BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 67 of 2015

Date of Institution: 27.01.2015

Date of Decision: 08.10.2015 

Rakesh Gupta son of Mr.Iqbal Nath Gupta, 795/X-4, Kucha & Katra Bhai Sant Singh, Amritsar. 

Complainant

Versus

1. The Deputy General Manager, Union Bank of India, Regional Office, Veer Partap Bhawan, Shastri Market, Jalandhar.
2. The Branch Manager, Union of India, Branch Lawrence Road, Amritsar.   

Opposite Parties

Complaint under section 11, 12 & 13  of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant: Sh. Arvinder Mahajan, Advocate.

              For the Opposite Parties: Sh.Dinesh Sharma, Advocate.

Quorum:

Sh.Bhupinder Singh, President

Ms.Kulwant Kaur Bajwa, Member

Order dictated by:

Sh.Bhupinder Singh, President.

1. Present complaint has been filed by Sh.Rakesh Gupta  under the provisions of the Consumer Protection Act alleging therein that Opposite Parties  issued a public notice in ‘The Tribune’ dated 24.11.2009 for the sale/ auction of the residential house No.A-542, situated at Gumtala Sub Urban, A-Block, Ranjit Avenue, Amritsar with area measuring 110.8 square yards and bearing khasra No. 130/6/2Min. The complainant approached the Opposite Party No.2 with the intention to buy one residential house for his own occupancy and upon its invitation for sale in the Newspaper claiming the aforesaid property measuring 110.8 square yards and the complainant had made a bid of Rs.36 lacs in the office of Opposite Party No.2 as per advertisement in the newspaper and bid of complainant was accepted. In lieu of that the complainant made a part payment of Rs.9 lacs on 24.12.2009 and Rs.7 lacs on 31.12.2009 in the office of Opposite Party No.2 and in all, Rs.16 lacs. For the balance amount, the complainant took housing loan from the Opposite Party No.2. After the purchase of aforesaid property, the complainant had to suffer a court case titled as Tejinder Singh Vs. Arun Khanna which was lateron decided by the court of Sh.Kuldeep Singh, the then ld.Additional District Judge, Amritsar in which the Opposite Party No.2 was also a party and both had made the objections in the said execution petition claiming the complainant as a bonafide purchaser. Keeping in view of harassment suffered by the complainant with regard to this property, the complainant framed his mind to dispose of the property and then the complainant came to know that the area of the property is not accurate and he got measured the aforesaid property  which was 91.89 square yards and not 110.8 square yards as claimed in the advertisement as well as in the sale certificate dated 11.1.2010 and 18.7.2014. Under these circumstances, the complainant felt that he has been defrauded once with the long litigation faced by complainant and now with the lesser area sold to the complainant.  The complainant made so many representations to the Opposite Parties  vide letter dated 15.9.2014 and thereafter vide reminder dated 10.11.2014 and also served legal notice to the Opposite Parties to reduce the sale amount as per the lesser proportionate area on the spot alongwith compensation, but the Opposite Parties  instead of accepting the legal and genuine demand of the complainant given false and frivolous reply claiming that the aforesaid property has been sold on the basis of ‘As per  where is whatever there and without recourse’ basis vide their alleged reply dated 27.11.2014. Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite parties to reduce the sale amount of the aforesaid property proportionately as per the area claimed. Compensation and litigation expenses were also demanded.
2. On notice, Opposite Parties appeared and filed written version in which it was submitted that the Opposite Parties  have sold the complainant one residential house on the basis of ‘as is, where is, whatever there and without recourse’ having No. A-542, situated at Gumtala Sub Urban, A-Block, Ranjit Avenue, Amritsar bearing khasra No. 130/6/2/Min, Khata/ Khatauni No. 957/1251, earlier owned and duly mortgaged in favour of Union Bank of India by Arun Kumar Khanna son of Madan Lal Khanna, as per the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest  Act, 2002 (SARFAESI Act, 2002) for a valuable consideration of Rs.36 lacs on 11.1.2010 after complying all the rules and legal formalities stipulated as per law. Before selling the said property, Opposite Parties were put to auction the said property i.e. A-542, situated at Gumtala Sub Urban, A-Block, Ranjit Avenue, Amritsar bearing khasra No. 130/6/2/Min, Khata/ Khatauni No. 957/1251 by way of given publication in two leading newspapers both dated 24.11.2009. In response/ persuasion to the said publications, the complainant gave a bid/ offer letter of the total amounting Rs.36 lacs against the reserved price of Rs.33 lacs and being the highest bidder his bid was accepted by the Opposite Parties  and same was conveyed to the complainant vide letter dated 24.12.2009. Before buying