Orissa

Cuttak

CC/65/2017

DR Mrunmaya Kumar Mohanty - Complainant(s)

Versus

M/s Shree Baladevjew Infrastructure Private Limited - Opp.Party(s)

B R Behera

24 Jan 2020

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.65/2017

                1.           Dr. Mrunmaya Kumar Mohanty,

S/O: Prasanna Kumar Mohanty.

 

                2.            Smt. Prajyoti Rout,

                                W/O: Dr. Mrunmaya Kumar Mohanty,

 

                                Both are residents of Ranihat,

                 Gopal Sahi,PO:Buxibazar,

                 P.S:Mangalabag,Dist:Cuttack.                                                                     … Complainants.

 

                                                Vrs.

                1.            Director Sri Durga Prasanna Mishra,

M/s. Shree Baladevjew Infrastructure Pvt. Ltd.,

Regd. Office at Badakesharpur,Manguli,

Cuttack-753021.

At present At:Madhusudan Nagar,

Near Dear Park,PO:Tulsipur,

P.S:Bidanasi,Dist:Cuttack.

 

2.           M/s. Tulsi Spices and Foods Pvt. Ltd.,

Regd. Office at Gopabandhu Nagar,

Jagatpur,Cuttack,Represented through

its Director,Smt. Mitali Madhusmita Rath,

W/O:Durga Prasanna Mishra,

Presently residing at Madhusudan Nagar,

Near Deer Park,PO:Tulsipur,

P.S:Bidanasi,Dist:Cuttack.

 

3.            Dewan Housing Finance Corporation Ltd.,

Regd. Office at Warden House,2^nd Floor,

Sir P.M.Road,Fort,Mumbai-400001 and

Branch Office at 101,Aditya Plaza,10-Bhouma Nagar,

Unit-4,Bhubaneswar, represented

Through its Branch Head-cum=-Authorized Officer.

 

4.            The Branch Manager,

State Bank of India,

Parlakhemundi Branch,Paralakhemundi.                                         … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    08.05.2017

Date of Order:  24.1.2020

 

For the complainant.  :    Sri Bidesh Ranjan Behera,Adv. & Associates.

For the O.Ps.1 & 2       :    Sri S.K.Parida,Adv. & Associates.

For the O.P No.3         :                 None.

For the O.P No.4         :    Sri A.K.Panigrahi,Adv. & Associates.

 

Smt. Sarmistha Nath,Member(W).

 

                The complainant has filed this complaint before this Forum against the O.Ps for Redressal of his grievances Under Section-12 of the Consumer Protection Act,1986(Act in short) in terms of his prayer made in the complaint petition  alleging deficiency in service provided and unfair trade practice adopted by the O.Ps.

1. The case of the complainant in brief is that the complainants desired to purchase an Apartment/Flat in the proposed multi-storied housing complex in the name and style  ‘TULSI GARDEN” at Manguli,Cuttack for which the complainant No.2 paid the booking amount of Rs.1,10,000/- on 23.10.2011 and Rs.55,000/- on 7.3.2012 to the O.P No.1 pursuant to which the sale and construction agreement was entered into on 7.3.12 by M/s. Shree Baladevjew infrastructure Pvt. Ltd.(O.P No.1) and the complainant No.2.  Copy of the sale and construction agreement dt.7.3.12 is annexed as Annexure-1.

The agreement dt.7.3.12 was superseded by another tripartite agreement between O.P No.1& 2 and the complainant No.2 on 29.8.13 for sale and construction, according to which the construction was to be completed within a period of two years and six months from the date of the said agreement.Copy of the agreement between O.P No.1,2 & the complainant no.2 for sale and construction dt.19.8.13 is as Annexure-2.

M/s Tulsi Spices and Foods Pvt. Ltd., represented through its Managing Director, Smt. Mitali Madhusmita Rath, W/O: Durga Prasanna Mishra is the recorded owner of the schedule property.The said recorded owner of the property entered into a Notarized joint venture agreement dt.7.10.11 with M/s. Shree Baladevjew Infrastructure Pvt. Ltd. which is an associate company of O.P No.2 and also executed a registered Power of Attorney dt.7.10.11 in its favour.Copies of the RORs downloaded from Bhulekh are as Anenxure-3 series.

