SRI SHYAMAL KUMAR GHOSH, MEMBER
The instant consumer case has been filed against the opposite parties praying for certain reliefs which are reproduced as under:-
To issue show cause notice upon the opposite parties for enforcing the attendance;
To deliver the flat in question immediately and without any further delay since long time has elapsed;
To refund the entire amount of Rs.20,53,801/- along with 18% interest pa;
To pay compensation Rs.2,00,000/- for continuous harassment and Rs.3,00,000/- for causing inflicting mental agony;
To pay cost of the suit Rs.20,000/- and to pass such further order (s) as your Lordship may deem fit & proper;
And for this your petitioner as in duty bound shall ever pray.
The factual matrix of the case is that the complainant has intended to purchase one residential flat and to that effect he has visited the office of the opposite party/Vedic Reality Private Ltd. Thereafter he has entered into an agreement. The said agreement has been signed by the parties. The opposite party/developer has handed over a brochure where the terms and conditions have been laid down in connection with owning of a residential flat, which has been measured on payment of valuable consideration. The value of the flat has been determined at Rs.30,69,000/- and the value of car parking space has also been settled at Rs.2,00,000/-. As such the total consideration amount has been fixed and settled at Rs.32,69,000/-. Having agreed to the terms and conditions of the said agreement, the complainant has paid a sum of Rs.6,53,801/- to the opposite party for fulfilling his desire and ambition in respect of arrangement of suitable accommodation. By virtue of agreement dated 18/09/2014 the flat would be delivered within 36 months from the effective date subject to reasonable extension of the time i.e. grace period of 6 months. The agreement has been executed in the year 2014. In pursuant to the said agreement, the flat in question, should be delivered by the developer within the stipulated period of time. The complainant has already paid Rs.21,00,000/- approximately to the opposite party out of total consideration amount of Rs.32,69,000/-. In the mean time the complainant has applied for a home loan in order to purchase the said flat. The loan amounting to Rs.14,00,000/-, as a first instalment, has already been sanctioned by Central Bank of India and the said amount has already been disbursed to the opposite party/ developer directly. It is very relevant and pertinent that the developer is under obligation to pay EMI to the bank in case of delay in deliver of the flat in question. Initially the opposite parties did not pay the due amount of EMI on regular way. The fact remains that the construction work is still pending. The opposite parties are unable to perform the construction work within time. In this respect the complainant has sent so many e-mails and letters with a request to refund the entire amount along with cost and compensation. The opposite parties have adopted a subvention scheme to make good the loss of EMI. The complainant, therefore, is suffering from making payment of EMI for no cause or no fault on the part of him. The complainant has been waiting for a considerable period of time and being exhausted and exasperated he has decided to withdraw the deposited amount along with interest and compensation. There is no chance to deliver the flat to the complainant as the opposite party/developer has failed to complete the same till date. Accordingly the complainant has knocked at the door this Commission for getting proper reliefs as prayed for.
The opposite parties 1 and 2 contested this case by filing written version stating inter alia that as per agreement for sale dated 18/07/2014 the complainant was liable to pay Rs.32,69,000/- towards total consideration amount for the purchase of unit/flat from the opposite parties. The complainant has not paid the entire consideration amount to the ops. The complainant have booked the flat in question for the purpose of resale, hence it does not come well within the purview of the definition of the Consumer as per Consumer Protection Act. The commercial motive is involved in this particular case. By filing this written version it is stated that the delay in delivery has been caused due to force majeure condition. The said delay was beyond the control of the opposite parties. The various material facts relating to delay in delivery of the flat in question have been suppressed in order to misguide the Commission. The instant Consumer Case has no basis at all and accordingly the opposite parties have prayed for dismissal of the instant consumer case with exemplary costs.
The case has been taken up for final hearing.
