Tamil Nadu

North Chennai

196/2013

R.Chandrasekar, - Complainant(s)

Versus

The Manager, HDFC Raman House, HT Parekh Marg, - Opp.Party(s)

M/s.Shyamala Chandrasekar

25 Apr 2016

ORDER

                                                               Complaint presented on  04.10.2013

                                                                Order pronounced on  :  25.04.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

MONDAY THE 25th    DAY OF APRIL 2016

 

C.C.NO.196/2013

 

 

Mr.R.Chandrasekar,

No.21, Papanasam Sivan Road,

Mylapore, Chennai – 600 004.

 

                                                                                       ..... Complainant

 

..Vs..

	1.The Manager, HDFC, Ramon House, HT Parekh Marg, No.169, Backbay Reclamation, Churchgate, Mumbai – 400 020.   2.The Manager, HDFC, Second Floor, ITC Centre, 760, Anna Salai, Chennai – 600 002.   3.M/S. Doshi Estates, Rep. by its  Partner  Mehul H.Doshi, Doshi Towers, 9th Floor, No.156, Poonamallee High Road, Kilpauk, Chennai – 600 010.
	...Opposite Parties

Date of complaint                                  : 10.10.2013

Counsel for Complainant                      : M/S. S.Thiruvengadam

Counsel for 1st & 2^nd opposite party       : M/S. K.J.Rebello

 

Counsel for 3rd   Opposite Party          : MRS. K.P. Kiran Rao

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1THE COMPLAINT IN BRIEF:

          The Complainant availed a loan of Rs.15,00,000/- from  the 2^nd Opposite Party to purchase a flat at No 3E, Doshi Nakshatra II, Block II, III Street, Old State Bank Colony, Tambaram, Chennai–600 045. After scrutinizing the entire documents of the Complainant, sanctioned the loan. The Complainant repaying a sum of Rs.17,049/- towards EMI and till 17 June, 2013 he paid total sum of Rs.3,89,290/-  To the shock and surprise of the Complainant, the Supreme Court (CIVIL APPREAL NOS. 6342-6343 OF 2012) held that the third Opposite Party builders whose title has been cleared by the bank is not the owner of the property and in the view of the Supreme Court order the possession has not been handed over to the Complainant and also suffered with mental agony and hardship. On learning the defective title in the property he informed the same to the second Opposite Party through his lawyer notice dated 11.02.2013. The second Opposite Party have neither replied to the said legal notice nor stopped deducting the monthly EMI amount. The third Opposite Party had suppressed the fact that they are not the true owners of the property and never communicated about the defective title to him till the Complainant demanded for handing  over the property keys. The Complainant also informed about the defective title and asked the 3^rd Opposite Party builders for refund of money and subsequently they refunded the entire amount of Rs.31,58,605 along with an interest at the rate of 8%. After the 3^rd Opposite Party refunded the actual amount the Complainant paid the entire loan amount and got back the original title deeds from the second Opposite Party bank.  The Complainant purchased the property only on the assurance of valid and marketable title given by the second Opposite Party bank or else he would not have ventured into the purchase of the property having defective title. The act of giving opinion and approval for the same property having defective title amounts to Deficiency in Service. Therefore, the Complainant filed this Complaint to repay a sum of Rs.3,89,290/- to him, which was paid by him towards EMI and also for compensation with costs.

2.WRITTEN VERSION OF THE SECOND OPPOSITE PARTY  ADOPTED BY THE 1^ST OPPOSITE PARTY IN BREIF:

          The Complaint is not maintainable for non-joinder of parties. The Land Owners who had executed Sale Deed in favour of the Complainant were not made as parties to this Complaint. These Opposite Parties advanced loan on property which has got defective title. For purchasing the property Complainant himself requested the second Opposite Party to sanction a loan of Rs.15,00,000/-. The loan was sanctioned as the documents furnished by the Complainant were in order. The Complainant approached the 3^rd Opposite Party and paid advance on 07.08.2009, thereafter approached these Opposite Parties for availing loan. Therefore, much prior to the sanction of the loan, the Complainant had satisfied himself about the title of the property and paid advance to the 3^rd Opposite Parties. It is denied that the Complainant has lost a huge amount of more than Rs.3,00,000/- apart from legal processing fees and the other incidental expenses and also suffered mental agony and hardship. The second Opposite Party has sanctioned the loan after scrutinizing the papers submitted by the Complainant for obtaining loan from the bank according to the rules, regulations, terms and conditions set out in the banking regulations Act and the second Opposite Party is not responsible for defective title. If the 3^rd Opposite Party suppressed the fact that they are not the owners of the property and did not communicate to the Complainant about the defective title, these Opposite Parties are not liable for any deficiency. The Complainant has sold the property purchased by him to one Yashumathi H Doshi by a Deed of Sale dated 20.06.2013 and registered as Document No.3611 of 2013, in the office of the Sub-Registrar, Tambaram. In the recitals to this Deed of Sale , the Complainant had stated that the Property is free from encumbrance and is having clean and marketable title. The said fact was suppressed by the Complainant but in order to extract money from these Opposite Parties, making a false claim alleging Deficiency in Service. The 1^st and 2^nd Opposite Parties  are not liable to return the amount paid to them a sum of Rs.3,89,289/- and also to pay the sum of Rs.10,00,000/- for the sufferings, mental agony caused to the Complainant for act of giving opinion and approval for the same property having defective title. The second Opposite Party had closed the loan account after repaying the entire loan amount by the Complainant and the 2^nd Opposite Party is not liable to return any amount of Rs.3,89,289/- as the same was adjusted with loan amount and no amount is due from the 2^nd Opposite Party to the Complainant. Hence this Opposite Parties prays to dismiss the Complaint.

