Tamil Nadu

StateCommission

CC/20/2020

m/s. V. Sankaranarayanan, S/o A.Veerappan, No.17A, Thiruvallur City Phase 2, Ragunathapuram, Mangadu, Chennai 600 122. - Complainant(s)

Versus

1.M/s. PNB Housing Finance Ltd, 3rd Floor, Sudarshan Building, 14, Whites Road Royapettah, Chennai 6 - Opp.Party(s)

Party in Person

24 Feb 2023

ORDER

Date of filing : 13.03.2020

            IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

BEFORE    Hon’ble THIRU. JUSTICE  R. SUBBIAH           ::      PRESIDENT                       

                Thiru.R.VENKATESA PERUMAL                     ::      MEMBER

 

C. C. No.20/2020

DATED THIS THE 24^TH  DAY OF FEBRUARY 2023

 

Shri. V. Sankaranarayanan,

Son of A.Veerappan,

No.17 A, Thiruvalluvar City Phase 2,

Ragunathapuram, Mangadu,

Chennai - 600 122.                                                                         ... Complainant.

Vs.

1. M/s. PNB Housing Finance Ltd,

3^rd Floor, Sudarshan Building,

No.14, Whites Road, Royapettah,

Chennai – 600 014.

 

Also at: The Branch Manager,

PNB Housing Finance Limited,

Capital One, No.398, Rajiv Gandhi Salai (OMR),

Nehru Nagar, Kottivakkam,

Chennai – 600 096.

 

Also at: Registered office:

PNB Housing Finance Limited,

9^th Floor, Antriksh Bhawan,

No.22, Kasturba Gandhi Marg,

New Delhi – 110 001.

 

2. M/s Jane Homes Elite (Developer/ Builder),

By its Partners

R. Sathyanarayanan, S/o. Mr. R. Ramanathan &

B. Rahul Chandran, S/o. R. Balakrishnan,

No.4, 1^st Street, Sudha Avenue,

Chitlapakkam, Chennai – 600 064.                                         … Opposite parties.

 

For the complainant                                 : Party in person

1^st Opposite party                                    : Exparte (M/s. Percivul Pericles)

2^nd Opposite party                                   : Dismissed

This complaint having come up for final hearing before us on 25.11.2022  and upon hearing the complainant and upon perusing the material records submitted by complainant and this Commission made the following:-

 

ORDER

Thiru. R VENKATESAPERUMAL, MEMBER

 

This complaint has been filed by the complainant under section 17 of the Consumer Protection Act, 1986 against the opposite parties claiming refund of a sum of Rs.12,90,000/- with interest at the rate of 24%, to pay a sum of Rs.45,03,000/- towards compensation for mental agony, financial loss etc with interest at the rate of 24% p.a. with cost to the complainant.

1.         The brief facts necessitating the filing of complaint:

It is the case of the complainant that based on the advertisement made by second opposite party, the complainant had booked two flats in the project namely; JANE Homes Elite and it was financed by 1^st opposite party/ PNB Housing Finance Ltd. The builder purchased a flat bearing flat No.35, having an extent of 3460 sq.ft and sub-divided the same into two flats.  The 1^st flat G-1 is in the front side having an extent of 1500 sq.ft and the 2^nd flat S-1 in the rear side measuring to an extent of 1460 sq.ft and a passage of 10 feet vide is also shown in the approved plan. The builder had obtained two separate plan approvals for constructing residential apartments in the two sub-divided plots namely 35 A and 35-B, vide approval number 31/2014 dated 27.5.2014 for plot No.35-A having stilt cum ground floor, 1^st floor and part of 2^nd floor with parking in the stilt floor, one dwelling unit in ground floor, two dwelling units in 1^st floor and one dwelling unit in 2^nd floor. For the plot No.35-B, the builder has received approval with number 32/2014 dated 25.7.2014 having stilt cum ground floor, 1^st floor and part of 2^nd floor with parking in the stilt floor, one dwelling unit in ground floor, two dwelling units in 1^st floor and one dwelling unit in 2^nd floor. The approval was obtained from the president Karanai, Puducherry Panchayat, Kattankolathur Panchayat Union. The complainant stated that for the flat No.G-1, the construction agreement was signed on 27.11.2014, and the cost of the construction for the G-1 flat was agreed to Rs.28,23,200/- and the cost of undivided share of land was fixed as Rs.5,32,800/- thus the total cost of the G-1 flat is Rs. 33,56,000/-.  The 1^st opposite party sanctioned the loan of Rs.25,48,930/- whereas the balance is paid by the complainant. The 2^nd opposite party had executed undivided share of land on 04.12.2014.

