Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainants by filing this complaint have submitted that they purchased one flat from M/s. Larica Estates Ltd. on payment of entire amount of Rs.4,25,200/- and ultimately on 25-07-2010 registered Deed of Sale executed by the OP1 and possession was also handed over and for the purpose of payment of the instalment of the said agreement to sale complainant took a loan from OP2 and OP1 was agreed to receive the said money from OP2 time to time as per agreement and endorsement of the agreement OP1 should have collect the loan instalment from the OP2 at the time of roof casting, but the OP1 on completion of the project  demanded the money for which the OP2 asked the complainants to pay interest of Rs.5,387 for the month of June, 2012 and July, 2012, otherwise the loan instalment would not be released and accordingly on payment of Rs.5,387/- OP released the same in favour of the OP1 and registered on 25-07-2012 and possession was delivered as per prospectus EMIs started after possession but the OP1 claiming that notional possession has been delivered on 11-06-2012 but unfortunately the OP1 did not collect the last instalment during the period of roof casting and in connivance with OP2 compelled the complainants to pay the interest of Rs.5,387/- and in fact, there was no scope on the part of the OP2 to release advance interest against said amount for which loan was taken for disbursement of last instalment was paid on 25-07-2012 by OP2 in favour of OP1. 

In the above circumstances complainants have prayed for directing the OPs to return a sum of Rs.5,387/- which has been illegally taken from the complainant as interest of the loan amount and it is no doubt an unfair trade practice on the part of the OPs and for which the complaint was filed

On the other hand, OP2 Dewan Housing Finance Corporation Ltd. has submitted as per tripartite agreement in between the complainants and the OP2 to contact with the officials of OP2 because the arrear interest of Rs.5387/- on the loan from the months of June and July, 2012 was not paid to the OP2 and it was also stated by the OP2 that the same was payable by the OP1 and in default of the payment of said arrear interest the last instalment of Rs.85,040/- could not be released by the OP2 in favour of the OP1 and as and when it come to the knowledge of the complainants, the complainants willfully and intentionally paid the said arrear interest to the OP2 for immediate release of the said instalment in favour of the OP1.  So the allegation made by the complainants against the OP2 is false and fabricated.

It is specifically mentioned by the OP2 that OP2 did not charge any illegal interest in connivance with the OP1 on the complainants.  On the contrary complainants intentionally and willfully paid the same, so there is no laches on the part of the OP2 and for which the complaint should be dismissed.

On the other hand OP1 by filing written objection submitted that complainants were intimated by a letter dated 11-06-2012 for taking possession and after clearing last instalment of his flat being flat No.41/2002 measuring 391 sq. ft. super built up area but the complainants even after receiving the said letter dated 11-06-2012 informed the OP2 on 28-06-2012 requesting to pay balance instalment amount within 10-07-2012 to OP1 instead to make payment in the month of June, 2012.  But complainant never stated anywhere when he took possession of the flat and as because the OP received instalment in the month of June, 2012 despite of such information of possession and tactically evaded to make payment to OP1 in the month of June, 2012 and complainants were aware of the fact that if he takes possession in the month of June, 2012 then regular EMI will start in the month of June, 2012.  However, the balance payment of instalment ought to be made by the complainant in the month of June, 2012 after receiving the possession letter dated 11-06-2012 from the OP1 but the complainant instead of making balance payment in the month of June, 2012, informed the OP2 to make payment to the OP1 on or before 10-07-2012 vide his letter dated 28-06-2012. So, it is clear case of misconception by the complainants about the pre-EMI concept wherein the developer shall pay the interest portion to the loan sanctioning authority on behalf of the borrower during entire construction period and letter to that effect was also sent to the complainant on 11-06-2012 and fact remains OP1 paid Rs.815/- as broken period of the month of June, 2012 and practically as per provision first regular EMI will start after getting possession of the flat and when the letter was issued on the complainants on 11-06-2012 then complainants were compelled to pay the same and as because the complainants did not pay the same so EMI was started from June, so complainant is accountable to the OP2 and similarly OP2 is accountable to the complainant for such payment of Rs.4,572/- as interest before taking possession.  So, the present complaint is not accountable against the OP1.

