Passed  by Shri Atul D. Alsi, Hon’ble President.

1. The complainant filed complaint case for the deficiency in service for the execution of one sided agreement of sale and sale deed and sanction of the loan amount of Rs. 6,40,000/- in favour of O.P. by using false documents in favour of O.P. after execution of sale deed fail to issue sanction plan,  commencement and completion certificate for mutation entry  and construction of poor quality of Duplex thereby claiming compensation for excess amount received against the actual consideration of sale deed alongwith refund of amount of sale with interest alongwith compensation to the tune of Rs.14,01,821/- with interest.

Facts  of  the case  in short

2. The complainants are husband and wife enter into an agreement to purchase twin Duplex flat bearing no.4 in a project Green Town Park situation at Mouza-Chankapur Tah. Saoner, Dist-Nagpur on 5.3.2015 by registered agreement to sale No.788/2015.  The O.P.No.1, Nationalised Bank and the O.P.No.2 is registered company in construction of building and Duplex.  The O.P.No.2 , 2-A,2-B,2-C and 2-D are the director of O.P.No.2.  The O.P.No.2 and directors has constructed all existing Duplex in green town park.  The O.P.No.3 and 4 are the co-owners of layout plot.  In agreement to sale the consideration value was fixed at Rs. 24,50,000/- as per market value. The O.P.No.2  has arranged home loan form O.P.No.1 Bank of Maharashtra, Dharampeth Nagpur after completing all formalities on dated 25.10.2017 O.P.No.2-A executed sale deed in favour of complainants before the Sub-Registrar bearing serial no. 2696/2017 ,  after execution of sale deed the original sale deed was submitted to O.P.No.1 by O.P.No.2. After taking loan there was moratorium period of 12 months and after completion of 12 months the complainant started paying instalment on loan amount of Rs.19,60,000/- and unknowingly also on amount of Rs.6,40,000/- together. The O.P. bank has fraudulently receiving the instalments for which the Complainant never borrowed the loan of Rs.26,00,000/- to purchase the Duplex. The O.P.’s have fraudulently obtained signatures on blank paper and applications and without notice have sanctioned the loan amount exceeding the consideration of amount of sale deed for which   complainant have unnecessary required to pay instalment along with interest.  The O.P. bank has sanctioned Rs.6, 40,000/- loan in favour of builder after 3 months of execution of sale deed.  The O.P.No.1 and 2 has misused the documents which were signed by the complainants for disbursement of loan in favour of O.P.No.2. The O.P. bank has fraudulently taken the signature of complainants in good faith.  The O.P. bank has not made inquiry regarding valuation of property which is to be morgaged prior to sanction and disbursement of loan with complainants, there was no valuation report called by O.P.-Bank. The O.P.-Builder has failed to issue sanction plan, non agricultural layout order and commencement and completion certificate for the mutation of name of complainants after execution of sale deed till today.  The 7/12 extract shows that the layout is agricultural land therefore it amount to unfair trade practise.  The contents of terms and conditions mentioned in agreement to sale and sale deed does not match and agreement to sale is one sided drafted by O.P.  The agreement of sale does not disclose the type and quality of constriction and room size with balcony and bathroom.  The entire material fact regarding documents and property is suppressed by builder and the sale deed is executed by builder without the satisfaction of complainant does amounting to cheating and unfair trade practice. Even after payment of entire consideration amount to the O.P. complainant will never get full ownership and title of property.  Due to fraudulent act by all O.P. the complainant has to repay high instalment for disbursement of unlawful loan amount after execution of sale.  The complainant lodge police report at Sitabuldi police station, Nagpur vide FIR No.79/2021 dated 23.2.2021. The O.P.No.2- builder have never provided commencement certification & completion certificate which is required for making necessary mutation entry, therefore the O.P.’s are jointly and severally liable to compensate to the complainant as prayed in complaint.  

3. The O.P. No.1 has filed written statement and denied allegation against and submitted that the complainants agreed to repay the EMI of Rs.26,400/- after moratorium period of 12 months as they have obtained loan of Rs. 26,00,000/- after execution of loan agreement and document.  The compliant has issued necessary receipts of loan amount. The documents obtained by O.P. bank from complainant are legal and there is no question of misuse of documents for obtaining of 26,00,000/-. The complainant as per his will and after selection of builder approached the bank for finance.  The bank is under obligation to follow the guidelines given by RBI. For sanction of loan as per memorandum of mortgage the mortgage is created for Rs.26,00,000/- but to oversight on authority letter the loan amount was written Rs.19,60,000/- lac.  There is no fraudulent act  in disbursement of Rs.6,40,000/- and the bank is having power to recover the dues from the complainant towards arrears of loan account as per provisions law.  Therefore there is no deficiency on the part of bank and case is deserve to dismiss with cost.