 

2.         For the flat No.S-1, the construction agreement was signed on 27.11.2014, and the cost of the construction for the S-1 flat was agreed to Rs.29,17,600/- and the cost of undivided share of land was fixed as Rs.5,56,800/- thus the total cost of the G-1 flat is Rs. 34,74,400/-. The 1^st opposite party sanctioned the loan of Rs.25,48,930/- whereas the balance is paid by the complainant. The 2^nd opposite party had executed undivided share of land on 04.12.2014.

 

3.         The complainant further stated that he started paying EMI from December 2014 onwards, to the 1^st opposite party until February 2019. The complainant due to his family situation, tried to transfer these properties to a third party who has  shown interest to buy. The housing loan of the said 3^rd party was rejected by Indian Bank with the reason unapproved construction by the builder and improper approval housing loan by PNB Housing Finance Ltd. On hearing this from the Indian Bank, the complainant had appointed a chartered Engineer to get expert opinion on 19.04.2019.  The Chartered Engineer visited the property and gave his opinion that there is a huge violation from the approved building plan. Further when the complainant approached the Block Development Officer, Kattankolathur, the BDO issued violation notice dated 20.8.2019 instead of construction completion certificate stating the building was not constructed as per the plan approval. When the complainant approached directorate of Town and Country planning Authority through RTI, the DTCP gave in writing that they allowed dwelling units of 4 numbers whereas the builder has constructed 8 numbers of dwelling units, which are financed by PNB Housing Finance Ltd.  As per Reserve Bank of India’s direction, the housing loans should be sanctioned by any bank, only after getting completion certificate within 90 days from the date of construction completed. Otherwise the bank should send a loan recall letter. Whereas the PNB housing finance Ltd, had not initiated loan recall letter to the complainant instead started collecting EMI from  the complainant. As the complainant  have received violation notice from building plan competent authority, the complainant has the threat of building demolition any time. Thus both the opposite parties have committed unfair trade practice by indulging unfair attitude towards the consumer.

4.         Though sufficient time was granted, the 1^st opposite party has failed to file written version for a long time.  Hence the 1^st opposite party was set exparte.  The  complainant has failed to take fresh notice to the 2^nd opposite party for a long time.  Hence, the claim as against the 2^nd opposite party is dismissed.

5.       The complainant filed his proof affidavit and submitted marked documents as Ex.A1 to Ex.A8 on their side.

6.         The points for consideration before this Commission is:-

Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties as alleged by the complainant ? if so for what relief the complainant is entitled to?

7.         On point:-

The complainant has filed his written arguments.  It is the case of the complainant that based on the advertisement made by second opposite party, the complainant had booked two flats in the buildings with name JANE Homes Elite and it was financed by 1^st opposite party/ PNB Housing Finance Ltd.  The builder purchased a flat bearing flat No.35, having an extent of 3460 sq.ft and sub-divided the same into two flats.  The 1^st flat G-1 is in the front side having an extent of 1500 sq.ft and the 2^nd flat S-1 in the rear side an extent of 1460 sq.ft and a passage of 10 feet vide is also shown in the approved plan. The builder had obtained two separate plan approvals for constructing residential apartments in the two sub-divided plots namely 35 A and 35-B, vide approval number 31/2014 dated 27.5.2014 for plot No.35-A having stilt cum ground floor, 1^st floor and part of 2^nd floor with parking in the stilt floor, one dwelling unit in ground floor, two dwelling units in 1^st floor and one dwelling unit in 2^nd floor.   For the plot No.35-B, the builder has received approval with number 32/2014 dated 25.7.2014 having stilt cum ground floor, 1^st floor and part of 2^nd floor with parking in the stilt floor, one dwelling unit in ground floor, two dwelling units in 1^st floor and one dwelling unit in 2^nd floor. The approval was obtained from the president Karanai, Puducherry Panchayat, Kattankolathur Panchayat Union.  For the flat No.G-1, the construction agreement was signed on 27.11.2014, and the cost of the construction for the G-1 flat was agreed to Rs.28,23,200/- and the cost of undivided share of land was fixed as Rs.5,32,800/- thus the total cost of the G-1 flat is Rs. 33,56,000/-.  The 1^st opposite party sanctioned the loan of Rs.25,48,930/- whereas the balance is paid by the complainant. The 2^nd opposite party had executed undivided share of land on 04.12.2014. For the flat No.S-1, the construction agreement was signed on 27.11.2014, and the cost of the construction for the S-1 flat was agreed to Rs.29,17,600/- and the cost of undivided share of land was fixed as Rs.5,56,800/- thus the total cost of the G-1 flat is Rs. 34,74,400/-. The 1^st opposite party sanctioned the loan of Rs.25,48,930/- whereas the balance is paid by the complainant. The 2^nd opposite party had executed undivided share of land on 04.12.2014.   The complainant started paying EMI from December 2014 onwards, to the 1^st opposite party until February 2019. The complainant due to his family situation, tried to transfer these properties to a third party who has shown interest to buy.  The housing loan of the said 3^rd party was rejected by Indian Bank with the reason unapproved construction by the builder and improper approval housing loan by PNB Housing Finance Ltd.  On hearing this from the Indian Bank, the complainant appointed a chartered Engineer to get expert opinion on 19.04.2019.  The Chartered Engineer visited the property and gave his opinion that there is huge violation from the approved building plan.  Further when the complainant approached the Block Development Officer, Kattankolathur, the BDO issued violation notice dated 20.8.2019 instead of construction completion certificate stating the building was not constructed as per the plan approval. When the complainant approached directorate of Town and Country planning Authority through RTI, the DTCP gave in writing that they allowed dwelling units of 4 numbers whereas the builder has constructed 8 numbers of dwelling units, which are financed by PNB Housing Finance Ltd.  As per Reserve Bank of India’s direction, the housing loans should be sanctioned by any bank, only after getting completion certificate within 90 days from the date of construction completed. Otherwise the bank should send a loan recall letter. Whereas the PNB housing finance Ltd, had not initiated loan recall letter to the complainant instead started collecting EMI from  the complainant. As the complainant  have received violation notice from building plan competent authority, the complainant has the threat of building demolition any time. Thus both the opposite parties have committed unfair trade practice by indulging unfair attitude towards the consumer.

