DATE OF FILING : 23.11.2016

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  30th  day of  August,   2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.329/2016

Between

Complainant       :    P.N. Muraleedharan,

S/o. Narayanan,   

Block No.265, Puthickal House,

Nedumkandam P.O., Idukki.

(By Adv:  Babichen V. George)

And

Opposite Parties                                          : 1. The Manager,

    Idukki District Co-operative Bank Ltd,

    Nedumkandam Branch,

    Nedumkandam P.O., Idukki.

2. The Authorised Officer,

             (Under SARFAESI Act)

    Head Office,

    Idukki District Co-operative Bank Ltd,

    Idukki Colony P.O., Idukki.

3. Idukki District Co-operative Bank Ltd,

    Head Office,

    Idukki Colony P.O., Idukki.

    Represented by The General Manager.

    (All by Adv:  V.V. Sunny)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

The averments in the complaint is that,

        The complainant is the owner and in possession of 14 cents of property having survey No.4/1 of Parathode village, Udumpanchola taluk.  He purchased this property through a public auction conducted by the 1st opposite party.  the auction was fixed in favour of the complainant  for Rs.40000/- on 18.2.2015 and the complainant had paid the auction sale consideration in full to the 1st opposite party bank.  Evenafter the complainant paid entire auction sale consideration, the 1st opposite party bank have neither executed the sale deed, 

(cont.....2)

-  2  -

nor had taken any steps to execute the sale of  auctioned property in the name of the complainant.  The complainant approached several times to the opposite party for performing their part, but they have not cared to execute the sale deed.  The above said negligent act of the opposite parties amounts to gross deficiency in service.  The complainant further averred that, on the firm belief of that, the complainant entered into a sale agreement upon this property with one Thomas Chemmannar, for a consideration of Rs.5 lakhs and received Rs.2 lakhs as advance.   The complainant was not able to perform the said agreement due to the irresponsible act of the 1st opposite party and the complainant forced to return the advance amount along with Rs.50000/- as compensation to the above said Thomas.  The complainant further averred that, the opposite parties are  exclusively liable for the damages caused to him as they are liable to compensate the complainant adequately.  Now 22 months have been elapsed from the date of  auction.  Opposite parties are jointly and severally liable for all the inconvenience caused to the complainant.  For  that purpose, the complainant filed this complaint praying for directing the opposite parties to execute the sale deed in favour of him and further directed the opposite parties to pay Rs.50000/- as compensation for injury caused to him and Rs.5000/- as litigation cost.  

        Upon notice, opposite parties entered appearance and filed detailed reply version.  In their version, opposite parties contended that the 2nd opposite party, the authorised officer of 1st opposite party has been always ready to sign the sale certificate in favour of the complainant.  Since  the complainant failed to approach the 2nd opposite party for getting the sale certificate, a letter dated 9.7.2015 was delivered to the complainant urging him to approach the authorised officer for initiating the necessary steps for registration.  But the complainant failed to respond with it.  The opposite party bank replied to the legal notice  on 28.10.2016 expressing their willingness for registration of the property.  1st opposite party further conducted that the 2nd opposite party prepared a draft of the sale certificate for the purpose of registration.  Eventhough the 1st opposite party bank initiated all the steps for registering the sale certificate, the complainant never responded or approached the 2nd opposite party.  Under the above said circumstances, no deficiency in service can be attributed against the opposite parties.      (cont.....3)

-  3  -

        Evidence adduced by the complainant by way of proof affidavit and documents.  Complainant and one witness was examined as PWs1 and 2 respectively and Exts.P1 to P4 were marked.  Ext.P1 is the copy of legal notice dated 28.10.2016 and its AD Card.  Ext.P2 is the copy of reply notice dated 5.11.2016.  Ext.P3 is the receipt for remittance of sale consideration dated 3.7.2015.  Ext.P4 is the sale agreement dated 3.7.2015 with the complainant and one Thomas, Nellikkal.  

        From the side of opposite parties, 1st opposite party was examined as DW1 and Exts.R1 to R4 are marked. Ext.R1 is the copy of letter dated 9.7.2015 allegedly issued to the complainant by the 2nd   opposite party.  Ext.R1(a) is the copy of auction sale notice.  Ext.R1(b) is newspaper containing auction notice.  Ext.R2(series) are the copy of reply notice dated 5.11.2016 and copy of AD Card. Ext.R3 is the copy of notice dated 16.12.2016 and draft of sale certificate.

