Bank, Habra Branch
Nagar Ukrah More,
P.O. & P.S.-Habra,
Dist-North 24 Parganas.
Advocate Name for the complainant:- Ashoke Kumar Paul
Advocate Name for the OPs:- Samir Ghosh & Others.
P R E S E N T :- Smt. Bandana Roy President
:-Sri Rabideb Mukhopadhayay Member
J U D G E M E N T
Facts of the case, in short, is that the OP No-3 through the OP No-2use to provide financial assistance towards the borrowers against keeping mortgage of the borrowers/guarantors property and to that effect use to kept original deeds and documents in the custody of the OP No-3 Bank after creating equitable mortgage.
Complainants stated that one Smt. Manju Saha the sole proprietor of M/s. Sri Gopal Bastralaya of Lane No-1 Habra Bazar, P.O. & P.S.-Habra, Dist-North 24 Parganas took financial assistance from the OP No-3, UCO Bank, Habra Branch and Narayan Saha being the owner of the property agreed to stand as guarantor and intends to mortgage his property in favour of the Bank in respect of the aforesaid commercial loan.
Complainants also stated that the concern borrower prior to take financial assistance from the OP No-3 Bank execute several deeds and documents in favour
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of the OP No-3 Bank. Wherein the terms and conditions of repayment of loan has been clearly mentioned and the borrowers/guarantors put their respective signatures thereon knowing the contents made therein. The borrowers/guarantors after receive the commercial loan did not comply with the terms and conditions of the said loan repayment agreement.
Complainants further stated that the borrowers/guarantor did not comply with the terms of repayment agreement of financial assistance from the OP No-3, Bank authority and they issued several notice towards the repayment of loan but all efforts has been exhausted and the OP No-3 Bank after issuance of demand notice and letter for regularize the loan account but having no response on the part of the borrowers/guarantor the OP No-3 Bank issued a demand notice according to U/s. 13(2) of SARFAESI Act and subsequently after few days of interval the Bank authority further issued notice U/s. 13(4) of SARFAESI Act and took symbolic possession of the guarantor’s property.
Complainants stated that within stipulated period as has been provided towards the complainant but all positive steps by the SARFAESI Act for seeking relief before the D.R.T. but the borrowers did not took the said privilege of taking shelter of law. The OP No-3 Bank by its Manager OP No-2 for recovery of the borrowed amount including interest there upon enforcing the SARFAESI Act and took step for sold out the property by way of auction.
Complainants also stated that after taking into possession in the mortgage property the Bank authority i.e. the OP No-3 Bank published a sale notice through a English daily leading news paper “financial express” and Bengali daily leading news paper “AAj Kal” in respect of a shop measuring 418 sq. ft in C.S. Dag No-227, R.S. Dag No-2754 appertaining to R.S. Khatian No-1786 of Mouza Hijal Pukuria, J.L. No-80, Re Su No-312 being holding No-167 ward No-20 (9 now) of Habra Municipality and other property written therein.
Complainants further stated that the complainants being interested party made a proposal to the OP No-3 Bank and met with the OP No-2 Branch Manager of the OP No-3 Bank wherein after enquiry it was gathered information from the OP No-2 that the minimum offering amount should be Rs 15, 000,00/- in respect of sale of the property through auction.
Complainants stated that both the complainants being the interested party after gone through the auction notice published in daily leading news paper and
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in the Bank’s Notice Board in respect of the property mentioned in the notice the complainants made a proposal in a form of the value of the auction saleable property.
Complainants also stated that the proposal made by the complainants towards the OP No-3 and the same was allowed as the same was well acceptable according to the norms and the complainants were asked by the OP No-2 and 3 for making payment of the auction saleable amount as the complainants offer has been accepted. The complainants made a proposal towards the OP No-2 for showing the auction saleable shop room so that its measurement are tallied in the auction public notice but the OP No-2 tried to convince the complainants that the property in question published in the auction notice is correct one, he also tried to convince the complainants that after taking possession of the mortgage property it has been looking after by the security agency until and unless the deal is final and the payment is made they will not suppose to allow anybody to took measurement of the auctioned property. The complainants deposited the agreed auction amount proper receipt issued by the OP No-3 Bank.
Complainants also stated that after taking the agreed amount from the complainants the OP No-2 issued sale letter in favour of the complainants and on 25.07.2012 and on that day the doors of the shop room was opened and handed over it in favour of the complainants took measurement of the shop room in presence of the OP No-2 and others and became astonished that the measurement of the shop room is more or less 172 sq. ft but not 418 sq. ft. the auction notice in respect of the shop room measurement published in the public notification is quit wrong.
Complainants further stated that the complainants with a hope that they will run a retail medicine shop business which will be accommodative within the measurement 418 sq. ft but by the illegal act of the OPs the complainants have got a shop room measuring 172 sq. ft which is too short than of the auction notice which was clearly mentioned as the measurement of the shop room is about 418 sq. ft.
Complainants stated that the complainants then and their raised protest of unfair trade practice as well as irregular and illegal act of the OPs, but on behalf of the OPs no whisper has been made until today.
Complainants also stated that after delivery of possession the OPs made several written representation towards the OP for supply of the original deeds
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and documents which were kept in the Bank’s custody but the OPs very much negligent to delete with the above referred matter and did not handed over the deed in question which was mortgaged in favour of the OP by the borrower Narayan Saha.
Complainants further stated that the complainants were cheated by the auction sale of the OPs. The amount which was offered by the complainants was for the shop room measurement 418 sq. ft as has been mentioned in the auction notice but practically the complainants have got a shop room measuring 172 sq. ft which is unjustified, unethical and nothing but unlawful act and activities and the OPs are so dared and did not hesitate to mentioned the false measurement of the shop room in the public notification. It can safely be said that the OPs clearly on day light cheated the complainants by their acts and activities.
Complainants stated that the complainants got the shop room measurement more or less 172 sq. ft that of the actual measurement and these complainants are entitled to get back the excess amount which has been unjustifiably and illegally received from the complainants. Hence the complaint.
OPs have contested the case by filing written version.
OPs stated that the OPs after publication of auction notice the complainants searched the property through their Ld. Advocate and they have in full knowledge that area of auction property was 172 sq. ft and the OPs registered sale deed in favour of the complainants on dated 31.12.2014 of the said area along with side plan of the auction property/mortgage property.
OPs also stated that it is not true that the OPs received excess amount from the complainants unjustified and illegally. It is the matter of the complainants and the OPs are not related any way with the matters.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision
Admittedly OP No-3 Bank published a sale notice through English daily leading news paper “Financial Express” and in Bengali daily “AAj Kal” in respect of a shop measuring 480 sq. ft in C.S. Dag No-227, R.S. Dag No-2754, appertaining to R.S. Khatian No-1786 of Mouza Hijal Pukuria, J.L. No-80, Re Su No-312 being holding No-167 ward No-20 (9 now) of Habra Municipality.
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Complainants deposited Bank draft valued of Rs 3, 75, 000/- on Indian Bank, Habra Branch bearing No-804877 dated 27.04.2012 and the same was accepted by the OPs. Complainants made a proposal to OP No-2 for showing the auction saleable shop room so that its measurement tallied with the auction public notice but the OP No-2 tried the convince that the property published in the auction notice is the correct one and until and unless the deal is final and the payment is made, they will suppose to allow anybody to take measurement of the auctioned property. Admittedly complainants deposited Rs 15, 10, 000/- on the different cheque on different dated against the proper receipts against by the OP No-3. OP No-2 issued a sale letter in favour of the complainants on 02.08.2012 and handed over the possession of the shop room. But complainants found that the shop room is more or less 172 sq. ft but not 418 sq. ft. We have perused the notice in the Aaj Kal Patrika and it appears the measurement of the shop room published was 418 sq. ft. and the price was Rs 15, 00, 000/-. Hence complainants prayed for excess money paid by them.
We have perused the agreement for sale and it appears that measurement is written under the scheduled of property i.e. 172 sq. ft. OPs did not file any affidavit in chief to controvert the complainant’s evidence. On the other hand OPs prayed for treating the written version as evidence in chief. OPs have stated that complainants had full knowledge of the auction property was 172 sq. ft but did not mentioned anything about the notice published in Aaj Kal patrika where the measurement was mentioned 418 sq. ft and price was mentioned Rs 15, 00, 000/-. On the basis of the said notice complainants have paid the said money. Hence complainants are entitled to get refund of excess money from the OPs.
Hence
It is ordered,
that the complaint and same be allowed on contest against the OPs.
OPs are directed to refund the excess amount which was received for the shop room measurement 418 sq. ft as per notice but deliver the shop room measured 172 sq. ft subsequently in favour of the complainants within two months from the date of this order.
OPs are also directed to pay compensation of Rs 10, 000/- and Rs 5,000/- as litigation cost to the complainants within two months from the date of this order, failing which OPs shall have to pay sum of Rs 100/- per days from the date of this order till it realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund.
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Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated & Corrected by me.
