HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT

       This appeal has been directed against the order of rejection of the petition of complaint dated 27.08.2013 passed by Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I wherein Ld. Forum concerned passed the following orders-

“Heard Ld. Lawyer of the complaint in full. On perusal of the record we find that the subject matter is a plot of land which does not fall within the perview of the C.P. Act.

       As such the complaint is rejected. Complainant is at liberty to agitate the issues before the appropriate forum on the self same cause of action. Plain copy of this order be supplied to the complainant free of cost”.

       Being aggrieved by and dissatisfied with the order of rejection of the petition of complaint the present appeal has been preferred.

       Briefly stated, the case of the complainant/appellant (hereinafter referred to as the complainant) is that being induced by the respondent/OP no. 2 (hereinafter referred to as OP no. 2, being an authorized officer of the OP no. 1), the complainant intended to purchase a plot of land measuring about 2.5 cottahs along with a pacca residential building thereon, the said plot with structure being acquired as per provisions of SERFAESI Act and lying under the control and possession of the OP no. 1/HDFC Bank, free from all encumbrances. The OP no. 2 was authorized to sell the same for proper consideration. Being satisfied with such discussion with the OP no. 2, the complainant filled up formal application form and executed an agreement for purchasing the said property and he paid full consideration of Rs. 4,85,000/- (Rupees four lakh eighty five thousand) only by a demand draft dated 21/05/2012, drawn in favour of the HDFC Bank Ltd. Although the agreement was executed between the parties, the Opposite Parties did not supply the copy of such agreement, but supplied a Photostat copy of a deed in respect of the said property with an assurance to deliver physical possession within two weeks from date, which ultimately did not occur, despite repeated requests from the complainant. Several correspondences, verbal and written, were made but to no effect. Ultimately on 26/08/2012 the complainant was called on to the office of the OP no. 1to meet the officials but the OP no. 2 did not meet him and one person from the said office handed over a cheque of Rs. 3,88,000/- (Rupees three lakh eighty eight thousand) only along with a covering letter thereby disclosing that the sale proceeding had been cancelled as per request of the complainant and after deducting 20% of the amount as per terms of agreement, the cheque was issued. The complainant had to accept the cheque under the compelling circumstances though he never intended to cancel the agreement nor he asked for refund of money. Thereafter on 03/09/2012, the complainant sent a letter through his Advocate asking him (OP no. 2) to give explanation for such conduct and further asking him to refund the amount of Rs. 97,000/- (Rupees ninety seven thousand) only coupled with a copy of the agreement dated 22/05/2012 but as per reply dated 10/09/2012, the OP no. 2 disclosed that at the request of the father of the complainant the agreement was cancelled and the amount was deducted as per agreed terms and conditions. On 15/10/2012, the complainant by a letter asked the OP no. 2 to supply copies of the terms and conditions to which the OP no. 2 showed a deaf ear. Being aggrieved by the conduct of the OPs, the complainant took shelter of the Grievance Redressal procedure of the OPs upto the National level but no result yielded and ultimately for the breach of agreement, non-fulfillment of statutory provisions, non supply of required documents and illegal deduction of Rs. 97,000/- (Rupees ninety seven thousand) only from the amount deposited by the complainant, the complainant took shelter under DCDRF, Kolkata Unit-I claiming refund of Rs. 97,000/- (Rupees ninety seven thousand) only, 18% interest on that amount, damages for harassment and mental agony i.e. Rs. 1,50,000/- (Rupees one lakh fifty thousand) only and the litigation cost of Rs. 50,000/- (Rupees fifty thousand) only and other consequential reliefs, if any.

       Ld. Forum concerned while admission of the complaint case rejected the petition of complaint with the observation as quoted above.

       Now we have to consider whether Ld. Trial Forum was justified in doing so.

       Ld. Counsel appearing for the appellant at the very outset of her argument drew our attention to the different provisions of the SERFAESI Act 2002 and submitted that the provisions of the said Act enabled Banks and Financial Institutions to realize long term assets, manage problem of liquidity to improve recovery by exercising powers to take possession of securities, sell them and reduce non-performing assets by adopting measures for recovery or reconstruction. She further submitted that the opposite parties herein cancelled the agreement for sale most unethically and arbitrarily at their own whims despite the fact that the entire consideration money as determined by them, by reducing 20% of the consideration money which can be termed as unfair trade practice and the complainant was penalized by the Bank for no fault. Relying on a decision of the Hon’ble Apex Court in Gaziabad Development Authority vs. Balbir Singh in civil appeal no. 7173 of 2002 dated 17.03.2004, reported in 2004 (5) SCC 65, she urged that “in cases where monies are being simply returned then the party is suffering a loss in as much as he deposited the money with the hope of getting a flat/plot”. Further placing reliance on the decision of the Hon’ble Supreme Court in M/s Narne Construction Pvt. Ltd. etc. vs. Union of India & ors. etc., reported in 2012 A 1R (SC) 2369, she also pointed out that Ld. Forum concerned while dealing with the fate of the complainant ignored the amplitude of the term ‘consumer’. The sale of the plot by the bank was not ‘as is where is basis’ and the Ld. Forum concerned without dealing with the merit of the case simply rejected the petition of complaint in a harsh manner. Justice demands, the appellant herein being the complainant before Ld. District Forum should be given an opportunity to ventilate his grievance. Hence, we set aside the order impugned and send the case on open remand to Ld. DCDRF concerned to admit the complaint case and dispose of the same after observing all the formalities as prescribed by the Consumer Protection Act, without being influenced by any of the observations made by us in this judgment. No costs.