DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.246/2020
Dhruv Duggal
S/o Shri Rakesh Duggal
R/o E-601, Bestech Grand Spa Sector-81
Gurugram – 122004
Haryana. .…Complainant
VERSUS
Tata Capital Housing Finance Limited
B-36, 1st and 2nd Floor
Lajpat Nagar 2, New Delhi-110021.
Indiabulls Distribution Services Ltd.
M-62 & 63, First Floor Connaught Place
New Delhi-110001. ….Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Abhinav Sharma & Adv. Shreesh Pathak along with the complainant.
Adv.Sandeepa Bhattacharjee proxy counsel for OP-1.
Ms. Anju Mathur, AR for OP-2.
ORDER
Date of Institution:15.12.2020
Date of Order : 04.12.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking directions to OP to place all the documents before the Hon’ble Court regarding approval of the project Shubhkamna Advert Techomes’, declaring OPs to be deficient in providing service; direction to OPs to waive off interest amount imposed on the complainant; direction to OP-1 to deduct the EMIs from the complainants after the delivery of unit in project; Rs.1,00,000/- with 18% interest from the date of institution of this complaint till realisation; Rs.10,00,000/- as compensation to loss, injury, damages towards mental agony and deficiency in service and unfair trade practices. OP-1 is Tata Housing Finance Ltd and OP-2 is Indiabulls Distribution Services Ltd.
- It is the case of the complainant that he bought a unit in the real estate project ‘Shubhkamna Advert Techomes’ sought to be developed by M/s Shubhkamna Buildtech Pvt. Ltd. on the representation of OP-2 and OP-1. OP-1 was introduced by OP-2 and the builder who then sanctioned a home loan to the complainant when the flat allotted to him. It was projected by the OP to the complainant that his unit as well as the project was free from encumbrances. However, the flat was already mortgaged to DHFL under the project loan agreement. DHFL took possession of the project/units when the complainant and several other homebuyers were already paying their respective EMIs.
- It is stated by the complainant that in 2014 the complainant decided to invest his hard earned savings in buying a flat in Delhi NCR. OP-2 i.e. Indiabulls approached the complainant and told him that they have an arrangement with the builder to sell some flats on commission basis and apprised the complainant about Shubhkamna Advert Techomes in Sector 137, NOIDA, Uttar Pradesh.
- It is pertinent to mention that OP 2 and the builder further stated that they had arrangements with some finance companies/ banks and the homebuyer can avail hassle free loan facility from these banks. OP-1 was introduced to the complainant by the builder and OP 2 for ease of finance.
- It is further stated by the complainant that he was assured that there will be no time and cost overruns and the project shall be completed as promised. Complainant was also assured that the flats are free from any encumbrances etc. The complainant had no prior relation with OP 1 and sought loan from OP 1 because of their tie up with builder and prior approval of the project.
- Considering all the above facts and assured of the repeated/luring promises the complainant invested in a flat bearing No.B-3/D-10 in Shubhkamna Advert TecHomes, Sector 137 NOIDA, Uttar Pradesh. The complainant was assured time bound completion of unit and the project, the project is still far from completion and is stalled. Copy of allotment letter is annexed as annexure C-2.
- In view of the aforesaid facts, a loan amount to Rs.65,00,000/- was sanctioned by OP 1 with loan account No.9289832. Copy of loan sanction letter dated 19.05.2014 is annexed as annexure C-3 (colly).
- On 25.06.2014 an amount of Rs.58,62,938/- was disbursed to the builder. Document pertaining to the said disbursement is marked as annexure C-4. The ledger document is annexed as annexure C-5.
- It is further stated by the complainant that OP-1 disbursed first instalment of the loan to another account of the builder of another project and not to account of the aforesaid project. OP-1 further disbursed the extra instalment to the builder without information the complainant in order to benefit the builder. An FIR has been registered against the builder for cheating and diverting the funds meant for construction and the criminal court has taken cognizance of the offence.
- It is stated that complainant has made several communications to to OP-1 but OP-1 has not replied to any of these communications. OPs have also not filed any complaint with the police against either the builder or DHFL thereby admitting negligence and active connivance with the builder in defrauding the complainant. This case highlights active facilitation by OP1 of the builder in siphoning off the funds meant for construction.
- It is further stated that OP1 again disbursed an amount of Rs.5,09,349/- to the builder on 28.08.2014 when the same was not due and without informing the complainant. The issue was raised with the OP1 and the said transaction was reversed admitting its mistake. Document relating to disbursal and emails sent to OP 1 and builder are marked as Annexure C-6 (colly). It is stated that the conduct of OP-1 in first disbursing an amount of Rs.58,62,938/- to another account of the builder and then disbursing another Rs.5,09,349/- without informing the complainant when the same was not due highlights not only deficiency on the part of the OP 1 but also active connivance and collusion with the builder.
- It is further stated that it came to the knowledge of the complainant much later, that DHFL had covertly sanctioned a project loan of Rs.25 Crores to the builder in December, 2011 against which the entire project land of Shubhkamna Advert tecHOMES’ along with units were mortgaged to DHFL. This whole arrangement and understanding between DHFL and the builder was carried out through a loan agreement dated 05.12.2011. It was also specifically agreed that the disbursement of the ‘project loan’ shall be linked to the stages of construction although the same has been disbursed by DHFL in entirety even though the project is still incomplete. Copy of project loan agreement dated 05.12.2011 is marked as Annexure C-7. Copy of letter dated 22.12.2015 of DHFL showing complete disbursal of the project loan is marked as Annexure C-8. It is alleged that DHFL actively connived with the builder in order to defraud the homebuyers.
- It is stated by the complainant that his flat No.B-3/D-10 was already mortgaged to DHFL through the agreement dated 05.12.2011 much before it was allotted to him and the same was never told to the complainant at the time of booking and allotment and even sanctioning of the home loan either by OP 1 or the Builder i.e. Indiabulls. No due diligence was deliberately done by the OP 1in order to facilitate the builder. In fact positive averments were made to the complainant that the flat and the project site are unencumbered and free from any charge etc. The Tripartite Agreement also states that the title of the said flat/premises is free from any encumbrances. On this basis complainant proceeded to invest in the project. Copy of permission to mortgage letter marked as Annexure-9 (colly).
- It is further stated that National Housing Bank, the regulator of DHFL and other housing finance companies including OP-1 in response to a specific complaint by the home buyers in the aforesaid project has found DHFL guilty and categorically stated that DHFL did not disclose that the first charge on the project was with DHFL and none of the documents such as Tripartite agreement disclosed this fact. The said letter of the National Housing Bank seals the entire issue raised by the complainants/ homebuyers in the complaints given by them to EOW. Copy of letter dated 17.09.2019 is annexed as annexure C-10.
- It is stated that because of the collusion between the builder and the banks/finance companies, the builder diverted the money meant for construction and therefore defaulted on this project loan of Rs.25 Crores. After such default, DHFL took possession of complainant’s project site. Copies of the possession notices are annexed as annexure C-11 (colly). Relevant documents showing possession of the complainant’s flat taken by DHFL is annexed as annexure C-12.
- An FIR was registered in this regard with the Economic Offices wing of the Delhi Police and investigations are underway. Copy of FIR is annexed as annexure C-13. One chargesheet was submitted by the Police and the Ld. Chief Metropolitan Magistrate, Karkardooma Courts, East District, Delhi has taken cognizance of the offence under Section 120B r/w 420, 406 and 409 IPC. One Director of M/s Shubhkamna Buildtech Pvt. Ltd. is absconding and has been declared PO. The other director was arrested and taken into custody.
- It is stated that investigating agency reported that the funds collected by the builder through individual contributions and loans etc. were diverted and siphoned off and as a result the construction of the project suffered and is still incomplete. The complainant wrote one email to OP-1 highlighting connivance between the OP-1 and builder. Copy of email dated 10.12.2018 is annexed as annexure C-14. However, no complaint has been submitted to the police by the OPs against either the builder or DHFL.
- It is also stated by the complainant that OP-1 has disbursed a major portion of the loan i.e. Rs.58,62,938/- in a single disbursement without any due diligence and without linking the disbursement to the stages of construction which is violative of various guidelines of the Reserve Bank of India/National Housing Bank and various directives of Hon’ble courts. The bank was required to independently assess the stage of construction before releasing the funds disbursed to the builder. A recent judgment passed by Supreme Court in Bikram Chatterji & Ors. Vs. Union of India & Ors wherein it was held “It was incumbent upon the Authorities as well as the Banks to prevent the fraud. Now, if banks, as well as the buyers’ investment in that case, it would be equally unjust and would be against the conscience of the law and nothing would be left for buyers not even a brick and the structures …….. Complainant has also placed reliance on the judgment of Himanshu Singh vs Union of India SLP (C ) 7649/2023.
