Delhi

North East

CC/100/2021

Anuj Garg - Complainant(s)

Versus

Gayatri Infra Planners Pvt. Ltd. - Opp.Party(s)

28 Aug 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.100/21

 

In the matter of:

	Shri. Anuj Garg, S/o Shri Ravinder Kumar Garg, R/o Flat No. 1105, B-5, Panchsheel Greens 2, Sector 16-B, Greater Noida West, Gautam Budh Nagar, Uttar Pradesh	Complainant
	Versus
1.           2.           3.	Gayatri Infra Planner Pvt. Ltd., Through its Authorized Representative, 1/7098, 2nd Floor, Gali No. 5, Shivaji Park, Shahdara, Delhi 110032   Tata Capital Housing Finance Ltd., Through its Authorized Representative, 2nd Floor, 16 Shankar Vihar, Main Vikash Marg, New Delhi, Delhi 110092   Anusha Engineering Consultants and Construction Pvt. Ltd., Through its Authorized Representative, 1/7098, 2nd Floor, Gali No. 5, Shivaji Park, Shahdara, Delhi 110032	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:                         DATE OF ORDER  :

11.08.2021 28.05.2024 28.08.2024

 

 

CORAM:

Surinder Kumar Sharma, President

Adarsh Nain, Member

 

 

ORDER

Surinder Kumar Sharma, President

The Complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the agent of the Opposite Party No. 1 approached him and offered two flats in the Gayatri Life project. Complainant stated that he booked two flats bearing flat no. T-0102, 1^st Floor, Tower Terra and flat no. B-0206, 2^nd Floor, Tower Breeze with the Opposite Parties. Complainant stated that he got allotment letter of the said flats after paying Rs. 2,06,042/- for flat no. T-0102 and Rs. 3,54,823/- for flat no. B-0206 vide allotment cum Buyer Agreement dated 13.02.2017 and 25.02.2017 respectively.  Complainant stated that he was sectioned home loan upon both the flats with Opposite Party No. 2 and two Quadripartite Agreements dated 25.02.2017 was signed which was in form of the subvention agreement wherein a loan was sanctioned in favour of the Complainant of the flat against the flat being the collateral mortgaged security. Complainant stated that in such subvention scheme, Opposite Party No. 1 undertook to pay the pre-monthly instalments interest payment till 08.01.2018 to Opposite Party No. 2. Complainant stated that corporate debtor defaulted in payment under such extended subvention scheme which was extended for six months i.e. till 09.06.2018 and subvention period of project no. 2 was extended for 12 months i.e. till 09.12.2018. Complainant stated that Opposite Party No. 1 paid Pre-EMI for some period but after some time started making default in paying the EMI to Opposite Party No. 2 and due to this Opposite Party No. 2 deducted the same from the account of the Complainant but same was sorted between the Complainant and Opposite Party No. 2 and Opposite Party No. 2 refunded the amount. Complainant stated that Opposite Party No. 1 defaulted in paying the Pre EMI amounts to deficiency in service and it is clearly a violation of the Quadripartite Agreement. Complainant approached Opposite Party No. 1 for clarification as to no adherence by the Opposite Party No. 1 to subvention scheme but Opposite Party No. 1 did not give any proper reply. Complainant stated that he also came to know that Opposite Party No. 1 had abandoned the housing project as no construction was done by the Opposite Party No. 1 as per the allotment letter. Complainant stated that due to lackadaisical attitude of the Opposite Party No. 1, the Complainant cancelled the allotment of flat vide email dated 29.09.2018. Complainant filed a petition before the Hon’ble NCLT for refund of the booking amount and in this regard Opposite Party No. 2 wished to settle the dispute amicably. Complainant stated that on the assurance of the Opposite Party No. 2 and entered into settlement agreement on 28.03.2019, Complainant withdrew the petition from the NCLT but Opposite Party No. 1 did not comply the same even after the lapse of more than 02 years. Hence, this shows the deficiency of service on the part of Opposite Parties. Complainant has prayed for refunding the booking amount i.e. Rs. 5,60,865/- along with interest @ 18 % p.a. from the date of deposit. Complainant also prayed for an amount of Rs. 10,00,000/- as compensation  and Rs. 1,00,000/- on account of litigation expenses. Complainant also prayed for settlement of the loan amount along with accrued interest to Opposite Party No. 2.
2. None has appeared on behalf of the Opposite Party No. 1 and Opposite Party No. 3 to contest the case despite service of notice. Therefore, Opposite Party No. 1 and Opposite Party No. 3 were proceeded against ex-parte vide order dated 08.09.2022.