 

 

3.WRITTEN VERSION OF THE 3^RD OPPOSITE PARTY IN BRIEF:

          The Complainant has suppressed the fact of full and final settlement and Memorandum of Understanding dated 20.06.2013 entered into by the Complainant with the 3^rd Opposite Party and the land owners from whom the Complainant has purchased the undivided share of land. The 3^rd Opposite Party had entered into a Joint Venture Agreement with the land owners for development of the land. The Complainant has purchased the undivided share in land from the land owners. This 3^rd Opposite Party was not a party in any of the proceedings between the land owner and the Tamil Nadu Housing Board before any Court. The Complainant had perused the entire documents of title deeds, Revenue Records and Encumbrance Certificates with respect to the land and only after satisfying himself, the Complainant identified the property. This Opposite Party is not the land owners. Moreover due to the legal tangle faced by the land owners with respect of a part of the land, this Opposite Party on behalf of itself and on behalf of the land owner vide its letter dated 06.02.2013 had given inter-alia option for refund of money to the Complainant to which the Complainant after several communications has accepted vide his letter dated 18.04.2013 to take back his money. The third Opposite Party herein, had arranged for another buyer for the purchase of the property sold to the Complainant. The Complainant and his mother who were the Allottees have entered into a Memorandum of Understanding dated 20.06.2013, with this 3^rd Opposite Party and Land Owners, under which the Complainant and his mother have consented to receive Rs.36,98,854/- whereby the Complainant and his mother have confirmed and declared that they are fully satisfied with the above said amounts and have entered into the Memorandum of Understanding dated 20.06.2013 with full consent. They have further confirmed that they have relinquished all their rights, claims or demands whatever they have against the Developer, since they are getting an appreciated value of Rs.6,98,180/- over and above the amounts spent by them for purchasing the property. The Complainant has also given an Indemnity Affidavit dated 19.07.2013 whereby the Complainant and his mother have confirmed and declared that since they have recovered all the amounts paid by them in respect of the flat, reserved covered car park and the undivided share described in the schedule thereto along with additional sum of Rs.6,98,180/-  they will treat the same as interest/compensation/damages and as such they do not have nor will make any further claim. The Complainant has approached this Hon’ble Forum with unclean hands suppressing all the above facts. There is no cause of action for the above Complaint and the Complaint deserves to be dismissed as not maintainable.

4.POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties 1

             & 2?

          2. Whether there is deficiency in service on the part of the 3^rd opposite party?

          3. Whether the complainant is entitled to any relief? If so to what relief?

5. POINT:2

          The admitted facts are that the 3^rd   Opposite Party  developed flats at  Doshi Nakshatra II, Block II, III Street, Old State Bank Colony, Tambaram, Chennai – 600 045 and the   Complainant  offered to purchase the flat No.3E  from him and also paid a sum of Rs.1,00,000/- vide cheque No.378002, dated 03.08.09 drawn on ING Vysya Bank, Mylopore, in favour of the Developer/3^rd  Opposite Party  and the 2^nd Opposite Party sanctioned a housing loan for a  sum of Rs.15,00,000/- in favour of the Complainant  under Ex.A1 dated 07.09.2009 to purchase the above said flat and subsequently the Complainant sold the said flat  under Ex.B4 dated 20.06.2013 in favour of  Yashumathi H Doshi, and the 3^rd Opposite Party also returned  a sum of Rs.36,98,854/- towards the  sale of flat and also for compensation .

