BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.205/16.
Date of instt.: 12.07.2016.
Date of Decision: 17.03.2017.
Anil Kumar Sardana S/o Sh. Ram Kishan Sardana, R/o Kothi No.1, Sector-20, Urban Estate, HUDA, Kaithal, mobile No.89011-00111.
……….Complainant.
Versus
- Central Bank of India, through its Chairman & Managing Director, Central Bank of India, Chander Mukhi, Nariman Point, Mumbai-400021.
- Central Bank of India, Cheeka Branch through its Branch Manager, Plot No.26, Residence Colony-1, Opposite Telephone Exchange, Cheeka-136034.
- Haryana Urban Development Authority through its Chief Administrator, Sector-6, HUDA, Panchkula.
- Estate Officer, HUDA, Karnal.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. Gaurav Wadhwa, Advocate for complainant.
Sh. Sudeep Malik, Advocate for the opposite parties.No.1 & 2.
Sh. Joginder Dhull, Adv. for Ops No.3 & 4.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he applied for 14 marla residential plot in the scheme, 2014 floated by HUDA (Op No.3) for Sector-33, Karnal by availing the offer advertised through newspaper pamphlets by Central Bank of India (Ops No.1 & 2). It is alleged that as per the offer proposed by Central Bank of India in collaboration with HUDA authority, the bank would apply in the scheme floated by HUDA on behalf of applicant/complainant by depositing earnest money to HUDA and will charge certain amount of money as interest on the 10% earnest money of the plot and if the applicant succeeds in the draw to be conducted by HUDA (Op No.3), then the complainant shall repay 10% earnest money to the bank which the bank has already deposited with HUDA and if the applicant is unsuccessful, the contract between Op bank and applicant shall stand terminated. It is further alleged that as per terms of the offer advertised, the complainant deposited Rs.24,980/- with Op No.2 for availing the services of the OP Bank and the Op No.2 submitted complainant’s application in the prescribed performa to Op No.3 i.e. HUDA with specified 10% earnest money of Rs.4,87,400/- vide application No.57337 dt. 23.04.2014. It is further alleged that the Op No.3 failed to conduct draw on the scheduled date due to court stay and conducted draw later on in the year of 2015. It is further alleged that the Op No.2 served letter dt. 23.01.2015 to the complainant asking him to pay additional amount of Rs.16,660/- qua application for HUDA Sector-33, Karnal on account of additional interest for the delayed period by HUDA in conducting the draw. It is further alleged that the Ops amounts to unfair trade practice as they are trying to claim interest on the same principle amount twice. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite parties appeared before this forum and filed replies separately. Ops No.1 & 2 filed joint replies raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complainant has concealed the true and material facts from this Forum. The true facts are that the complainant applied to Central Bank of India, Cheeka for finance of earnest money for plot in Sector-33, Karnal, the said facility was accordingly granted to the complainant and he executed loan documents in favour of respondent bank. It is further relevant to mention here that generally the interest is to be charged for a period of six months but it is further stipulated in the agreement that in case the draw is not held within six months, the borrower will be liable to pay interest for delayed period at the contractual rate; that the draw could not be held within six months due to stay granted by the court and ultimately, the same was held in July, 2015 after a gap of approximately 8 months for which the respondent bank rightly issued notice dt. 23.01.2015 and 13.07.2016 thereby demanding the due amount. However, presently, an amount of Rs.22,712.81 paise as on date is due and outstanding towards the complainant which the respondent bank is entitled to charge from the complainant. There is no deficiency in service on the part of answering Ops. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. Ops No.3 & 4 filed the joint reply raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the present complaint is not legally maintainable in its present form on account of the fact that an advertisement was published in the newspaper for inviting application from general public in which a clear term was incorporated therein with respect to draw and allowing of interest on refund of earnest money @ 5.5% p.a. in case draw could not held within a period of six months. This condition was incorporated on the basis of the instruction dt. 02.09.2015. Therefore, with full knowledge of the aforesaid condition, the petitioners made an application for allotment of residential plots in the scheme floated for Sector-9 part, 32 and 33-part, Karnal. Having accepted the terms and made the offer in terms of the advertisement, the complainant is now estopped from raising the challenge to the terms itself. Moreover, the terms were completely transparent and understandable to the man of ordinary prudence. There is no deficiency in service on the part of answering Ops. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
4. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and documents Ex.C1 to Ex.C5 and Mark-C1 and closed evidence on 11.11.2016. On the other hand, the Ops No.1 & 2 tendered in evidence affidavit Ex.R1 and documents Ex.R2 to Ex.R7 and closed evidence on 02.01.2017. Ops No.3 & 4 tendered in evidence affidavit, Ex.RW1/A and documents Annexure-R1 and closed evidence on 11.01.2017.
5. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
6. Ld. Counsel for the complainant reiterated all the points mentioned in the complaint. He argued that the complainant applied for 14 marla residential plot in the scheme, 2014 floated by HUDA (Op No.3) for Sector-33, Karnal by availing the offer advertised through newspaper pamphlets by Central Bank of India (Ops No.1 & 2). He further argued that as per the offer proposed by Central Bank of India in collaboration with HUDA authority, the bank would apply in the scheme floated by HUDA on behalf of applicant/complainant by depositing earnest money to HUDA and will charge certain amount of money as interest on the 10% earnest money of the plot and if the applicant succeeds in the draw to be conducted by HUDA (Op No.3), then the complainant shall repay 10% earnest money to the bank which the bank has already deposited with HUDA and if the applicant is unsuccessful, the contract between Op bank and applicant shall stand terminated. He further argued that as per terms of the offer advertised, the complainant deposited Rs.24,980/- with Op No.2 for availing the services of the OP Bank and the Op No.2 submitted complainant’s application in the prescribed performa to Op No.3 i.e. HUDA with specified 10% earnest money of Rs.4,87,400/- vide application No.57337 dt. 23.04.2014. He further argued that the Op No.3 failed to conduct draw on the scheduled date due to court stay and conducted draw later on in the year of 2015. He further argued that the Op No.2 served letter dt. 23.01.2015 to the complainant asking him to pay additional amount of Rs.16,660/- qua application for HUDA Sector-33, Karnal on account of additional interest for the delayed period by HUDA in conducting the draw. He further argued that the said letter/notice is wrong and illegal. He further argued that the complainant came to know from the reply of the Ops No.3 & 4 that they have deducted the TDS but they have not supplied the certificate to the complainant regarding the particulars and details of TDS deducted by them, so, this fact could not be mentioned in the complaint and he made request for the issuance of the same. On the other hand, ld. Counsel for the Ops No.1 & 2 argued that the complainant applied to Central Bank of India, Cheeka for finance of earnest money for plot in Sector-33, Karnal and the said facility was accordingly granted to the complainant and he executed loan documents including agreement and undertaking in favour of respondent bank. He further argued that generally the interest is to be charged for a period of six months but it is further stipulated in the agreement that in case the draw is not held within six months, the borrower will be liable to pay interest for delayed period at the contractual rate. He further argued that the draw could not be held within six months due to stay granted by the court and ultimately, the same was held in July, 2015 after a gap of approximately 8 months for which the respondent bank rightly issued notice dt. 23.01.2015 and 13.07.2016 thereby demanding the due amount. He further argued that as per Earnest Money Finance Scheme, the bank was to finance the earnest money of 10% after taking interest for six months and the said finance was further subject to execution of loan documents and terms and conditions of the bank. He further argued that loan agreement, Ex.R2 was duly executed by the complainant and he had also given undertaking, Ex.R3 in this regard. He further argued that presently, an amount of Rs.22,712.81 paise as on date is due and outstanding towards the complainant. Ld. Counsel for the Ops No.3 & 4 argued that an advertisement was published in the newspaper for inviting application from general public in which a clear term was incorporated with respect to draw and allowing of interest on refund of earnest money @ 5.5% p.a. for the period beyond 6 months of the closing date in case draw could not held within a period of six months. He further argued that as the draw was held beyond the period of 6 months, therefore, the Ops 3 & 4 had paid the interest @ 5.5% p.a. for the period beyond 6 months to the Ops No.1 & 2 alongwith the earnest money after deducting the TDS of Rs.3129/-. He further argued that the detail of the amount refunded by Ops No.3 & 4 to Ops No.1 & 2 is mentioned in para No.11 of the reply and the detail of the same is Principal amount=Rs.4,87,400/-; Interest=Rs.15,644/-; TDS=Rs.3129/- and Net Amount paRs.4,99,914/-. He further argued that as per terms and conditions, nothing is due against Ops No.3 & 4.
7. From the pleadings and evidence of the case, it is clear that the draw of the plot in question could not be held within the stipulated period of 6 months due to a stay from the Hon’ble Punjab and Haryana High Court and the same was held in the month of July, 2015. According to the terms and conditions, the Ops No.3 & 4 has paid the interest at the rate of 5.5% to the Ops No.1 & 2 and returned the earnest money alongwith interest to Ops No.1 & 2 after deducting the TDS. According to the complainant, the letter dt. 23.01.2015 served by the Op No.2 to the complainant whereby asking him to pay Rs.16,660/- as additional interest for the delayed period is wrong and illegal. Whereas, according to the Ops No.1 & 2, as per Earnest Money Finance Scheme, the bank was to finance the earnest money of 10% after taking interest for six months and the said finance was further subject to the condition that the borrower will pay interest for the actual period, if the draw is not held within 6 month at the contracted rate. In this regard, the complainant has executed an agreement as-well-as undertaking, so, the Ops No.1 & 2 have rightly issued the notices in question as per terms and conditions of the said loan agreement and undertaking. From the agreement, Ex.R2 and undertaking, Ex.R3, it is clear that the complainant has undertaken to pay interest for the actual period at the contracted rate, if the draw is not held within 6 month. In these facts and circumstances of the case, we are of the considered view that the complainant cannot escape from the agreement and the undertaking and he is liable to pay the interest for the delayed period to Ops No.1 & 2. We found force in the contention of the complainant that the Ops No.3 & 4 have deducted the TDS on the interest amount paid by them to Ops No.1 & 2 but the certificate regarding the detail has not been supplied to the complainant either by the Ops No.1 & 2 or Ops No.3 & 4. The complainant is entitled for the certificate regarding TDS and its details, so that the complainant can take action as per law. So, in these circumstances, we are of the considered view that the Ops are deficient in this regard in providing services to the complainant.
8. Thus, as a sequel of above discussion, we allow the complaint partly and direct the Ops to issue a certificate containing the details of the TDS of Rs.3129/- deducted by Ops No.3 & 4 from the interest amount paid by them to Ops No.1 & 2 regarding the earnest money of the complainant. The Ops are also burdened to pay Rs.3300/- as lump sum compensation on account of harassment, mental agony and costs of litigation charges. All the Ops are jointly and severally liable. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.17.03.2017.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
