RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Complaint No. 113 of 2011

1- Smt. Sangeeta Srivastava, adult, w/o Sri Sanjeev

    Srivastava.

2- Sri Sanjeev Srivastava, adult, s/o Sri V.P.

    Srivastava, R/o Premises no.40/69-A, Hospital

    Road, Parade, Kanpur Nagar.              ....Complainants.

Versus

1- Parsvnath Developers Limited [a duly incorporated

     Company under Indian Companies Act, 1956] having

     its registered office at Parsvnath Metro Tower, Near

     Shahdara Metro Station, Shahdara, Delhi-110032

     through its Managing Director.

2- The Housing Development Financial Corporation

     Limited, a company duly incorporated under the

     Companies Act, having its registered office at Raman

     House, H.T. Parekh Marg, 169, Backbay Reclamation,   

     Churchgate, Mumbai-400020 and one of its branch

     Office at First Floor, Garg Narona Complex, 17/9-A,

     The Mall, Kanpur.                               …..Opp. Parties.

Present:-                                                   

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Raj Kamal Gupta, Member.

Shri Sunil Sharma, Counsel for complainants.

Shri  Rajesh Chaddha, Counsel for the OP no.1.

Shri Mujeeb Effendi, Counsel for the OP no.2.

Date 16.4.2018

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This complaint has been filed by the complainants against the OPs for restraining the OP no.1 from cancelling the allotment of the flat in question and for taking any coercive action of forfeiture of any money collected by the OP no.1 and directing the OP no.1 for payment of Rs.22.09 lacs paid to the Developers with interest, Rs.4.75 lacs deposited through 12 EMIs, Rs.33.48

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lacs to the HDFC towards full and final settlement of the loan account and directing the OP no.2 to realise the amount of interest on the amount of Rs.33.48 lacs from the developers who utilized the amount.      

The case of the complainants, in brief, is that the complainants on the motivation of the officials of the OP no.2 agreed to purchase Flat no.T-1/903 in Parsvnath Privilege at Greator Noida, Gautam Budh Nagar which was technically and financially approved by the OP no.2. After negotiation with the OPs, it was revealed to the complainants that the said Flat was already allotted to one Mr. Harsh Pal Singh Sawhney and Mr. H.P.S. Sawhney who had already paid Rs.10,00,00.00 to the OP no.1 and in furtherance of the advance payment made by Mr. Sawhney the OP no.1 vide its letter dated 23.2.2007 made an allotment of the said flat, the total cost of which was Rs.52,86,750.00. Mr. Swahney agreed to transfer the allotment of Flat in favour of the complainants and consequently, on 28.12.2007 the provisional allotment in favour of Mr. Sawhney, was transferred in favour of the complainants on already settled cost of Rs.52,86,000.00. The complainants made payment of Rs.10,00,000.00 vide cheque no.201183 dated 24.12.2007 to Mr. H.P.S. Sawhney and further paid a sum of Rs.2,92,00.00 vide DD no.955271 dated 29.12.2007 to the OP no.1. Mr, Sawhney vide letter dated 13.2.2008 requested to transfer the aforesaid flat in favour of the complainants and also acknowledged receipt of Rs.10,00,000.00 and Rs.2.92 lacs. The booking amount against the flat was to be paid Rs.12.92 lacs and as the balance Rs.2.92 lacs remained

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unpaid by Mr. Sawhney for some period. The OP no.1 charged interest @2% p.m. for the period of delay and charged interest for delayed period of Rs.27,206.00. The "Flat Buyer Agreement" with the OP no.1 was transferred in the name of the complainants on 13.7.2008 and the construction of the flat was to be completed within 36 months i.e. upto 23.10.2010. A tripartite agreement was also executed between the complainants, the OP no.1 and the HDFC Bank, OP no.2 on 5.3.2008 through which the HDFC Bank agreed to mortgage the rights of the said flat and sanction a loan of Rs.35 lacs. Thereafter, the HDFC Bank instead of transferring the amount in the accounts of the complainants, intentionally with mutual collusion directly transferred Rs.33.48 lacs to the Bank account of the Developers, the OP no.1. As the OP no.1 had already taken Rs.12.92 lacs from the complainants hence, 95% of the total cost of the flat i.e. Rs.12.92 lacs plus Rs.33.48 total Rs.46.40 lacs stood transferred to the account of the developers from the complainants. The complainants started to deposit the EMI of Rs.34,370.00 per month to the OP no.2 till march, 2009 as in the month of February, 2009, the complainants found that even after 34 months of booking of the flat, even the plinth level work had not commenced and there was only barren land. The complainants contacted the OPs in this regard but no satisfactory reply was given. They even wrote to the OPs for indemnifying them as the flat was not constructed and the complainants were suffering. Thereafter, the complainants also asked the OP no.1 to refund the amount with interest as also the amount received by them from the

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HDFC Bank, OP no.2 but instead of providing flat or refunding the amount with interest, the OP no.1 threatened to cancel the allotment and forfeit 15% of the deposited amount and to pay balance to the HDFC Bank. Since the OPs had committed deficiency in service therefore, the complainants filed this complaint for restraining the OP no.1 from cancelling the allotment of the flat in question and for taking any coercive action of forfeiture of any money collected by the OP no.1 and directing the OP no.1 for payment of Rs.22.09 lacs paid to the Developers with interest, Rs.4.75 lacs deposited through 12 EMIs, Rs.33.48 lacs to the HDFC towards full and final settlement of the loan account and directing the OP no.2 to realise the amount of interest on the amount of Rs.33.48 lacs from the developers who utilized the amount.

The OP no.1 filed the objection for dismissing the complaint on the ground of valuation of the complaint being more than Rs.1 crore hence, the same was not cognizable and was beyond the pecuniary jurisdiction of this State Commission. Besides, the requisite fee for filing the case is also deficient therefore, this complaint is liable to be dismissed on that score also.

The OP no.2 filed their objections mentioning therein that in January, 2008 the complainants had approached to the OP no.2 for sanctioning of loan to the tune of Rs.40 lacs for purchasing a property in the housing project of the OP no.1. The OP no.2 sanctioned the loan of Rs.40 lacs to the complainant for purchasing flat no.T 1-903 at Parsvnath Privilege, Greator Noida and thereafter, a loan agreement was executed between the complainants

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and the OP no.2 and a sum of Rs.35 lacs was released to the complainants. A separate tripartite agreement was also executed between the complainants, Parsvnath Developers and HDFC Bank. The complainants were liable to make payment of monthly EMI as laid down in the loan agreement to the HDFC and in case there was default of payment of EMI then as per the agreement, the builder was to cancel the allotment of the flat and to refund the money to the HDFC Bank. The complainants stopped payment of the EMIs after February, 2009 and therefore, the OP No.2 had to send a written notice to the complainants and also wrote to the OP no.1 requesting them to cancel the allotment of the complainants and to refund the paid amount to the HDFC. Thereafter, the OP terminated the loan agreement. Thereafter, there was an MOU between the builder and the complainants which has been signed by the complainants and the OP no.1 whereby the builder paid the complainants a sum of Rs.6,33,800.00 vide DD dated 11.4.2011 with clear understanding that the said amount shall be utilized for clearing of the EMIs of the HDFC but the complainants did not do so. The OP no.2 thereafter, issued notice to the OP no.1 requesting him to cancel the allotment and refund the deposited amount in the Bank, the complainants are not interested in the flat and they have sought restraint order against the cancellation of the allotment. The complaint, therefore, deserves to be dismissed.

During the pendency of this complaint an MOU has been reached between the complainants and the OP no.1 and it has been agreed that Parsvnath Developers Ltd.

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shall refund a sum of Rs.18,97,816.00 to the complainants and they shall also clear the said loan amount of the HDFC Bank on its own and nothing would be payable by the second party i.e. the complainants to the Bank in this regard. Since the complainants and the OP no.1 have agreed by the MOU and have also agreed under the aforesaid MOU that Parsvnath Developers shall clear the said loan account of HDFC Bank on its own, therefore, the interest of the OP no.2 has also been taken care of. A request has been made by the complainant and the OPs to decide this complaint as per the MOU reached between the complainants and the OP no.1. So this complaint is decided in terms of the MOU entered into between the complainants and the Parsvnath Developers, OP no.1. It is made clear that Parsvnath Developers shall clear the said loan account of HDFC Bank on their own and nothing would be payable by the complainants to the Bank in this regard.           

ORDER

The complaint is decided in terms of the MOU dated 6.8.2016 entered into between the complainants and the OP no.1, which shall be the part of this order.

 Certified copy of the judgment be provided to the parties in accordance with rules.

                 (Vijai Varma)                  (Raj Kamal Gupta)

               Presiding Member                     Member

Jafri PA II

Court No.2