BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

CC 72  of  2010

Between:

1)  Smt. B. Sri Lakshmi

W/o. B. Nagamalleshwara Rao

Age: 37 years

2)  B. Nagamalleswara Rao

S/o. B. Pedabasavaiah

Age: 43 years

Plot No. 18, Flat No. 1

Chaitanya Apartments

Kalyan Nagar

Hydrabad-500 018.                                     ***                         Complainants

                                                                   And

1)  M/s. Maytas Properties Ltd.,

(Formerly known as  M/s. Maytas Hill County P. Ltd.)

Rep. by its  Managing Director

Bayrraju Rama Raju

S/o. Rama Linga Raju

O/o. 6-31168/5/A, III Floor,

Amogha Plaza, Begumpet,

Hyderabad- 500 016                                   ***                         Op No.  1

2)  Axis Bank Ltd.

Formerly known as UTI Bank Ltd.

Retail Assets Centre

II Floor, P.M. Modi Complex

5-4-187/6, M.G. Road

Karbala Maidan

Secunderabad-500 009

Rep. by its Manager.                                   ***.                        Op No. 2

CC  7  of 2010   

Between:

I.  Surendra

S/o. Vijaya Bhaskar Reddy

R/o. Flat No. 501, Emerald Block

Sri Sairam Manor, Pragathi Nagar

Yusufguda,  Hyderabad.                             ***                         Complainant

And

1)  M/s. Maytas  Hill County P. Ltd.

Rep. by its nominee D.V.S. Subba Raju

S/o. D. Krishnam Raju

O/o. Maytas Hill County P. Ltd.

Bachupally Village, Qutubullapur (M)

Ranga Reddy Dist. – 500 072.                              ***                         O.P. No. 1

2)   M/s. Swarnamukhi Green Fields P. Ltd., Hyderabad.      

3)   M/s. Himagiri Bio-tech P. Ltd.,, Hyderabad
4)   M/s. Sindhu Greenlands Pvt. Ltd.,, Hyderabad
5)   M/s. Goman Agro Farms P. Ltd.,, Hyderabad
6)   M/s. Himagiri Green Fields P. Ltd.,, Hyderabad

7)   M/s. Swarnagiri Green Fields Pvt Ltd,, Hyderabad
8)   M/s. Konar Green Land Pvt Ltd,, Hyderabad
9)   M/s. Medravati Agro Farms P. Ltd.,, Hyderabad
10)  M/s. Yamuna Agro Farms P. Ltd.,, Hyderabad
11)  M/s. Wardha Green Fields P. Ltd.,, Hyderabad
12)  M/s. Vindhya Green Lands Pvt Ltd,, Hyderabad
13)  M/s. Vamsadhara Agro P. Ltd.,, Hyderabad
14)  M/s. Uttarashad Bio-Tech P. Ltd.,, Hyderabad,

Rep. by  their Attorney  D.V.S. Subba Raju

S/o. D. Krishnam Raju

Offices, at 6-3-1186/5/5A, III Floor,

Amogh, Plaza, Begumpet,

Hyderabad-500016,                                             ***               Ops  2 to 14.

15)    D.V S. Subba Raju 

S/o.  D. Krishnam Raju

Flat No. 102, Plot No. 97

Dhanunja Nest

Raju Nagar, Yusufguda

Hyderabad-5000 045.                                           ***               O.P. No. 15

16).  Axis Bank Ltd.

(Hyderabad Branch)

Rep. by its Branch Manager

PM Modi Complex

2^nd Floor, 5-4-187/6

M.G. Road, Secunderabad.                                   ***               O.P. No. 16

CC 55  of 2010   

Between:

1)  Penubolu Venkata Ram Reddy

S/o. Dayakar Reddy

2)  Chennuri Laxmi Pallavi

D/o. C. Gopal Reddy

Both  are R/o. Plot No. 760

Road No. 39, Jubilee Hills

Hyderabad.                                                           ***                         Complainants

And

1)  M/s. Maytas  Hill County P. Ltd.

Rep. by its nominee Teja Pratap Raju

S/o.  Hari Prasad Raju

At 6-3-1186/5/5A, III Floor,

Amogh, Plaza, Begumpet,

Hyderabad-500016,                                    ***                         O.P. No. 1

2)   M/s. Swarnamukhi Green Fields P. Ltd., Hyderabad.      

3)   M/s. Himagiri Bio-tech P. Ltd.,, Hyderabad
4)   M/s. Sindhu Greenlands Pvt. Ltd.,, Hyderabad
5)   M/s. Goman Agro Farms P. Ltd.,, Hyderabad
6)   M/s. Himagiri Green Fields P. Ltd.,, Hyderabad

7)   M/s. Swarnagiri Green Fields Pvt Ltd,, Hyderabad
8)   M/s. Konar Green Land Pvt Ltd,, Hyderabad
9)   M/s. Medravati Agro Farms P. Ltd.,, Hyderabad
10)  M/s. Yamuna Agro Farms P. Ltd.,, Hyderabad
11)  M/s. Wardha Green Fields P. Ltd.,, Hyderabad
12)  M/s. Vindhya Green Lands Pvt Ltd,, Hyderabad
13)  M/s. Vamsadhara Agro P. Ltd.,, Hyderabad
14)  M/s. Uttarashad Bio-Tech P. Ltd.,, Hyderabad,

Rep. by  their Attorney  Teja Pratap Raju

S/o.  Hari Prasad Raju

At 6-3-1186/5/5A, III Floor,

Amogh, Plaza, Begumpet,

Hyderabad-500016,                                    ***               Ops  2 to 14.

15)  Teja Pratap Raju

S/o.  Hari Prasad Raju

Flat No. 302, Sneha Siri Sampadha Apartments

B.K. Guda, S.R. Nagar

Hyderabad-500 038.                                   ***               O.P. No. 15

16).  Branch Manager

UTI Bank Ltd.,

(Presently  Axis Bank Ltd)

Retail Asset Centre

2^nd Floor, 5-4-187/6

PM Modi Complex,

Karbala Maidan, M.G. Road,

Secunderabad.                                            ***               O.P. No. 16

CC  65  of 2011   

Between:

Dr. V.V. Ramana Rao

S/o. N. Swamy

R/o. 7-41/12, Bapuji Nagar

Nacharam, Hyderabad.                               ***                         Complainant

And

1)  M/s. Maytas Properties Ltd.,

Rep. by its Managing Director

Regd Office.  6-31168/5/A, III Floor,

Amogha Plaza, Begumpet,

Hyderabad- 500 016                                   ***                         O.P. No. 1

2)  Company Secretary  

M/s. Maytas Properties Ltd.,

Regd Office.  6-31168/5/A, III Floor,

Amogha Plaza, Begumpet,

Hyderabad- 500 016                                   ***                         O.P. No. 2            

3)   Datla Gopala Krishnam Raju

S/o. Satyanarayana Raju

Director, M/s. Maytas Properties Ltd.,

6-31168/5/A, III Floor,

Amogha Plaza, Begumpet,

Hyderabad- 500 016                                  

4)  Bayrraju Rama Raju

S/o. Rama Linga Raju

Whole Time Director/Vice-President

M/s. Maytas Properties Ltd.,

6-31168/5/A, III Floor,

Amogha Plaza, Begumpet,

Hyderabad- 500 016                                  

5)   Bayrraju Teja  Raju

Director, M/s. Maytas Properties Ltd.,

6-31168/5/A, III Floor,

Amogha Plaza, Begumpet,

Hyderabad- 500 016                                  

6)  Ved Kumar Jain (Nominee Director)

M/s. Maytas Properties Ltd.,

S/o. Padam Sain Jain,

33, Babar Road, Bengali Market

New Delhi-110 001.

