DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 323/2013
Date of Filing: Date of Admission Date of Disposal:
27.06.2013 05.07.2013 29.05.2015
PETITIONER = Vs. = O.Ps.
Adhir Chakraborty, 1.M/s. Economic Properties,
S/o. Krishna Kanta Chakraborty, Prop. Joydev Chakraborty,
1/3A, Sreenath Mukherjee Lane, 89, Rishi Bankim Chandra Road,
P.S. Chitpore, Kolkata- 700028.
Dist- Kolkata. 2.UCO Bank,
Jorasanko Branch,
271, Rabindra Sarani,
Kolkata-700006.
3. Syndicate Bank,
Baguiati, V.I.P Road,
P.S. Baguiati,
Kolkata- 700159.
J U D G E M E N T
The fact of the case, in brief, is that the complainant wants to purchase one residential flat from the vendor who purchased the said flat described in the schedule from the Developer and the Landlord.
The complainant stated that one agreement for sale was executed between the O.P. No.1 and the complainant.
The complainant further stated that by the said agreement for sale the complainant applied for Home Loan from the O.P. No.2 at a tune of Rs. 6,60,000/- only.
The complainant also stated that the property was registered in favour of the complainant by agreement for sale executed on April,06 by the O.P. No.1 in presence of O.P. No.2.
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The complainant further stated that the money receipt and agreement for sale of the said agreement was deposited to the O.P. No.2 to create mortgage which was created as secured Asset and kept in custody of the said bank as secured property and loan was disburse and cheque was issued in favour of the O.P. no.1 who encash the consideration amount.
The complainant also stated that the complainant deposited 10% of the total consideration value and rest is disbursed as loan amount and total consideration amount is paid to the Vendor O.P. No.1 drawn and issued by the O.P. No.2.
The complainant further stated that the agreement of conveyance is executed in favour of the complainant and all the consideration amount is given to the O.P. No.1 and the complainant became owner in right title and interest of the said property.
The complainant also stated that during the execution of the said deed of conveyance the said schedule property was not completed and it is verbally agreed between the parties that within 6 months the remaining work of the unfinished flat will be completed for use as residential purposes.
The complainant further stated that after 6 months lapsed no progress of the flat was made and the O.P. No.1 failed to complete the said flat in spite of several reminders but the complainant paid the EMI regularly to the O.P. No.2 the bank.
The complainant also stated that in the month of August, 2012 the complainant came to know that some other persons came in possession of the said flat as mentioned in the schedule as after 7 years said flat was constructed.
The complainant further stated that the complainant intimated the matter to the O.P. Nos. 1 & 2 and also to Baguiati P.s. but nothing happened.
The complainant also stated that the complainant is legally entitled of the possession of the said residential flat which is his own by right title and interest as per agreement for sale. Hence the complaint.
The O.P. No.2 has contested the case by way of filing written version.
The O.P stated that in respect of statements made in paras 4 & 5, it is enunciated that the complainant made an application for loan of Rs. 6,00,000/- on 21.02.05 under UCO Shelter scheme and O.P. No.2 i.e. Bank, sanctioned Rs. 6,00,000/- on 25.02.05 under the said UCO Shelter Scheme.
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The O.P further stated that the complainant did not keep his commitment and failed to pay the EMI regularly and his account became Non- Performing Asset (NPA). The O.P Bank issued notice under Section 13(2) of the SARFAESI Act, 2002 on 10.08.07 wherein the complainant was asked to discharge in full liabilities within 60 days from the date of that notice and the outstanding liability stood at Rs. 6,62,156/- with interest charged upto 30.06.07.
The O.P also stated that on being suspicious the Bank Authority made physical verification of the flat and it had come to light that it fraud in respect of mortgaged title deed having consideration value of the mortgaged property at Rs. 7,65,000/- was committed. It appears that the said complainant also took loan from Syndicate Bank, as because during the physical inspection of the said building which is now in an abandoned position, one SARFASEI notice was found pasted by Syndicate Bank and the entrance of the said flat was under lock and key.
The O.P further stated that the O.P. No.1 , M/s. Economic Properties, the office of which is situated at 13,Dum Dum Road, Room No. A/6, P.s. Dum Dum, Kol-74 and the said firm is represented by its proprietor Mr. Joydev Chakraborty is the developer of the said flat in question has also nexus with the aforesaid complainant Mr. Adhir Chakraborty and the said firm was instrumental in respect of fraud game against the said bank and firm cannot avoid its liabilities and suitable action might be taken against the said proprietor/ developer as well as the firm.
The O.P also stated that a complaint was made by the O.P Bank to the Joint Commissioner of Police (Crime) D.D. Bank, Fraud Cell, Lalbazar, Kolkata and Officer-in-Charge, Jorabagan P.S, Kolkata.
