FINAL ORDER / JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application filed by the complainant U/s 34 read with section 35 of CP Act, 2019.
The fact of the case in brief is that the complainants are the father and son in relation.
It is further stated by the complainant that OP-1 is the owner of land measuring about 314 decimal situated at RS/LR Dag No. 780, 782, 783, 785 786, 787 and 790 recorded with khatian No. 2698 within PS-Bishnupur Dist. South 24 Pgs. The OP-2 is the developer of the property. The OP-1 having its registered office at 186, Rajarhat Road, Kolkata-700086
It is further stated by the complainant that he submitted an application for purchasing one residential flat at the COUNTY dated 08.04.2014 along with booking amount of Rs. 50,000/- with service tax of Rs. 1,545/- paid by cheque being cheque No. 000013 dated 08.04.2014 drawn on Standard Charted Bank to the OPs 1 and 2 through their marketing agent, Indian Bulls Distribution Services Ltd. being satisfied with the application made by the complainant. The OPs 1 and 2 allotted one flat in favour of the complainants and also entered into an Agreement for Sale with them dated 30.05.2014. The subject flat which was allotted to the complainants being flat No. 7G measuring about 895 sq. ft. on the 7th floor of tower-2 in phase-1A of the project, the COUNTY comprised in RS/LR Dag No. 780, 783, 785, 786, 787 and 790 recorded LR Khatian No. 2698, Mouza Daulatpur, JL No. 79, PS-Bishnupur situated within the Kulerdari Gram Panchayat, 24 Pgs South. The total consideration of the subject flat was of Rs. 27,53,674/- including the cost of the floor rise, garden phasing charge, car parking space and service charge. It was agreed by the OPs 1 and 2 in the said agreement dated 30.05.2014 that the construction of the subject flat could be completed within 42 months from the date of commencement of the project with extended period of 6 months.
In order to purchase the subject flat, the complainant obtained bank loan from Indian Bulls Finance Ltd. (IBFL) which has subsequently transferred to HDFC bank, Performa OP-3. The OP-3 granted loan of Rs. 23,08,086/- vide letter dated 19.01.2019 with variable EMI of payment of Rs 19,291/- payable within 300 months.
It is further stated by the complainants that in the petition of complaint that for the purpose of sanctioning of loan amount, they have entered into one tripartite agreement with the developer with NOC from the OP-2 just to create mortgage flat in question.
As per demand of the OP-2, the complainant have paid an amount of Rs. 22,69,091/- (Rupees twenty two lac sixty nine thousand ninety one) only including service tax which includes bank loan amount against whom the OP-2 issued money receipt but in spite of payment of 90 % of the total consideration money. The OPs 1 and 2 deliberately failed to construction of the building and at present the construction work of tower Nos. 1 and 2 are totally suspended but it was agreed by the OPs 1 and 2. They supposed to the construction work of tower Nos. 1 and 2 and handover the possession of the subject flat and car parking space within the period of 23.11.2019.
It is alleged by the complainant that even on repeated request by the complainant, the OPs failed to start the construction work and did not make any communication or response with the complainant to that effect. Such conduct of the OPs 1 and 2 is amounting to deficiency in service and they are liable to give compensation to the complainant. The complainants repeatedly requested the OPs 1 and 2 to refund the amount paid by the complainant along with interest @ 18 % p.a. They also filed this case with a prayer for refund the amount of Rs. 22,69,091/- along with interest @ 18 % p.a. and also to pay compensation to the tune of Rs. 10,00,000/- due to monetary loss and mental pain, agony and harassment. The complainant also prayed for punitive damage of Rs 5,00,000/- payable to the Legal Aid Authority and Consumer Welfare Account of this Commission and litigation cost of Rs. 1,00,000/-
The OP-3 the branch manager of HDFC has contested the claim application by filing a WV denying all the material allegations levelled against it. The OPs 1 and 2 did not contest the case by filing WV. Hence, the case do run ex parte against the OP-1 vide order dated 29.01.2022 and against the OP-2 vide order dated 27.07.2022. The contesting OP i.e. OP-3 stated that no allegation has been raised by the complainant against the Proforma OP-3 in their petition of complaint rather the complainants have made allegation against the OPs 1 and 2 only.
It further stated b y the OP-3 in the WV that the complainants had initially taken a loan from Indian Bulls Finance Ltd. which was later transferred to the OP-3. The copy of loan application form is annexed herewith as annexure A. On the basis of annexure “A” the OP-3 sanctioned and disbursed a loan amounting to Rs. 23,08,086/- only to the petitioner and also executed a loan agreement dated 18.02.2019 with the complainants. The copy of loan agreement is annexed as annexure “B”. A quadripartite agreement was made in between the complainant and OPs 1 to 3 which was executed on 01.04.2019 in respect of permission of mortgage of subject flat in favour of the OP-3. The said agreement are annexed herewith as annexure C and D. The loan forwarded by the OP-3 was secured by means of mortgage through the submission of the original allotment letter dated 28.04.2014 and agreement for sale dated 30.05.2014 was executed between the OP1 and 2 and the complainant, the said allotment letter and the agreement for sale are annexed as “E” and “F”.
The OP-3 further stated that it is nothing but a financer of the property and it has no control over the construction of the same. So, the complainants have no claim against the OP-3.
Under such circumstances the name of the OP-3 is liable to be expunged from the cause title of the petition of complaint because the OP-3 is no way liable or responsible for any loss of the complainant. There was no deficiency in service on the part of the OP-3. The complaint has no cause of action to file the case against the OP-3. Thus the case is liable to be dismissed against OP-3.
In view of the above fact and circumstances, the points of consideration are as follows.