7)  Vice-Chairman

M/s. Maytas Properties Ltd.,

6-31168/5/A, III Floor,

Amogha Plaza, Begumpet,

Hyderabad- 500 016                                  

8)       The Consumer Support Department

M/s. Maytas Properties Ltd.,

Hill County, Bachupally,

Miyapur, Hyderabad.                                  ***                         Ops 3 to 8

9)  Axis Bank Ltd.

Formerly known as UTI Bank Ltd.

Retail Assets Centre

II Floor, P.M. Modi Complex

5-4-187/6, M.G. Road

Karbala Maidan

Secunderabad-500 009

Rep. by its Manager.                                   ***.                        Op No. 9

Counsel for the Complainants :                  M/s.  V. Appa Rao

                                                                   M/s.  B.S. Prasad

                                                                   M/s. T. Balaji

Counsel for the Opposite Parties                 M/s  K. Vishveshwara Reddy (Op1)

                                                                   M/s. A. Venkatesh                                                                                               M/s. M. Srinivas Reddy (Bank)                                                                            M/s.  S. Sainathan (Bank)

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

                                            SMT. M. SHREESHA, MEMBER

                                                                   &

                                            SRI S. BHUJANGA RAO, MEMBER

FRIDAY, TWENTY SEVENTH DAY OF APRIL TWO THOUSAND TWELVE

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President)

***

1)                 These complaints are filed by different  complainants  against MAYTAS (herein after called  the ‘developer’)  praying to direct  the developer to hand over the finished flats  under sale by executing registered sale deeds or  in the alternative refund the sale consideration  with interest, besides penalty amount @ Rs. 5/- per sft  of the super built up area   together compensation and costs  and also  against Axis  bank (herein after called the ‘bank’) for refund of the amount disbursed by the bank to the developer together with penal interest and credit into their loan account etc.  u/s  17 of the Consumer Protection Act. 

2)                Since common questions of fact  and law  are involved in all these complaints,  and  against  the same opposite parties,  we are of the opinion that they  can be disposed of by a common order. 

3)                The case of the complainants  in brief is that  the developer floated a venture and agreed to sell apartments situated in Sy192/P to 198/P, 201/P and 282/P at Bachupally of  Qutubullapur Mandal,  in  Ranga Reddy district   in an extent of Ac. 85.36  Guntas  of land.      The developer represented that it   had obtained layout permission from HUDA on 21-3-2006 for constructing the independent houses and flats etc. Under various agreements of sale  consideration  was agreed to be paid  in instalments viz., 10% of the amount on the  date of booking,  and another 10%  within 15 days from the date of booking and the remaining  in phased manner and 5%  at the time of handing over the flat as shown  below:

The bank  agreed to  grant loan and pay the amount   to the developer  as per the tripartite agreement  executed in this regard between them.      Accordingly the complainants had paid  initial amount booking and allotment advance etc. and  the bank   in turn  had sanctioned  and disbursed  the loan amount to the developer.   The developer executed registered sale deeds in favour of some of the complainants in respect of  undivided share of land together with  unfinished structure. 

(3.1)              It was agreed that the construction was to be  completed within  a year  with a grace period of three months,   and  in some cases 20 months.    While so,  on  7.1.2009,    founder of M/s. Satyam Computer Services  Ltd.  Sri  Ramalinga Raju  confessed that he had diverted the founds  from  developer  to computer services  and therefore  there could be delay in completion of the  project.    On that   developer sent a notice calling upon  them to attend  meeting on  25.3.2009.   In fact, it cannot collect more than 20%  towards advance  as per Section 5 of the  Andhra Pradesh  Apartments (Promotion of  Construction and Ownership) Act, 1987.    It did not even file the declaration u/s  4 of the said Act.     The bank even did not insist  on the developer  for adhering to the agreement  under the provisions of above Act.   The bank had disbursed the  entire amount without any physical verification or valuation by a valuer contrary to the agreement and tripartite agreement.       The developer  was  guilty in not completing the construction within  the time stipulated,  and diverting the funds.     It had abruptly abandoned the  construction.    There were criminal proceedings  initiated against the directors.   They were  even convicted by  the Special Judge for Economic Offences for not filing profit and loss account, balance sheet  before the  Registrar of Companies.    Virtually  the developer is non-existent as per the balance sheet of the year 2008-2009.    By virtue of directions of the  Hon’ble High Court in  Company Petition No. 172/2011  it had submitted its  net worth as ‘zero’ and it has accumulated loss of  Rs. 538 crores.    In addition to that  there is an award  against  the developer for Rs.  600 crores together with interest at Rs. 221 crores.    In fact it had advanced  loans of Rs. 247 crores  to its subsidiary  companies, recovery of which was doubtful.    All this  has created  in mental agony to them.   They  were forced to pay EMIs on the loans borrowed.  Therefore the complainants  are filed for the  above mentioned reliefs.

4)                The developer filed counter resisting the claim.   It admitted  that it is a limited company incorporated under the provisions of Companies Act inter-alia engaged in the business of construction.   It alleged that  it started a venture,  under the name and style   ‘Maytas Hill County’  along with other opposite parties.   They entered into an agreements of sale   on various dates  agreeing to sell  flats as alleged in the complaints  for  the consideration mentioned therein excluding  stamp duty, registration fee, VAT, service tax  etc.  The project was commenced as per the schedule.   However, on a wholly incorrect understanding  of its association with  Mr. B. Ramalinga Raju,  various investigations and proceedings were instituted against it.    The private financial institutions  which had committed  funding  withdrew from the project causing serious shortage of funds,   jeopardizing the  further development of the project.    The delay in completion of the project was due to ‘force majeure’ which is beyond its control.  There was no deficiency in service on its part.    Later on account of various steps taken by it  140 independent houses were  constructed and delivered possession and 172  independent houses  are  in final stages.    It had also undertaken  to complete the construction of flats.    It was fully committed  to complete the project  and deliver the same to the complainants.     Its case  was also referred to  Company Law Board.     It  has appointed SBI Capital  Markets Ltd.  (SBI Cap) as transaction advisor.  The entire process  was entrusted to  Justice A. R. Laxmanan former judge of Supreme Court of India.    The Company Law Board on 13.1.2011  passed an order  inducting  M/s. Infrastructure  Leasing & Financial  Services Ltd.,  M/s. IL&FS Financial Services Ltd. and  M/s. IL & FS  Engineering and Construction  Company Ltd.,  into the company   as shareholders   by allotting preferential shares.   Pursuant to which  the  Board of Directors are  re-constituted.    They have initiated various measures.    It is in the process  of arranging  further infusion  of funds in order to complete the project.    The agreement stipulates  arbitration clause wherein the disputes would be referred to an  arbitrator.    It did neither commit any  breach nor commit any offence  as alleged in the complaint.  In view of various judgements and court orders  the project was delayed.    In fact it had invoked the  arbitration clause and referred the matter  to an  arbitrator  Hon’ble Justice V. Bhaskar Rao for adjudication.  The complainants were  not entitled to any  of the amounts.    Therefore it prayed for dismissal of the complaints  with costs. 

5)                The directors of  the  developer filed a memo adopting the counter filed  by it. 

6)                The bank filed counter resisting the case.   The complainants have approached the bank for availing loan for purchase of flats   and they entered into agreement of sale with the developer.   Basing on the application and income profile of the complainants and the agreement of sale entered into between the complainants and the developer  it (the bank) had agreed to sanction loan as per the norms.    The complainants, developer and the bank entered into a tripartite agreement and as per the terms  it had  disbursed the loan amount  against mortgage property  directly to the developer on behalf of complainants as per the agreed terms basing on the disbursal request  submitted by the complainants.    The tripartite agreement enables the bank to review the progress of construction to protect its own interest and not a duty cast on it.    The complainants cannot stop payment of EMIs on the ground that the developer failed to complete the construction/hand over possession of the flats.   They are estopped from making any claims in the light  of terms of tripartite agreement.  There was no deficiency in service on its part nor adopted any unfair trade practise.    The complainants filed these false cases in order to avoid repayment of loan amount and make wrongful gain.   Therefore it prayed for dismissal of the complaints with costs. 

