Order-13.
Date-06/08/2015.
In this complaint Complainants Santanu Swapan Kumar Das & Meeta Santanu Das by filing this complaint has alleged both the complainants are by relation husband and wife and complainant no.1 is also son of Swapan Kumar Das.Both the complainants intended to purchase a flat measuring more or less 1150 sq. ft. along with ground floor stake car parking being Flat No. 2A, in Block-2, 2nd Floor, 3BHK at Lavanya Project Rajarhat.So, they entered into an agreement for sale with op no.2 at a consideration of Rs. 37,11,755/-, out of which complainants paid Rs. 3,71,176/- as advance booking amount and for booking allotment they also paid Rs. 5,56,763/-.
One day complainant no.1 and his father Swapan Kr. Das went to the office of the Lavanya Project for paying allotment money and on conversation they told that they would pay the balance amount by dint of finance through UBI Birati Branch as the UBI Birati Branch will grant loan facility to the complainants within transitory period as complainant’s father is a good book customer of the said bank who fixed a lump sum amount to the said bank.
At that time one Suman Srimany the employee of DHFL (Finance Company) heard the conversation of the complainant and informed that the DHFL is also the marketing partner of the said project.So complainants were convinced that there was a tie up between DHFL and UBI and they thought that if they took loan from DHFL complainants would get two facilities i.e. quick disbursement of loan and be a marketing partner of the sad Lavanya Project as he had a clear knowledge regarding land concerning documents of the said project which would help to get loan as quick as possible.
Being convinced of the word of the representative of DHFL, complainants made an application being No. 00905949 for granting housing loan to the op no.1 for purchasing the aforesaid flat along with car parking informing all details and on the spur of moments of agreement op no.1 appeased complainant by saying “we are aware of all the fact because we are the marketing persons of Lavanya Project”.After receiving the loan application of complainants, op no.1 took prolong scrutiny process whether complainants would be able to repay the EMI regularly although it was against the commitment which they committed at the time of application and above all they sanctioned the said loan through Dubai Branch with a direction upon the Kolkata Branch to disburse the loan after fulfilling some necessary formalities on 14.09.2013 and the same was received by complainant on 29.09.2013.
So, after receiving the offer cum acceptance letter, complainants submitted all the documents which they asked and through email id of the op no.1 assured that op would grant loan as early as possible.But on the contrary complainants felt that the DHFL created one after another lame excuse to drag the payment and till now the PDC of complainants remained in the custody of the op no.1.
Fact remains that op no.1 was ready to pay a sum of Rs. 20,50,000/- to the complainants but the amount was decreased by 6,33,783/- from the sanction loan amount to the Lavanya Project Pvt. Ltd. op no.2 and at that time op no.2 served a notice to the complainants for paying a sum of Rs. 25,98,229/- but op no.2 refused to receive the cheque of Rs. 20,50,000/- the same and unilaterally cancelled the sale agreement by violating the General terms and conditions of the Agreement as there was no provision in general terms and conditions though op no.2 cancelled the agreement unilaterally on the ground of non payment as per schedule as well as imposed deduction, on the contrary as per terms and conditions of the sale agreement if the purchaser cancels the agreement only when deduction might be charged.So the deduction amount of Rs. 1,80,025/- charged by op no.2 is against the provision of General Terms and Conditions of the agreement.
In fact complainants were in dark about the reason why op no.1 and the Lavanya Project being aware of all the facts and circumstances of the Agreement, issued a cheque amounting to Rs. 20,50,000/- which was not only below the sanction loan amount as well as it was below the demanded amount of Lavanya Project Pvt. Ltd. which is the willful negligence of op no.1, as a result complainants failed to get a flat.Further op no.1 created frustration in the mind of the complainants for not to provide committed financing service at proper time but also caused pecuniary loss of Rs. 2,54,757/- for which the said Project deducted Rs. 1,80,025/-.But as per General Terms and Conditions of the sale agreement, there was no provision of deduction in case of cancellation due to non payment by the intending party as per schedule.But the DHFL deducted Rs. 24,200/- as EMI although DHFL did not pay any single amount as loan to the Lavanya Project Pvt. Ltd. and also a sum of Rs. 30,154/- as processing charge by the op.