The O.P No.1 company suggested and insisted the complainants to avail loan from Dewan Housing Finance Corporation Ltd.,Bhubaneswar(Here-in-after referred to as DHFL)and induced that if the complainants will avail loan from the said financial institution then the Pre-Equated monthly installment(PEMI) amount will be paid by the O.P NO.1.Company every month till delivery of possession of the flat and being induced by the O.P No.1 the complainants applied for loan before the said financial institution of Bhubaneswar and accordingly loan was sanctioned on 12.9.13 under the advance disbursement facility for an amount of Rs.10,40,862/- (Rupees ten lakhs forty thousand eight hundred sixty two only) for the purpose of purchase of flat with 240 months of terms of repayment and EMI was fixed at Rs.10,929/-.Accordingly, the O.P No.3 had disbursed in favour of O.P No.1 an amount of Rs.3,02,000/- on 15.10.13, Rs.33,612/- was deducted as single premium towards Home Loan Linked Insurance and Rs.1,21,000/- on 30.6.14.Copy of the forwarding letter dt.6.11.13 sanction letter dt.12.9.13, loan repayment schedule, loan agreement insurance certificate and provisional certificate for claiming deduction are as Annexure-4 series.On 14.9.13 at the behest of O.P No.1 company, the complainant no.2 entered into a tripartite agreement for grant of housing loan for the purpose of apartment/flat.In the said tripartite agreement, the builder (O.P No.1) had declared that they have taken a project loan on the said project and the builder had undertaken that they will provide necessary NOC/Release letter from DHFL—O.P No.3 before disbursement of loan and thereafter the Apartment/Flat will be and remain free from all encumbrances, charge or liability of any kind whatsoever.Copy of the tripartite agreement dt.14.9.13 is Annexure-5.

On 25.9.13 the O.P No.1 company also entered into an agreement to bear the pre-EMI part till the date of completion of construction as per the schedule mentioned in the loan agreement and further agreed to deposit the PEMI interest amount of the complainants on 6^th of every month in the respective loan account on regular basis.Although the O.P No.1 Company agreed to complete the said unit of flat in 30 months from 29.8.13 but kept on delaying the completion of the project as well as defaulted in making the deposit of PEMI amount.Copy of the agreement dt.25.9.13 is annexed as Annexure-6.

As the O.P No.1 and 2 failed in their commitments to complete the project and deliver the flat to the complainants as per the agreement, they took steps to ascertain the status of the companies from the office of Registrar of companies and ascertained that O.P No.2 company who is the recorded owner of the schedule property along with its associate company O.P No.1 have executed Equitable Mortgage Deed dt.22.5.13 in respect of the entire property including present and future constructions(which includes flat No.109 allotted in favour of the complainants),hypothecation charge on all the future receivables from sold and unsold apartment dt.22.5.13 and accordingly, created charge with the Registrar of Companies vide form no.8 and availed Rs.8 Crores.Suppressing the said fact regarding the creation of charge over the entire property including present and future constructions, the O.P No.1 & 3 persuaded the complainants to avail loan from the O.P No.3 by securing the loan against the Flat No.109 allotted in favour of the complainant No.2.Copies of the search reports dt.12.8.16 of both O.P No.1 & 2 company, Form No.8 hypothecation of receivables dt.22.5.13 and equitable mortgage deed dt.22.5.13 are annexed as Annexure-7 series.

The O.P No.1 & 2 company using its dominant position to the detriment of the complainant have caused considerable long delay in completing the project and/or handing over the possession of the flat as promised and also avoided to deposit the PEMI amount with the financial institution thereby adopting deceptive and unfair trade practice.

The complainants have served notices on 14.9.15 requesting therein for refund of the entire amount and exchanged several mails but O.P No.1 & 2 company have been avoiding the complainants by giving false assurances from time to time and O.Ps 1 & 2 have made the complainants run from pillar to post for the past several months on the ground that the amount will be refunded and matter will be settled and the O.Ps 1 & 2 will deposit the amount in the bank account of complainant no.2.However, the O.P. No.1 and 2 on one pretext or the other have been delaying the matter for which the complainants have also expressed their unwillingness to wait any further as they have been badly affected by the delay in completion of the flat and/or delayed delivery of possession.

The complainants have made the following payments to O.P No.1 Company on different dates as follows:

Rs.3,35,612/- towards various charges for loan processing.

Rs.1,21,000/- on 30.6.14

Copies of the money receipt of Rs.1,10,000/-,Rs.55,000/- and statement of accounts are annexed as Annexure-8 series.

Several requests made by the complainants to the O.P to refund the entire amount but they did not bother to reply nor any steps have been taken to pay the amount for which finding no other alternative, the complainants through their advocate sent legal notice on 15.3.17 to the O.Ps demanding therein to return the amount of the aforesaid flat but the O.Ps did not respond in any manner.Copies of the legal notice of the complainants issued on 15.2.17 along with postal receipt, Track consignment are annexed as Annexure-9 series.

In the third week of March,2017 the complainants came to learn from reliable sources that the O.P No.3 has invoked the provisions of SARFAESI Act and had also taken recourse to Sec-14 of the said Act.Accordingly, after ascertaining about the proceedings, they applied for certified copy of the order on 28.3.17 and received the same on 5.4.17 from which it was learnt that the O.P No.3 suppressing the fact of equitable mortgage which includes flat No.109 of the complainants had filed application U/S-14 of the SARFAESI Act vide misc. case no.1/17 before the Collector, Cuttack for rendering police assistance to take possession of the secured assets and vide order no.25 dt.13.1.17 the Collector has directed that all assistance will be provided to the secured creditor in taking over the possession of the secured assets which includes flat no.109 of the complainants.Copies of the entire records of proceeding vide misc. case no.12017 is annexed as Annexure-10 series.