Decision with Reasons

On proper consideration of the complaint and written version including written arguments filed by Ld. Lawyers of both the parties and further on overall evaluation as filed by the complainant in agreement to sale and other materials in between the complainant and the OP1 and also the fact of receiving the letter dated 11-06-2012 by the OP1 requesting the complainants to take possessions after clearing the dues but truth is that complainants took loan from OP2 and last instalment of Rs.85,040/- was paid by the OP2        to the OP1 on 15-07-2012 and Deed of Sale was registered and physical possession was given to the complainant and as per agreement in between the complainant and OP2 the complainant is liable to pay the interest of the said EMI on and from the date of delivery of possession of the flat.  So, OP1 no doubt charged such amount i.e. Rs.4,572/- but in respect of that charging of interest by the OP2 OP1 has no responsibility but fact remains as per direction of the complainant OP shall have to pay the EMIs against the loan account as given in favour of the complainants in favour of the OP1 because there was no agreement of getting loan by the OP1 on behalf of the complainants from the OP2 was discharge liability of the complainants to discharge his part of performance as per agreement of loan and no doubt as per letter of the OP1 dated 11-06-2012 it is clear that OP1 sent letter to the complainant and complainant received it on 20-06-2012                    but did not receive the last instalment for which ultimately complainants reported the OP2 to release last instalment Rs.85,040/- in favour of the OP1 only on 28-06-2012 intimated the OP1 to pay the sum in 10-07-2012.  Accordingly, OP2 ultimately release the said amount and on 25-07-2012 the deed of sale executed and final possession letter was handed over by delivery of flat.  So, considering that fact it is clear that it was filed on the part of the complainant by taking possession of the flat and for registration of the same by June, 2013 but that was not done because complainants had been advised to his financier OP2 to release the said amount in favour of the OP1 so it was the fault on the part of the complainants.  So, OP is not liable to pay any sort of relief in favour of the complainants.

          But fact remains complainants has not produced tripartite agreement in between the complainant and the OPs at the same time the terms and conditions of the said financial loan account.  Whatever it may be it is not as clear how much loan was taken by the complainants from OP2 and what were the conditions of the disbursement of the said loan as per whose instruction.  On the contrary it is found that complainants have tried to say that this realization of interest by the OP2 is illegal and and uncalled for and before disbursement of loan amount and before taking possession of the flat OP2 cannot charge such interest amount but OP2 illegally collected it from the complainant and release the loan amount and no doubt it is an unfair trade practice on the part of the OP2.

          Considering this above factor allegation as made by the OPs and we are convinced to hold from the complainants and OPs version including the final deed of sale in respect of flat dated 25-07-2012 the final disbursement was made by the OP in favour of the OP1 in respect of the flat i.e. last instalment of Rs.85,040/- by OP2 in favour of the OP1 only on 25-07-2012.  So, before 25-07-2012 OP2 cannot charge any interest over the said amount which has not been released prior to 25-07-2012 but it is proved that OP2 charged interest over the loan amount for the month of June and July but it is the RBI Rules till disbursement of the full amount by the financial bank or non-banking authority no interest can be charged by any financial or non-banking institute who has its license to run financial institution granted by the RBI no doubt in this case OP2 is a financier or corporation they have their license from RBI and so, OP2 cannot charge any advance interest before in the month of June and July on the ground of last instalment so, disburse only on 25-07-2012 in favour of OP1 so the act of the OP2 is no doubt uncalled for and against the provision of law and practically OP2 by creating pressure and force upon complainants collected that amount of interest before realizing the disbursing amount of loan in favour of the OP1 which is no doubt uncalled for and against the RBI Rules and by adopting such procedure no doubt OP2 is proved to have committed unfair trade practice and no doubt complainant is entitled to get back it from OP2 only and OP2 shall have to refund the said amount of Rs.4,572/- along with compensation and litigation cost.

          Thus complaint succeeds against OP2 and fails against OP1.

Hence,

Ordered

That the case be and the same is allowed on contest against OP2 with a cost of Rs.2,500/- and same is dismissed against the OP1 without any cost.

          OP2 is hereby directed to refund and pay a sum of Rs.4,572/- and also have causing such mental pain and agony and for unfair trade practice OP2 shall have to pay Rs.3,000/- as compensation to the complainant and accordingly OP2 shall have to pay Rs.4,572/- + Rs.2,500/- for litigation cost + Rs.3,000/- as compensation i.e. totally Rs.10,072/- to the complainants within one month from the date of this order failing which for non-compliance of the Forum’s order and disobedience of the Forum’s order OP2 shall have to pay a punitive damages and interest @Rs.100/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum. 

          OP2 is hereby directed to comply the order very strictly within one month from the date of this order failing which penal action shall be taken against him for which he may imposed penalty and fine as per provision of Section 27 of the C.P. Act.