The complainant case U/S 17 OF CP Act, 1986 in short is that on 04.10.2008, the respondents published a possession cum sale notice in Uttar Banga Sambad inviting in sealed cover from the intending buyers for purchase of a specific mortgaged property of M/S Kalpana Enterprise at situated Rashbehari sarani, i.e., open land measuring 4.50 Kathas, vide deed No.I-2240, dated- 24/06/1955, khatiyan Number 3138, J.L. Number 110( 88), Dag No. 10652, Paragana – Baikunthapur, Mouza – Siligiuri, Touzi No. 3(ja), near Khelaghar More.
That in pursuance of the aforesaid possession sale notice published by the respondent, the complainant offered a bidding price of Rs. 14,25,000/- (Rs. Fourteen lacs Twenty five thousand) only for offering the purchase of the said mortgaged property through a letter/application, dated 04/10/2008, addressed to the respondents.
That the complainant on 03/11/2008, deposited draft being EMD of Rs. 1,35,000/- ( Rs. One Lacs thirty-five thousand) only bearing No. 16270, drawn on centurion bank of Punjab Limited favoring the respondents.
That the respondent declared the complainant as highest bidder for the purchased of the aforesaid mortgaged property and respondents intimated the same to the complainant through an acceptance letter, dated 11/11/2008.
That as per the terms and conditions of the respondents is respect of the purchase of the aforesaid mortgaged property, the complainant deposited to the respondent No. 1 the entire bidding amount of RS. 14,25,000/- ( Rs. Fourteen lacs twenty five thousand) only by way of separate three demand drafts of Rs. 1,35,000/- ( Rs. One lacs thirty five thousand) only bearing draft No. 162709, dated 03/11/2008, Rs. 2, 14,000/- ( Rs. Two lacs fourteen thousand) only bearing draft No. 162958, dated 19/11/2008 and Rs. 10,76,000/- ( Rs. Ten lacs seventy six thousand) only bearing draft No. 163203, dated 06/12/2008 all favoring the respondents drawn on Centurion Bank of India limited, Siliguri.
Inspite of receiving the entire bidding amount of Rs. 14,25,000/- ( Rs. Fourteen lacs twenty five thousand) only, the respondent neither issued sale certificate nor registered the said mortgaged property unto and in favour of the complainant and / or put / handover the physical possession of the said mortgaged property to the complainant but the complainant found that the said mortgaged property was not vacant and the same remain in the physical possession of the mortgager. It is pertinent of mention here that the sale of the mortgaged property by the bank connotes the delivery of assets in demise condition and the sale procedure should be commenced only when the secured assets are in physical possession of the bank under its lock and key but in this case, the mortgager of the said mortgaged property found remain in the possession of the mortgaged.
That on several occasion, the complainant went to the office of the respondents several times and requested the respondents verbally to register the said mortgaged property or to issue sale certificate unto and in favour of the complainant and to handover to the possession of the mortgaged property to the complainant but the respondent did not pay any heed to the request of the complainant.
That on 09/02/2015, the complainants sent the reminder latter to the respondents and request the respondents to register the said mortgaged property or to issue sale certificate unto and in favour of the complainant and to handover the possession of the mortgaged property to the complainant but the respondent did not pay any heed to the request of the complainant.
That finding no other alternative way, the complainant on 17/02/2016 again sent the registered post and application Under Section 6 of the right to information Act, 2005 to the respondent seeking information regarding the sale of the mortgaged property and the regarding the said deposited amount by way of aforesaid demand draft by the complainant but the respondent did not give the information seek therein in the application, dated 17/02/2016.
That the complainant again on 08/12/2016 sent the registered post and appeal Under Section 19(1) of the right to information Act 2005 and after receiving the same, the respondents sent reply later dated 14/12/2016 addressed to the complainant starting that the fee deposited for seeking information for the aforesaid purpose Under right to information Act should be by way of IPO/Bankers Cheque/ Demand draft instead of court fee.
That on 17/01/2017, the complainant complied the direction of the respondents by sending latter dated 17/01/2017 along with an copy of appeal under RTI Act with IPO of Rs. 10/- bearing IPO of Rs. 10 by registered post dated 17/01/2017.
