BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION

OF TELANGANA: AT HYDERABAD

          CC NO. 339 OF 2014

Between :

Samuel Prasad Sarella S/o late S.Krupanandam

Aged about 64 years, Occ: Retd. Central Govt. Officer

R/o Flat No.601, Block-B, Vishnu Residency,

Gandhi Nagar, Hyderabad-500080

                                                                             …Complainant

          A N D

1. M/s. Aliens Developers Pvt. Ltd

Aliens Space Station,

Corporate Office: Gachibowli

Tellapur, Hyderabad-502032

Rep. by its Managing Director

Mr.Hari Challa

2. M/s State Bank of India

RACPC, Near GPO Patny Circle

Secunderabad 

Rep. by its Asst. General Manager

3. State Bank of India

5-4-5, Padmavathi House, PBB

Abids, Near GPO, Hyderabad

Rep. by its Branch Manager

                                                                                       … Opposite Parties

Counsel for the Complainant:           Sri V.Gourisankara Rao

Counsel for the Opp. Party No.1        Sri  P.Rajasripathi Rao   

Counsel for the Opp.Party No.2&3    Sri G.Prabhakar Sharma

QUORUM             :

HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT   

AND

SRI VITHAL RAO PATIL, MEMBER 

FRIDAY THE SEVENTH DAY OF APRIL

TWO THOUSAND SEVENTEEN

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

                    The complaint is filed u/s 17(1) of C.P. Act  for recovery of amount of Rs.14,56,482/- with interest @ 18% per annum from the respective dates of payment till  realization from the opposite party no.1; to direct the opposite party no.3 not to recover EMIs till the refund of the amount by the opposite party no.1, to pay compensation of Rs.5,00,000/- and costs of Rs.1,00,000/-.

2)                 The case of the Complainants in brief, is that the Opposite party No.1 company represented to them that they are engaged in the business of constructing multi-storied apartments and entered into development agreement with the owners of the land comprised in survey nos. 384, 385 and 426/A situated at Tellapur village, Ramchandrapur Mandal, Medak district to construct high rise apartments under the name and style of ‘Aliens Space Station’ and obtained permission bearing No.HUDA/621/P4/PLG/HUDA/2008 and they would provide all amenities therefor, would give possession by the end of  November, 2011 with   grace period of 9 months and on such representation of the opposite party no.1, the complainant  entered into agreement of sale for purchase of flat, having super built-up area with one car parking along with undivided share of land, as detailed below.

3.                The complainants entered into agreement of sale in respect of flat at Aliens Space Station, situate at Tellapur village, Ramachandrapuram Mandal, Medak district for the consideration thereof as detailed in the table below:

4.       The Opposite parties had not commenced construction of the flat even after the stipulated period is expired. There is no possibility of the construction of the flats as also the Opposite parties had not responded to the repeated requests of the Complainants.  The Complainants got issued the legal notice, to which there was no response.  The Complainants had sought for return of the amount with interest, compensation and costs of the complaint, in each case, as detailed below.

          The Complainants also sought to repay the home loan owed by them to the Opposite party bank with necessary interest and other charges as levied.

5.                 The Complainants are paying monthly instalments and interest on the amount obtained by way of home loan besides rent to the house where they are staying at present.  Due to the fraudulent actions on the part of the opposite parties, complainants suffered with mental agony, escalation of cost and physically by wandering in and around the office of the opposite parties for the past few years, for which, the opposite parties are liable to pay compensation as claimed in the table shown above.  Hence, the complaint with a prayer to direct the opposite party no.1  to comply with the above reliefs, as detailed in the table shown above. 

6.                 The Opposite party no.1 promised to deliver the possession of the flat to the Complainants as prescribed in the agreement of sale with some grace   period.      Having agreed to purchase the above flats, Complainants entered into Agreement of sale with the Opposite party No.1 paying the earnest money and also by obtaining home loan from the OP No.2 bank and got disbursed the amount. 