- In its reply, OP-1 has stated that the complainant by his own choice and not under the influence of OP-1 handpicked Shubhkamna Build Tech Pvt. Ltd. for investment purpose and booked a flat Unit D-10, Block B 3, 10th Floor Tower B3, Shubhkamna Tech Homes Sector 137, NOIDA Uttar Pradesh-201301 worth Rs.78,31,250/-. For part payment of the sale price of the flat complainant had approached OP-1 vide application No.22623 dated 14.05.2014 for availing home loan facility amounting to Rs.65,00,000/-. It was specifically represented by the complainant to the OP-1 that home loan, if sanctioned, would be secured by mortgage of the above mentioned flat. The complainant had also represented that the title of the said flat was clear and no encumbrance of any kind was there on the said flat.
- It is further stated by the OP-1 that believing the representations made by the complainant with respect to the mortgage and clear title of the said flat in the project, OP-1 agreed to sanction a loan amount of Rs.65,00,000/- to the complainant vide sanction letter dated 19.05.2014. Copy is annexed with the complainant as annexure C-3 (colly).
- Complainant had already paid an amount of Rs.7,90,125/- to the builder as part payment of the sale consideration. It is mentioned that terms and conditions mentioned on the allotment letter and it was agreed between the parties that 95% of the total sale price which amount to Rs.76,69,574/- including service tax at the time of top floor casting was to be paid by the complainant to the builder by 30.05.2014. Copy of the allotment letter dated 21.05.2014 issued by the builder is annexed as annexure A-1.
- As per the requirement in the Sanction letter issued by OP-1, complainant gave permission to mortgage issued by the builder on 21.05.2014 with OP-1. The builder and the complainant had again assured OP-1 that necessary permission/approvals/sanctions for construction of the flat were obtained by the builder and the said flat as well as land were not subject to any encumbrance, charge of liability of any kind and the entire property as well as the complainant that they had a clear, legal and marketable title to the said property. Copy of permission to mortgage issued by the builder on 21.05.2014 is annexed with the complaint at C-9.
- The terms and conditions of the allotment letter dated 21.05.2014 had agreed by the complainant, builder and OP-1. OP-1 agreed to make disbursement of the sanctioned loan by making payment directly to the builder on behalf of the complainant in instalment in the manner provided in the said allotment letter.
- OP-1 stated that complainants had executed an affidavit cum undertaking in favour of OP-1 whereby they had assured OP-1 that the builder had obtained the necessary permission for the construction of the flat and they had personally verified the original sanctioned plan and have visited the construction site and had satisfied themselves that the construction was as per the sanctioned plan and there was no violation of the building bye-laws.
- OP-1 further stated that complainants had also executed an undertaking cum Indemnity Bond dated 23.06.2014 by which it was again represented and undertaken by the complainants that the title of the flat was free from encumbrances and the builder/seller had a clear title of the said flat. Copy of Indemnity Bond is annexed as annexure A-2 (colly).
- OP-1 has conducted a verification of original documents which is annexed as annexure A-3. It is stated by OP-1 that believing the multiple representations made by the complainant and the builder with respect to the clear title of the flat and project in question, OP-1 entered into a Home Loan Agreement with the complainant on 25.06.2014.
- It is stated by OP-1 that as agreed in terms of Clause 1 of the tripartite agreement dated 21.05.2014 and further in terms of the Home Loan Agreement dated 25.06.2014 the complainant had submitted a disbursement request letter dated 25.06.2014 duly signed by him with the OP-1 requesting the OP-1 to disburse part of the sanctioned amount of Rs.58,62,938/- in the following manner:-
Name of Payee | Bank Name & Account No. | Amount(Rs.) |
Shubhkamna Buildtech Private Limited | Axis Bank A/c No.912020009808005 | 60,80,725/- |
ICICI Lombard | | 17,550/- |
CERSAI | | 562/- |
- On the receipt of specific written request of the complainant regarding disbursement of loan amount OP-1 had disbursed the said amount as per the request of the complainant. It is further stated by OP-1 that after more than six years after availing the loan facility the complainant has raised no issues with regard to the disbursement made by OP-1. It is stated that the complaint is an afterthought with the sole intent to evade his liability.
- It is further stated by OP-1 that vide order dated 26.11.2018 passed by Hon’ble NCLT, New Delhi in CP(IB)-1059/ND/2018, Corporate Insolvency Resolution Process (hereinafter CIRP) was initiated against the builder and the complainant herein has filed a claim against the builder. It is submitted that the claim amount of Rs.75,66,537/- has been provisionally admitted and the complainant herein has been assigned a voting share of 0.17% in the Committee of Creditors which has been constituted in the matter of CIRP against the builder. This fact has been concealed by the complainant with the sole intent to mislead this Commission and unjustly enrich themselves by filing claim in the CIRP as well as by filing the present complaint. Copy of order dated 26.11.2018 passed by NCLT New Delhi in CP(IB)-1059/ND/2018 is annexed as annexure A-6.4 Copy of relevant pages of list of Committee of Creditors are annexed as annexure A-7.
- It is stated by OP-1 that CIRP proceedings are pending against the builder and till the time the same are pending moratorium is brought under section 14 of IBC 2016 thereby prohibiting the institution of suits, continuation of pending suits and proceedings against the builder including execution of any judgment decree or order in any court of law, tribunal, arbitration, penal or other authority.
- It is stated as per the Statement of Accounts (SoA) and foreclosure statement dated 15.04.2021 an amount of Rs.55,51,835.13 is outstanding as on date. Copy of SoA and foreclosure statements are annexed as annexure A-7.
- It is stated by OP-1 that complainant is not entitled for any relief as he has concealed material facts from this Commission of agreeing to the manner of payment with the builder as per which 95% of the sale price was to be paid by him by 30.05.2014, the fact that the flat is free from any encumbrances. It is further stated that despite the fact that the complainant was aware of the charge of DHFL he did not inform OP-1 about it and introduced OP-1 to disburse loan to him for his investment purpose. It is stated that OP-1 has acted lawfully and disbursed the said loan amount in account of the builder on a specific request made by the complainant vide disbursal request form dated 25.06.2014.
- It is stated that the disbursal request form specifically mentions the bank account number of the builder to which the first instalment was to be transferred. It is stated that loan was disbursed by OP-1 in accordance with the disbursal form and the property agreement. It is further stated that in addition to verification of original documents OP-1 had also obtained undertaking cum indemnity bond dated 23.06.2021 by which the complainant had undertaken that he has made enquiries and perused the prior documents of title and is satisfied with the title of the seller is clear. It is further stated that OP-1 is itself victim of collusive malafide practice of builder and complainant.
- OP-1 has relied on the judgment of Hon’ble Supreme Court in the case of Bharathi knitting Company Vs. DHL World Wide Courier (1996) 4SCC 704 wherein it was stated that a person who signs the documents containing contractual terms is normally bound by them though he has not read them and even though he ignorant of their precise legal effect. OP-1 has also placed reliance on the judgment of Secretary, Bhubneshwar Development Authority Vs. Susanta Kumar Mishra (2009) 4 SCC 684. OP 1 has also taken the objection that the complainant is an investor and is therefore not a consumer.
- OP-2 in its reply has stated that the basis of the complaint is a tripartite agreement dated 21.05.2014 executed between the complainant, developer i.e. M/s Shubhkamna Builtech Pvt. Ltd. and OP-1 i.e. Tata Capital Housing Finance Ltd. It is stated that OP-2 is not a party to the said agreement and there is no legal relationship or privity of contract between the complainant and OP-2. It is stated that there is no alleged cause of action qua OP-2 and the complaint is liable to be dismissed qua them.
- it is further stated that complaint is bad for misjoinder of parties as OP-2 is neither a necessary nor proper party to the complaint. It is further stated that there is no deficiency in service qua OP-2 and the dispute, if any, is with respect to disbursement of loan to the complainant to the builder M/s Shubhkamna Builtech Pvt. Ltd. by OP-1. It is further stated that complainant has not paid any amount in the name or account of OP-2 against any services. It is the developer/builder who is responsible for construction, development and completion of the project and has the right to allot and give possession of any apartment to the complainant being the developer of such project.
- It is further stated that complainant on his own agreed and after having duly evaluated the project and analysing the risk and the benefits attached thereto have made the booking in the project Shubhkamna Buildtech Pvt. Ltd. It is stated that OP-2 was merely a marketing representative and is not a partner with the developer in any real estate project whatsoever in nor has any role in construction or development of the project or delivery of the possession. Therefore OP-2 cannot be held liable for any negligent, deficiency in service or unfair trade practice as alleged by the complainant.
- It is stated that OP-2 is at best, a facilitator whose role is limited to introduce the persons interested in buying a flat with a developer and if required the facilitating the negotiations and intimating the parties of the same of which culminating into signing agreement between the developer and the customer on the terms and conditions decided between them.
Complainant has placed on record the tripartite agreement between Shubhkamna i.e. developer, complainant and OP-1. Under Clause 7 it is the developer who has represented “that the title of the said flat/premises proposed to be sold is clear, marketable and free from all encumbrances” “that the developer has full power and authority to sell and transfer the said flat/premises unto and in favour of the purchaser” .
Under Clause 13 it is stated “the developer shall not transfer the said flat/premises of the purchaser to any other intending purchase without the prior consent of TCHFL”. Under clause 17 it is further stated “the developer further agreed not to create any charge on mortgaged over and in respect of such flat/premises except in favour of TCHFL”. The complainant has also placed on record documents retrieved from District and Sessions Judge, Karkardooma Courts which are proceedings initiated by DHFL against the builder/developer.
Complainant has also placed on record C-11 which a notice stating that the properties under possession of DHFL and that the physical possession of the property has been taken by the DHFL as per court order dated 25.02.2017 passed by Hon’ble DM/CMM, Gautambudhnagar under section 14 SARFAESI Act physical possession was taken on 21.06.2017. An FIR is also placed on record against the builder and the directors thereof.
It is seen that the tripartite agreement was executed between the parties on 21.05.2014 and the loan statement has begun from 25.06.2014. It is also seen from the documents placed on record that vide letter dated 05.12.2011 DHFL has sanctioned a loan of Rs.25 Crores to the builder/developer.
OP 1 has also placed on record annexure A-3 which is a verification report of original documents issued by their lawyers. It is stated that the documents detailed were verified and found to be in accordance with title search and due diligence report. It further states the report does not constitute a title search report and does not inform the strength of the seller or borrower title to the said property. The purpose is only to provide opinion on the authenticity of the documents examined.
OP has also placed on record list of CoC (Committee of Creditors) wherein the name of the complainant features at Serial No.746 and the amount to be recovered is shown as Rs.1,02,49,797/- as per annexure A-7. The total foreclosure amount informed to the complainant was Rs.55,51,835.13 dated 15.04.2021. As per the Statement of Accounts placed on record dated 15.04.2021 it is seen that the loan amount was Rs.65,00,000/- and amount disbursed Rs.58,81,050/- with interest @9.80% and a tenure of 240 months and the interest was floating.
There is no iota of doubt that loan facility was availed by the complainant from OP-1 and that as per that agreement it is the builder who had stated that the property was free from all encumbrances. It is also seen that OP-1 had taken an opinion on the authenticity of the documents submitted by the complainant to OP-1 for disbursal of loan which stood duly verified by the report of their lawyers therefore the complainant cannot be founded faulted with for availing loan facility from OP-1 on documents and assurances issued by the developer and later independently verified by OP-1.
It is seen that though the complainant in his complaint has referred to the fact that a part of the loan amount was wrongly sent to the builder for some other project but the issue was not raised by the complainant in any of the correspondences with OP-1. The loan was taken as far back as 2014 and the earliest correspondence pertains to the year Nov. 2020.
In this case it is clear that it is the builder who is at fault who having availed a loan from DHFL by mortgaging their properties availed the loan in the year 2011 and despite that sold one of those mortgaged properties to the complainant. Complainant has not made developer a party to this case as the builder is before NCLT. It is also noticed that the complainant has filed his claim before IRP and his name features in the list of CoC.
The only controversy that remains to be decided is whether the OP-1 was deficient in this services and the major grievance of the complainant against OP1 is that a major chunk of the loan amount was provided to the builder by OP-1 in a single disbursement which is violative of guidelines of RBI.
As per the tripartite agreement placed on record dated 21.05.2014 it is stated that OP-1 will disburse the amount directly to the builder “in the manner provided in the Provisional Allotment Letter and upon specific written request of the Purchaser subject to the Loan Agreement entered…….”.
Clause 4 of the said agreement states that “The above covenants shall not be construed to mean and fasten any responsibility upon TCHFL to observe the payment schedule, if any, between Developer and the Purchaser/s or make payments to the Developer as requested. TCHFL shall not be responsible for any delay or omission in disbursements on account of breach/default attributable to the Developer/Purchaser. The Purchaser/s shall be responsible to follow-up with TCHFL to make disbursement on his/her/their behalf as per any agreement he may have with the Developer.”
It is seen that this amount was disbursed by OP-1 on 25.06.2014 and as recorded earlier complainant did not complain of this act of OP-1 and the only letter that has been written to the OP-1 is in Nov 2020. Therefore, no deficiency of services can be attributed for OP-1 and the complaint is dismissed without any order as to the costs.
Complainant has not been able to establish any cause of action against OP-2 in this entire controversy between himself, builder and OP-1. Therefore OP-2 is not found guilty of any deficiency in service.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