7)                Both parties filed their affidavit evidence and got the documents marked. 

8)                The points that arise for consideration are :

i.     Whether the complainants are entitled for possession and registration of flats or in the alternative  refund of the amount, if so, to what amount?

ii.    Whether  the bank was justified in releasing  the entire amount, contrary to the terms of agreements?

iii.   Whether the complainants are  entitled to compensation?

iv.   To what relief?

9)                It is an undisputed fact that the complainants  had  booked the flats and paid sale consideration by borrowing loans from the bank basing on a construction agreement entered into between the complainants and  the developer.    The developer  had agreed to complete the construction and hand over possession within stipulated period from the date of execution of agreement.    It also agreed to pay Rs.5/- per sft. for the delayed construction up to a maximum of 8 months.   Pursuant  to  the above  agreements of sale,   tripartite agreements are  also entered  into between the developer, complainants  and  bank  where the bank undertook to  disburse the loan amount to the builder as agreed upon.

10)              Unfortunately  the developer  stopped the construction and it has come to stand still, when Satyam group of companies in which  developer is one of the constituent company went into liquidation.  The complainants, therefore, seek registration of the sale deeds,  and possession of the completed apartments or in the alternative refund of  amounts  or where sale deeds were executed, to permit them to re-convey title to the developer together with interest, compensation and costs.

11)              The developer  resisted the complaints  on the ground that the agreement provides for reference to an Arbitrator in case of dispute and therefore the complaints are  not maintainable before this Commission. 

12)              We may state that  the developer filed applications  to dismiss the complaints on the ground that there is an  arbitration clause contained in the agreement.  The said applications were  dismissed holding that the Commission has jurisdiction in the light of various decisions of the Apex Court.   Aggrieved by the said order,  the developer  filed W.P.Nos.27689/10 and batch.  Their lordships of the High Court dismissed the Writ Petitions upholding the order of this Commission.  Therefore, we do not intend to once again consider the said question.   The developer is estopped from contending that by virtue of arbitration clause, this Commission cannot proceed ahead for adjudicating the matters in the light of the above orders.

13)              The developer raised another contention that by virtue of the orders of the Company Law Board (‘CLB’ for short)  05-3-2009 and 13-1-2011, the complainants  cannot seek relief before this Commission and  they have to approach the CLB for redressal.   More over, it cannot be said to be guilty of rendering deficiency in service.  

14)              Despite the fact that  developer company is the party, it did not bring it to the notice of the Company Law Board as to the various claims made by the complainants.   Except stating that the Maytas Hill Owners Association was a party to such order, there is no proof that the complainants are  parties  to the said association or  any notice was served on  them  individually  in order to bind them.   In all fairness,  the developer company ought to have impleaded the complainants as  parties to the above said proceedings.

15)              The learned counsel for the complainants   submitted that  they learnt that the developer represented before the CLB that all efforts would be taken up for completion of  the project.    Evidently no construction activity has been taken up.    Even otherwise they  did not even start  construction as per the orders of CLB and arbitration.   These facts are not disputed.  The complainants  submitted that they have no hopes that the project would be completed within a reasonable time so that they  could wait for the project to be completed and then take possession of the apartments.   They insist  that  their amounts be refunded with interest, besides penalty @ Rs. 5/-  per sft  as agreed upon together with compensation and costs.

16)              The learned counsel for  the developer  contended that the order of the Company Law Board is binding  on the  complainants and these complaints  have  to be necessarily dismissed with a direction to  approach the CLB.  When   the developer company  originally run by Satyam Computer Services Ltd. founded   by Mr. B. Ramalinga Raju went into serious financial troubles and the allegation that funds of Satyam were diverted to Maytas Properties to bail out from liquidation, the Central Government filed Company Application No.4/2009 U/s.388 B, 397, 398, 402 and 403 of the Companies Act before the Principal Bench of Company Law Board, New Delhi.  In the said company petition, directions were issued on 13-1-2011, directing Central Government to nominate a nominee director on behalf of the CLB.  The order discloses that Shri  Ved Kumar Jain was nominated as director on behalf of the CLB.  The nominee director undertook various measures  to put the project back on track basing on the recommendations of Hon’ble Justice A.R. Laxmanan. 

The CLB  order  dt.  13-1-2011  reads as follows:

(i)                   I permit the induction of IL & FS group (consisting of Infrastructure  Leasing & Financial Services Limited (IL&FS).  IL&FS Financial Services Limited (IFIN) and IL&FS Engineering & Construction Company Limited (IECL) as the new promoter of MPL and permit  reconstitution of the Board of MPL as provided hereunder.

(ii)                  The IL &FS group shall invest Rs.20 lakhs in equity share  

              capital of the MPL whereupon its shareholding in MPL would

              become 80%.

(iii)                The IL &FS group on induction as the strategic investor

shall  take-over the management control of the MPL and

               reconstitute the Board of Directors of MPL as under:

a)    There shall be 4 nominees of the IL &FS group as directors on the Board of MPL including the Chairman.

b)    The existing Directors of MPL, i.e., Mr.Rama Raju, Mr.D.Gopla Krishnam Raju and Mr.D.Venkata Satya Subba Raju shall resign as Directors of MPL immediately on induction of IL&FS group as the strategic investor in MPL.

c)    Mr. Ved Jain , the nominee Director, appointed by the Union   of India, Pursuant to the directions contained in the order dt. 5.4.2009 shall continue as Director in MPL for a further period  of 3 years.

(iv).    The IL &FS group shall mobilize funds of Rs.150 crores in MPL  within a period

           of 3 months from today.

(v)       The IL&FS group shall complete the Maytas Hill Country Residential

            Project Phase-I within 18 months of its induction as promoter in  MPL and

           shall arrange the required finances to complete the         project.

The order required the above said group to complete the project within 18 months.   Pursuant to  it,  the  developer  has been taken over by  new inductives.  It is not known as to the steps that are initiated  in compliance of the orders. 

17)              The learned counsel  for the developer  relied the following decisions for the proposition that this Commission  cannot go ahead  and adjudicate  the dispute  in view of the above orders:

The supreme Court in Sangramsinh P.Gaekwad v.Shantadevi P.Gaekwad, reported in (2005) 123 Comp. Cas  566, held that Section 402 of the Companies Act, 1956 is without prejudice to the generality of the powers of the Company Law Board under Section 397 & 398 and may provide for directions to achieve the objects for which  the above sections are enacted. These statutory powers have been vested to administer justice and equity, giving broad discretion applying general standard of fairness to meet the ends of justice.

            In Manish Mohan Sharma v. Ram Bahadur Thakur, reported in AIR 2006 SC 1690, the Supreme Court held that the powers under Section 402 are residuary in nature and in addition to the powers available to the Company Law Board under Sections 397(2) and Section 398(2) which permit the Company Law Board to make such order as it thinks fit with a view to bringing to an end the matters complained under 397(1) and 398(1).

            In Ravi Kiran Agarwal & Anr. v. Moolchand Shah & Ors., reported in [2009] 152 Comp Case 637 (Bom), it was held that there is no reason to confine the words “ any other person” under section 405 to those categories of persons who are elucidated in clause (e) of Section 402. Further, it was also held that the exercise of those wide powers, may in a given situation affect the interest of third parties. The court opined that Section 402 describes the nature of reliefs that can be granted in a petition under section 397 and 398. Clauses (a) to (g) of Section 402 are not exhaustive of the reliefs that can be granted by the Board but are only illustrative of the wide powers that are granted upon the Board with a view to ameliorating the situation of mismanagement and oppression.