That on 23/02/2017 the respondents returned said three demand drafts amounting to Rs. 14,25,00/- which become invalid due to efflux of time to the complainant as received by the respondents from the complainant for the purpose of selling the said mortgaged property without re-validating the said drafts along with the reply to an appeal Under Section 19(1) of RTI.
That the complainant further submits that it is a clear case of gross negligence on the part of respondents and for this act of negligence, the complainant has to suffer huge inconvenience and mental pain and agony.
That due to sheer negligence of the respondents, the complainant incurred huge loss of interest on the said deposited amount of Rs. 14,25,000/- to the respondents for the purchased of the said mortgaged property by the complainant as per instructions of the respondents.
That the respondent did not consider the losses incurred by the complainant for the huge amount of Rs. 14,25,000/- kept under the possession and custody of the respondents.
That such callousness, intention, high-handed and harsh attitude, actions and conducts on the part of the respondents have resulted the complainant to remain in extreme mental pain and agony and sufferings and harassment and suffered huge financial loss and in such circumstances in tantamount to serious departure from the consumer kindness and unfair trade practice and as a consequence of the same, the complainant till this day is confronted with acute mental pain and agony and financial loss and suffering at every material times, which entails serious legal consequence as per the law of the land.
The complainant prayed for :-
- To direct the opposite parties to pay /return a sum of Rs. 14,25,000/- ( Rs. Fourteen Lacs Twenty five thousand) only to the complainant only and /or re – validate the said demand draft total amounting to Rs. 14,25,00/- with an interest of @ 12% per annum of the aforesaid amount from the date of the deposit to the respondents.
- To direct the respondent to pay to the complainant as compensation to the tune of Rs. 5,75,000/- ( Rs. Five lacs seventy five thousand) only for unfair trade practice with the complainant and for the financial loss sustained and the mental agony and suffering caused to the complainant on account of such unfair trade practice and serious negligence on the part of the respondents to render service to the complainant.
- To direct the respondents to pay to the complainant as compensation to the tune of Rs. 75,000/- ( Rs. Seventy five thousand) only as the cost of legal proceedings including expenses in correspondence and pursung in respect of realization of said amount in question.
- To direct the respondents to pay to the complainant as compensation tune of Rs. 2,50,000/- ( Two lacs fifty thousand) only the business / personal loss and harassment.
- And to pass such order or orders for other relives.
The OP united Bank of India ( now P.N.B) has contested the case by filing W.V and denied all the material allegations leveled against the OP/Bank and contented interalia that the complainant is not a consumer he has no cause of action and the case is barred by the principle of estoppel, waiver and acquiescence and by delay of registering the complainant.
The positive case of OP/ Bank is that the complainant as an accepted bidder of auction purchase sent the offer letter enclosing a draft of RS. 1,35,000/- as earnest money and property price was settled at Rs. 14,25,000/- the bank accepting the bidding price vide letter dated 11/11/2008 has requested the complainant to deposit 15% of bid amount i.e Rs. 2.14 Lacs within 15/11/2008 and rest amount within 19/11/2008. The complainant deposited Bank draft of Rs. 2.14 lacs on 19/11/2018 and rest amount 10.76 Lacs on 06/12/2008 i.e after the prescribed period and for that reason as per terms of letter dated 11/11/2008, the auction sale was cancelled and the earnest money was forfeited and informed the complainant about cancellation of such sale and requested him to collect the demand drafts repeatedly but the complainant intentionally refused to get the same return
By Additional W.V the OP Bank contended that
AS IS WHERE IS BASIS' as mentioned in the Possession cum Sale Notice dated 04.10.2008 connotes that on the date of publication of the said Possession cum Sale Notice dated 04.10.2008 the subject property was in which condition, status and possession, in the self same condition, status and possession of the said property would be sold in the Auction Sale. On the date of publication of the said Possession cum Sale Notice
the Physical Possession of the said property was with the actual owner/mortgagor, therefore, the property was sold in the Auction at the same condition which was as on the date of the said Possession cum Sale Notice dated 04.10.2008. The Complainant's subsequent claim of Physical Possession of the said Property after Auction Sale is not at all sustainable and such claim of Physical Possession of the property by the Complainant from the Respondents was/is illegal and void.