7.                 The Complainants opted for pre-EMI scheme, as such, OP No.1 shall pay the pre-EMI on behalf of the complainants till the date of possession of the flat in pursuance of the Tripartite Agreements entered into between the parties.  The Complainants are compelled to pay the monthly loan instalments amount to opposite party No.4 bank.  The opposite party no.1 have failed to commence even the base/pillar footing works at the site in respect of the subject flats, as such, Complainants requested for cancellation of the booking and sought for refund of the amount.  Hence, prayed to allow the complaint as prayed for, supra in the table shown above.

8.                The Opposite  party No. 1 resisted the claim on the premise that the complainants filed the complaint to gain out of their breach of contract and the complaint is not maintainable in view of there being no consumer dispute and the arbitration clause mentioned in the agreement of sale providing for settlement of disputes by means of arbitration process. 

9.                 The Opposite party no.1 submitted that originally the land in Sy.No.384 was an agricultural land and they filed application for conversion of the same into non-agricultural land on 23.10.2006 and FTL clearance was granted on 30.12.2006.  Permission was granted on 14.04.2007 for conversion of agricultural land into non-agricultural land and thereafter HUDA earmarked the land as agricultural zone and the Opposite parties have filed application for change of use of the land as commercial use zone.

10.               It is averred by Opposite party no.1 that Municipal Administration and Urban Development (I) Department notified the land in Sy.No.384 as residential use zone.  The project could not be commenced in view of proposed road under Master plan, until realignment of the proposed road without affecting the land in Sy.No.384 is made.  Realignment of the proposed road was approved on 03.04.2008 and permission was accorded approving the building plan on 11.04.2008.  Opposite parties have obtained NoC from the A.P. Fire Services Department on 15.12.2007 and subsequently it was reduced from 91.40 meters to 90.40 meters.  After following due procedure and process, the Opposite parties obtained NoC from Airports Authority on 10.07.2009.

11.               It is further averred that HUDA accorded technical approval on 14.10.2009 for ground + 20 floors and release of building permission upto 29 floors is awaited.  In view of arbitration clause in the agreement the complaint is not maintainable before this Commission and the same has to be referred for arbitration as per the provisions of Arbitration and Conciliation Act, 1996.  That they have taken necessary steps to complete the project.  The project is a massive project and due to reasons beyond their control, the Opposite parties could not complete the project within the time frame and they informed the complainant that the project required sanction from statutory authorities and mentioned the same as ‘force majeure’ in the agreement of sale.  It also agreed to pay compensation at agreed rate to maintain goodwill and relationship with the customers.

12.               It is stated that for the delay, the Opposite party no.1 have agreed to pay Rs.3/- per sq.ft. in terms of clause VIII(g) of the Agreement for the delay caused in completing the project and they agreed to adjust the amount towards dues payable by the complainant.  The delay was only due to Telangana agitation, Sakala Janula Samme, etc., The complainant filed the complaint with ulterior motive to defame the opposite parties.  The Complainant shall file relevant receipts and documents to prove the payments.

13.               They denied to have not given any response.  The Opposite parties are taking all necessary steps to deliver the flats at the earliest.  The Complainant is not entitled for any compensation and their claim is illegal.  The complainant is not entitled for refund of amount and interest thereon and any compensation and costs.  There is no deficiency of service on the part of the Opposite parties.  Hence prayed for dismissal of the complaint.

14.              The opposite party no.2 filed written version  contending that  the complainant entered into an agreement of sale on 29.06.2011 with the opposite party no.1 for urchase of flat bearing No.1217(A) admeasuring 1687 sq.ft in “ Aliens Space Station”, situated at Tellapur Village Ramachandrapuram Mandal, Medak District for a total sale consideration of Rs.46,85,892/-.  The complainant after execution fo the agreement of sale approached the opposite party no.2 for sanction of housing loan and an amount of Rs.11,84,000/- was sanctioning towards housing loan to the complainant as per the terms and conditions stipulated in the arrangement letter dated 02.03.2012.  In pursuance of the same a Tripartite Agreement dated 02.03.2011 was entered between the complainant, opposite party no.1 and the opposite party no.2.   Thereafter on the request of the complainant released part of the loan amount of rS.5,50,000/- on 02.03.2012 and a sum of Rs.11,912/- was debited on 03.03.3012 towards insurance premium.  Thus the opposite party no.2 bank in all paid a sum of Rs.5,61,972/- on the behalf of the complainant. The complainant  repaid part of the housing loan amount as on 31.01.2016 a sum of Rs.3,38,348/- is due in the said housing Loan Account of the complainant.      Hence prayed for dismissal of the complaint. 

