DATE OF DISPOSAL: 25.04.2024
PER: SMT. SARITRI PATTANAIK, MEMBER (W)
The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties (in short the O.Ps.) and for redressal of their grievance before this Commission.
2. The complainants are the local inhabitants, to have a accommodation for their own residential purposes, thereby entered into a Tripartite Agreement dated 16th March 2016, at the office of O.Ps at the registered office of O.P.No.1 & 2 Bhabanagar 1st lane, Berhampur and consequently the O.P.No.3 sanctioning a Housing Loan of Rs.25,20,000/- basing upon the stipulation stated therein. The O.P.No.1 is a Private Limited Company having its Registered office at Bhabangar Main Lane, Berhampur is a Real Estate Developer, taken up a project for construction of residential flats as “The Pride” Mouza-Sahajapur, situated at vill: Naragada, Ps: Tamando, Khurda. The O.P.No.2 is the Chief Managing Director, M/s Specimen Reality Limited, entered into Tripartite Agreement dated 16th March 2016 and completely responsible for construction and for handing over the possession of the respective flats to the complainants. The O.P.No.3 sanctioned a housing loan of Rs.25,20,000/- to be disbursed to O.P.No.1 & 2 periodically basing upon the level of construction work carried out by the O.P. No.1 & 2 in term of the stipulation stated therein. The complainant at the time of execution of the agreement dated 16th March 2016 and in terms of the agreement applied for flat by paying a sum of Rs.6,34,151/-towards down payment as booking advance. Thereafter in confirmation and in terms with the above agreement an amount of Rs.4,19,863/- on different installments amount has already been deposited by the complainant which has been withdrawn by the O.P.no.1 & 2 from Andhra Bank, Courtpeta Branch, Berhampur and Rs.2,50,000/- towards charges of registration work on 31.07.2017 but unfortunately till date neither a single step has been taken by the O.P.No.1 & 2 for delivery of possession of flat allotted to the complainant after expiry of 30 months as agreed upon through agreements stated supra. Further the O.P.No.1 & 2 have failed to deliver the well furnished flat of 849 square feet, in terms of the stipulation No.3 of the said agreement. Thereby such non-compliance and deliberate breach of the stipulations of the agreements stated supra amounts to deficiency of the service and unfair trade practice that is illegal, unjust and not sustainable either in facts or law. The irrespective of several personal approaches and contacts made by the complainants to all O.Ps were made futile. Therefore the complainants have been deprived of to get justice, as neither the allotted flat has been handed over nor amount already paid was returned till filing of the complainant. Moreover the O.P. did not pay any attention towards the complainant at all. In consequent upon, and without having any alternative the complainant issued at 15 days demand notice dated 31.12.2019 to O.Ps, to settle the dispute or to return the amount already paid with accrued interest, which was rightly acknowledged by the O.Ps and till date neither any action nor a line of reply was received by the complainant till filing of this complaint. Therefore the deficiency of service so also unfair trade practice of the O.Ps is quite evident towards the complainant as the legitimate claim of the complainant and further be responsible for compensation for harassment and mental agony caused to the complainants with interest pendentlite. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to refund the amount already paid as Booking amount and the amounts withdrawn by the O.Pl.No.1 & 2 as per law and to pay all the legitimate claims with interests pendentlite and so also to pay the lawful compensation for mental agony land harassment caused to the complainants with litigation cost jointly and severally in the best interest of justice.
3. The Commission admitted the case and issued notice to the O.Ps.
4. The O.P.No.2 filed evidence on affidavit in support of his case. The complainant have not taken any permission from the District Consumer Disputes Redressal Commission as per Section 12(1)(c) of the Consumer Protection Act, 1986 prior to filing of this case. Hence dismiss the case against the O.P.No.2. The complainants executed sale agreement for purchase of property in question and tripartite agreement for construction of the flat on March 16, 2016. The complainants already taken over the possession, right, title, etc. from the O.P.No.1 on 1st September 2017 and executed a sale deed vide No. 11081708522 before the Sub-Registrar, Bhubaneswar, Khurda without any objection and protest. The complainant have not filed any protest and not raised any objection at any point of time after taken over the peaceful possession by way of registration. The O.P.No.3 has informed to the O.P.No.1 through a letter dated 26.10.2022 that the account of complainants/borrower was declared as NPA on 29th April 2019 due to non-payment of dues and accordingly O.P.No.3 further informed through said letter that the property was sold through e-Auction on 29th Augusts 2022. The Bank of O.P.No.3 now demanding to submit account details to release the amounting of Rs.3,15,000/- but till date not released the said amount relating to said property. The Commission be pleased to direct the O.P.No.3 to release the amount of Rs.3,15,000/- along with interest whereas the complainant taken over the possession of the flat No. 005, Ground floor on 1st September 2017 from the O.P.No.1. All the transactions executed between the O.P.No.1, O.P.No.3 and the complainants. The present complaint is suffering from the mis-joinder of the party and it is bad in law. Hence the O.P.No.2 prayed to dismiss the case in lemini with heavy cost.
5. The O.P.No.3 filed counter. In para-1 of the mentioned about the Tripartite agreement dated 16.03.2016 between all the parties are true and O.P.No.3 has signed it after receive of sale agreement between complainant No.1 and O.P.No.1. The O.P.No.3 has sanctioned the loan. After sanction of the loan the complainant No.1 & 2 has accepted the sanction letter. In Para 2 & 3 the complainant is strictly required to prove the content. In 4, 5 & 6 are also created by the complainant for this case purpose. In Tripartite agreement the O.P.No.2 & 3 has executed the registered sale deed in favour of the complainant before the Sub Registrar Authority. But due to regular non-payment of housing loan by the complainants the account become declared as N.P.A. After account became N.P.A. the Bank has initiated securitization proceeding against the complainants. After initiated securitization proceeding the complainant has to approach before the appropriate authority for challenge of initiation securitization proceeding against the complainant. So after the initiation securitization proceeding this Forum has no jurisdiction to sit and trial of the dispute. Hence the O.P.No.3 prayed to dismiss the case in the best interest of justice.
6. On the date of hearing advocate for both parties are present. The Commission perused the complaint petition, written version, evidence on affidavit and documents available in the case record. The complainants have not taken any statutory permission from the Commission prior to filing of the present complaint in accordance to the Sec. 12(1)(c) of the Consumer Protection Act, 1986. The complainants were already taken over the possession, right, title, etc. from the O.P.No.1 on 1st September 2017 and executed a sale deed vide No. 11081708522 before the Sub-Registrar, Bhubaneswar, Khurda without any objection and protest. After receiving the possession of the flat the complainant filed this case to grab more money from the opposite party no.2. The Commission has no jurisdiction to adjudicate the complaint in the SARFAESI Act, 2002.
On foregoing discussion and in view of the clear position of law, the Commission has deprecated the complaint as having no jurisdiction under SARFAESI act, 2002 to adjudicate in the instant case. In the result the Complaint is dismissed against all the opposite parties.
However, the complainant is at liberty to file his case before the appropriate Court of law and in such event, the complaint will get benefit under Art. 14 of the Limitation Act to file the case.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 25.04.2024