the Complainant was well aware of that the subject asset/property was in Physical Possession of the actual Owner of the said property who mortgaged the said property in favour of the Respondent Bank as security against the subject loan and knowing the same the Complainant participated in the Auction Sale by way of filing/submitting Tender by him and after declaration Rs. 14,25,000/ claro 10/19, that his tender was accepted at (Fourteen Lacs and Twenty-five thousand) only being highest bidder when the tenders were opened on 04.11.2008 and the Complainant also deposited of 10% (including EMO) of the sale price amounting to Rs. 1,35,000/- (Rupees One Lacs and Thirty-five Thousand) only vide Demand Draft No. 162709 dated 03.11.2008 favour of United Bank of India purchased from Centurion Bank of Punjab Ltd. to the Respondent Bank in terms of the Auction sale; but did not claim/demand for handing over Physical Possession of the Subject Property knowing fully well by the Complainant that the subject property was in Physical Possession with the mortgagor Le. owner of the property in question.
4. That in the mean time the Respondent Bank vide there letter No. NBRO/RECV/1389/2015-16 dated 11.11.2015 wrote a letter to the Manager of the HDFC Bank Limited, Hill Cart Road, Siliguri about the status of the DDs issued by the Complainant in favour of the Respondent Bank (since the Centurion Bank of Punjab Ltd. was merged after purchase of the said DDs with HDFC Bank Ltd.), in reply to which Smt. Rimpa Mukherjee, the then Branch Manager of HDFC Bank Ltd., Hill Cart Road, Siliguri vide their letter dated 23.11.2015 informed to the Respondent Bank that the status of those three Drafts JA are 'Cancelled.
The Respondent Bank never ever assured to the Complainant that after depositing the 15% bid amount of Rs. 2,14,000/- (Two Lacs and Fourteen Thousand) only the Respondent Bank would take the vacant and peaceful possession of the said mortgaged property from the mortgagor.
That after cancellation of all three DDs amounting to altogether Rs. 14,25,000/- (Fourteen Lacs and Twenty-five Thousand) only being the Auction Sale Price of the subject property, the Complainant claim of handing over Physical Possession of the said Property by the Complainant from the Respondent Bank is nothing but malafide, illegal and for wrongful gain of the Complainant so also to harass the Respondents.
That the Respondent Bank submitted that as and when the said three DDS of altogether Rs. 14,25,000/ (Fourteen Lacs and Twenty-five Thousand) only were cancelled, the Auction sale of the said subject property was automatically ceased and terminated. All subsequently claim or demand pertaining to the said subject property by the Complainant from the Respondents had become end and/or ceased.
That the Complainant is not entitled to any amount and/or any relief and/or any compensation from the Respondents as prayed for by the Complainant.
In this case, the complainant Pranayan Chowdhary tenders his evidence on oath by affidavit and answered the interrogatories of the OP
The OP side also added evidence through authorised officer U.B.I cum Chief Manager, Sri. Balay Mandal and answered the questionary of complainant.
The material documents of each side were produced in support of their cases
The Complainant subsequently answered Non-Consumer Complaint and in place of U.B.I, the P.N.B. (as converted) has included in the case as principal OP.
Argument of both side was here through their Ld. Legal Counsel namely Dipika pal and others on behalf of complainant and Mr. P. Joardar on behalf of OP.
Point for Determination
(1) Is the complainant a Consumer Under the Umbrella of C.P Act, 1986?
(2) Has the claim of the complainant has become forbidden for estoppel, acquiesces?
(3) Is the complaint liable to be dismissed for not registering the same within prescribed period?
(4) Is the complainant entitled to get relief as prayer for?
Decision with reasons
Point No. 1,2 and 3: - All these three points are taken togetherly for proper adjudication.