the said property, the complainant had read all the terms and conditions stipulated by the bank published vide different publications in the different newspapers namely ‘Jagbani’ dated 24.11.2009 and ‘Indian Express’ dated 24.11.2009 in this regard and verified the property in question from all aspects the actual & physical description/ demarcations of the said property. The property in question was sold on the basis of ‘As per where is, whatever there and without recourse’. Thereafter, the complainant approached Opposite Parties  for getting the housing loan facility to the tune of Rs.16 lacs which as accordingly sanctioned/ granted to him and the property was again mortgaged by the complainant in favour of the Opposite Parties  by executing and signing the various loan documents dated 31.12.2009 alongwith housing loan agreement dated 31.12.2009 in this regard in which all the terms and conditions as well as schedule of the property in question was clearly mentioned and same is duly signed by the complainant. However, the actual area is very well within the knowledge of the complainant at that time, as such the complaint is liable to be rejected. The complainant has personally verified all the particulars in all respect & after verifying all the material particulars of the property, complainant became ready to buy the said property. As such, the alleged contention of the complainant of selling the property with lesser area is purely an afterthought and is not tenable under the law.  While denying and controverting other allegations, dismissal of complaint was prayed.
3. Complainant tendered into evidence his affidavit Ex.C1 alongwith documents Ex.C2 to Ex.C14 and closed the evidence on behalf of the complainant.
4. Opposite Parties  tendered into evidence affidavit of Sh.Mohsin Khan Ex.OP1 alongwith documents Ex.OP2 to Ex.OP14  and closed the evidence on behalf of the Opposite Parties.
5. We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
6. From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that  Opposite Parties  issued a public notice in newspapers including  in ‘The Tribune’ dated 24.11.2009 for the sale/ auction of the residential house No.A-542, situated at Gumtala Sub Urban, A-Block, Ranjit Avenue, Amritsar. The complainant approached the Opposite Party No.2 with the intention to buy said residential house in auction and made bid of Rs.36 lacs in the office of Opposite Party No.2 as per advertisement in the newspaper and bid of complainant was accepted. The complainant made a part payment of Rs.9 lacs on 24.12.2009 and Rs.7 lacs on 31.12.2009 in the office of Opposite Party No.2 and in all, Rs.16 lacs and for the balance amount, the complainant took housing loan from the Opposite Party No.2 and is regularly paying the instalments alongwith interest to Opposite Party No. 2. Opposite Party No. 2  issued sale certificate dated 11.1.2010 Ex.C2 in favour of the complainant regarding the aforesaid property. After the purchase of aforesaid property, the complainant suffered a court case titled as Tejinder Singh Vs. Arun Khanna, which was decided by the court of ld.Additional District Judge, Amritsar in which objections were raised in the execution  petition claiming the complainant as a bonafide purchaser. Said litigation was decided in favour of the complainant and the title of the property of the complainant was admitted in that case.  Keeping in view of harassment suffered by the complainant, he decided to dispose of the property in question. However, at the time of said sale, it was brought to the notice of the complainant that area of the said property is measured to the extent of 91.89 square yards and not 110.8 square as sold by the Opposite Parties  to the complainant in auction and as claimed by the Opposite Parties   in the advertisement as well as in the sale certificates dated 11.1.2010 and 18.7.2014 Ex.C2 and Ex.C3. So, the complainant has been defrauded. The complainant then issued letter dated  15.9.2014 Ex.C4 requesting the Opposite Parties  to reduce the sale amount, but no reply was given by the Opposite Parties  and then the complainant issued reminder dated 10.11.2014 Ex.C6, but in vain. Then the complainant served legal notice to the Opposite Parties dated 14.10.2014 Ex.C10 to reduce the sale amount as per the lesser proportionate area on the spot alongwith compensation and then Opposite Parties  sent reply dated 27.11.2014 Ex.C9 claiming that said property has been sold in open auction on the basis of ‘as is, where is, whatever there and without recourse’. It was further claimed by the Opposite Parties  that this fact of lesser  area has been specifically told to the complainant. However, later on the Opposite Parties  issued certificate dated 18.7.2014 Ex.C3 stating that the area of the property in question is 110.8 square yards. Even then the Opposite Parties  neither reduced the sale consideration nor paid any compensation to the complainant.  Ld.counsel for the   complainant  submitted that all this amounts to deficiency of service on the part of the opposite parties.