8.       We have heard the argument of complainant and perused the materials available on records.

9.       We are of the opinion that the 2^nd opposite party have committed deficiency in service and unfair trade practice by indulging in deviation of the approved housing plan.  Hence,  the complainant should be compensated in terms of money.  It is evident that the complainant had paid Rs.12,90,000/- as a principal margin amount to the 2^nd opposite party,  Whereas the 1^st opposite party awarded housing loan as per the request of the complainant.   It is the duty of the complainant to check the construction is as per the approved plan and specifications. If the complainant finds any deviation it is he, who has to inform the financier and advice him to stop the loan disbursement to the builder.   As a complainant missed to check the same, and finds out at later stage he cannot simply blamed the financier. Hence we don’t find any deficiency from the 1^st opposite party.  Coming to the second issue, since we have already come to the conclusion that there is a deficiency in service and unfair trade practice on the part of the 2^nd opposite party by indulging in deviation of the approved housing plan, we have ordered the complainant to refund a sum of Rs.12,90,000/- to the complainant with interest at the rate of 9% p.a. and a sum of Rs.2,00,000/- towards compensation for mental agony with cost of Rs.10,000/- towards litigation expenses to the complainant.

10.     Apart from the above issue as regards the plea made by the complainant’s side that a direction may be issued to the developer to refund the entire loan amount received from the opposite parties concerned/bank, in our considered opinion, the complainants are the borrowers of the loan and for their disputes with the developer, they cannot avoid payment to EMI to the Bank that dealt with public money. Regarding their claim that the Developer had undertaken to refund the entire loan amount in the event the borrowers cancel the booking, they have to work out their remedy by way of appropriate proceedings against the Developer, who, may seek for cancellation charges etc, from the complainant and such a complex issue cannot be dealt with in summary proceedings.   Thus we answer the point accordingly.

          In the result, the complaint is allowed in part.  The 2^nd opposite party is directed to refund a sum of Rs.12,90,000/- (Rupees Twelve lakhs ninety thousand only) along with interest at the rate of 9% p.a. from the date of filing this complaint i.e. 13.3.2020 till the date of this order and to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant. 

For the reasons assigned above, the complainants are not entitled to any relief sought for by them. Consequently the complaint is allowed in part. 

 

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

List of documents filed by the complainant:-   

Ex.A1	16.4.2019	Copy of government certified Chartered Engineer opinion –Annexure A
Ex.A.2	20.8.2019	BDO Notice of violation on construction dated 20.8.2019
Ex.A.3	27.12.2019	DTCP – RTI Act response  along with supporting GO
Ex.A.4	26.9.2019	RBI complaint
Ex.A.5	3.1.2020	NHB complaint
Ex.A.6		Original Demand notice to respondents
Ex.A.7		Original postal receipts to Respondents
Ex.A.8		Service reports of delivery confirmation download from Postal Department

 

 

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT