Delhi

StateCommission

CC/421/2014

MR. SOMESHWAR MUKHERJEE - Complainant(s)

Versus

M/S GANPATI BUILDER - Opp.Party(s)

02 May 2019

ORDER

 

Note: Address of OP corrected

vide order dt.19.07.19

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :02.05.2019

Date of Decision : 16.05.2019

COMPLAINT NO.421 /2014

In the matter of:

 

Mr. Someshwar Mukherjee,

Flat No.601, D-Block,

Salarpuria Sancity Apartment,

Sarjapur Road, Bangalore

•  

Versus

 

M/s. Ganpati Builder,

Through its Director

Mr. Ritesh Tiwari,

316, 3^rd Floor,

Dreamland, 1/18-B,

Asaf Ali Road,

New Delhi-110002.….Opposite Party

                            

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The complainant has come forward on the allegations that he booked flat no.S-204, Emrald Gold Apartments, Kishanpur, Dehradun from OP vide agreement dated 14.12.06 for Rs.28,33,600/- alongwith interest @18% per annum. He availed home loan from the Axis Bank vide agreement dated 23.12.06 for Rs.22,75,000/- to be repaid in 240 EMIs of Rs.20,967/-, tripartite agreement of the even date was entered into with the Axis Bank. The possession was to be delivered in June, 2008. OP failed to deliver possession despite repeated requests. Complainant sent letter dated 04.08.09 requesting OP to terminate/ cancel the agreement and refund the loan amount sanctioned by bank as per clause 15 of the tripartite agreement. OP did not heed to the request of the complainant, Axis Bank issued notice dated 28.10.09 to the complainant terminated the  loan agreement due to some default in paying EMIs. Complainant sent letter dated 09.11.09 authorising bank to proceed against OP to recover loan as per clause 15 of the tripartite agreement. Axis Bank issued notice dated 12.11.09 to the OP calling upon the OP to cancel allotment of flat in favour of complainant and refund the loan amount to the bank after selling the property.
2. OP informed the complainant vide letter dated 18.11.09 that flat was ready for possession and requested him to pay the charges in respect of electricity, water and parking etc. OP also requested complainant to purchase stamp papers for execution and registration of sale deed. Before receiving the said letter the complainant sent letter dated 19.11.09 requesting for termination of agreement or giving possession of the property. On receiving letter dated 18.11.09 from OP, complainant inspected site and  issued letter dated 08.02.10 highlighting the incomplete state of construction, while still expressing his willingness for execution and registration of sale deed. He also mentioned that he was willing to complete all the formalities like NOC from Bank.
3. In September, 2010 the complainant permanently relocated to South India and got settled in Bangalore. Following up with OP became a challenge, he had to pay rent in Bangalore alongwith the EMIs, he was under great financial burden, with hardship he was eventually able to achieve closure of the home loan with Axis Bank in August, 2012.
4. Till filing of complaint in 2014 he was making hectic efforts to get possession of the flat but OP failed to terminate/ cancel the agreement by refunding loan amount to bank or to deliver possession to the complainant. The act of the OP tentamount to deficiency in service. Legal notice dated 04.07.14 was served. Hence this complaint for directing OP to pay Rs.26,91,920/- alongwith interest @18% per annum, Rs.10 lakhs as compensation towards financial loss and mental agony and physical harassment. He has also prayed for cost.
5. OP filed a WS raising preliminary objection that there is no cause of action, complainant himself is guilty of non complying with the terms and conditions, this Commission has no jurisdiction as clause 20 of the agreement provides for arbitration, the petition is bad for non joinder of necessary parties i.e. Axis Bank. The flat had been lying ready and complete in all respects for possession being handed over to the complainant, on payment of balance sale consideration, interest and other charges etc. and subject to furnishing NOC from Axis Bank which had advanced financial assistance to the complainant for purchase of flat. Complainant himself neglected to do the needful since the year 2008-09. Letter dated 18.11.09 was issued by OP. The project had been completed long ago and about more than 15 sale deed details of which are mentioned in preliminary objection no.12, have already been executed and registered in favour of buyers who had taken possession and are living with their families. The sale deed pertain to the year 2009, 2010, 2011 and  2016.
