Complainant by filing this complaint has submitted that in pursuance with an advertisement on 27.07.2008 in Aajkal Newspaper by the op no.2 to sell the land and building of one borrower of Bank of Baroda with the provision of SERFEASI Act of the property of ManiklalSaha, situated at Subhaspally, P.O.-Nowapara, P.S.-Barasat. J.L. No. 84, Khatian No. 264, Dag No. 284, Holding No. 1373 and Ward No. 19, the complainant paid the earnest money of Rs. 31,500/- by Banker’s cheque No. 087878 dated 03.06.2010 to purchase the same property. It is stated by the complainant that he paid Rs. 2,79,500/- to Bank of Baroda/op by pay order No. 761344 dated 14.06.2010 to the op no.1 who issued “Sale Certificate” in favour of the complainant on 03.07.2010. The specific case of the complainant is that till date the ops have neither handed over a vacant peaceful possession of the property being sold to the complainant nor executed any deed of conveyance in his favour. In its complaint complainant stated that there is a gross deficiency in service on the part of the ops who are bound to deliver the possession of the property as referred in the advertisement dated 27.07.2008 published in Aajkal Newspaper and to execute the deed of conveyance as complainant paid full consideration amount of the property to the ops, but ops did not pay any heed to do the needful in the matter. Hence, this case.
Op nos. 1 & 2 by filing the written version submitted that one ManiklalSaha availed of traders loan amounting to Rs. 2,60,000/- in the name of his firm M/s. Gayetri Stores from them and the same loan was secured by mortgage of property under Municipality Holding No.1373, Ward No. 19 and due to failure of payment of installment, the account of Mr. ManiklalSaha become NPA and the op/ Bank of Baroda served notice dated 01.12.2007 u/s 13 (2) of the SERFEASI Act 2002 and requested him to pay Rs. 2,74,231/- + unpaid interest towards final settlement of his account since ManiklalSaha/guarantor failed to repay the amountand on failure to pay the bank’s dues, the bank took the possession of the said property by invoking Section 13(4) of the said Act and the possession notice dated 21.07.2008 of the said property was given wherein ManiklalSaha put his signature on the same documents.
It is stated by the op/bank that on 27.07.2008 in accordance with the advertisement in Aajkal Newspaper and one in English Newspaper for sale of the said property with the provision of SERFEASI Act the complainant submitted his bid for purchase of the same property at Rs. 3,11,000/- and they have accepted the offer of the complainant as highest bidder. It is also stated by the op/bank that after accepting the said offer by the complainant, they issued sale certificate dated 03.07.2010 in the name of the complainant and also he received the physical possession of the said property and in this respect the complainant also specifically mentioned in writing on receipt the physical possession of the same property.
Therefore the instant complaint as raised by the complainant is barred by principal of res-judicataand/or principle analogues the complaint should be dismissed with an exemplary cost.
Decision with reasons
Admittedly, it is stated that the complainant purchased a property on payment of Rs. 3,11,000/- to the op/Bank of Baroda who also issued “Sale Certificate” in favour of the complainant on 03.07.2010. It appears from the record that the complainant paid entire consideration money as the highest bidder to the op/Bank as per advertisement in the leading newspapers for sale of the said property in accordance with the provision of SARFESI Act, 2002 as performed by the op/Bank of Baroda who took the possession of the said property by invoked Section 13(4) of the said Act and took possession through notice dated 21.07.2008.
On proper consideration of the Sale Certificate it appears that the entire auction procedure was adopted as per SARFEASI Act and the power as vested as per provision of SARFEASI Act, the authorized officer is to act accordingly and it is mandatory provision of law as specifically specified in Section 34 and 35 of the said Act that no Court has authority to decide in respect of any matter related to SARFEASI Act and in respect of lonee member or auction purchaser whatever it may be.
Truth is that complainant purchased the same in respect of sale held by the authorized officer as per SARFEASI Act and no doubt it is an auction sale and in respect of any auction sale, Consumer Forum has no legal authority to entertain such dispute. At the same time if there is any grievance of the present complainant, he must have to ventilate the matter before the competent authority to decide the dispute as per provision of SARFEASI Act i.e. before the Debts Recovery Tribunal or Debts Recovery Appellate Authority or such authority as specified in the said Act.
Fact remains that in respect of auction sale, there is no such provision within four corner of the C.P. Act to entertain it, because it is an auction sale. But it is not a sale of housing construction. From the very heart of the complaint, it is clear that there is someone who purchased the flat and he marketed the property to the present op/Bank and handed over to pay the loan for which the property sold in auction and invariably auction sale means sale of a land for the second time that means it tantamounts to resale, resale is not applicable in case of C.P. Act.
Considering all the above fact, we have gathered that this complaint is not maintainable before this Forum in view of the bar created by such Section 34 & 35 of the SARFEASI Act. At the same time it is an auction sale. So, this Forum has nothing to do when it is a resale.
In the light of the above observation, we have gathered that this Forum has no jurisdiction to entertain such dispute and no authority to decide such dispute under any circumstances and it shall not be treated as consumer dispute.
In the result, the complaintfails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed on contest against the ops without any cost.