7. Whereas the case of the Opposite Parties is that the Opposite Parties  have sold to the complainant one residential house on the basis of ‘as is, where is, whatever there and without recourse’ having No. A-542, situated at Gumtala Sub Urban, A-Block, Ranjit Avenue, Amritsar bearing khasra No. 130/6/2/Min, Khata/ Khatauni No. 957/1251, earlier owned and duly mortgaged in favour of Union Bank of India by Arun Kumar Khanna son of Madan Lal Khanna, as per the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest  Act, 2002 (SARFAESI Act, 2002) for a valuable consideration of Rs.36 lacs on 11.1.2010 after complying all the rules and legal formalities stipulated as per law. Before selling the said property, Opposite Parties were put to auction the said property i.e. A-542, situated at Gumtala Sub Urban, A-Block, Ranjit Avenue, Amritsar bearing khasra No. 130/6/2/Min, Khata/ Khatauni No. 957/1251 by way of publication in two leading newspapers both dated 24.11.2009 Ex.OP2 and Ex.OP3. Resultantly,  the complainant gave a bid/ offer letter of the total amounting Rs.36 lacs against the reserved price of Rs.33 lacs and being the highest bidder, his bid was accepted by the Opposite Parties  and conveyed to the complainant vide letter dated 24.12.2009 Ex.OP8. The minutes of the sale conducted on 24.12.2009 are Ex.OP6. The complainant had already gone through all the terms and conditions of the auction of the aforesaid property stipulated by the Opposite Parties-  bank published vide different publications Ex.OP2 and Ex.OP3 and he had verified the property in question from all  aspects i.e.  actual & physical description/ demarcations of the said property as it was sold on the basis of ‘As is, where is, whatever there and without recourse’. The complainant applied for loan against said property to Opposite Party No.2-Bank  and in the said revaluation report dated 18.11.2009 Ex.OP4, it has been categorically mentioned in that report that the area of the property in question is 97 square yards at site and against this revaluation report, the housing loan of Rs.16 lacs was sanctioned to the complainant against the mortgage of this property and this fact came to the knowledge of the complainant  on 18.11.2009, but he never raised any dispute regarding the area of the house in question. Ld.counsel for the Opposite Parties  submitted that as the Opposite Parties  have sold the property in question to the complainant on the basis of ‘as is, where is, whatever there and without recourse’ and the complainant has purchased the same after verifying all these facts regarding the property in question in open auction, so there is no deficiency of service on the part of the Opposite Parties  qua the complainant.
8. From the entire above discussion, we have come to the conclusion that the Opposite Parties  sold to the complainant, one residential house on the basis of ‘as is, where is, whatever there and without recourse’. The Opposite Parties  published in two leading newspapers in this regard, copies of which are Ex.OP2 and Ex.OP3 both dated 24.11.2009 for auction of the house of Arun Kumar Khanna son of Madan Lal Khanna, which was acquired by Opposite Party No.1 under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest  Act, 2002 (SARFAESI Act, 2002). On the basis of publication in the aforesaid two leading newspapers, the complainant gave bid/ offer of Rs. 36 lacs against the reserved price of Rs.33 lacs in open auction, the auction proceedings of which are dated 24.12.2009 Ex.OP6. Being the highest bidder, the bid of the complainant was accepted by the Opposite Parties  and the same is conveyed to the complainant vide letter dated 24.12.2009 Ex.OP8 and the complainant made part payment. Thereafter, the complainant applied for housing loan to Opposite Party No.2–Bank for making the payment of balance amount. Resultantly, the Opposite Parties  obtained evaluation report of the house in question Ex.OP4 dated 18.11.2009 from Raj Kumar & Associates, in which it has been categorically mentioned that the area of the house in question is 97 square yards and this fact came to the knowledge of the complainant on 18.11.2009 as per this report Ex.OP4 submitted with the loan case of the complainant with Opposite Party No. 2-Bank. But the complainant never raised any objection with the Opposite Parties-Bank regarding the area of the house in question. The complainant purchased the property in question from Opposite Parties-Bank in open auction on the basis of publication in leading newspapers i.e. ‘Jagbani’ dated 24.11.2009 Ex.OP3 and ‘Indian Express’ dated 24.11.2009 Ex.OP2, in which it has been categorically mentioned that the residential house bearing No. A-542, situated at Gumtala Sub Urban, A-Block, Ranjit Avenue, Amritsar bearing khasra No. 130/6/2/Min, Khata/ Khatauni No. 957/1251, earlier owned and duly mortgaged in favour