Haryana

Ambala

CC/347/2021

Sandeep Virk - Complainant(s)

Versus

M/s Omaxe Chandigarh Extensions Developers Pvt Ltd. - Opp.Party(s)

G.K. Sharma

03 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     347 of 2021

                                                          Date of Institution           :     11.11.2021

                                                          Date of decision    :     03.10.2022.

Sandeep Virk aged about 38 years s/o Jagjiwan Pal Singh, R/o 275, Sector-C, Defence Colony, Ambala Cantt.                                                                                                                                                       ……. Complainant

                                                 VERSUS

 

1. M/s Omaxe Chandigarh Extensions Developers Pvt. Ltd. Registered office at Omaxe City, 111th Milestone, Near Bad ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026 through its Directors/Authorized person/Proper Officer.

Second address:- M/s Omaxe Chandigarh Extensions Developers Pvt. Ltd. Zonal Office at India Trade Tower, Baddi Kurali Road, New Chandigarh, Mullanpur, District SAS Nagar, Punjab through its Directors/Authorized person/Proper Officer.

2. Axis Bank Ltd., Branch office, Khanna Motors Building, Hisar Road, Manav Vihar Ambala City through its Authorized Signatory/ Manager/Proper Officer

Second Address- Axis Bank Ltd. Registered Office at 'Trishul', Third Floor, Opposite Samartheshwar Temple, Law Garden, Ellis Bridge, Ahemdabad-380006 Gujarat through its Authorized Signatory/ Manager/ Proper Officer

Third Address- Axis Bank Ltd. Loan Centre, S.C.O- 350/352, Second Floor, Sector-34-A, Chandigarh, through its Authorized Signatory/Manager/Proper Officer.

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri Himanshu Kaushal, Advocate, counsel for the complainant

                     OP No.1 already ex parte.

                   Shri Rahul Vig, Advocate, counsel for the OP No.2.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To Return/refund the amount of Rs.14,54,000/-, to the complainant alongwith interest @ 18% per annum.

(ii) To Return/refund the amount of Pre EMIS/EMIS i.e. Rs.4,62,651/- to complainant alongwith interest @ 18% per annum.

(iii) To pay the loan amount of flat in dispute i.e. Rs.37,88,793/- OR whatever amount paid by O.P no.2 for   flat in dispute OR the remaining amount of loan of the   flat in dispute alongwith interest @ 18% per annum

(iv). Not to effect the CIBIL score of the complainant till the disposal of this complaint

(v). To pay Rs.10,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.

(vi) To pay Rs.2,00,000/- as litigation expenses.

OR

Grant any other relief, which this Hon'ble Commission deems fit and proper as per the facts and circumstances of this case.