The complainant claims himself as bonafide consumer according to provision SEC 2(d) C.P Act, 1986 as he intended to auction purchase an Immovable properly from the OP bank and invested huge amount for the same as his offer of auction purchase was accepted and subsequently bank has failed to discharge the obligation of such auction purchase agreement for which he acquired right cause of action to institute a consumer action. Delay of registering the complaint was condoned by this bench as the complainant had right excuses for such delay and the commission was convinced upon such delay reasons.
So at this stage, the complainant as a bonafide consumer has right cause of action to bring this consumer case.
Point No.4:- The main issue to be adjudicated in this case over the dispute that whether the bank had any reasonable excuses to abandon the process of auction sale of the property, or the complainant has violated the offer argument on his part.
The Ld. Advocate of the OP bank mentioned that on the Complainant did not complied with the terms and conditions of the said letter dated 11.11.2008. The Complainant deposited a sum of Rs. 2.14 Lacs only on 19.11.2008 being 15% of the bid amount i.e. after the expiry of prescribed time i.e. within 15.11.2008. The Respondent Bank further submits that the rest of the amount of Rs. 10.76 Lacs only was also deposited on 06.12.2008 by the Complainant i.e. after the prescribed period. From above, it is apparent and crystal clear that the Complainant neither deposited Rs. 2.14 Lacs only within prescribed time i.e. within 15.11.2008 пог deposited the rest amount of Rs. 10.76 Lacs only within the time i.e. within 19.11.2008. The Respondent Bank also submits that the Complainant failed to comply the terms and conditions to complete the Sale, hence the Sale of the Subject Property failed/cancelled and the amount paid as earnest money was automatically forfeited. the Respondent Bank did not cause any financial loss, metal pain, harassment and any sort of unfair trade practice against the Complainant. The Respondent Bank always tried and has been trying to serve their best service to everyone.
The other hand it is argued on the part of the complainant on 13-02-2017, the Respondents returned said three Demand Drafts amounting to Rs.14,25,000/- which became invalid due to efflux of time to the Complainant without re-validating the said Drafts along with a reply to an appeal under Section 19(1) of R.T.I. It is a clear case of gross negligence on the part of the Respondents and due to such callousness, high-handed and harsh attitude, actions and conducts on the part of the Respondents have resulted the Complainant to remain in extreme mental pain and agony and sufferings and harassment and caused huge financial loss and in such circumstances it tantamount to serious departure from consumer kindness and unfair trade practice and as a consequence of the same, the Complainant till this day is confronted with acute mental pain and agony and financial loss and suffering at every material times."
After hearing both sides it is established that the possession cum sale notice under SARFEASI Act, 2002 published in newspaper 04/10/2018, the bank has represented that the auction properties was already taken in possession by the bank and intended to auction sale “As is where is basis” that mains that bank on the date on auction notice claimed possession of the mortgaged properties was already taken from the mortgager, and wanted to sale if “As is where is basis” i.e., no changes of the properties after taking re-possession.
The bank claims that due to non-payment of auction price in due time stipulated in the offer letter dated 11/11/2008, the transition was automatically cancelled and deposited bidding and earnest money was forfeited.
Bank says that authorised officer of Bank had no right or authority to extend the time beyond three months for the date of confirmation of sale.
Hence in this case, the sale confirmation letter (offer letter) was issued on 11/11/2008 on receiving of earnest money Rs.1.35 lakh on 03/11/2008. Bank accepted the rest amount by two Demand drafts Rs. 2.14 lakhs on 19/11/2008 and 10.76 lakhs on 06/12/2008 i.e., within three months of sale confirmation (acceptance letter 11/08/2008).
The Bank has returned back the demand drafts(three) to the complainant on 13.02.2017.
The bank says that after cancelling the deal the bank Vide letter dated 23.09.2011 requested the complainant to collect the said three D.D. from the Bank authority to Rs. 14.25 lacs but the complainant never come to collect the same.
The bank on 29.12.2010 urged the demand draft issuing bank to revalidate the said three demand draft as the same could not be presented in time.
The issuing Bank presently known as H.D.F.C Bank Vide letter dated 23.11.2015 confirmed the cancellation of the said three D.D but no date of cancellation mentioned.