Further complainants submitted that op no.1 had any tie up with the UBI Birati Branch, but they disclosed that there was a tie up with the UBI.Knowing fully well Op no.1 worked in such a negligent and deficient mode and made an unfair trade practice with the complainants which caused pecuniary loss to the complainants.
DHFL is a loan granting authority whose sphere of work is as like as banking service and complainants paid consideration as processing charge for avail of the service, so, complainants are the consumer of op no.1 and also complainants entered into sale agreement with op no.2 by paying consideration as per agreement and op no.2 committed to provide some services or obligation, in that case complainants is also the consumer of op no.2.But both the ops are negligent and deficient to give proper service, so in the above circumstances, complainants filed this complaint on 29.09.2013 on the ground of deficiency of service and prayed for relief and also refund of the consideration amount etc.
On the contrary Rahul Kr. Singh, the Sr. Manager on behalf of op no.1 by filing written version submitted that all the allegations of the complainants are false and motivated one and is not maintainable and op no.1 denied that there was any employee named Suman Srimany who was working with the op no.1 and op no.1 had been appointed as a Lead Syndicator by UBI towards generating or originating business of Individual Housing Loans by marketing the same through designated branches of UBI and also to sanction, disburse, collection and distribution of loan repayment etc.
Further op no.1 denied that they were the marketing persons of Lavanya Project but they only handle public money which cannot be construed to be against the commitment made to any applicant rather it is a process to be followedas per op no.1’s credit policy and the loan and further stated that the loan file was processed at op no.1’s Dubai Representative office considering the applicant was an NRI at the time of loan application and as per the sanction condition the Power of Attorney holder’s verification and other formalities were completed at local branch level at Kolkata and the loan was sanctioned on 14.09.2013 at Dubai office of op no.1 and disbursed at Kolkata on 23.10.2013 only after submission of necessary documents by the complainants and power of attorney.Op no.1 further stated that he never made any excuse to disburse the loan, but the delay was made from the side of complainants for not complying the terms and conditions of the loan agreement.
Op no.1 also stated that as per terms and conditions of the loan agreement, the loan was disbursed by taking into consideration the progress of work of the project as there was no sufficient work progress on the date of property inspection, so, the disbursement was processed on the basis of percentage of work progress and not as per demand raised by the developer.Op no.1 denied each and every allegation and said that there was no contact in between the developer and complainants and op no.1 has nothing to do in such a situation when the disbursement cheque was issued and the developer was not accepting the cheque as confirmed by the complainant and op no.1 also stated that they cheque was issued and the EMI interest was generated on the amount of cheque issued.The cheque was cancelled later on 10.12.2013 as both the complainant and developer failed to resolve the matter.So op no.1 denied any negligence and deficiency in service to the complainants and op no.1 also denied that they are marketing partner of Lavanya Project.Op no.1 prayed for dismissal of this case against them.
Op no.2 Lavanya Project Pvt. Ltd. by filing this written statement submitted that complaint is relatedp only in between op no.1 and the complainants and op no.2 has no liability over the same and op no.2 admits that only the Demand Notice in accordance with the General Terms and Conditions in the application form dated 21.07.2013 was duly sent to the complainants.So, the question of any squeezing money by op no.2 does not arise.
Op no.2 further served Demand Notice, letter of reminder and notice prior to cancellation to the complainants for remaining payment of the price of the flat and then when complainants did not comply with the demand of the op no.2 they cancelled the application for allotment of the complainants by refunding the booking amount deducting the cancellation charges as mentioned in the General Terms and Conditions in the application form as because the agreed amount what the complainants had to pay and agreed to pay was a less amount that is Rs. 20,50,000/- and for which it was not accepted and the same was cancelled and booking amount was returned so no doubt op no.2 has no deficiency in service.