Heard both sides.  The point that arose for  consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

        The POINT :- We have examined the entire materials on record and given a thoughtful consideration to the arguments advanced before us.

        The Basic issue to be considered in the present complaint is whether the opposite parties acted timely to execute the sale deed in favour of the complainant immediately after completed all the auction proceedings.  The facts and circumstances on record narrated above indicate that the complainant remitted auction sale amount to the 1st opposite party bank on 3.7.2015 and the auction proceedings are completed on that date and the sale was effected in his favour.  But as per the averments in the complaint, opposite party bank failed to execute the sale deed in favour of the complainant,  evenafter  repeated request of the complainant.

At last, the complainant caused to issue a legal notice against the opposite parties to effect the execution of sale deed.  In their reply to this notice, opposite party stated that they are always ready and willing to execute the sale deed in favour of the auction purchaser and it was the default of the complainant to approach the 1st opposite party bank for that purpose evenafter repeated notices 

(cont.....4)

-  4  -

from the bank.  For substantiating their plea, opposite parties produced Ext.R1 intimation,  given to the complainant on 9.7.2015, immediately after the auction purchase.  This matter is repeated in Ext.R2 reply notice dated 5.11.2016 by the opposite party.

        In this case, complainant and another person were examined as PWs1 and 2 respectively.  On cross examination, the complainant admitted the receipt of intimation and he added that, on getting intimation from the bank, he approached the 1st opposite party and on that date the 1st opposite party returned the complainant on the reason that the authorised officer was on leave.  The witness further stated that,  Rm³ sN¶t¸mÄ hkvXp-hnsâ t]¸À icn-b-söv ]dªp. Then the learned counsel suggested a question to the witness that, hkvXp-hnsâ dokÀtÆ dnt¡mÀUvkv icn-b-Ãm-¯-Xn-\m-emWv Fgp-Xn-¯-cm-¯-Xv. Then the complainant deposed that, with his effort, he cured the defects in the record of the alleged property and further deposed that in the survey report, the nature of the property is recorded as  “puramboku land” (page No.3).  In further cross examination,  the learned counsel for the opposite party further put a suggestive question to the witness that, Øe-¯nsâ dnt¡mÀUv icn-b-Ãm-¯-Xp-sImWvS-­mWv \n§Ä FgpXn hm§p-¶-Xn\v X¿m-d-Ãm-sX-bncp-¶-sX¶v ]d-bp-¶p (page No.4).

This fact is admitted by the DW1, the present Manager of 1st Opposite party bank in his deposition.  While cross examination, the DW1 deposed that, hkvXp tee-tijw hkvXp-hnsâ dh-\-yq, kÀtÆ dnt¸mÀ«pIsf-¡p-dn¨v dokÀtÆ kw_-Ôn¨ \S-]-Sn-IÄ¡mbn Rmt\m _mt¦m H¶pw sNbvXn-«n-Ã.  In page No.6 of the deposition, the witness deposed that,  Ignª 3 hÀj-ambn ]cm-Xn-¡m-cs\ hkvXp-hnsâ tcJ icn-b-söpw dokÀtÆ ]qÀ¯oIcn-¨n-Ãm-sb¶pw ImcWw ]dªv aS¡n Ab-¨p.  dokÀtÆ \S-]Sn ]qÀ¯nbmtbm (tNm).  Adn-bnÃ. ]qÀ¯nbmbn-«pWvS-­v…….. It is also noted that, in the written version, the opposite party bank specifically stated that, they issued further notice and draft of sale deed to the complainant.  Evenafter also, the complainant failed to approach the opposite party bank for registering the sale deed in his favour.  For convincing their plea, opposite party produced the document before the Forum and marked it as Ext.R3.  But the learned counsel opposed it on the reason that the opposite party bank prepared the notice and draft sale deed only on 16.12.2016, that is after the execution of this complaint and moreover, the opposite party bank has not produced any evidence such as postal receipt and 

(cont.....5)

-  5  -

AD Card to show that whether it is sent to the complainant or whether it is served to him.  In this aspect, on a question to the DW1 Manager,  replied in the box that, (page 6) \n§Ä tIkn\v tijw Ab-¨-X-ÃmsX ]cm-Xn-¡m-c\v hkvXp-ssI-am-dp-¶-Xn\v   lmP-cm-I-W-sa¶pw AXn\v \S-]Sn kzo-I-cn-¡-W-sa¶pw ]cm-Xn-¡m-cs\ Adn-bn¨n-«n-Ãm-sb¶v ]d-bp¶p (tNm).   icn-bmWv (D).  

