Utpal Kumar Bhattacharya, Member
This Appeal u/s 15 of the C P Act,1986 has been filed by the Appellant/Complainant challenging the Judgment and Order dated 15/01/2018 passed by the Ld. District Forum, Kolkata-I in complaint Case No.CC/67/2016 dismissing the Complaint on contest against the Respondent/OP.
Briefly stated, the fact having relevance with the instant issue was that the Appellant/Complainant purchased the scheduled property through open auction, responding to the Auction Notice dated 03/11/2010 published by the Assets Recovery Management Branch, Indian Bank under the seal and signature of the Authorized Officer of the said Bank. The allegation of the Complainant was that in spite of completion of the entire sale process, including payment of consideration, as arrived at through open auction, by the Appellant complainant, the Respondent/OP Bank handed over the paper possession of the subject flat without handing over the physical possession of the same. The physical possession of the subject flat could not be taken by the Appellant/Complainant as it was found occupied by the erstwhile occupant. The Appellant/Complainant had to move the Hon’ble High Court, Calcutta for getting physical possession of the subject flat. The Respondent/OP Bank, under direction of the Hon’ble High Court, Calcutta went to deliver the physical possession of the subject flat to the Appellant/Complainant taking police assistance, the cost of which had to be deposited by the Appellant/Complainant on demand by the Respondent/OP Bank. The mission, however, remained unsuccessful as the physical possession of the subject flat could not be delivered to the Appellant/Complainant on humanitarian ground as the erstwhile occupant who was still in physical possession of the flat, was found sick.
The Appellant/Complainant ultimately got the physical possession of the flat long after on 21/03/2014 when he paid the consideration of the flat on 12/01/2011. During the entire period from 12/01/2011 to 21/03/2014, the Appellant/Complainant had to pay an amount of Rs. 1,30,000/-as house rent for his rented accommodation in spite of the fact that he might have stayed in the subject flat purchased by him, had he been given the physical possession of the same.
All endeavor for realization of the said expenditure in the form of police cost and payment of house rent being gone in vain, the Appellant/Complainant filed the Complaint Case before the Ld. District Forum. The Judgment and Order passed in the said Complaint Case was put under challenge in the instant Appeal.
The Appeal was heard ex-parte against the Respondent/OP.
Ld. Advocate on behalf of the Appellant/Complainant submitted that the Auction Notice published was not at all explicit about the fact that the Respondent/OP was not in physical possession of the subject flat.
As contended, the Police actually demanded cost from the Respondent/OP Bank which misconvinced the Appellant/Complainant that the said cost was to be given by him and extracted illegally the police cost from him.
Referring to the running pages 27 to 48, being the money receipts showing payment of monthly house rent for some months to the tune of Rs. 3,000/-, subsequently enhanced to Rs. 3,800/-, involving a total amount of Rs. 1,30,000/-, the Ld. Advocate submitted that the deficiency in rendering services by the Respondent/OP Bank actually put him to a compelling circumstances for staying in a rented house which made him incur an unjustified expenditure of the said amount of money in the form of house rent.
The Ld. Advocate prayed for passing the order directing the Respondent/OP Bank to pay back the police cost and the house rent that the Appellant/Complainant had to pay with compound interest, cost and compensation as prayed for in the Complaint Case.
Perused the papers on record and considered the submission of the Ld. Advocate appearing on behalf of the Appellant/Complainant. Before entering the discussion on the merit of the case, we felt it prudent to discuss on the admissibility of the complaint.
It appeared that the subject property was purchased by the Appellant/Complainant through participation in an open auction responding to an auction Notice floated by the Respondent/OP Bank. The notice revealed that the property was scheduled to be handed over on “as is where is and as is what is”basis.
A bidder, participating in the tender process for purchasing a property put on auction on “as is where is and as is what is” basis should invariably have visited the property he was intending to purchase. From that angle, since option, as per auction notice, was open for the intending purchasers to inspect the property; there was apparently no deficiency on the part of the Respondent/OP Bank.
Further, we had in our knowledge a plethora of judgments where the Hon’ble National Commission and the Hon’ble Apex Court had observed that the person purchasing a property under auction sale should not be treated as consumer within the meaning of the section 2(1)(d) envisaged under the Consumer Protection Act, 1986.One of such decisions of the Hon’ble National Commission was referred to by the Ld. District Forum in the impugned Judgment and Order.
The Bench also intended to refer to the decision of the Hon’ble Apex Court in the [Union Territory of Chandigarh Administration and Anr.—Vs.—Amarjeet singh and Ors] reported in (2009) 4 SCC 660 where the Hon’ble Court was pleased to hold that in public auction of existing land sites, purchaser/lessee was not a consumer as defined in the C P Act, 1986.
Bowing before the above observation of the Hon’ble Apex Court, the Bench decide
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d that the case was not maintainable as the Appellant/Complainant was an auction purchaser. Since the observation of the Bench went against the maintainability of the Complaint, we are afraid; we have hardly any authority to deal with the merit of the case. Above being the circumstances, we decide to keep the impugned order unaltered. Hence, Ordered that the Appeal stands dismissed. Impugned Judgment and Order stands affirmed. No order as to costs. The Appellant/Complainant, however, is given liberty to agitate his grievance before the appropriate court of law for remedy.