Case of the Opposite Party No. 2

3. Opposite Party No. 2 contested the case and filed its written statement. It is stated that the complaint is not maintainable as there is an arbitration clause in the agreement. The Complainant approached it for loan for purchasing the two flats. On the request of the Complainant, Opposite Party No. 2 agreed to sanction the loan and according two Quadripartite Agreements were executed on 25.02.2017. Two separate loan of Rs. 54,35,000/- and Rs. 31,50,000/- were sanction in favour of the Complainant against the said flats. The Complainant was required to pay the Pre-MII interest and EMI as per the terms of agreement. The Complainant did not pay the said Pre-MMI interest and EMI as per the terms of agreement. The Opposite Party No. 2 has stated that it has the right to recover the loan amount from the Complainant. It is prayed that the complaint may be dismissed.

Rejoinder to the written statement of Opposite Party No. 2

4. The Complainant filed rejoinder to the written statement of Opposite Party No. 2, wherein the Complainant has denied the pleas raised by the Opposite Party No. 2 and has reiterated the assertion made in the complaint.

Evidence of the Complainant

5. The Complainant in support of his case filed his affidavit wherein he has supported the assertions made in the complaint.

Evidence of the Opposite Party No. 2

6. To support its case Opposite Party No. 2 has filed affidavit of Shri. Vicky Grover, wherein, he has supported the case of the Opposite Party No. 2 as mentioned in the written statement.

Arguments & Conclusion

7. We have heard the Ld. Counsel for the Complainant and Opposite Party No. 2. We have also perused the file and written arguments filed by the parties. The case of the Complainant is that he has booked two flats with Opposite Party No. 1 and he was allotted two flats bearing flat no. T-0102 1^st floor, Tower Terra and flat no. B-0206, 2^nd Floor, Tower Breeze in the project of the Opposite Parties. The Complainant was given allotment letter regarding the said two flats and he paid Rs. 2,06,042/- for flat no. T-0102 and Rs. 3,54,823/- for flat no. B-0206. His case is that thus he made down payment of  Rs. 5,60,923/-. The Complainant was sanctioned home loan for both the said flats by Opposite Party No. 2 and two Quadripartite Agreements dated 25.02.2017 were signed by him. The case of the Complainant is that the Opposite Party No. 1 has abandoned the project and no construction was done by Opposite Party No. 1. The Complainant, therefore, canceled the allotment vide email dated 29.09.2018. Thereafter, the Complainant approached the Hon’ble National Company Law Tribunal for refund of the booking amount.
8. Admittedly, the Complainant has filed a petition before the NCLT for refund of the booking amount. During the pendency of this petition, the matter was settled and the Complainant withdrew the petition. The grievance of the Complainant is that the Opposite Party No. 1 has not complied the terms and conditions of the settlement. The Complainant has also filed copy of the said agreement/settlement. The relevant terms of the settlement are reproduced as under:-

2.       That considering the interests and sufferings of both parties to this agreement, it has been agreed that the second Party shall relinquish all its claim of any nature, whatsoever towards own contribution paid by the second party against the both units and shall stand forfeited and First Party shall be liable to settle the both aforesaid loan accounts with Tata Capital Housing Finance Limited, entirely on the cost of the First Party. Any charges, penal or otherwise with respect to settlement of aforesaid both loan accounts shall be born solely by the First Party only.

C. That the aforesaid settlement of the both loan accounts shall be done by the First Party within 4 (four) months from the date of execution of this agreement with a grace period of 30 days thereof.”

 

9. In view of the above settlement, the Complainant has admitted that the down payment made by him regarding the allotment of flats was to be forfeited. Therefore, the Complainant is not entitled for refund of any booking amount in respect of the flats. The Complainant has also prayed for settlement of the loan amount with Opposite Party No. 2. As per the terms of the settlement, the loan was to be settled by Opposite Party No. 1. In our opinion, if there is any violation of the terms of agreement, the Complainant should approach the proper Forum i.e. before whom the settlement was arrived at. Moreover, the Complainant has not given any detail of the payment which is to be made to Opposite Party No. 2 nor the Opposite Party No. 2 has given any detail of the payment due towards the Complainant/Opposite Party No. 1. Nor any cogent evidence has been led by the Complainant in this regard. Further, it is also important to be noted that this is a complicated question of fact/calculation regarding the loan repayment and this cannot be adjudicated by this Commission by way of summary trial.
10. In view of the above discussion, we do not see any merit in the complaint. Hence, the complaint is dismissed.
11. Order announced on 28.08.2024.

Copy of this order be given to the parties free of cost

File be consigned to Record Room.

(Adarsh Nain)		(Surinder Kumar Sharma)
(Member)		(President)