            In MSDC Radharaman v. MSD Chandrasekara Raja, reported in (2008) 6 SCC 750, the Supreme Court held that the jurisdiction of the Company Law Board having been couched in wide terms and as diverse reliefs can be granted by it to keep the company functioning, is it not desirable to pass an order which for all intent and purport would be beneficial to the company itself and the majority of the members? A court of law can hardly satisfy all the litigants before it. This however, by itself would not mean that the Company Law Board would refuse to exercise its jurisdiction, although the statute confers such a power on it.

            In  Starlinger & Co. v. Lohia Starlinger Ltd, reported in 2007 (5) ADJ 744, it was held that Clause (g)  of Section 402 has illustrated these extraordinary powers in which the Company Law Board may provide for any other matter, which in the opinion of the Company Law Board is just and equitable.

            In Bennett Coleman & Co. v. Union of India, reported in (1997) 47 Comp Cas 92, it was held that instead of destroying the corporate existence of a company, the Company Law Board has been enabled to continue its corporate existence by passing such orders as it thinks fit in order to achieve the objective of removing the oppression to any member or members of a company or to prevent the company’s affairs from being conducted in a manner prejudicial to public interest.

          In India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd., reported in (2007) 5 SCC 510, observed that the doctrine of comity or amity requires a court not to pass an order which would be in conflict with another order passed by  a competent court of law.

          In Swadeshi Cotton Mills v Union of India, reported in (1978) 4 SCC 295,  it was held that the findings of CLB need to be respected by a Company Court and must not be interfered with unless there is a glaring anomaly.

          In Takshila Hospital Ltd. v. Dr.Jaganmohan Mathur, reported in [2003] 115 Com Cas 343 Raj,  it was held that an exercise of such option of instituting a proceedings under Section 397 & 398, an independent proceeding came to be instituted which had to be proceeded with independently and uninfluenced by other proceedings which have not even crossed the preliminary stage of admission.  In the very nature of the order passed by the learned company judge, the company petition for winding up cannot now be proceeded with until proceedings under Section 397 are finally culminated, which includes the exercise of rights of appeal by any party aggrieved with the order passed by the  CLB.  Such appeal also lies to the High Court.

The decisions did not lay down  any proposition that  the proceedings before  the consumer fora  have to be shelved  or the complainants have to approach the CLB. 

18)              In fact  the question whether the complainants have to approach  the CLB or pursue  their remedy before this Commission  is covered by  a decision of our  High Court  in PRUDENTIAL CAPITAL MARKETS Limited, Calcutta v. State of A.P. Department of Law reported in 2000 ALT-5-468.  It  held as follows:

‘There are three categories of cases.  The first category of cases are those where the depositor filed a consumer dispute case before the competent District Forum for refund of the deposit made by the depositor with the PRUDENTIAL CAPITAL MARKETS LIMITED (‘PCML’ for short) and on the District Forum allowing the application, the petitioner herein approached the State Commission which dismissed the appeal filed and whereupon the depositor approached District Forum under Section 27(1) of the Consumer Protection Act, 1986 by filing penalty petition.  The second category of cases are those where the depositor filed a penalty petition before the District Forum for implementation of the order in consumer dispute case and where the petitioner did not approach the State Commission which is the appellate forum.  The third category of cases are those where the orders of the appellate forum are challenged by the petitioner.’

In the process, the question whether CLB can only entertain the complaint against PCML has arisen.  While dealing with the said question the proceedings before CLB vis-à-vis the proceedings before Consumer Forum have also arisen. 

19)              In the instant case since  the developer has clutched the jurisdiction of CLB, the question is whether the provisions of CLB oust the jurisdiction of Consumer Forum.  The said question has been discussed in the above decision as follows:

‘The next aspect of the matter is whether the provisions of the Companies Act and the RBI Act impliedly ousts the jurisdiction of the Consumer Forums when the CLB is seized of the matter or passed an order at the instance of some of the depositors of NBFC.  Hence, sub-sees. (4-D) and (5) of Section 10-E and Section 58-A(9) of the Companies Act and Sections 45-Q and 45-QA of the RBI Act require to be examined, which are as under:“10-E-(4-D) :  Every Bench shall be deemed to be a Civil Court for the purposes of Section 195 and (Chapter XXVI of the Code of Civil Procedure,1973) and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and for the purpose of Section 196 of that code.(5)  Without prejudice to the provisions of sub-sections (4-C) and (4-D), the Company Law Board shall in the exercise of its powers and the discharge of its functions under this Act, or any other law be guided by the principles of natural justice and shall act in its discretion. “58-A(9): Where a company has failed to repay any deposit or part thereof in accordance with the terms and conditions of such deposit, the Company Law Board may, if it is satisfied, either on its own motion or on the application of the depositor, that it is necessary so to do to safeguard the interests of the company, the depositors or in the public interest, direct, by order, the company to make repayment of such deposit or part the order:  Provided that the Company Law Board may, before making any order under this sub-section, give a reasonable opportunity of being heard to the company and the other persons interested in the matter.  “Sections 45-Q and 45-QA of the RBI Act are as under: “45-Q:  Chapter III-B to override other Laws:  The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.  45-QA.  Power of Company Law Board to order repayment of deposit:  (1) Every deposit accepted by a non-banking financial company, unless renewed, shall be repaid in accordance with the terms and conditions of such deposit.  (2)  Where a non-banking financial company has failed to repay any deposit or part thereof in accordance with the terms and conditions of such deposit, the Company Law Board constituted under Section 10-E of the Companies Act, 1956 (1 of 1956) may, if it is satisfied, either on its own motion or on an application of the depositor, that it is necessary so to do to safeguard the interests of the company, the depositors or in the public interest, direct, by order, the non-banking financial company to  make repayment of such deposit or part thereof forthwith or within such time and subject to such conditions as may be specified in the order:  Provided that the Company Law Board may, before making any order under this sub-section, give a reasonable opportunity of being heard to the non-banking financial company and the other persons interested in the matter.”

20)              The provisions of Reserve Bank of India Act, vis-à-vis., the CLB also came  up for discussion.  The very same logic could as well be applied to the case on hand.  In view of the fact that their Lordships at  Para 51 of the above decision opined:

The CLB is constituted by the Central Government and the said Board shall exercise and discourage powers and functions as may be conferred on it by or under the companies Act or any other law and shall also exercise and discharge such other powers and functions of the Central Government under the Companies Act or other law as may be conferred on it by the Central Government. Notwithstanding subsection (1A) of Section 10-E of the Companies Act, the Civil Courts exercised jurisdiction under sec.9 of the Code of the Civil Procedure, till sub-section (9) of Section 58-A was inserted by the Companies (Amendment ) Act, 1977 with effect from 24-12-1977 conferring powers on the CLB to entertain an application of the depositor for repayment of money. After 1977, till the enactment of Consumer Act in 1986, both the Civil Courts as well as the CLB entertained applications from the depositors for refund of deposits. After the Consumer Act, the Forums established under it started granting redressal to the depositors having regard to the broad definition ‘service’ adumbrated in Sec.2(1) (O) of the Consumer Protection Act. Ultimately, to provide an additional speedy remedy, the Parliament enacted RBI ( Amendment) Act, 1997 inserting Sec.45-QA giving power to CLB constituted under Sec.10-E of the Companies Act which ‘may, either on its own motion or on application of the depositors’ order NBFCs to make repayment of such deposits. This background should be kept in mind while examining the order of the CLB, Eastern Region Bench, Calcutta, dated 27-5-1998.

Their lordships also held at para-57 as follows:

‘Sub-section (5) of Sec.10-E of the Companies Act lays down that the CLB shall in the exercise of its powers and the discharge of its functions under the Companies Act or any other law be guided by the principles of natural justice.  The proviso to sub-section (9) of Sec.58A categorically lays down that CLB may, before making any order under sub-sec. (9), give a reasonable opportunity of being heard to the Company and the other persons interested in the matter.  Likewise, the proviso to sub-section (2) of Sec.45-QA mandates that CLB may, before making any order under sub-section (2), give an opportunity of being heard to NBFC and the other persons interested in the matter., Elaborate reasoning is not required to infer that “the other persons interested in the matter’ appearing in the proviso to subsection (9) of Sec.58-A of the Companies Act and the proviso to sub-section (2) of Sec.45-QA of the RBI Act also include the depositors and other creditors of NBFC.  It also does not require any authority to say that any provision which adumbrates the principles of natural justice should be interpreted as a mandatory provision.  Though the two provisions use the word ‘may’, the same should be interpreted as mandatory. 

Obligation is on the part of the CLB to order notices to all the depositors in a matter like this.  How a notice is sent or information is communicated about the cases filed before the CLB under Sec.45-QA (2) of the RBI Act or Sec.58-A (9) of the Companies Act is altogether different matter’.

21)              Coming to the present case,  the developer  did not make any attempt to place the case of the complainants  before  the  CLB.   There is no proof that notices were  issued to the complainants  while passing the order.   It may be stated herein that all these proceedings have been taken only after the complainants have  clutched  the jurisdiction of this Commission.  Even assuming that in one or two cases, the complainants are parties, it makes no difference.  Therefore, the learned counsel for the complainants  is justified in contending that in so far as  complainants are concerned, the order passed by CLB is not  binding  on the   proceedings before this Commission.

Their Lordships in the above case at Pare-59 pointed out as follows:

‘Further, as per the legal position, the proceedings before appropriate Bench of CLB should be initiated by the aggrieved party at the place of company’s registered office.  This is cumbersome procedure.  Therefore, all the depositors cannot be expected to appear before the CLB, Calcutta, especially when there is no notice validly served on all the depositors.  The judgments of the Supreme Court referred to above support the view that when the ordinary remedy provided under the alternative law is cumbersome, the consumer cannot be deprived of the remedy before the Consumer Forums.

At  para 60, their Lordships asserted as follows:

‘The summary of the findings under point No.1 for consideration may now be given. (i) A writ of prohibition cannot be granted unless want of jurisdiction is apparent and if want of jurisdiction is not apparent, the applicant must wait until the decision making body passes orders and seek a writ of certiorari. (ii) A writ of prohibition ordinarily cannot be granted to stop execution or implementation of the decision; (iii) The grant of writ of prohibition is also governed by other principles which ordinarily govern the grant of extraordinary writs like delay and laches, availability of alternative remedy etc. (iv) The provisions of Sec.45-Q, 45-QA of the RBI Act and Sec.58-A(9) of the Companies Act, do not either expressly or impliedly bar the jurisdiction of the forums constituted under the Consumer Protection Act, from entertaining a consumer dispute case at the instance of the depositor claiming repayment of the deposit from a non-banking finance company.  In view of Sec.3 of the Consumer Protection Act, remedy under the said Act is an additional remedy and the same cannot be taken away either by the RBI Act or by the Companies Act. (v)  The order of the Company Law Board, Eastern Region Bench, Calcutta dated 27-5-1998 cannot be construed as either taking away the right of the depositors in these cases to approach the consumer forum or nullifying the orders passed by the District Forum/State Commission’.

22)              Equally the National Commission  in Lloyds  Finance Ltd. Vs. Ms. Napeena Singh reported in I (2006) CPJ 163  NC   considering this aspect of the matter  held:

“It is the case of the complainants before us that they did not apply to the Company Law Board under Section 45QA. They were not served with any notice of any proceedings before the Company Law Board and they were not aware of any notice being published in any newspaper to which they subscribe to or is otherwise in circulation in the locality in which they reside. They say it is perversity of justice that Company Law Board situated in Mumbai could be approached by small depositors in the far flung corner of the country. The whole scheme as framed is floated and tilted in favour of NBFC. That is, however, not for us to consider. What the requirement of law is that a depositor may either approach the Company Law Board under Section 45QA or file a complaint under the Consumer Protection Act before the appropriate forum. A depositor cannot certainly choose both the remedies simultaneously and once he files an application under Section 45QA of the RBI Act before the Company Law Board, he cannot file a complaint in a Consumer Forum under the Consumer Protection Act.”

It is not the case of the developer that  complainants have invoked the jurisdiction of CLB.  Therefore this Commission  has jurisdiction to  adjudicate the matter.    

23)              The learned  advocate for developer contended that  in the  order dt. 13.1.2011   of  CLB  it has   considered the interests of  investors, banks  stakeholders, and the allottees.   It held:

          “Having perused CA 24/2011 and the above mentioned documents and the fact that the petitioner, the existing directors of MPL, shareholders and the Hill County Owners’ association are supporting the application, and the prayer  made in the application deserves to be granted  since it is in the best interests of the company as also of all the stakeholders including banks, employees,  investors and  the aloottees in the Maytas Hill County Residential Project, and would serve the public interest,  the following order is passed in supersession of the earlier order dt. 5.3.2009.

          I permit the induction of IL&FAS (consisting of Infrastructure, Leasing & Financial Services Ltd. (IL&FS).  IL&FS Financial Services Ltd.  (IFIN)  and IL&FS Engineering & Construction Company Ltd. (IECL)  as the now promoter of MPL and permit reconstitution of the board of MPL as provided hereunder :

          The IL&FS group shall invest Rs. 20 lakhs in equity share capital of the MPL  whereupon  its shareholding in MPL would become 80%

          The IL&FS group on induction as the strategic investor shall take over the management control of the MPL and reconstitute the board of directors of MPL  as under :

          There shall be four nominees of the IL&FS group as directors  on the board of MPL including the Chairman

          The existing directors of MPL Mr. Rama Raju, Mr. D. Gopala Krishnam Raju  and D. Venkata Satya Subba Raju shall resign as directors of MPL immediately on induction of IL&FS group as strategic investor in MPL.

          Mr. Ved Jain, the nominee director appointed by the Union of India pursuant to the directions contained in the order dt. 5.4.2009 shall continue as director in MPL for a further period of 3 years.

          The IL&FS group shall mobilize funds of 150 crores  in MPL within a period of three months from today.

          The IL&FS group shall complete the  Maytas  Hill County Residential Project phase-I within 18 months of its induction as promoter in MPL, and shall arrange the requires finances to complete the project. ”

It is not known  whether the said order has been complied viz., raising of Rs. 150 crores etc.  The opposite  parties  could not  confirm the order  was  implemented.   Though he contended that various steps were taken to complete the project  on time,  no evidence is placed  to show  the exact stage of the project.     Affidavit of none of the directors  of the  company was filed to show the stage of construction,  nor the fact that any of the projects were completed. 

24)              The contention  of   the  developer  is that the complainants are  ‘stakeholders’.  Simply by using  such  term, the complainants cannot be taken   into its fold  in order to  bind the orders of CLB.   At the cost of repetition, we may state that it is not known why the  opposite parties did not try to  implead these parties to the application filed before the CLB so that they could agitate their grievances  including the recovery of amount.   Equally so with the bank. 

25)              A reading of the order passed by CLB shows that it was not  aware  of the  cases pending before the Consumer Commission in Andhra Pradesh.  Undoubtedly,  the developer  has with-held  the information pertaining to these cases before  the CLB.  In the light of the above said decision, we are of the opinion that this Commission has jurisdiction.  The orders passed by CLB have nothing to do with the cases  on hand.  The CLB was not appraised about the cases that were filed before this Commission.  In view of the above decision, we are of the opinion that the orders of CLB would in no way prevent or prohibit us  from passing appropriate orders as the case may be. 

26)              The learned counsel for  the developer  contended that any order directing cancellation of allotment or refund of amount would result in disbursement of the amount of the company,  and therefore the complainants  cannot seek  refund of the amount paid by them.    It is not known as to the exact amount that  the developer had availed as finance from banks and other financial institutions.    The developer  except contending that the construction has been taken up and is in progress could not deny the statement of the complainants when they  contended that no work was taken up.  It could have sought for appointment of Commissioner or filed documents evidencing the construction activity.        