15.               During the course of enquiry, the Complainant   got filed evidence affidavit on his behalf and also got marked the documents as exhibits A1 to A10.  On behalf of the opposite party no.1, the Managing Director by name Hari Challa filed his affidavit and  no documents have been filed .  On behalf of the opposite parties no.2 and 3, Sri T.Hanumantha Rao filed his evidence affidavit on their behalf and got Exs.B1 to B4 marked.

16.               The counsel for the Complainant and the Opposite parties had advanced their arguments reiterating the contents of the complaint and the written version in addition to filing written arguments on behalf of Complainant and the opposite parties.  Heard both sides.

17.               The points for consideration are :

1. Whether the complaint is maintainable in view of arbitration clause in the agreement of sale ?

ii)       Whether the complaint is not a ‘consumer dispute’?

iii)      Whether there is any deficiency in service on the part of the Opposite parties?

iv)      To what relief ?

18.               POINT NO.1 :  The Complainants entered into “Agreement of Sale” with the Opposite party No.1 for purchase of flats and paid the consideration amount as detailed in the above shown above.  A tripartite agreement was also executed by the Complainants and Ops.  The agreement of sale provides reference to arbitration.  The learned counsel for the opposite parties 1 to 3 have contended that in view of the arbitration clause in the agreement, the Complainants cannot maintain the complaint before this Commission.  Clause XVIII of the Agreement of sale provides for deciding the disputes arising under the agreement by arbitration proceeds.

19.               In terms of the agreement of sale, the dispute has to be decided by means of arbitration.  However, remedy provided under the provisions of Consumer Protection Act is an additional remedy and in the light of law laid in “National Seeds Corporation Ltd., Vs. M.Madhusudhan Reddy reported in (2012) 2 SCC 506 wherein the maintainability of the complaint before consumer forum prior to the complainants having exhausted the other remedy was considered as under:

“The remedy of arbitration is not the only remedy available to a grower.  Rather, it is an optional remedy.  He can either seek reference to an arbitrator or file a complaint under the Consumer Act.  If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act.  However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act.  Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.”

For the above reasons, the Point No.1 is answered in favour of the Complainants and against the Opposite parties.

20.               In the arguments, counsel for Complainant reiterated the same facts as averred in the complaint besides stating that the Opposite party NO.1    ought to have acted in accordance with the provisions of the Andhra Pradesh (Promotion of Construction and Ownership) Act & Rules, 1987 while undertaking such agreements and hence pleading ‘force majeure’ does not arise. 

21.               On the other hand, the counsel for the Opposite party no.1 in the arguments submitted that as per agreement, if the Complainants wants to cancel the booking of the flat, they shall forego 10% of the total flat cost as charges which is agreed by them.  In the case on hand, there is no provision for refund of earnest money.  Admittedly, on failure to comply with terms and conditions of agreed terms by the Opposite party no.1, the Complainants sought for refund of the amount.  Hence, this Commission does not find any merit in the contention put forth by the learned counsel for Opposite party no.1.     

22.               POINTS No.2 & 3 : The Opposite  party no.1 entered into Development Agreement with the land owners of the land admeasuring Ac.19.26 guntas in survey numbers 383, 385 and 426/A situate at Tellapur village of Ramachandrapuram mandal, Medak district and they agreed to deliver the residential flat to the Complainants in accordance with the terms & conditions agreed upon and consented thereof and as per specifications given thereto. 