The O.P stated that there is a collusion between the O.P. No.1 and the complainant otherwise the mortgaged flat in question could not be mortgaged to the Syndicate Bank. Hence the O.P prayed for dismissal of the case.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Both the complainant and O.Ps filed affidavit-in-chief. We have perused the affidavit-in-chief and heard the submission of Ld. Lawyers of both parties.
It appears that the complainant availed a home loan of Rs. 6,60,000/- from the O.P. No.2.
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O.P. No.1 being the owners of land executing and register the deed of conveyance in respect of the disputed flat in favour of the complainant and the same was registered in the office of Additional Registrar of Assurance . The said title deed in respect of the flat in question was kept in the custody of the O.P. No.2 for creating equitable mortgage.
As per agreed terms of the agreement for sale in respect of the disputed flat in question which was taken by the O.P. No.2 at the time of saction of the house Building Loan in favour of the complainant, O.P. No.1 was liable to deliver peaceful vacant possession of the flat in question in fravour of the complainant and it was the bounded duty of the O.P. No.2 to inspect the flat in question physically at the time of sanction of the said loan but O.P. Nos. 1 & 2 failed to discharge their respective duties.
O.P. No.2 has stated that the complainant has failed to pay the EMI regularly and his account became Non- Performing Asset (NPA). The O.P. No.2 issued notice under Section 13(2) of the SARFAESI Act, 2002 on 10.08.07 wherein the complainant was asked to discharge in full his liabilities within 60 days from the date of notice and the outstanding liability stood at Rs. 6,62,156/- with interest charged upto 30.06.07. The copy of notice has filed by the O.P. No.2 as marked annexure “R/2”.
The O.P. No.2 alleged that after making physical verification of the flat it had come to light that it fraud in respect of mortgaged title deed having consideration value of the mortgaged property at Rs. 7,65,000/- was committed. It appears that the said borrower / complainant also took loan from Syndicate Bank, as because during the physical inspection of the said building which is now in an abandoned position, one SARFAESI notice was found pasted by Syndicate Bank and the entrance of the said flat was under lock and key.
It is also alleged that the O.P. No.1 has noxious with the complainant in this respect.
O.P. No.2 alleged that O.P. No.2 informed it to the Joint Commiossioner of Police ( Crime) D.D. Bank, Fraud Cell, Lalbazar, Kolkata and Officer-in-Charge, Jorabagan P.S., Kolkata which is marked as annexure “R/3” on behalf of O.P. No.3. The Syndicate Bank has been made party in this case and summon was served on Syndicate Bank but Syndicate Bank did not turn up to contest the case. Simply by
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filing a complaint before any Crime Branch, it will not prove that the said fraud actually took place. Except copy of documents, there is no cogent evidence on behalf of the O.P. No.2 to prove that the complainant practiced for on O.P. No.2.
O.P. No.1 also did not turn up to contest the case.
The complainant denied affidavit-in-chief that the complainant has availed any loan from O.P. No.3 Syndicate Bank and there is no document of O.P. No.2 to prove that.
If there is any such cogent evidence in favour of the O.P. No.2 and O.P. No.2 has liberty to move before the proper Forum against the complainant.
In the circumstances when O.P. No.1 did not turn up to contest the case this Forum has jurisdiction to come to a decision on the basis of unchallenged evidence of the complainant, that the complainant is entitled to get relief as prayed for.
The complainant is also entitled to get possession of flat inhabitable condition. If it is true, the complainant is not in a position to satisfy the loan amount of O.P. No.2 in that case in terms of the agreement the O.P. No.2 will take possession of the flat and to sell the same in auction and after due satisfaction of the entire loan the balance will be credited to the account of the complainant and when O.P. No.2 did not take such course of action the complainant is entitled to get relief according to the C.P. Act, 1986.
Hence
Ordered,
that the complaint be and same is allowed on contest against the O.P. No.2 and exparte against the O.P. No.1 and dismissed exparte against the O.P. No.3.
O.P. No. 1 is directed to deliver possession of the schedule property in favour of the complainant within two months from the date of this order.
O.P. No.1 is further directed to execute and register the deed of conveyance in favour of the complainant after receiving the balance consideration money, if any, from O.P. No.2 within two months from the date of this order.
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O.P. No.1 also directed to pay compensation of Rs. 25,000/- to the complainant for mental and physical harassment and delay in delivering possession and registering the flat.
O.P. No.1 is also directed to pay litigation cost of Rs. 10,000/- to the complainant within two months from the date of this order, in default the O.P shall have to pay sum of Rs. 100/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the O.P in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated & Corrected by me.