27)               Since  the developer could not prove the stages of  construction or  that it would hand over possession within a reasonable period,  and the period that was originally stipulated was already expired,  and all through the complainants  have  been paying EMIs to the bank, we are of the opinion that it would be unjust that the complainants be directed to go on  paying the amounts to the banks  without there being any hope of  getting the project completed. 

 28)             The complainants  by issuing  notice to the developer  cancelled the above said agreements  and  directed   the developer to pay  the consideration received  so far,  as no construction was taken up nor  completed,  and  sought for  refund of the amount paid by the bank to it with penalty @ Rs. 5/- per sft as per clause 7 (a to d) of the agreement.  However, we do not see any justification in impleading  the original owners of property, who have no subsisting  interest  in the property.  They have parted their title  in favour of developer.   Therefore  the claims against them do not sustain.  The complaints are liable to be dismissed against them.    Equally the complainant had issued  notice  to the bank alleging  that the entire loan amount was released contrary to the  tripartite agreement;   wherein it had agreed to  disburse stage wise.    It was contrary to the agreement besides  the  guidelines under  home loans scheme.    It was also mentioned that  since the developer had  failed to complete the construction as per the terms of agreement of sale as well as tripartite agreement,   the bank has to initiate  the proceedings and recover the amount and return the loan amount recovered from them with  ‘no due certificate’.    They have enclosed the termination notice issued to the developer while sending  notice to the bank.   Neither of them had given any reply.  

29)              We may also state that  recovery of money had of the complainant by the  developer depends on the principle of unjust enrichment.  This  principle requires first that the  developer has  been enriched  by  receipt of a benefit, secondly, that this enrichment  is at the expense of the complainant, and thirdly, that the retention of the enrichment  be unjust.   This justifies restitution. 

          We may also quote herein  the words of Lord Mansfiled C.J.

This kind of equitable action to recover back money which ought not  in justice to be kept….. lies only for money which  ex acquo et bono  the defendant  ought to refund …..  It lies for money paid by mistake, or upon a consideration which happens to fail, or for money  got through imposition  (express or implied) or  extortion, or oppression, or undue  advantage taken of the plaintiff’s  situation, contrary to laws made for the protection of persons under those circumstances.  In one word, the gist of this kind of action  is, that the  defendant, upon the  circumstances  of the case, is obliged by the ties of natural justice and equity to refund the money.   

(emphasis supplied)

Section 72 of the Indian Contract Act runs as follows :

A person to whom money  has been paid, or anything delivered, by mistake or under coercion, must repay or return it.    There must be some undue pecuniary  inequality existing in the one party relative to the other which the law recognizes  as requiring compensation upon equitable principles. 

30)               In some of the cases,   sale deeds were  executed in favour of the complainants  by the developer conveying the title.  Obviously, the complainants  cannot have title as well as refund of the amount,   since the very sale  has been frustrated, in such a case, when the developer has executed  the sale deed  and there is no prospect  of either constructing flats or delivering the property to the complainants,  the Hon’ble Supreme Court in somewhat similar case  Vinod Kumar Thareja Vs. M/s. Alpha Construction reported in CPJ  II (2011) CPJ -3 SC while giving directions to refund  the amount also directed to re-convey  the property to the builder.  Therefore, we direct  the complainants to execute re-conveyance deed on receipt of amount payable by the developer and the bank. The  registration charges shall be borne  by  the developer.    This is in conformity with the above said decision of the Hon’ble Supreme Court. 

31)              We may also state  herein that the orders of this Commission against the very same  developer  (vide  C.C. 30/2009)   directing to refund the amount  with interest @ 12% p.a.,  has been upheld by the National Commission in F.A. No.  189/2010 while reducing the compensation from Rs. 5 lakhs to  Rs. 1 lakh.   The SLP moved by the developer before the Hon’ble  Supreme Court in Appeal (Civil) No. 26256/2010 was dismissed on 27.09.2010.  Therefore these matters are covered by the above decisions and there is no need for any distinction  to be made between these cases.  These contentions do not sustain.                                      

32)              It is an undisputed fact that  agreement for purchase of  apartment is between  the complainant and the developer.    It is also not in dispute as per the above said agreement the amount is to be paid as per the schedule  which we have adverted  at para-3 of this order.   Recoursing the above agreement,  a tripartite agreement was executed in between the complainant, developer and the bank.   The complainants  allege that contrary to the terms of the  above  said agreement the amount was disbursed.  In fact it was duty bound to review the progress of construction before disbursing the amount as mentioned in the tripartite agreement.  The bank cannot  resile   from the tripartite agreement  and  terms of the agreement by alleging that  they  (complainants) have   consented to release the  amount to the developer in one go.   No security was taken from the builder before release.  

33)              We may refer herein some  of the important terms of the tripartite  agreement: 

2)       UTI bank shall make disbursement of the sanctioned loan by making payment to the developer directly on behalf of the borrower and payments made to the developer shall be deemed to be payments made to the borrower and borrower shall in each case be liable  for the amount of the loan disbursed or his/her behalf  to the developer, as though the same had been disbursed directly to him/her.  It is further agreed by the borrower that UTI bank shall not be responsible or liable to ensure  or ascertain the progress of the construction and mere demands by the borrower for disbursement would be sufficient for UTI bank to effect disbursement as aforesaid provided that all other sanction stipulations are complied by the borrower. 

However, UTI Bank as its sole discretion, shall disburse the loan in suitable instalments, at the request of borrower, or in suitable  instalments  to be decided by UTI bank, with reference to need or progress of construction, which decision shall be final  and binding on the borrower/developer. The borrower shall be responsible for follow with the UTI bank to make disbursement on his/her behalf as per any agreement, payment schedule he/she may  have with the developer.  Not withstanding anything to the contrary contained herein, UTI bank may in its sole discretion refused to disburse the loan until:

(a)   Borrowers has paid his/her own contribution in full to the developer (the cost of the dwelling unit less the loan) and the progress  and need of the construction justifies the disbursement requested.

3)                …… The developer further agrees to total subrogation of borrower’s right to receive refund of all the monies, received by the developer from UTI bank on behalf of the borrower in favour UTI Bank.  In any event in which such refund becomes due and payable to the borrower under any agreement/arrangement executed/made between the developer and the borrower, the developer in particular agrees and undertakes not to pay any amount on any account or under any circumstances to the borrower by way of refund or otherwise without first  receiving a written consent of UTI bank.   The borrower  and  the developer also agrees  that as soon as the first disbursement  is made by UTI bank, the mortgage/charge  in favour of UTI bank shall, without the necessity of any deed, document or writing, fasten on the said dwelling unit and the same shall continue  (notwithstanding  its allotment, completion and occupation) until the loan of UTI bank is fully repaid with interest and all other dues. 

(5)               If for any reason there is an increase in the cost of the dwelling unit such increase in the cost of the dwelling unit shall be paid/borne by the borrower without any reference to UTI bank and until such payment is made  UTI bank shall have the right to suspend further disbursement of the sanctioned loan

7(a)    Upon cancellation of the allotment of schedule property, made to the borrower  for any reason, the developer shall immediately intimate about the same in writing to UTI Bank.  Upon receipt of such intimation, UTI Bank shall notify the developer all amounts due to it from the borrower.  In such an event, the developer shall forthwith  pay UTI Bank all amounts received by it from UTI Bank  on behalf of the borrower within 60 days  of receipt of such statement during which period, the developer shall pay interest to UTI Bank, at the rate of interest on such amount shall be the same as agreed between the UTI Bank and borrower in the loan agreement.” 