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
Though it is no body’s case that this commission has got no jurisdiction by any means to try this case in spite of the same to discharge its obligation and responsibility of this commission on careful consideration the facts and circumstances of this case and considering the position of law opined that this commission has got pecuniary and territorial jurisdiction to try this case.
On a close scrutiny of materials on record, it appears that the complainants have entered into agreement for sale of the subject flat in schedule property with the OPs 1 and 2 at a consideration of Rs 27,53,674/- which includes cost of floor rise, garden phasing charge, car parking space and service charge dated 30.05.2014. In that agreement dated 30.05.2014, the OPs 1 and 2 undertook complete the construction of subject flat within the period of 42 months from the commencement of the project with extended period of 06 months but even after expiry statutory period of 42 month + 6 months as per terms and conditions of the agreement for sale, the OP-2 failed to construct the project and to handover the possession of subject flat in favour of the complainants even on payment of Rs. 22,69,091/- by the complainants to the OP-2 against money receipt out of the total consideration money of Rs. 27,53,674/- only. On several occasion, the complainant requested the OPs 1 and 2 to handed over the possession of the subject flat and car parking space but they stated that the construction work of tower Nos. 1 and 2 was totally suspended. No clarification was given to that effect by the OPs 1 and 2 then from evidence on record, it is revealed that cause of action arose on and from 30.05.2014 on which date the agreement for sale of the subject flat was executed by and between the complainants and the OPs 1 and 2 and it was continuing till date because the OPs 1 and 2 failed to comply the mandate of agreement for sale dated 30.05.2014 even on repeated request made by the complainants. Hence, without having any relief from the OPs 1 and 2, the complainants constrained to file this case before this commission on 06.09.2021. So, it is revealed from the materials on record that the complainant have filed this case well within the period of limitation and there was sufficient cause of action to file this petition of complaint against the OPs.
From the evidence and documents on record, it is revealed that the complainants obtained bank loan from Indian Bulls Finance Ltd. which was subsequently transferred to HDFC bank ie Proforma OP-3 of this case for a loan of Rs. 23,08,086/- and which was sanctioned by OP-3 bank vide letter dated 31.01.2019 with variable EMI of payment of
Rs 19,291/- by monthly instalment payable within 300 months. It is also proved from the evidence on record that for getting the loan amount from the OP-3. The complaints have mentioned on tripartite agreement with the developer with NOC from the OP-2 to create mortgagee flat in question with the OP-3.
On a close perusal evidence on record, it is also proved that on several dates the complainants have paid a sum of Rs 22,69,091/- to the OP-2 including service tax as per demand of OP-2 which includes bank loan amount also but even on payment of Rs 22,69,091/- out of total consideration of Rs. 23,08,086/-. The OPs 1 and 2 failed to complete the subject flat situated in tower No. 2 phase being flat No. 7G on 7th floor measuring about 895 sq. ft. in phase 1-A of the project the COUNTY under Mouza –Daulatpur, PS-Bhawanipur as mentioned in schedule of petition of complaint.
In the agreement for sale dated 30.05.2014 though it was agreed by the OPs 1 and 2 they will compete the construction work and handover the same to the complainants within 42 months form the commencement of the project with extended period of 06 months but after getting 90 % of total consideration price of the complainants they failed to complete the constriction work rather they informed the complaints that presently construction work of tower Nos. 1 and 2 is totally suspended but they did not give any clarification to the effect to the complainants.
The complainants then repeated occasion demanded the refund of the consideration money amounting to Rs. 22,69,091/- out of Rs. 23,08086/- only toward the consideration money of the subject flat because they are bonafide purchasers and they are paying EMI regularly to the loan account but the OPs 1 and 2 did not lent their ear to the request of the complainants and misbehaved with them rather they neglected the demand of the complainants which should be considered as deficiency in service on the part of the OPs 1 and 2 and for that reason they should pay compensation to the complainants.
On the basis of discussions of made above, it is held by this commission that admittedly the complainants are the consumers within the ambit of CP Act, 2019 and the OPs 1 and 2 and 3 are the service provider.
It is also held by this commission that there were gross negligence and deficiency in service on the part of the OPs 1 and 2 towards the complaints because they failed to handover the possession of the subject flat to the complainant even on received of a sum of Rs. 22,69,091/- only out of Rs 23,08,086/- towards the consideration money of the subject flat as per agreement for sale dated 30.05.2014, for such misdeed of the OPs 1 and 2. The complainants have suffered financial loss, mental pain and agony and they are entitled to get the relief as prayed for.
In sum, the complainants are succeed to prove the case beyond all reasonable doubts against OPs 1 and 2 and are entitled to get relief as prayed for.
On a close scrutiny of material as well as evidence on record, the complainants failed to prove the case against the OP-3. So, the case is succeed against the OPs 1 and 2 and failed against the OP-3
The case is properly stamped.
Hence,
Order
that the case be and the same is decreed ex parte against the OPs 1 and 2 with cost of Rs. 5,000/- and dismissed against the OP-3 on contest.
The complainant do get the decree as prayed for.
The OPs 1 and 2 are directed to refund the amount of Rs. 22,69,091/- to the complainants along with interest @ 9 % p.a. as per observation of the Apex Court from the date of filing of this case till realisation either jointly or severally.
The OPs 1 and 2 are further directed to pay compensation of Rs 30,000/- towards monetary loss, mental agony and harassment along with litigation cost of 5,000/- to the complainants either jointly or severally. .
All the decreetal amounts as mentioned above will be paid by the OPs 1 and 2 within 45 days from the date of this order id the complaints will be at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as per mandate of the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the parties.