of Union Bank of India by Arun Kumar Khanna son of Madan Lal Khanna, is being auctioned  on the basis of ‘as is, where is, whatever there and without recourse’. Opposite Parties have neither abstracted nor added any area to the house in question which was acquired by the Opposite Parties under the  Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest  Act, 2002 (SARFAESI Act, 2002) and they sold the same in open auction dated 24.11.2009 and the complainant purchased the same from the Opposite Parties  on the basis of  ‘as is, where is, whatever there and without recourse’. Nowhere in the aforesaid publications or in the sale certificate issued to the complainant dated 11.1.2010 Ex.C2, it has been mentioned that the area of the building in question is 110.8 square yards. The complainant has purchased this property from the Opposite Parties  in open auction after verifying all the factual situation and description of the building. The Opposite Parties  have not made any change i.e. neither abstracted nor added any area of the said building as acquired from Arun Kumar Khanna son of Madan Lal Khanna  and sold the same in the open auction to the complainant on the basis of ‘as is, where is, whatever there and without recourse’ and the complainant has accepted this offer on the basis of ‘as is, where is, whatever there and without recourse’. Apart from this, the complainant applied for housing loan to Opposite Party No. 2-Bank vide loan application Ex.OP9 and at that time, re-valuation report was called which is dated 18.11.2009 Ex.OP4 which was submitted with the loan papers of the complainant, with the Opposite Party No. 2-Bank and in that evaluation report, it has been categorically mentioned that the area of the building in question is 97square yards and not 110.8 square yards as per sale deed of the previous owner and the complainant has acquired this knowledge on 18.11.2009 from this report Ex.OP4, but he never raised any objection regarding the area of the building in question, to the Opposite Parties for about 5 years. It has been held by Division Bench of Hon’ble Punjab & Haryana High Court, in case Dr.G.S.Shekhawat Vs. State of Punjab and others in Cvil Writ Petition No. 32  of 2013, decided on 3.9.2014 cited as 2014(5) RCR (Civil), 785 that where the petitioner purchased the building in open auction for the construction of the hospital with open eyes and was fully aware of ground reality- site has been auctioned ‘ as is, where is’ basis. If there is any encroachment upon the plot as well as the surrounding area, the petitioner is bound by terms of allotment. Division Bench of Hon’ble Punjab & Haryana High Court, dismissed the writ petition on the ground that the petitioner purchased the demise plot in open auction wherein the said plot was offered on ‘as is, where is’ basis. Secondly, the petitioner has purchased the property in a public auction with open eyes being fully aware of the ground reality. Thirdly, the petitioner is bound by the terms and conditions of the allotment and said encroachments, if any, were in place much before the petitioner purchased this plot in an open auction on  ‘as is, where is’ basis. The petitioner is not entitled to say that the terms and conditions of allotment should be altered in his favour.
9. Later on, the complainant sought clarification from the Opposite Parties  that too in the year 2014 after a lapse of period of about 5 years and the Opposite Parties-Bank issued letter dated 18.7.2014 Ex.C3 in which they have mentioned that as per the sale deed of Arun Kumar Khanna regarding the aforesaid building, area of the property is measuring 110.8 square yards earlier owned  by Arun Kumar Khanna son of Madan Lal Khanna which is Ex.C3. If Arun Kumar Khanna while raising the building of said plot has made changes and reduced the area of the building that does not affect the Opposite Parties  because the Opposite Parties  have sold the building in question to the complainant in open auction on the basis of ‘as per where is, whatever there and without recourse’  and the complainant has purchased the property in question with open eyes being fully aware of the ground realities on the basis of ‘as is, where is’ and it does not lie in the mouth of the complainant at this stage that he was sold building which is lesser in area than written in the sale deed of Arun Kumar Khanna.
10. Consequently we hold that there is no deficiency of service on the part of the Opposite Parties qua the complainant.
11. Resultantly, the complaint is without merit and the same is hereby dismissed with no order as to cost. Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Dated: 08.10-2015.                                          (Bhupinder Singh)                                                                                                President

hrg                                                                      (Kulwant Kaur Bajwa)   

                                   Member