        On going through the evidence on record and deposition of witness, it is an admitted fact that the bank auctioned the property in question bears defects in its record, that is why the 1st opposite party bank and the 2nd opposite party authorised officer delayed the matter of execution of sale deed in favour of the complainant.  It is also admitted fact that  the complainant himself took the effort to cure the defects of the survey record of the property.  On going through Ext.R4 notice and draft sale deed, it is very clear that it is prepared after the receipt of notice and copy of the complaint  in this case.  Hence the document cannot be considered as a part of evidence.  Then regarding the execution of Ext.P3 sale agreement.  The person with  whom the sale agreement was executed is examined as PW2 and he categorically admitted this fact and also he deposed that due to the non-execution of the sale deed of the property in question, the complainant withdrawn from the sale agreement and the complainant paid an amount of Rs.50000/- in addition to the advance sale consideration.  Eventhough he was cross examined in detail, nothing was come out from his mouth to disbelieve the version of the complainant.  Moreover,  opposite party bank has not a case that, the sale agreement was a false and fabricated one.

        On the basis of the above discussion, the Forum is of a considered view that, opposite party bank delayed the execution of the sale deed of the property in favour of the auction purchaser / complainant on the reason that, the records of the property is not proper and the opposite party bank is also aware that the complainant himself took effort to cure the defect.  Evenafter much effort was taken by the complainant for effecting the sale in his favour, opposite party bank miserably failed to execute the sale certificate in the favour of the complainant.  It is believable that this caused much mental pain and financial difficulties to the complainant.

(cont.....6)

-  6  -

        The act of the opposite parties in non-execution of sale certificate in auctioned property to the auctioned purchaser  without any delay, is a gross deficiency in their part and they are laible to compensate the parties to whom the loss caused.  

        Under the above circumstances, the complaint allowed.  The Forum directs the 1st opposite party bank to execute the sale certificate in the name of the complainant regarding the property stated in the complaint within 30 days from the date of receipt of a copy of this order.  The Forum further directs the 1st opposite party to pay an amount of Rs.50000/- as damages and Rs.25000/- as compensation and Rs.5000/- as cost to the complainant within 30 days from the date of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realization.

        Pronounced in the Open Forum on this the 30th day of August, 2018

 

                                                                                                     Sd/-                  

SRI. S. GOPAKUMAR, PRESIDENT

      Sd/-

SRI. BENNY. K., MEMBER

 

 

 

 

 

 

 

 

(cont.....7)

 

-  7  -

APPENDIX

Depositions :

On the side of the Complainant :

PW1              -    P.N. Muraleedharan.

PW2              -   Thomas N.T.

On the side of the Opposite Party :

DW1              -   Shaji K. George.

Exhibits :

On the side of the Complainant :

Ext.P1            -   copy of legal notice dated 28.10.2016 and its AD Card.  

Ext.P2          -   copy of reply notice dated 5.11.2016.  

Ext.P3          -   receipt for remittance of sale consideration dated 3.7.2015.  

Ext.P4          -  sale agreement dated 3.7.2015 with the complainant 

     and one Thomas, Nellikkal.  

On the side of the Opposite Party :

Ext.R1           -   copy of letter dated 9.7.2015 allegedly issued to the complainant

      by the 2nd   opposite party.  

Ext.R1(a)      -  copy of auction sale notice.  

Ext.R1(b)      -  newspaper containing auction notice.  

Ext.R2(series) -  copy of reply notice dated 5.11.2016 and copy of AD Card.

Ext.R3(series) -  copy of notice dated 16.12.2016 and draft of sale certificate. 

 

 

 

     Forwarded by Order,

 

 

 

        SENIOR SUPERINTENDENT