Although EMI was/is being regularly deducted directly from salary account of the complainant No.2 vide her Savings Bank Account No.30638633742 maintained with the State Bank of India,Rayagada Branch(Now transferred to Parlakhemundi Branch) to the loan account of the O.P No.3 towards loan repayment and on the contrary, without any notice to the complainant s the O.P No.3 has taken recourse to Section 14 of the SARFAESI Act,2002 to take possession of the secured assets/property which includes flat No.109 to recover the loan dues of the O.P No.1 & 2.Now, when there is no hope of getting delivery of flat no.109 and there is uncertainty about getting refund of the amount paid to the O.Ps 1 & 2 .the EMI of Rs.4167/- is still being deducted from Savings Bank account mentioned above every month and as on date a total sum of Rs.1,71,433/- has already been deducted and paid to the O.P No.3 towards loan repayment.It is believed that the O.P No.3 in connivance with the O.Ps 1 & 2 have defrauded the allotees of flats in TULSI GARDEN project including the complainants. It is further averred that when the O.P No.3 disbursed the loan in favour of the complainants keeping the said flat no.109 as security and are receiving the EMI without any default for which there was no reason for the O.P No.3 to proceed for taking possession of the flat no.109 allotted to the complainants.The complainant no.2 has also issued notice to the O.P No.3 on 5.5.17 not to deduct EMI from Savings Bank Account No.30638633742 of Smt. Prajyoti Rout with State Bank of India,Parlakhemundi Branch and also marked copies to the O.Ps 1 & 2.The copy of the notice dt.5.5.17 along with postal receipts are annexed as Annexure-11 series.

The complainant has prayed before this Forum to direct the O.Ps 1 & 2 to refund the entire amount of Rs.6,34,432/- (Rupees six lakhs thirty four thousand four hundred thirty two only) with interest @ 18% per annum from the date of each payment with pendentelite and future interest and to direct the O.P No.3 not to take possession of flat no.109, 1^st floor, Block-A in Tulsi Garden Housing Complex till the complainants get refund of their amounts and to pay compensation of Rs.3,00,000/-(three lakhs only) jointly and severally for mental agony and pecuniary loss suffered by the complainants and to allow litigation cost of Rs.50,000/- against the O.Ps to be paid to the complainants.

2. The O.P Nos. 1 to 4 are set exparte.
3. We have heard from the learned counsel of the complainant at length and went through the documents and papers filed by the complainant and found that a sale and construction agreement was executed between the complainants and the O.P No.1 & 2 by payment of booking amount by complainant no.2.  Subsequently the agreement was superseded and a tripartite agreement between O.Ps 1 & 2 and complainant no.2 was executed for sale and construction, according to which the construction was to be completed within a period of two years and six months.  As insisted by O.P.1, complainants availed loan from DHFL and the O.P No.1 company also entered into an agreement to bear Pre-EMI till date of completion of construction as per schedule.  But the O.Ps failed in their commitment and could neither complete the flat nor delivered the same to the complainant.  The complainants after enquiry found that the O.P No.2, who is the recorded owner of the schedule property along with its associate company O.P No.1 have executed equitable mortgage deed dt.22.5.2013 in respect of entire property including present and future construction (which includes flat no.109 allotted in favour of complainant and availed loan Rs.8 crores and on the other hand O.P No.1 & 3 persuaded the complainant to avail loan from O.P.3 against flat No.109.  Besides the above the O.P No.3 has invoked the provisions of SARFAESI Act and taken recourse to Section-14 of the said Act although the E.M.I was being regularly deducted from salary account of complainant no.2.  The complainant served several notices to refund the entire amount but the O.Ps 1 & 2 have remained silent for which the complainants have been suffering from mental agony and financial harassment.  Since the O.Ps did not participate in the hearing, we conclude that they have nothing to say in their favour and we are constrained to believe the uncontroverted statement of the complainant.  We are of the considered view that the O.Ps 1 & 2 have adopted unfair trade practice for which they are jointly and severally liable for the same.

 

ORDER

The case of the complainant is allowed exparte against O.Ps 1 & 2 and O.Ps 1 & 2 are directed to refund the entire deposited amount of Rs.6,34,432/- and Rs.2,50,000/-(Rupees two lakhs fifty thousand) only as compensation and litigation cost of Rs.10,000/-(Rupees ten thousand) only to the complainant within 45 days from the date of receipt of copy of this order.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 24^th day of January,2020  under the seal and signature of this Forum.

 

  ( Smt. Sarmistha Nath )

                        Member (W)                                                                                                                                                                                                                                                                                                                                 (Sri D.C.Barik)

                                                                                                          President