It is further submitted that complainant had admitted that the agreed due amount had not been paid either by the complainants or their Financer in time and for the said delay in payment of dues amount by the complainants the booking was cancelled by the op no.2 and in this regard op no.2 has no negligence and for which there is no question of any deficiency of service on the part of the op no.2 as claimed by the complainant.So, the entire allegation against op no.2 is not tenable in law for which the present complaint should be dismissed.
Decision with reasons
On critical appreciation of the complaint, written version including materials on record and also the arguments as advanced by the Ld. Lawyers of both the parties, we have gathered that no doubt complainant intended to purchase a flat constructed by op no.2 measuring more or less 1150 sq. ft. along with car parking on the ground floor being Flat No. 2A, in Block-2, 2nd Floor of 3BHK at Lavanya Project Rajarhat and entered into an agreement for sale with op subject to payment of a consideration of Rs. 37,11,755/- out of which complainant paid a sum of Rs. 3,71,176/- as advance booking amount and for booking allotment they also paid of Rs. 5,56,763/-, i.e. total amount of Rs. 9,27,939/- and at the time of payment of booking amount and allotment amount, complainants came to learn from office of the Lavanya Project Rajarhat that for payment of balance amount they may take financial help of UBI Birati Branch because UBI Birati Branch will grant loan facility to the complainants within transitory period as complainants’ father is in a good customer of the said bank.
But at that time one employee of DHFL heard the conversation of the complainant and asked the complainants to avail of the loan from DHFL because DHFL are partner of the Lavanya Project Rajarhat and they have their tie up in between the DHFL and UBI Birati Branch and if they took loan from DHFL, complainants would get two facilities – 1) that is quick disbursement of loan and be a marketing partner of Lavanya Project Rajarhat and being convinced complainants applied for loan from DHFL which is admitted and complainants made application being No. 00905949 for granting housing loan to the op no.1 for purchasing the same for Rs. 26,33,783/-.
But the loan amount shall be transmitted to the loan account of Lavanya Project Rajarhat against the flat of the complainant and with hope, complainant no doubt applied for loan but ultimately loan amount of Rs. 20,50,000/- was sanctioned by the op DHFL when op no.2 served a notice to the complainant for paying of Rs. 25,98,229/- but that cheque of Rs. 20,50,000/- was issued in the name of op no.2.But op no.2 refused to accept the same and admitted fact is that the agreement to sale was cancelled by the op no,2 unilaterally though complainant already deposited the amount of Rs. 9,27,939/- complainant refunded the same by deducting an amount of Rs. 1,80,025/- and that deduction was made stating that as per General Terms and Conditions of the Agreement and for cancellation of the Agreement that deduction was charged and at the same time it is found that op no.1 deducted EMI of Rs. 24,200/-.But fact remains that the disbursed amount has not been encashed by the op no.2 or complainant.So, it was returned and further fact is that Rs. 30,154/- was also paid by the complainant for processing charges of the said loan and truth is that loan account shall be closed in view of the fact that loan amount has not been encahsed by the op no.2 and cheque was returned to the op no.1 by the op no.2.
So, invariably the entire loan matter was not matured finally for non-encashment of the released amount of Rs. 20,50,000/-.But in fact complainant prayed for loan of Rs. 26,33,783/- for payment and out of that Rs. 25,98,229/- to the op no.2 as final payment.But anyhow op no.1 did not sanction the said loan and invariably there was ground for sanctioning lesser amount of loan on the ground that the Lavanya Project Pvt. Ltd. Rajarhat failed to construct the said project as per their schedule at the relevant time.Whatever it may be, it is proved that DHFL did not pay single amount as loan to Lavanya Project Pvt. Ltd. Rajarhat as yet.But DHFL deducted Rs. 24,200/- as EMI already.But under any circumstances we find that DHFL cannot take any amount because loan is not at all encashed by the op no.2 or by the complainant.So, deduction of Rs. 24,200/- as EMI by the DHFL is completely illegal and without any foundation.In view of above the fact unless and until the sanctioned loan amount is encahsed by the party, EMI cannot be deducted.At the same time it is proved that a sum of Rs. 30,154/- was paid by the complainant for processing charge.But in fact DHFL did not sanction loan of Rs. 26,33,783/-. But complainant prayed for that loan and bank sanctioned a less amount of loan for which complainant did not get the flat and faced problem when op no.2 the Lavanya Project Pvt. Ltd. Rajarhat cancelled this agreement to sale for tendering less amount.
Truth is that complainant prayed for loan of Rs. 26,33,783/- and op no.1 was satisfied about the construction of the said building and also about payment to be made by the complainant to the op no.2.But even after that they sanctioned a less amount of loan which has caused problem and trouble to the complainant and ultimately op no.2 Lavanya Project Pvt. Ltd. Rajarhat did not accept such cheque amount issued by op no.1 in favour of the op no.2 against that flat in respect of agreement to sale and in respect of flat in favour of the complainant by the op no.2 and that amount has not been released as yet either in favour of the complainant or op no.2, in that case op no.1 cannot deduct any EMI.EMI starts after release of the sanctioned amount of the loan.But the amount has not yet been released, that means op no.2 did not accept it.So, deduction of Rs. 24,200/- as EMI by op no.1 is illegal uncalled for and arbitrary.
Moreover the payment of Rs. 30,154/- by the complainant for processing charge is completely uncalled for, processing the said loan under any circumstances, Rs. 30,154/- cannot be charged as per provision of RBI or as per Regulations of National Banking Policy. So, such sort of payment as received by the op no.1 is uncalled for and when the loan matter is not matured for not releasing the entire amount, no doubt op no.1 is liable to refund of Rs. 24,200/- and also Rs. 25,000/- out of Rs. 30,154/-. At the same time we have considered the allegation of the complainant against the op about deduction of Rs. 1,80,025/- as charge for cancellation of the agreement and in this regard we have gone through the agreement wherefrom we have gathered that cancellation charge can be charged only in case of cancellation made by the intended purchaser or applicant. But after studying the said rules and regulations and terms and conditions of the agreement to sale, it is clear that there is no rules and regulations for cancelling the agreement by the company unilaterally. But at best for delayed payment penalty may be charged. But in the present case, no doubt complainant took loan but op no. 1 issued a cheque of Rs. 20,50,000/- to the op no. 2 but op has not accepted it and refused it and cancelled the agreement and no doubt the deduction of Rs. 1,80,025/- is completely uncalled for, illegal, arbitrary and against the spirit of the terms and conditions of the agreement to sale and in view of the fact that as applicant complainant did not pray for cancellation of the agreement to sale. Moreover op no.2 or his lawyer failed to show any such condition from the agreement to sale that unilaterally the company has his authority to cancel the agreement to sale and in fact after considering the entire fact and materials and also hearing the complainant we come to learn that op no.2 has sold that flat including the garage to some other person at a higher rate also and that has not been denied by the op no.2.
Considering that fact we have gathered that only for the purpose of selling the flat along with car parking space at higher rate, unilaterally the said agreement was cancelled by the op no.2 only for making more profit by selling that flat and car parking space and to deceive the complainant. We have gathered that Lavanya Project Pvt. Ltd. Rajarhat in such a manner has deceived many customers and has thrown them on the footpath by selling those flats at higher rate and it is the practice of all the promoters company like Lavanya Project Pvt. Ltd. Rajarhat, Vibgyor, Peerless and other companies. But none is here and there to control such sort of deceitful manner of trade and unfair trade practice even after existence of special enactments.
No doubt in this case after considering the entire materials, it is proved that violating the terms and conditions of the sale agreement, op no.2 cancelled the said agreement to sale unilaterally and fact remains that complainant never prayed for any cancellation and only for the purpose of cancellation of the sale agreement they refused to accept the cheque of Rs. 20,50,000/- which was sent by the DHFL to the op no.2 against complainant’s payment of balance amount to be paid by the complainant. So, such an act on the part of the op no.2 tantamounts to unfair trade practice and fact remains that only for the purpose of deceiving the complainant, that action was taken by the op no.2 unilaterally for the purpose of deceiving the complainant and also for the purpose of selling the said flat at higher rate.
Truth is that they sold the flat at higher rate only for making more profit and that is the intention of all the promoters in West Bengal at least because in West Bengal Promoter Raj is administering and controlling the entire housing construction business and market and they have the power because they already purchased many administration who are controlling the urban development and etc. department, Lavanya Project Pvt. Ltd. Rajarhat is well known for their illegal act and they have no doubt acted illegally and in the present case violating the terms and conditions of the agreement to sale and such sort of deduction to the extent of Rs. 1,80,025/- is arbitrary, uncalled for, illegal and beyond the spirit of the agreement to sale and also it is the violation of the general terms and conditions of the agreement to sale when there is no such provision in general terms and conditions that op no.2 company can unilaterally cancel the same.
Last but not least we want to ventilate what prevented the op no.2 to receive the amount if it would be received, in that case, complainant shall have to take such step for collecting balance amount for depositing the same to get a flat. But we have gathered purposely and with intention op no.2 cancelled the same for selling that flat including car parking space at higher rate and that has been done. When the flat has been sold at higher rate to some other persons, then op no.2 has no authority to charge any penalty for any reason whatsoever when that agreement was cancelled by violating the terms and conditions of the sale agreement and for which op no.2 shall have to refund the entire amount of Rs. 1,80,025/- to the complainant along with compensation for harassing the complainant and for deceiving the complainant in such a manner along with such cost.
We are not unmindful to the fact that many developers are there in West Bengal. But no authority is controlling the promoters and developers because they are under the umbrella of some administration and that administrations are blind in this regard to check and control the illegal activities of the promoters and developers for which the present op also showed their muscle by cancelling the agreement to sale by violating the general terms and conditions of the policy illegally and that act tantamounts to unfair trade practice and same is rampant in West Bengal.
Considering all the above facts materials and also relying upon the above findings, we are inclined to hold that complainant has been deceived by the ops and also he has been harassed by the ops in so many manners and at the same time for adopting unfair trade practice by both the ops and also for negligent and deficient manner of service, complainant has lost his all hope to get a flat because the market price of such an area of flat is too high. Moreover complainant has been harassed and he has suffered mental pain and agony for the deceitful manner of trade practice by the ops and for which we are convinced to hold that there is no other alternative but to allow this complaint with cost and compensation.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 5,000/- each against each of the ops.
Op no.1 is hereby directed to close and clear the loan account of the complainant and refund Rs. 25,000/- out of received process fees and Rs. 24,200/- which has been deducted as EMI from the complainant along with compensation of Rs. 5,000/- to the complainant within one month from the date of this order.
Op no.2 is hereby directed to refund entire amount of Rs. 1,80,025/- and also to pay compensation of Rs. 10,000/- to the complainant within one month from the date of this order.
For adopting unfair trade practice and for deceiving the complainant in such a manner and further for cancelling the sale agreement violating the general terms and conditions unilaterally by the op no.2 , op nos. 1 & 2 shall have to pay penal damages to the extent of Rs. 15,000/- each to this Forum and it is imposed for the purpose of protecting the interest of the customer from the hands of such deceitful traders and also for controlling unfair trade practice as practiced by the ops in the present case and in the market jointly.
Ops are directed to comply their respective part of the decree within one month from the date of this order, failing which for non-compliance and disobeyance of the Forum’s order, they shall be prosecuted u/s 25/27 of C.P. Act 1986 and for which further penalty and fine shall be imposed.