Ld counsel appearing for the complainant argued that the complainant has booked one self contained flat on the 2nd floor in Block IG 14 measuring area 990 sft (super built up) with open car parking space. The total consideration has been fixed for Rs.32,69,000/- in respect of purchasing the aforesaid flat in question. The ld counsel also argued that he has already paid Rs.20,53,801/- including housing loan amounting to Rs.14,00,000/-. The complainant has paid Rs.6,53,801/- from his own contribution/fund at the time of booking of the said flat. Due to op’s inability they have failed to complete the construction work and to deliver the same within the stipulated period of time. On several occasions the complainant has prayed for refund the entire consideration amount but the opposite parties remains silent. Ld counsel further argued that the complainant has paid the EMI on regular basis. The complainant has suffered immense financial loss and injury for the fault on the part of the opposite parties. Accordingly the ld counsel has prayed for passing necessary order/orders so that the complainant is entitled to get the reliefs as prayed for.
None appeared on behalf of the opposite parties at the time of final hearing.
We have heard the ld advocate appearing for the complainant at length and in full.
We have considered the submissions advanced by the ld counsel appearing for the complainant.
We have perused materials available on the record meticulously.
It is admitted that an agreement for sale dated 18/07/2014 has been executed between the complainant and the opposite parties in respect of purchasing an apartment/unit being identified as unit no D2 on the Floor 2nd in Block IG 14 measuring 990 sft (super built area) and together with the open car parking space. This agreement also reveals that the purchaser/complainant would pay the agreed consideration amount of Rs.32,69,000/- only to the developer/seller in the manner stipulated in the payment schedule. In pursuant to the said agreement, it is revealed that the seller/developer would deliver the possession to the complainant/purchaser within 36 months from the effective date subject to the clause of Force Majeure to be extended further period of 6 months. We have carefully perused the Memo of Consideration at the page no – 15 of the said agreement wherefrom it appears to us that the opposite parties/Vedic Realty Pvt Ltd has already received Rs.6,53,801/- only from the complainant herein as a part consideration amount.
We have carefully perused the supporting document relating to the housing loan wherefrom it appears to us that the loan amount of Rs.27,33,000/- has been sanctioned by the Central Bank of India for the construction/acquiring of new or existing house/flat at D2, Unit no D2, 2nd floor, Block- IG-14. From the said document it is crystal clear to us that total loan period has been fixed for 228 months and EMI amount has also been settled and fixed at Rs.28,343/- (rupees twenty eight thousand three hundred forty three) only.
On 24/05/2023 has been fixed for clarification on point of sanction of loan and other details.
The complainant in person along with his ld advocate appear before this commission on the aforesaid date. The complainant in person has submitted that after sanctioning of loan he paid only two instalments ie Rs. 28,343/- + Rs. 28,343/- = Rs.56,686/- in total. The complainant also fairly submitted that he had already stopped the payment of EMI from the year 2018.
We have further perused a letter dated 17/12/2016 wherefrom it appears to us that the op/Vedic Realty Pvt. Ltd issued a letter addressed to the Branch Manager, Central Bank, stating inter alia that the delay in the project has been badly affected by the local problems and thus there was a delay in completion of the project. By issuing this letter, the op prayed for extension of moratorium period for repayment of EMI of housing loan.
While writing this judgment we find a letter dated 25.01.2018 filed by the complainant in person on 24.05.2023 wherefrom it appears to us that the flat/home has been booked by the complainant under subvention scheme and under such scheme the Central Bank of India has already disbursed certain amount of loan to the op/developer for and on behalf of the complainant.
At this juncture we try to know the actual meaning of the subvention scheme. A subvention scheme is a tripartite arrangement or agreement between the buyer, builder and financial institution/bank for the transaction of an under-construction property. Under such scheme the buyer intends to purchase the property by payment of 5 to 20 percent property cost as a down payment to the builder and the remaining is provided by the financial institution or lender in multiple instalments. In lieu of this, the builder pays the interest to the bank until the subvention period. The subvention period is pre-fixed and is typically the period until the possession of the property is handed over to the buyer.
Thus being the situation we are of the view that the Central Bank of India should be impleaded or added as a necessary party in order to settle the dispute between the parties. In absence of the aforementioned bank concerned it is very difficult for us to settle/dispose of the matter.
Under such circumstances, we are constrained to dismiss the petition of complaint against the opposite party on the ground stated above without any order as to costs.
But the liberty is given to the complainant to file the same afresh before the competent Forum (if permitted by law) within one month from the date of this order.
The cc case stands disposed of accordingly.
Note in the register.
Let a copy of this order be supplied to the parties free of cost.