For the First time, The Bank (OP) requested the Complainant Vide letter dated 15.09.2011 urged him to collect the said three demand drafts lying with custody of the bank and till 15.09.2011 it is presumed that the Bank prior to 15.09.2011 did not say to the complainant to collect the said 3 no. D. D and till cancellation, there was a debit in the Bank A/C of complainant to the tune of Rs.14.25 lacs for which he lost the interest and till 15.09.2011, he has no authority to collect the D.D and cancel the same to credit this amount into his Bank Account.
It is admitted on the part of OP/Bank that at all time of sale notice the Bank has no physical possession of the property to sale, whereas in sale notice the bank has instated the intended purchasers that the bank had already taken possession. The Bank cannot hide this Mischief on the Guise “As is where is” clause.
The Complainant did not take back the issuing demand drafts as he had waited to get physical possession of the property through the bank while the bank was not in as position to throw out the mortgager from the physical possession and for that reason the property in question at that time was not free from encumbrances, and the authorised officer was not diligent enough in this regard for which the auction purchaser even paying the entire sale price could not enjoy the properly under his possession and use.
In this way a bonafide Customer/Consumer has-been getting deprivation in enjoying his legal right, he has lost the interest of the deposited money. The bank all along in pleading says that due to delay payment, the auction sale was already cancelled while in other pleading (Additional W.S) the bank says that authorized officer extended the date of payment up to 09/12/2008, while the complainant made full payment on 06/12/2008.
The bank (OP) had no solid defence to hide their own fault. In one hand banks says that sale certificate to be issued and on other hands says to collect the DD from the bank, while the property still reminded under the possession on mortgager.
This hide and seek policy of the bank certainly had severely damaged the bank’s case on merit which tantamount the deficiency of service on its part.
Ld. Advocate Mr. P. Joardar of OP mentions that in the present dispute, the complainant had the only too remedies either to move DRT or the tribunal under SARFAESI Act and this commission has no jurisdiction to invoke.
In support of his argument, he referred judicial decisions of humble apex court in UBI Vs S. Tandan case dated 26/07/2010 on going through the said decision at reveals that Hon’ble S.C only bars the writ jurisdiction in case of dispute arisen under D.R.T Act on SARFEASI Act. But section 3 of CP Act 1986, deals with deficiency of service and in this case, it is fully blown up.
In this dispute, the complainant all along has perused to obtain possession and sale certificate from the bank while, the bank was not in a position to hand over physical possession and for that reason asked the complainant to collect DD from the authority to the tune of Rs. 14.25 Lacs.
The bank due lapse of time, wanted to revalidate the said D.D asked the drawer bank HDFC (erstwhile Centurium Bank of Punjab) to revalidate. Ultimately the HDFC Bank vide letter dated 23/11/2015 in this response to UBI. Letter dated 11/11/2015 informed the said three D.D stood cancelled.
The date of actual cancellation of D.D are not established. So, the date of letter of HDFC i.e., on 23/11/2015 to be accepted date of cancellation.
The D.D amount (14.25 Lacs) after cancellation was reverted to the credit in the bank account of complainant and since the last date of D.D (06/12/2008) the complainant has lost the interest up to 23/11/2015. Over the said amount Rs. 14.25 Lacs.
So, in conclusion the Bench can safely hold that due to latches, misrepresentation, misleading statement in auction sale notice and for deficiency of service on the part of the OP bank the complainant should be compensated for the loss he has suffered.
Hence it is ordered,
That the instant consumer complaint U/S 17 of C.P Act, 1986 is here by allowed on contest with cost against the OP. The OP Bank is hereby directed to pay interest @ 6% P.A. upon Rs.14.25 lacs for the period between 06.12.2008 and 23.11.2015 to the complainant within two months.
The OP bank is further directed to pay Rs. 1,00,000/- as compensation for mental pain, agony, harassment etc to the Complainant with in two months. The OP bank is further directed to pay Rs.20000/- as litigation cost to the complainant within two months.
If the OP bank fails to comply the order in due time mentioned in the order, additional interest @6% P.A to be imposed upon the awarded money.
Let a copy of this order be supplied to the parties free of cost.