23.               In pursuance of the development agreement, the opposite party no.1 have obtained permission for construction of the residential building on the land and admittedly there has been abnormal delay in completion of the project in so far as this complaint is concerned.  The opposite party no.1 have attributed the delay to the authorities concerned in granting permission and NOC etc., as to the cause for delay in completion of the project.  The opposite party no.1 would contend that the cause for delay is beyond their control which is force majeure.  The Opposite party no.1 stated the reasons for the delay in completion of the construction of the residential complex as under:

“The reasons, for delay is, project required clearance from statutory bodies which are necessary for execution of the project.  The said fact was informed to the complainant and even mentioned in the agreement of sale under clause No.XIV and described as “force majeure”.  The above referred facts mentioned squarely fall under the said clause.  Therefore, the present complaint is not maintainable before the Hon’ble Commission as there is no deficiency of service on the part of the opp. party in executing the project and if the complainant wants to cancel her booking she can do so in conformity with terms of agreement only.”

24.               The complainant has submitted that owing to failure of the opposite party no.1 in completing the construction of the flats, they opted for cancellation of the agreement of sale of flat and the opposite party no.1 has contended that in order to maintain cordial relations with the complainants, they agreed to pay compensation in terms of the agreement which they entered into in normal course with other customers.  The complainants also got issued notice setting forth series of events of delay and negligence and false promises made by the Opposite party no.1 seeking for refund of the amount on the premise of inaction on the part of the opposite party no.1

25.               The opposite party no.1 has promised to complete construction of the flat and hand over its possession to the complainants  as prescribed in the agreement of sale with certain grace period as agreed and on their failure to perform their part of contract, the opposite party no.1 has  proposed to pay rents but failed to pay the same.  However, there is no communication from the side of the opposite party no.1 in this regard and the opposite party no.1 has not filed a piece of paper to show their readiness to pay compensation and adjust the same towards the dues payable by the complainants. 

26.               Not keeping promise to complete construction of the building and failure to deliver possession of the flat constitutes deficiency in service on the part of the opposite party no.1.  The complainant has two options left for recovery of the amount, either by filing suit in court of law or by way of filing complaint before State Consumer Disputes Redressal Commission in view of the amount claimed falling within the pecuniary jurisdiction of this commission.  The contention of the opposite party no.1 that the complaint is not maintainable is not sustainable. 

27.               The complainant contends that contrary to the terms of agreement and also various guidelines for releasing loan amounts, the bank has released the entire amount in one go without considering the stages of construction to the detriment of his interest. The bank can directly pay the amount to the developer as agreed upon but not whole of the amount without even verifying the stages of construction and existence of property. It could not have released the amount without verifying the progress of construction jeopardising their claims. By referring to project programme guide lines where there was specific reference that the developer should be in business for not less than 5 years and the builder/developer has history of due completion of 3 projects and it should have completed at least 1,00,000 sft. of built up area, and that without satisfying the eligibility criterion, the bank could not have sanctioned Advance Disbursement Facility (ADF for short).

28.               The OP No.2 bank contends that by virtue of tripartite agreement, the developer has to indemnify the bank in cases of this nature, where under, it was specifically mentioned that :

“The Builder agrees to demand payment from the Bank towards the cost of the Flat strictly as per the stage of construction of the Flat agreed to be sold to the Borrower and it will be responsibility of the Borrower to verify the stage of construction.

Immediately upon receipt of the loan amount sanctioned to the Borrower, the Builder agrees to execute and register a valid conveyance in favour of the Borrower and deliver the original Sale Deed after its registration directly to the Bank.  In this context, the Borrower irrevocably authorises the Builder to deliver the original Sale Deed directly to the bank.”

The developer and complainant are jointly liable for any of the claims for the loan amount disbursed. In the light of above clause, they are estopped from making any claim. In order to get over the payment of the amount towards EMI they were impleaded as parties. It is only a financial institution facilitating funding of the project and purchase thereof. It has nothing to do with the completion of construction.