7 (b)             Further the developer hereby agrees that it shall also pay all the remaining amounts due and payable to UTI Bank from the borrower such as defaulted payments, additional interest, etc. after deducting  reasonable  expenses  (as agreed by the developer, and UTI Bank) incurred by the developer  from the sale proceeds of the property.  Further any such sale by the developer can be effected only after obtaining a consent from UTI Bank. 

9)       That in the event of default in payment of any dues to UTI bank by the borrower UTI Bank may at its sole discretion enforce the security by sale of the land and dwelling unit for which the loan has been availed by the borrower and the developer shall not raise any  objection/obstruction for the same and shall accept another purchaser for the house or flat in  place of the borrower, however subject to  the substitute purchaser complying with the necessary requirements of the developer in this respect.   If there are any dues/ outstandings  payable  by the borrower to the developer the same shall be subordinate/secondary to that of the liability of the borrower to UTI Bank.   

34)              The complainant contends that contrary to the terms of agreement and also various guide lines for releasing loan amounts, the bank has released the entire amount in one go without considering the stages  of construction to the detriments of  their interests.  The bank can directly pay the amount to the developer as  agreed upon but not whole of the amount without  even  verifying the  stages of construction and existence of property.    It could not have released the amount without verifying the progress of construction jeopardising  their claims.  By referring to project programme guide lines  where there was specific reference that the  developer should be in  business for not less than 5 years and the builder/developer  has history of due  completion of 3 projects and it should have completed at least 1,00,000 sft. of built up area,  and that  without  satisfying  the eligibility  criterion  the bank could not have  sanctioned Advance Disbursement Facility (ADF for short).   They  contend that  the developer was incorporated on 20-1-2005 and the amount was released without completion of 5 years to avail ADF contrary to stipulations.   

35)              Curiously the bank despite the notices of cancellation  of agreements etc. and even filing complaints before this Commission and proceedings before the CLB,  did not try to recover the amount paid by it to the developer invoking  the above clauses.  The banker   knew full well the amounts were diverted for some other purpose.  It did not take  steps to recover from the developer, obviously, it knew it would  land up in litigation, where it may not be sure for recovery of the amount.  It knew full well the complainants  being salaried persons it was  easy for them to recover. 

36)              Evidently the bank did not take  any steps to recover the amount,  only  in the event  of  bank sustaining loss,  this  indemnity clause comes into play.      The bank had taken a letter from the complainants  wherein they had agreed to release the amount without waiting for construction to be made.     This is contrary to the guidelines and tripartite agreement.  It is not known why the bank had taken such a stance when  the guidelines as well as their own  agreements  stipulate  to release the amount stage wise.    The fact remains that  the bank  released the amounts to  the developer contrary to  guidelines as well as tripartite agreement to non-existent apartments. 

37)              The bank  having been a party to the tripartite  agreement cannot direct the complainants  to execute such a  letter without the consent of the developer  in this regard.   This is contrary to the terms of the tripartite agreement .   By taking so called consent from the complainants to release the entire amount, the bank is offending  the terms  of agreement.   There cannot be any objection for the developer to take it.   After all  it will have the entire amount without corresponding  burden to fulfil.   It need not construct.    Had  developer been joined,   the complainants  could have  insisted the developer to construct the property and only  after satisfying itself  as to the phases  of construction, they would  have asked the banker to release the amount accordingly.    There would be no meaning in releasing the entire amount in one go,  the bank having agreed to release the amount  in a phased manner.   Solely basing on the letter taken from the complainants, the bank cannot give a go bye  to tripartite agreement   and release the  entire amount.    This would cause  unjust enrichment to  the developer, and  loss to the complainants.   The terms of the agreement  in between  three parties were made  in order to see that no  party suffers from non-implementation of  terms of the agreement.   The bank cannot act at its own  whims and fancies, and  release the amount.  It cannot   defend that by virtue of letters of the complainants,   it was entitled to release the amount in its entirety.  

38)              If the bank acts contrary  to the  agreement and  guidelines  the complainants are not liable to refund the amount paid to the developer.   The bank can as well recover from the developer by recoursing  the above clauses.   The courts will not come to the rescue  of the party which violates the terms and convey benefits to one party in preference to another.   It intends  to cause loss to a genuine borrower by  unduly favouring a defaulting and unfair customer.   All this  amounts to  unfair trade practice. 

39)              It is not as though the bank  did not know that  the developer has clutched the jurisdiction of the CLB.   When the matter is pending with CLB,    if really  it intends to protect its own  interest  besides that of the complainants,   in the light of dispute,  it ought to have approached  the CLB for recovery of the amounts.  It did not even file the proceedings before the  appropriate authority for recovery of the amount.  Evidently the  bank knew full well that it could recover the amount from the complainants. 

40)              The banks and financial institutions promising to lend  moneys  or sanctioning loans and the borrower  investing  in the  project thereon  will  be clothed  by  the principles  of Promisorry Estoppel.  The doctrine of promissory estoppel  is an evolving doctrine,  contours of which  are  not yet fully and finally demarcated.   Being an  equitable  doctrine  it should be  kept elastic enough in the  hands of the court to do complete justice  between the parties.   If the  equity demands that the promissor is allowed to resile  and the promisee  is compensated  appropriately  that ought to be done.  If, however, equity demands that the promissor should be precluded  in the light of things done  by the promisee  on the faith  of representation  from resiling and that he should be held fast to his  representation  that  should be done.    It is a matter holding scales even between  the parties to do justice between  them.  This is the equity implicit in the doctrine vide State of H.P. Vs. Ganesh Wood  Products reported in  1995  (6) SCC 363. 

41)              It is legally open to the bank  to take a decision  in good faith in the exercise  of its bonafide  discretion as to whether it was  safe to make advances of public  funds to any particular  party and arrive at a decision after  examining the  relevant  facts and circumstances. 

42)              However, in the present case the complainants  by issuing notice  put an end to the contract as the developer  disabled itself  from  performing its  obligations.    The bank did not act in good faith nor it had  exercised bonafide discretion  while releasing the funds. 

Recourse can be  had to a  decision in Nannapaneni Venkata Rao Co-operative Sugars Ltd. Vs.  State Bank of India reported in AIR 2003  AP 515  (DB)  it was held :

Refusal on the part of the respondent bank to pay interest on the ground that  opening of such account and crediting  of the interest  is not in accordance  with the guidelines  of RBI is not tenable as the respondent is solely responsible for suppressing the fact while entering  into  the contract. 

43)              This Commission can take judicial  cognizance  of the fact that various banks have financed the builder  obviously  in view of  reputation the developer  was having by then, and the bank contrary  to the terms of the agreement as well as  guidelines disbursed the amounts  keeping the interests of the complainants in jeopardy.  The banks are picking and choosing certain clauses  and contending that the very complainants have given  authorization to them to release the amount and therefore they have released,    forgetting the fact that  the very financing  of the project  was contrary to the scheme  issued in this regard.     Evidently, the bank  as well as the developer benefitted from these transactions.   The developer has taken the amount without constructing   any of the flats,  and equally the bank  has been collecting the amounts from the complainants towards EMI.   It is a case of  double jeopardy.   Necessarily all this amounts to unfair trade practise as well as deficiency in service on the part of developer as well as the bank.   Necessarily the complainants have to be compensated.   Since terms of the agreement  enable the bank to collect from the developer it can as well recover the same.   The bank by  violating its own  rules cannot  take advantage and recover the same from the complainants.   This suppression of rules at the time when so called authorization  taken from the complainants amounts to unfair trade practise.  This cannot  be allowed to happen.

