R.S. Sharma, J. (President) - (1.) THE complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (but the complainant has wrongly mentioned under Section 12 of the Consumer Protection Act, 1986) against the opposite parties seeking compensation of Rs. 36,34,450. The O.P. No. 1 (Bank) filed preliminary -objection and pleaded that the complainant is not consumer of the O.P. No. 1 but the complainant has purchased the immovable property from O.P. No. 1 under provisions of SARFAESI Act in a public auction and thus the complainant is a purchaser and O.P. No. 1 is seller and under the provisions of the Consumer Protection Act, 1986 neither the complainant is consumer of the O.P. No. 1 nor he comes under the definition of the consumer as per provisions of the Consumer Protection Act, 1986. Therefore, the complaint of the complainant is not maintainable before this Commission and the same is liable to be dismissed. The dispute between the complainant and O.P. No. 1 (Bank) is not maintainable because the complainant is not a consumer of the O.P. No. 1 (Bank), but the actual fact is that the authorized officer of the O.P. No. 1 (Bank) by using powers has invited auction for sale of the mortgaged property and as per terms of the auction the property was sold to the complainant. As per provisions of Section 17 of the SARFAESI Act, any person aggrieved by the act of the authorized officer has right to file appeal before Debts Recovery Tribunal. The complainant filed the complaint before this Commission belated i.e. on 15.9.2014 and he has not shown any reason for filing the complaint belatedly and the complaint is barred by limitation i.e. 3 years and is prima facie liable to be dismissed.
(2.) FIRSTLY , we shall examine whether the complainant is consumer and complaint is maintainable? Mr. N.K. Shrivastava, learned Counsel appearing for the O.P. No. 1 (Bank) has argued that the complaint is not a consumer and complaint is auction purchaser. Under provisions of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the tender was invited and property in question was sold by the O.P. No. 1 (Bank) in open auction and the complainant purchased the said property and under provisions of Sections 17 and 35 of the SARFAESI Act, this Commission has no jurisdiction to entertain the complaint. He further argued that complaint is barred by limitation. Therefore, the complaint of the complainant is not maintainable before this Commission and the same is liable to be dismissed.
(3.) MR . Awadhesh Rai, learned Counsel appearing for the complainant argued that the complainant purchased the house in question from the O.P. No. 1 (Bank) through open auction but the possession of the house was not delivered to him. The complainant asked for the O.P. No. 1 (Bank) several times for delivering possession of the house in question. The complainant purchased the house from the O.P. No. 1 and he paid the entire amount to the O.P. No. 1 (Bank), therefore, the complainant is "consumer". The possession of the house in question was not delivered to the complainant, therefore, the complainant is entitled to get possession of the house in question from the O.P. No. 1. The complainant is consumer of the O.P. No. 1. Under provisions of Section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (henceforth "SARFAESI Act") the Tahsildar, Durg issued a letter dated 10.7.2012 to O.P. No. 2 to handover possession of house in question to O.P. No. 1 (Bank), therefore, the complaint is within limitation. He placed reliance on judgment of Hon'ble National Commission in Revision Petition No. 4662 of 2012, Jaswinder Singh v. Corporation Bank and Revision Petition No. 4663 of 2012, Sri Pradeep Kumar Gupta v. Corporation Bank,, III (2013) CPJ 612 (NC) : decided by a common order dated 1st August, 2013.;