29.               In contravention of the guidelines issued by Reserve Bank of India from time to time and tripartite agreement, the bank disbursed the loan amount. It is not known why the bank had taken such a stance when the guidelines stipulate to release the amount stage wise. The fact remains that the bank released the amounts to the developer contrary to guidelines. 

30.               There would be no meaning in releasing the entire amount in one go, without watching the progress of construction work.  This would cause unjust enrichment to the developer, and loss to the complainant. The terms of the agreement in between three parties were made in order to see that no party suffers from non-implementation of terms of the agreement. The bank cannot act at its own whims and fancies, and release the amount.

31.               If the bank acts contrary to the guidelines, the complainant is not liable to refund the amount paid to the developer. The bank can as well recover from the developer by recoursing the above clauses. The courts will not come to the rescue of the party which violates the terms and conveys benefits to one party in preference to another. It intends to cause loss to a genuine borrower by unduly favouring a defaulting and unfair customer. All this amounts to unfair trade practice.

32.               However, the very property which the complainants sought to purchase was a non-existent property kept as primary security. It also extended the loan on deposit of equitable mortgage though there was a mention that if equitable mortgage is not possible it would be by registered mortgage deed. The bank alleges that loan was sanctioned taking the property as security which the complainant intends to purchase from the developer besides on the instruction of the complainant. When the bank knew full well that the property was non-existent and no doubt document was executed in favour of the complainant by the developer in order to create equitable mortgage, disbursing the loan amount to the developer cannot be said to be valid. Considering the nature of transaction between the parties, we are of the opinion that the bank could not have disbursed the amount without taking proper care and caution to find out the non-existence of the flat for which loan was sanctioned.

33.               The banks and financial institutions promising to lend monies or sanctioning loans and the borrower investing in the project will be clothed by the principles of Promissory Estoppel. The doctrine of promissory estoppel is an evolving doctrine, contours of which are not yet fully and finally demarcated. Being an equitable doctrine, it should be kept elastic enough in the hands of the court to do complete justice between the parties. If the equity demands that the promissor is allowed to resile and the promisee is compensated appropriately that ought to be done. If, however, equity demands that the promissor should be precluded in the light of things done by the promisee on the faith of representation from resiling and that he should be held fast to his representation, that should be done. It is a matter holding scales even between the parties to do justice between them. This is the equity implicit in the doctrine vide State of H.P. Vs. Ganesh Wood Products reported in 1995 (6) SCC 363.

34.               It is legally open to the bank to take a decision in good faith in the exercise of its bonafide discretion as to whether it was safe to make advances of public monies to any particular party and arrive at a decision after examining the relevant facts and circumstances. The bank did not act in good faith nor had it exercised bonafide discretion while releasing the funds.

35.               Recourse can be had to a decision in Nannapaneni Venkata Rao Co-operative Sugars Ltd. Vs. State Bank of India reported in AIR 2003 AP 515 (DB) it was held :

“Refusal on the part of the respondent bank to pay interest on the ground that opening of such account and crediting of the interest is not in accordance with the guidelines of RBI is not tenable as the respondent is solely responsible for suppressing the fact while entering into the contract.”

36.               This Commission can take judicial cognizance of the fact that the OP No.2 bank had financed the builder obviously in view of reputation the developer was having by then, and the bank contrary to the terms of the agreement as well as guidelines, disbursed the amounts keeping the interests of the complainant in jeopardy. The banks are picking and choosing certain clauses and contending that the very complainant have given authorization to them to release the amount and therefore they have released, forgetting the fact that the very financing of the project was contrary to the scheme issued in this regard. Evidently, the bank as well as the developer benefitted from these transactions. The developer has taken the amount without constructing the flat, and equally the bank has been collecting the amounts from the complainant towards EMI. It is a case of double jeopardy. Necessarily all this amounts to unfair trade practise as well as deficiency in service on the part of developer as well as the bank. Necessarily the complainant is to be compensated. Since terms of the agreement enable the bank to collect from the developer, it can as well recover the same. The bank by violating its own rules cannot take advantage and recover the same from the complainant.