44)              The bank has undoubtedly  violated the terms of  the tripartite agreement,  and  released the amount even without bothering to verify as to the stage and nature of construction.  In other words, the bank financed to a non-existent  project or incomplete project, duping its own customers.  Now the complainants would be un-necessarily  hard pressed,  to pay the amounts towards  EMI  without there being any  hope of getting the apartments as  the developer is  under winding up proceedings.    The bank cannot take advantage of its own indiscretion.     This is unjust and unethical.   If the bank releases the amounts contrary   to tripartite agreement  it has to suffer for the consequential  losses.   Whatever loss caused thereby it could as well approach appropriate forum for recovery of the amount from   the developer,   to which it has released the amount in one go.   The bank under the terms entitled to recover from the developer  to which it had paid the amounts.   It cannot turn round and claim against the complainants.    It is not under original stipulation that the bank  had to pay the  entire amount to the developer.   The developer also agreed to refund  the amount if  there are cancellations  of the agreements  or failure to fulfil  its commitments.  The agreement that was arrived at earlier was fair and no party would benefit from the lapses or mistakes of the other.   Therefore, the complainant are   not liable to pay the EMIs. 

45)              The   bank has to collect the loan amount plus whatever interest  and other legally permissible  charges from the developer  and credit it to the complainant’s loan account.   It shall not collect further EMI’s nor entitled to any  more amount except the amount, if any, remained unpaid by the complainant towards  loan granted to him.  The bank  has no authority to complain to CIBIL.  In fact if there is a  provision,  the CIBIL  has to enter the name of the bank, as one of the violators of guidelines of the banks. 

In the result the complaints  are  allowed in part  in  following terms:

CC 65 of  2011

1. The developer Op1,  Ops 3 to 5 and Op 7     are  directed  to refund the amounts paid by the complainants  with interest @ 12% p.a., from respective dates till the date of payment together with compensation  of Rs. 1 lakh,  and costs of Rs. 10,000/- .

2. Further the developer Op1, Ops 3 to 5 and Op 7   are  directed to refund the amount disbursed by the bank  to  it  along with penal charges etc. levied by the bank if any, failing which the bank  is liable to collect,  and credit the  same to the loan account of the complainants. 

3. In  case sale deed was executed the complainant  shall re-convey the same to the developer on compliance of above directions.  The registration charges  and stamp duty etc.,  shall be borne by the developer Op1,  Ops 3 to 5 and Ops 7.         

4. The complaint  against  Ops 2, 6 and 8  is  dismissed  without costs.

Time for compliance eight weeks.  

CC   7   of  2010

CC  55  of  2010

1. The developer Op1 and Op15   are  directed  to refund the amounts paid by the complainants  with interest @ 12% p.a., from respective dates till the date of payment together with compensation  of Rs. 1 lakh,  and costs of Rs. 10,000/- 

2. Further the developer Op1 and Op15 are  directed to refund the amount disbursed by the bank  to  it  along with penal charges etc. levied by the bank if any, failing which the bank  is liable to collect,  and credit the  same to the loan account of the complainants. 

3. In  case sale deed was executed the complainant  shall re-convey the same to the developer on compliance of above directions.  The registration charges  and stamp duty etc.,  shall be borne by the developer Op1 and Op15. 

4. The complaints against  Ops 2 to 14  are   dismissed  without costs.

Time for compliance eight weeks.  

CC 72 of  2010  

1. The developer Op1  is  directed  to refund the amounts paid by the complainants  with interest @ 12% p.a., from respective dates till the date of payment together with compensation  of Rs. 1 lakh,  and costs of Rs. 10,000/-. 

2. Further the developer Op1 is   directed to refund the amount disbursed by the bank  to  it  along with penal charges etc. levied by the bank if any, failing which the bank  is liable to collect,  and credit the  same to the loan account of the complainants. 

3. In  case sale deed was executed the complainant  shall re-convey the same to the developer on compliance of above directions.  The registration charges  and stamp duty etc.,  shall be borne by the developer Op1

Time for compliance eight weeks.  

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

3)      ________________________________

 MEMBER           

CC  No 65  of 2011

Documents marked for the complainants

Ex  A-1           Brochure 

Ex A-2                        Pricing structure dt : 10.9.2006.

Ex A-3                        Provisional allotment letter dt : 21.9.2006

Ex A-4                        Agreement of sale dt : 18.10.2006

Ex A-5                        Tripartite Agreement dt : 18.12.2006

Ex A-6                        letter dt : 10.1.2009

Ex A-7                        Letter dt : 23.7.2009

Ex A-8                        office copy of legal notice dt : 25.2.2010.

Ex A-9                        Form-32 dt : 7.2.2011.

Documents marked for the opposite parties  :

Ex B-1             CLB order dated : 5.3.2009

Ex B-2             CLB order dated : 13.1.2011

Ex B-3             Resignation and appointment of Directors Form-32

Ex B-4             Letter of Authority

Ex B5              Letter to customers with respect to commencement

                        of project dt : 25.2.2011

Ex B-6             Letter to customers with respect to progress of construction                                                             commenced dt : 8.4.2011

Ex B-7             Letter to Hill county Home Owners dt : 17.6.2011

Ex B-8             Letter to customers with respect to progress of construction                                                             dt : 8.9.2011

Ex B-9             Letter to customers with respect to progress of construction                                                             dt : 25.10.2011.

Ex B-10           Loan Applications borrower/co-borrower dt : 25.11.2006

Ex B-11           Sanction letter dt : 6.12.2006

Ex B-12           Loan Agreement dt : 4.12.2006

Ex B-13           Request letter to release sanction loan amount.dt : 22.12.2006

Ex B-14           Request letter to release sanction loan amount dt : 19.7.2007

Ex B-15           Request letter not to release sanction loan amount dt : 26.8.2009

Ex B-16           Statement of accounts dt : 24.10.2001

Ex B-17           Copy of arbitration order  case no. 11 /2011

CC  No  7 of 2010

Documents marked for the complainants

Ex  A-1           Agreement of Sale dt 18.10.2006

Ex A-2                        Tripartite  agreement dt : 27.12.2007

Ex A-3                        Home Loan Agreement  dt : 17.12.2007

Ex A-4                        copies of legal notices dt : 27.11.2009 

Ex A-5            Postal receipts 

Documents marked for the opposite parties  :

Ex B-1             CLB order dated : 5.3.2009

Ex B-2             CLB order dated : 13.1.2011

Ex B-3             Resignation and appointment of Directors Form-32

Ex B-4             Letter of Authority

Ex B-5             Letter to customers with respect to commencement

                        of project dt : 25.2.2011

Ex B-6             Letter to customers with respect to progress of construction                                                             commenced dt : 8.4.2011

Ex B-7             Letter to Hill county Home Owners dt : 17.6.2011

Ex B-8             Letter to customers with respect to progress of construction                                                             dt : 8.9.2011

Ex B-9             Letter to customers with respect to progress of construction                                                             dt : 25.10.2011.

CC  No 55 of 2010

 Documents marked for the complainants

Ex  A-1           Agreement of Sale dt 07.03.2007

Ex A-2                        Tripartite  agreement dt : 27.4.2007

Ex A-3                        Home Loan Sanction letter dt : 13.3.2007

Ex A-4                        copies of legal notices                        

Ex A-5                        postal receipts and acknowledgements

Documents marked for the opposite parties  :

Ex B-1             CLB order dated : 5.3.2009

Ex B-2             CLB order dated : 13.1.2011

Ex B-3             Resignation and appointment of Directors Form-32

Ex B-4             Letter of Authority

Ex B-5             Letter to customers with respect to commencement

                        of project dt : 25.2.2011

Ex B-6             Letter to customers with respect to progress of construction                                                             commenced dt : 8.4.2011

Ex B-7             Letter to Hill county Home Owners dt : 17.6.2011

Ex B-8             Letter to customers with respect to progress of construction                                                             dt : 8.9.2011

Ex B-9             Letter to customers with respect to progress of construction                                                             dt : 25.10.2011.

Ex B-10           Copy of arbitration order  case no. 11 /2011

CC  No 72 of 2010

Documents marked for the complainants

Ex  A-1           Brochure

Ex A-2                        Agreement of sale dt : 5.11.2006

Ex A-3                        Tripartite Agreement  dt : 24.12.2006