6. On merits the OP stated that on account of recession in the real estate market complainant had lost interest in purchasing the flat. So he has concocted the story to shift his liability to the OP. The OP sent reminder dated 18.11.09. It denied that complainant had obtained NOC from Axis Bank. It denied liability to pay interest @18% per annum or entitlement of complainant to recover Rs.10 lakhs as compensation. It prayed for dismissal of the complaint.
7. The complaiannt filed his affidavit in evidence. On the other hand the OP filed affidavit of Shri Ritesh Tiwari in evidence.
8. Both the parties have filed written arguments. I have gone through the material on record and heard arguments.
9. The counsel for the OP drew my attention towards para-9 of the allotment letter copy which is at pages-25 to 30 of the bunch of complaint. The same recites that no claim by way of damages/ compensation shall lie for any reasons against the builder. He also drew my attention towards clause 15 of the tripartite agreement copy of which is at pages 1-35 which recites that OP was entitled to retain non refundable earnest money, if any, and/ or any other amount which may be retained by OP under agreement to sell. The balance amount was to be refunded to the borrower.
10. The OP also referred to letter dated 04.08.09 from complainant to OP copy of which is at page 38. In this letter the complainant had stated that due to unusual delay in giving possession and due to repeated failure to pay EMIs on his behalf as committed, he wished to surrender the property and cancel the agreement with immediate effect. He requested to clear all the loan amount sanctioned by Axis Bank./
11. Bare perusal of the complaint shows that complainant was in a fix. To start with  he wrote letter dated 04.08.09 surrendering the flat. On 19.11.09 he wrote a letter requesting for either termination of the agreement or giving possession. It does not make out any meaning. He requested  for both the options simultaneously. Further he wrote letter dated 08.12.10 highlighting State of construction, while still expressing his willingness for execution and registration of the sale deed in his favour. Then in September, 2010 he permanently relocated to South India and got settled in Bangalore. He has mentioned in para-7 of the complaint that it was with greater difficulty that he was able to achieve closure of home loan with Axis Bank. In the next para viz para-8 he stated that till filing complaint in September, 2014 he was making hectic efforts to get possession. I am unable to reconcile the conduct of the complainant. The cost of the flat was Rs.28,33,600/-, according to complainant’s own case he paid Rs.26,91,920/- only including bank loan. Thus he himself was a defaulter in paying the balance amount. Such a person is not entitled to interest as per decision of NC in FA No.6/14 titled as Randhir Singh vs. Omaxe decided on 27.11.14 and decision of Hon’ble Supreme Court in Huda vs. Raje Ram AIR 2009 Supreme Court 2030.
12. This is more so when clause no.9 of the allotment letter provided that no claim by way damages/ compensation would lie for any reasons against the builder. This appears in the clause providing for completion of flat by June, 2008. The later clause read together lead to the inference that OP was not to pay any compensation/ interest. There is no other clause in the  agreement providing for payment of interest by the OP. It is settled law that parties are bound by agreement and Consumer Foras can not go beyond agreement as per decision of Hon’ble Supreme Court in Bharati Knitting Company vs. DHL Worldwide express Courier II (1996) CPJ 25.
13. In Dr. K.D. Soni vs. Haryana Urban Development Authority IV (2017) CPJ 159 NC held that Consumer Court can not go into virus of the agreement.
14. However I do not find any merit in the contention of OP that it could retain non refundable earnest money and/ or any other amount as mentioned in clause 15 of the tripartite agreement. The reason being that buyer agreement does not provide for any earnest money or fore feature thereof.
15. There is no force in the objection of the OP that jurisdiction of this Commission is barred in view of arbitration clause. In taking this view I am fortified by recent decision of Hon’ble Supreme Court ion Emaar MGF Land Ltd. vs. Aftab Singh I (2019) CPJ 5 SC.
16. The contention of the OP that complainant lost interest in flat due to recession in real estate market appears to be sound. This is a reason why complainant was changing his stand from time to time. At one juncture he wanted cancellation, in second thought he wanted flat.
17. To sum up the OP is directed to refund Rs.26,91,920/- within one month from receipt of copy of this order. In the event of failure to do so. Op will be liable to pay interest also @9% per annum from the date of filing the complaint till the date of refund.
18. Copy of the order be sent to both the parties free of cost.
19. File be consigned to record room.

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)