37.               The bank has undoubtedly violated the guidelines and released the amount even without bothering to verify as to the stage and nature of construction. In other words, the bank financed a non-existent project or incomplete project, duping its own customer. If the bank releases the amounts contrary to the guidelines, it has to suffer for the consequential losses. Whatever loss caused thereby it could as well approach appropriate forum for recovery of the amount from the developer, to which it has released the amount in one go. The bank under the terms entitled to recover from the developer to which it had paid the amounts. It cannot turn round and claim against the complainant. It is not under original stipulation that the bank had to pay the entire amount to the developer. The developer also agreed to refund the amount if there are cancellations of the agreements or failure to fulfil its commitments. The agreement that was arrived at earlier was fair and no party would benefit from the lapses or mistakes of the other. Therefore, the complainant is not liable to pay the equated monthly instalments.

38.               The bank has to collect the loan amount plus whatever interest and other legally permissible charges from the developer and credit it to the complainant’s loan account. It shall not collect further EMI’s nor entitled to any more amount except the amount, if any, remained unpaid by the complainant towards loan granted to him. The bank has no authority to complain to CIBIL. In fact, if there is a provision, the CIBIL has to enter the name of the bank, as one of the violators of guidelines of the banks.  For the reasons stated supra, the Points No.2 and 3 are answered in favour of the Complainants and against the Opposite parties.

 39.             In the above facts and circumstances, the points 1 to 4 are answered accordingly holding that the opposite party no.1 is  liable to pay the amounts to the Complainant.

40.               In the result the complaint is allowed:

i)        directing the opposite party no.1   to refund the amount of Rs.14,56,482/- which includes loan amount,  with interest @ 12% per annum from the date of last payment till payment and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.5000/-.  Time for compliance four weeks.  

ii)       Further, the developer OP No.1 is directed to refund the amount disbursed by the bank to it along with interest, penal charges etc., levied by the OP Nos.2&3 bank, if any, failing which the bank is liable to collect, and credit the same to the loan account of the complainant.

iii)      In case sale deed was executed, the complainants shall re-convey the same to the developer on compliance of above directions. The registration charges and stamp duty etc., shall  be borne by the developer OP No.1.

PRESIDENT                                       MEMBER

Dated : 07.04.2017

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant :                                        For Opposite parties :

Affidavit evidence of  Samuel Prasad             Sri Hari Challa,  as RW1 (on behalf of OP
Sarella, Complainant                                   No.1).

                                                                   Sri T.Hanumantha Rao, Manager( on
                                                                   behalf of Ops no.2 and 3

EXHIBITS MARKED

For Complainants :

Ex.A1           Copy of Certificate issued by Op1 dated 09.07.2011

Ex.A2           Copy of No Objection Certificate of Op1

Ex.A3           Copy of Tripartite Agreement dated 06.12.2010 between the complainant, Op1 and Op2 Bank

Ex.A4           Arrangement Letter of Op2 Bank dated 02.03.2012

Ex.A5           Copy of receipt dated 24.06.2011 bearing No.07789 for Rs.8,69,510/-

Ex.A6           Copy of Calculation Sheet

Ex.A7           Copy of letter dated 14.07.2014 of the complainant to Op2 Bank

Ex.A8           Copy of legal notice dated 13.10.2014 along with original postal receipts and acknowledgements

Ex.A9           Calculation Statement

Ex.A10         Copy of agreement of Sale dated 29.06.2011 executed by the Op1 in favour of the complainant

For the opposite parties No.2 and 3

Ex.B1          Copy of Loan Arrangement Letter dated 02.03.2012

Ex.B2          Copy of Tripartite Agreement dated 06.12.2010 between the complainant, Op1 and Op2 Bank

Ex.B3          Copy of letter of complainant along with letter of Op1 dated 23.02.2012

Ex.B4          Copy of True Extract of Statement of Housing Loan

PRESIDENT                                       MEMBER

Dated : 07.04.2017