2.             Brief facts of the case are that in the year 2011, OP No.1 allotted  Apartment/flat no.OGD/GT-8/THIRD/303 situated at "Omaxe Greens", Derabassi, District Patiala, Punjab, in favour of the complainant, total sale consideration of which was fixed at Rs.26,62,798/-. Out of the said amount, the complainant had paid an amount of Rs.2,42,000/- vide receipt dated 09-06-2011, Rs.3,78,000/- vide receipt dated 01-03-2012 and Rs.2,34,000/- vide receipt dated 13-07-2012 to O.P No.1. In the year 2014 OP No.1, allured the complainant by rosy pictures with regard to its project namely "The Lake" as part of "OMAXE NEW CHANDIGARH" situated at New Chandigarh, District SAS Nagar, (Punjab). Resultantly, the complainant booked a  flat  in the said project on making booking  amount of Rs.5,00,000/- on 21-08-2014. On 09-04-2015, O.P No.1 adjusted an amount of Rs.5,96,620/- already paid by the complainant towards the earlier  flat, in the new project i.e. "The Lake". On 19-05-2016, another amount of Rs.1,00,000/- was received by OP No.1 from the complainant, in respect of flat measuring 1920 sq.ft. bearing no.TLC/CASPEAN-D/ SEVENTH/ 702". Total cost of the said   flat was fixed at Rs.95,24,496/-. At the time of adjusting the amount of the previous   flat "Omaxe Greens" to the present flat in dispute "The Lake", O.P No.1 had deducted the amount of Rs.2,57,380/- which stood unexplained by it. For making payment towards price of the said flat, the complainant on the arrangements of O.P No.1 obtained housing loan from O.P No.2, under subvention scheme. Under the said scheme, OP No.1 committed to pay Pre EMIS and EMIs to OP No.2 till the delivery of possession of the flat. Loan amount in the sum of Rs.37,88,793/- was released in favour of OP No.1 by OP No.2, under subvention scheme. Thus, the total amount of Rs.52,42,793/- stood paid by the complainant to OP No.1. As per the allotment letter dated 02-08-2016, OP No.1 committed to deliver possession of the flat in question within a total period of 42 months i.e. 36 months plus 6 months grace period from the date of execution of the said allotment letter i.e. latest by 01.02.2020. However, possession of the   flat was not delivered by OP No.1 by the promised date. To the utter shock of the complainant, in the month of August 2020, the O.P no.1 sent an e-mail to complainant that period of subvention scheme as per Tripartite agreement has ended and as such he is liable to pay the EMIs now. In this manner, the complainant was forced to make payment of EMIs to OP No.2 under the threat that failure to pay the same shall entail legal action against him. Number of requests made by the complainant to OP No.1 to complete the construction and deliver possession of the flat did not yield any result. The complainant has already paid the amount of Rs.14,54,000/- to the O.P No.1 and Rs.4,62,651/- to O.P No.2 i.e Axis Bank upto September 2021 towards the   flat in dispute. Under above circumstances, the complainant sent legal notice dated 03-09-2021 to O.P No.1 in the matter but to no avail.  There has been a delay of more than 1 ½ years in delivery of possession of the   flat in question, for want of construction and development activities and also necessary occupation and completion certificates. Hence, the present complaint.
3.           Upon notice, none appeared on behalf of the OP No.1, before this Commission, therefore, he was proceeded against ex-parte vide order dated 21.03.2022
4.           Upon notice, the OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and concealed the true and material facts, bad for non-joinder and mis-joinder of necessary parties and jurisdiction etc. On merits, while admitting factual matrix of the case with regard to the fact that the complainant had obtained housing loan from OP No.2 for making payment to OP No.1, under subvention scheme, it has been stated that the complainant is bound to pay back the debt/ Loan obtained from the OP No.2 as per the terms and conditions of the agreement and the default in making the same will definitely attract legal action against him and the CIBIL as per the banking procedure. OP No.2 is Private Sector Banking working as per Banking procedure. OP No.2 has paid loan amount to OP No.1 only as per the instruction of the complainant, from time to time. Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with costs.
5.           Learned counsel for the complainant tendered affidavit of complainant as Annexure C-A alongwith documents as Annexure C-1 to C-18 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OP No.2 tendered affidavit of Laxmi Pal, Manager/Authorized Signatory Axis Bank Limited, New Grain Market Branch, Ambala City as Annexure OPW1/A alongwith documents Annexure OP-1 to OP-5 and closed the evidence on behalf of the OP No.2.
6.           We have heard the learned counsel for complainant and learned counsel for the OP No.2 and carefully gone through the case file.
7.           Learned counsel for the complainant submitted that despite the fact that the possession of the flat was delivered by 01.02.2020, but neither possession of the flat was delivered to the complainant by the committed date, or even till today nor amount paid by the complainant was refunded. More so, under the subvention scheme, OP No.1 was liable to make payment of EMIs to OP No.2 against the loan amount disbursed in respect of the flat in question, till the possession of the flat is delivered, but OP No.2 demanded the said EMIs from the complainant, which were paid by him till August, 2021. Complainant is thus entitled to get refund of the entire amount paid by him to the OPs. 
8.           On the contrary, the learned counsel for the OP No.2 submitted that since the dispute if any is with regard to non delivery of possession of the flat in question by OP No.1 to the complainant and for this OP No.2 cannot be held liable. He further submitted that the complainant being borrower of the loan in question is liable to pay the EMIs, after completion of subvention period i.e. the period of possession as mentioned in the allotment letter.  
9.           It may be stated here that since neither the purchase of  flat  in question in the project of OP No.1 nor the release of home loan under subvention scheme by OP No.2 in respect of the   flat  in question is disputed, as such, only the following questions need to be decided by this Commission in this consumer complaint:-
   1. Whether this Commission is vested with territorial jurisdiction to entertain and decide this complaint or not?
   2. As to by which date, possession of the flat in question was to be delivered by OP No.1 to the complainant and whether the same has been offered or not?
   3. Whether the complainant was liable to make payment of EMIs to OP No.2 before delivery of possession of the flat  in question or not?
   4.  Whether the complainant is entitled to refund of the amount paid by him to OP No.1 towards price of the said flat?
   5. Whether the complainant is also entitled to get the refund of the amount paid by him to OP No.2 towards EMIs or not?

10.           First coming to the question as to whether this Commission is vested with territorial jurisdiction to entertain and decide this complaint or not, it may be stated here that the complainant has placed on record his aadhar card as Annexure C-1 wherefrom it is evident that he is the resident of House No.275, Sector C, Defence Colony, Ambala. In this view of the matter, this Commission is vested with territorial jurisdiction to entertain this complaint filed by him, in view of the provisions of Section 34 2 (d) of Consumer Protection Act, 2019 which says that a complaint can be instituted in a District Commission within the local limits of whose jurisdiction the complainant resides or personally works for gain. Thus objection taken by OP No.2 regarding territorial jurisdiction does not merit acceptance.
11.           Now coming to the next question, as to by which date, possession of the   flat  in question was to be delivered by OP No.1 to the complainant and whether the same has been offered or not? It may be stated here that perusal of clause 40 (a) of the allotment letter dated 02.08.2016, Annexure-1 establishes that OP No.1 has committed to deliver possession of the flat in question to the complainant within a maximum period of 42 months i.e. 36 months plus grace period of 6 months, from the date of signing of the said allotment letter. Thus, if the total period of 42 months is counted from 02.08.2016, the possession of the   flat was to be delivered latest by 01.02.2020.
12.           Now coming to the next question, as to whether the complainant was liable to make payment of EMIs to OP No.2 before delivery of possession of the   flat  in question or not? It may be stated here that admittedly the loan in question has been obtained by the complainant from OP No.1 under subvention scheme, for which tripartite agreement dated 15.10.2016, Annexure OP-4 was executed between the complainant, OP No.1 and OP No.2. It is significant to mention here that in clause 22 of the said tripartite agreement, the period as to for which, the builder/OP No.1 has agreed to pay the interest on behalf of the complainant, under subvention scheme, has been left blank. Even in clause 23, the period for which the builder/OP No.1 has agreed to deduct upfront interest has also been left blank. OP No.2 has failed to give any justification, as to how and why, the said columns have been left blank. On the other hand, learned counsel for the complainant has strongly contended that at the time of execution of tripartite agreement, it was clearly settled between the parties that the OP No.1 will pay EMIs to OP No.2, under subvention scheme, till possession of the flat is delivered to the complainant.  From the conjoint reading of clauses 22 and 23 it can easily be said that it was the builder/OP No.1 which was liable to pay the EMIs to OP No.2 on the loan amount, under subvention scheme, till possession of the flat in question is delivered to the complainant. It was not fair on the part of the OP No.2 to demand the EMIs from the complainant, in the absence of delivery of possession of the flat in question.
13.           The next question that needs consideration is, as to whether the complainant is entitled to refund of the amount paid by him to OP No.1 towards price of the said flat? It may be stated here that it is the definite case of the complainant that despite the fact that possession of the flat in question was to be delivered by 01.02.2020, but, OP No.1 failed to deliver the same for want of construction and development activities and also occupation and completion certificates. He has also placed on record the legal notice dated 03.09.2021, Annexure C-10 having been sent to OP No.1 in the matter and has also placed on record photographs of the project site, Annexure C-16, which have been clicked by him on 31.05.2022, perusal of which is sufficient to hold that the project is nowhere near completion. Learned counsel for the complainant has also contended vehemently that the complainant has made number of request to OP No.1 to complete the construction and deliver possession of his flat but it is not paying any intention to the same.

                   In this view of the matter, it is held that only OP No.1 was to contest the allegations levelled by the complainant against it.However, as stated above, notice of this complaint was sent to OP No.1 seeking its version of the case, yet, nobody appeared on its behalf, despite service, therefore, it was proceeded ex-parte vide order dated 21.03.2022. This act of the OP No.1 draws an adverse inference against it. The non-appearance of the OP No.1 shows that it has nothing to say in its defence against the allegations made by the complainant. Therefore, the assertions of the complainant went unrebutted & uncontroverted. The OP No.1 by neither delivering the possession of the flat by the committed date nor refunding the amount paid by the complainant towards the flat in question, has caused a lot of mental agony and physical harassment to the complainant, which act amounts to deficiency in providing service and adoption of unfair trade practice on the part of OP No.1. The complainant is therefore held entitled to get his amount back alongwith interest, in view of ratio of law laid down by the Hon’ble Supreme Court of India in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and M/s Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442, in which it was held that non-delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of a builder and in those circumstances, the purchaser is well within his/her right to seek refund of the amount paid.

14.           The next question that needs consideration of this Commission is, as to whether the complainant is also entitled to get the refund of the amount paid by him to OP No.2 towards EMIs or not? It may be stated here because we have already held above that from the conjoint reading of clauses 22 and 23 it can easily be said that it was the builder/OP No.1 which was liable to pay the EMIs to OP No.2 on the loan amount, till possession of the flat in question is delivered to the complainant and it was not fair on the part of the OP No.2 to demand the EMIs from the complainant, in the absence of delivery of possession of the flat in question. Therefore, it is held that the complainant is entitled to get refund of the amount paid by him to OP No.2 towards EMIs of housing loan.
15.   In this view of the matter, we hold that OP No.1 is not only liable to refund the amount paid by the complainant to it but is also liable to refund the amount paid by the complainant to the OP No.2 towards the EMIs alongwith interest. Since, in the present case, there has been an inordinate delay in the matter, as such, if we order refund of the amount paid by the complainant alongwith interest @ 9% per annum from the respective dates of deposit, in view of the principle of law laid down by the larger Bench of Hon’ble National Commission in the case of Vinod Gupta and Anr. Vs. Emaar MGF Land Limited & Ors., Consumer Case No.3198 of 2017, decided on 04.07.2022, that will meet the ends of justice. OP No.1 is also liable to pay compensation on account of mental agony and physical harassment suffered by the complainant  alongwith litigation expenses.
16. Since, we have already concluded that the OP No.1 is liable to refund the amount paid by the complainant towards the EMIs to the OP No.2, therefore, the complaint filed by the complainant against the OP No.2 is liable to be dismissed.
17.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and allow the same against OP no.1 and direct it, in the following manner:-
    1. To refund the amount of Rs.14,54,000/- to the complainant, which has been paid by him from his pocket for the said flat, and also the amount of EMIs paid by him to OP No.2 alongwith interest @9% p.a., from the respective dates of deposit onwards within a period of 45 days from the date of receipt of a certified copy of this order failing which these amounts shall further entail penal interest @10% p.a. from the date of default till realization. 
    2. To refund the entire loan amount disbursed to it (OP No.1) by OP No.2 in respect of the flat in question and also to pay the pending EMIs, if any, to OP No.2 in respect of the flat in question. However, it is made clear that OP No.1 shall be liable to make the payment of future EMIs to OP No.2, till the time, the entire loan amount is paid by it to OP No.2. 
    3. To pay compensation to the tune of Rs.5,000/-for causing mental agony and harassment to the complainant and also Rs.3,000/- as cost of litigation, within a period of 45 days from the date of receipt of a certified copy of this order failing which these amounts shall entail interest @4% p.a. from the date of default till realization. 

Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 

Announced on: 03.10.2022.

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President