4. The O.P. No.2- a, b, c, d and 3 and 4 have filed reply and denied the allegation against them and submitted that as the complaint is not tenable as there is no consumer interest and for execution of Civil right the commission is not proper court.   The agreement of sale was executed in the year 2015 and sale deed is executed in the year 2017 and complaint is filed in the year June-2021 which is beyond the period of limitation.   After execution of sale deed O.P.No.2 to 4 has handed over the possession to the complainants and there was no dispute in respect of property purchase by the complainants. After execution of sale deed the complainants Duplex was given on rent to one person to Mr. Prakash  Kukde till 2020.  The complainants were not made regular repayment of loan and therefore O.P.No.1-Bank has issued notice under Sarfaesi Act for purchase of Duplex 
   The O.P.No.1-Bank has sanctioned the loan amount and additional loan amount for additional construction as per loan agreement. The complainants has adopted the  bad practise and created false story and filed false complaint.  It is the duty of Gram Panchayat and Nagpur Improvement Trust to give commencement certificate and completion certificate but said authorities has not issued the certificates, till today therefore it is not negligence on the part of O.P. for not providing the certificates. The O.P.No.-1-Bank has taken action against the complainant for the outstanding loan amount under   Sarfaesi Act therefore the complainant only to save the skin filed false complaint without  limitation and without any substance,  therefore it is liable to be dismissed with cost.

5. The counsel for complainant argued that the O.P’s has sanctioned the loan amount illegally in excess of the amount of sale deed. The O.P.-Builder has failed to submit the commencement certificate and completion certificate of flat-therefore it is deficiency on the part of O.P’s.

6. Counsel for O.P.No.2 ,3 and 4 argued  that the subject matter is not amenable within the jurisdiction of Commission. The complaint is barred by limitation as the agreement of sale was executed in the year 2015 and sale deed is executed in the year 2017 and the complaint is filed in the year of 2021.  After execution of sale deed the O.P.No.2 to 4 has handed over the possession and the complainants is raising the dispute in respect of poor construction and defect after laps of 4 years. The complainant have not made the repayment of loan instalment regularly to O.P.-Bank therefore complainant account become NPA and therefore to avoid the recovery of loan amount the complainant has filed false complaint. At the time of filing mutation application before authority the complaints has not followed the due process of law, therefore the concern authority rejected mutations. The complaint is false and frivolous complaint to escape the liability from recovery of loan amount.  Hence the present complaint is liable to be dismissed.

7. The complainant have applied for sanction of loan to purchase Duplex flat constructed by O.P.No.2 to 4.

8. After making appropriate application and O.P.-Bank has sanctioned and disbursed loan amount on dated 30.10.2017 and 23.1.2018 against the mortgage of property for the Twin Duplex,House No.4/a , situated at plot. 4, Kh.No 177/4,  PH.No.53, at Mouja-Chankapur,  Tah.-Saonar, Dist. Nagpur. The complainant issued demand letter on 7.10.2017 for release of loan amount of 19,60,000/- and 6,40,000/- on 10.1.2018.  The O.P. No. 2 to 4 has executed sale deed in favour of complainants. The  complainant have issued the receipt of amount of loan of Rs,19,60,000/-  being part of loan amount out of sanction loan amount of Rs. 26,00,000/- by demand draft no.749757 on dated 30.10.2017 and another receipt of loan amount of 6,40,000/- as a part of sanction loan amount from Rs.26,00,000/- by demand draft in favour of Dream Land Builder on dated 23.1.2018 and executed demand promissory note on dated 4.10.2017 that the complainants are promised to pay jointly and severely to  O.P.-Bank the total amount of Rs.26,00,000/- with interest as per document filed on record page no.22 document No.131.  The complainants were irregular in repayment of entire loan amount therefore the complainant loan account has been classified as NPA account on dated 30.9.2019 and for the default in repayment the O.P.-Bank has initiated action under Sarfaesi Act by issuing notice on dated 12.8.2022 which is filed on record.  Thereafter on 6.12.2022 the complainant moved an application for repayment entire loan amount with interest and charges and release of  No Due Certificate to  O.P.-Bank which is filed on record by OP-Bank with notes of argument. Therefore there is no deficiency on the part of the O.P.-Bank in sanction, disbursement and recovery of outstanding loan amount. Therefore there is no deficiency on the part of O.P.No.1-Bank.

9. The O.P.-2-Builder  has admitted in reply that they failed to issue completion and commencement certificate to the complainants. The document are very necessary and it is the duty of builder to provide those documents at the time of execution of sale deed, and till date. Non submission of those documents does mount to deficiency of service and therefore direction is given to O.P.-Builder O.P.No.2, 2-A, 2-B, 2-C, 2-D to provide commencement and completion certificate to complainant and also directed to pay compensation  of   Rs.25000/- towards mental torture and Rs.15,000/- for cost of litigation as per  following order.  No order is passed against O.P.No1.-Bank and land owners 3 and 4.

                                        O R D E R

1. Complaint is partly allowed.
2. O.P.No.2, 2-A, 2-B, 2-C, 2-D are directed to pay  Rs.25,000/- towards mental torture and Rs.15,000/- towards the cost of litigation to the complainant jointly and severely for failure to supply commencement and completion certificate to the complainant till date.
3. No order against O.P.No1.-Bank and land owners 3 and 4.
4. Copy of order be furnished to both the parties free of cost.