This is a case U/s 12 of the Consumer Protection Act, 1986 with the prayer for an order directing the O.P. to hand over possession of the shop premises for refund of the entire deposited amount of Rs.16,60,000/- only along with 12% interest from the date of the depositing the first amount, to pay compensation of Rs.3,20,000/- for negligence and deficiency in service and causing harassment, mental pain & agony, Rs.10,000/- as litigation cost.

The case of the complainants in a nutshell is that they wanted to purchase a shop premises at Raiganj following the advertisement published in the ‘Ananda Bazar Patrika’ of Sale Notice of O.P. No.2, complainants being highest bidder in the auction sale and at settled price of Rs.16,60,000/-. On 11.01.2012 through demand draft in favour of UBI, Rs.1,00,000/- was deposited by the complainant. Then O.P. No.2 sent a letter to the complainants and complainants deposited 25% of the bidding price and deposited Rs.3,15,000/- on 17.01.2012 and on 20.02.2012 Rs.12,45,000/- was deposited in favour of the O.P. No.2 through demand draft. On 07.03.2012 Sale Certificate was issued in respect of such premises as published in the advertisement. Complainant alleges that the O.Ps. did not deliver and handed over the possession of shop premises in spite of full payment. On several occasions, the complainants contacted the O.Ps. but without any result. Then on 14.08.2012 complainants sent letter to O.P. No.1 asking to deliver the possession within 30 days of receipt of the letter. Subsequently the legal notice was also sent. As the O.Ps. failed to hand over the possession of shop room causing mental suffering and financial loss therefore the complainant filed this complaint with the above mentioned prayer.

O.P. No. 1 and 2 appeared and contested the case by filing written objection where they categorically denied all the allegations of the complainants stating inter alia the following facts. That, one Karuna Sarkar was sanctioned loan on 10.11.2005 with Cash Credit Limit of Rs.10,00,000/- and original Title Deed of the shop premises-in-question was deposited against the loan. On 30.09.2010 he became irregular and NPA category then issuing notice of 60 days on 09.11.2010 U/s 13(2) of SARFAESI Act, 2002, O.P./ Bank took symbolic possession of the shop premises. Then the Sale Notice of the shop premises was published in the leading daily. Complainants took part in auction and being highest bidder purchased the same and Sale Certificate was issued on 07.03.2012. Thus the sale of the shop premises became absolute on 21.02.2012 after receiving the entire amount of Rs.16,60,000/- for purchase of the mortgaged property on “as is where is” basis. O.Ps. stated further that as the property in question is not in physical possession of the Bank, the O.Ps. could not give physical possession of the property to the complainant.

However, on 13.01.2012 when bidding was completed under the SARFAESI Act, 2002 and notice was issued, then Karuna Sarkar challenging the propriety of the notice filed a Civil Suit before Ld. Civil Judge, Junior Division at Raiganj and Ld. Court passed an order of status quo on 12.02.2013. The case was finally disposed of on 06.07.2013 with the findings that as per Sec. 34 of Securitization Act, Civil Court has no jurisdiction. Karuna Sarkar parallelly filed a consumer case in this Forum being No. CC-08/2013 and it was also dismissed on 12.05.2014.

O.Ps. stated that they all along tried to deliver physical possession of shop premises in favour of the complainant. They were not negligent and deficient in service, they are not responsible for harassment and mental pain of the complainant. On 22.03.2013 O.P./ Bank sent a letter to SP, Uttar Dinajpur for an arrangement of police help for getting physical possession of the shop premises. O.Ps. also prayed before the DM, Uttar Dinajpur U/S 14, but due to pendency of those cases actually police authority was not able to give physical possession of the premises-in-question in favour of the complainant. O.Ps. have no negligence in this matter.

O.P. therefore prays that this case is not maintainable in this Forum, that petitioner is not entitled to receive Rs.3,20,000/- for harassment and Rs.1,00,000/- for litigation cost. That the case is false, motivated and harassing the Bank Authority, a public concern. The complainant may agitate before concerned Dabt Recovery Tribunal. That the O.Ps. have no deficiency in service warranting the award of compensation as prayed for.

DECISIONS WITH REASONS

Complainants filed memo of evidence, answer of questionnaires, photocopies of some documents i.e. photocopy of bank draft regarding payment of Rs.1,00,000/-, Rs.3,15,000/-, 12,45,000/-, Sale Certificate, receipt of the payment by the Bank, reply of Lawyer’s Notice by the O.P/ Bank.

O.Ps. have submitted memo of evidence, oral evidence, O.P.W.1, Senior Manager as well as Regional Manager of UBI, written objection, questionnaires, photocopies of some documents and also filed written argument.

We carefully perused the complaint, W.V., evidences and documents and heard arguments advanced by the both sides.

At the time of hearing arguments O.P./ Bank admits that the complainant being highest bidder paid the purchase money of the shop premises in full and Sale Certificate was issued in his favour. Therefore, this Forum considers that it is the liability of the O.P./ Bank to give possession of the shop premises to the complainant as the Bank already accepted the purchase money in full. Admittedly, O.P./ Bank failed to give possession of shop premises to the complainant causing a huge financial loss and mental harassment to the complainant. It is therefore a case of gross negligence and deficiency in service on the part of the O.P./ Bank. The O.P./ Bank is avoiding its liability by referring Sec.34 of Securitization Act and as SARFAESI matter. Complainant is not a borrower nor guarantor, but he is a simple auction purchaser and necessarily complainant has no grievance against Karuna Sarkar, the original borrower of the O.P./ Bank. O.P./ Bank is fully responsible for not giving possession of the shop premises to the complainant after completion of sale process and issuance of Sale Certificate. As an auction purchaser, complainants are entitled to get possession as soon as they pay the purchase money.

On careful consideration of the complainants’ case and also the present position we are of the view that the O.P./ Bank failed to give possession of the shop premises after auction purchase to the complainant and as a service provider as per the Consumer Protection Act the O.P./ Bank must compensate the complainants. Therefore, the complainants have been able to prove their case.

Fees paid is correct.

Hence, it is

ORDERED,

That the complaint case being No. CC - 24/2014 is allowed on contest.

As the complainant prays for a direction upon O.P./ bank to hand over the possession of the shop premises and alternatively refund of the entire deposited amount of Rs.16,60,000/- along with interest, this Forum allows the alternative prayer of the complainants.

The O.P. No. 1 & 2 are therefore directed to refund to the complainant, the entire deposited amount of Rs.16,60,000/- with 10% interest from the date of deposit till realization. 

The complainants are entitled to get compensation from O.P. No.1 & 2 of Rs.50,000/- for harassment, mental pain & agony and deficiency in service and further directed to pay Rs.2,000/- as litigation cost. 

The O.P. No. 1 & 2 are also directed to pay the total awarded sum within one month from the date of this order, otherwise the complainants are at liberty to proceed with the law.

Copy of this order be supplied to each parties free of cost.