          6. The 3^rd Opposite Party would contend that it is he who arranged Yashumathi H Doshi  to purchase the flat from the Complainant  and accordingly she purchased the same and further after receiving the said amount of Rs.36,98,854/- the Complainant the 3^rd Opposite Party/Developer, Land Owner V.Chandrasekaran and the purchaser  Yashumathi H Doshi  as   purchaser has  entered into Ex.B1 Memorandum of understanding and in the said Memorandum it is clearly stated that  the Allottee/Complainant and the 3^rd Opposite Party  confirmed that he has paid a sum of Rs.30,00,674/- towards the cost of the land, construction of the flat,  car park and other charges and also the Complainant agreed in ExB1 that  he relinquished all his rights, claims or demands against the developer as he is  getting an appreciated value of Rs.6,98,180/- and subsequently the Complainant also executedEx.B2 indemnity dated 19.07.2013 and also Ex.B3 affidavit on the same day that he will not have any claim or whatsoever  against the 3^rd Opposite Party and therefore this Opposite Party is an unnecessary party in this Complaint and prays to dismiss the Complaint.

          7.  The Complainant paid  the said sum of Rs.30,00,674/- for the purchase of the Flat 3E from the 3^rd Opposite Party and the said sum was received by him along with a sum of Rs.6,98,180/-  towards  appreciated value of the flat value by relinquishing all his rights in the said flat which fact evidenced  in documents Ex.B1 to Ex.B3. The Complainant has not stated anything about the execution of documents Ex.B1 to ExB3 in the Complaint. However the Complainant denied in his proof affidavit the execution of the memorandum of understanding (Ex.B1) on 20.06.2013. However he had not denied about the execution of Ex.B2 indemnity and Ex.B3 affidavit. All the facts incorporated in Ex.B1 have been incorporated by the Complainant in Ex.B2 & Ex.B3. Along with the Complainant his mother R.Jambagam also executed the above said 3 documents. The signature of the Complainant and his mother found in Ex.B2 & Ex.B3 are same as that of  available in Ex.B1. Therefore it is clear that the Complainant and his mother willingly executed Ex.B1 Memorandum of understanding in favour of the 3^rd Opposite Party and in view of the same as contended by the 3^rd Opposite Party, the Complainant received a sum of Rs.36,98,854/- towards the amount paid by him for the purchase of the flat and also for appreciated value of the flat is accepted. Further the Complaint has also been filed only to return the money paid by him to the Bank only. Therefore as such the 3^rd Opposite Party paid the entire amount in pursuance Ex.B1 to Ex.B3 to the Complainant and there is no relief sought for against the 3^rd Opposite Party  in the Complaint, the 3^rd Opposite Party is no way liable to the Complainant to pay any amount to him and therefore the 3^rd Opposite Party has not committed any Deficiency in Service  in this Complaint.

8. POINT:1  

          It is an admitted fact that  the Complainant availed a housing loan from the 2^nd Opposite Party and the 2^nd Opposite Party sanctioned a sum of Rs.15,00,000/-  which was evidenced in Ex.A5 and however out of the  said amount a sum of Rs.14,27,213/- was only disbursed to the Complainant at various stages and after availing the loan amount, the Complainant also paid pre-EMI interest and also EMI’s as per Ex.A10 statement of account issued by the 2^nd Opposite Party and the Complainant also pre-closed the loan with interest  and also received his original document from the 2^nd Opposite Party/ bank.

          9. The Complainants sought relief in the Complaint that he had paid a sum of Rs.3,89,290/- to the bank through various EMI’s and to direct the bank to refund the said EMI amount of Rs.3,89,290/- to the Complainant.

          10. Undisputedly the Complainant discharged the loan and received back his original documents which were deposited by him for availing the loan. It is the Complainant who has to establish by producing necessary receipts for payment made by him to the bank and how he is entitled for refund of the EMI’s as prayed by him in the Complaint. The Complainant filed Ex.A10 statement of account for proof of payment for EMI’s to the bank.  As per   Ex.A10 at page 81 of the typed set of documents the Complainant paid only EMI’s for a sum of Rs.63,779/-, at page 82  he paid a sum of Rs.2,04,588/- and at page 83 he  paid a sum of Rs.34,098/- towards EMI  and totally he paid a sum of Rs.3,02,465/- towards EMI’s. Other than these amount of EMI’s no other proof has been filed by the Complainant that he has paid  more than Rs.3,02,465/- as EMI. Of course, in Ex.A10 there were certain entries with regard to payment as pre-EMI. Normally the payment of pre-EMI has been made prior to commencement of regular EMI’s. The Complainant claimed to have paid Rs.3,89,289/- towards EMI’s  and absolutely there is no proof available either in Ex.A10 or in any other document  to show that the Complainant had paid the EMI’s as  claimed by him .

          11. Admittedly the loan was closed. Complainant has not filed any statement of account towards the payment made by him to clear the loan and also for his claim of Rs.3,89,289/-, inspite of the  clarification sought for  by this Forum, how the Complaint is entitled for the claim of Rs.3,89,289/- has not been  established through  documents.  The Complainant has not filed any document for the total amount paid by him to the bank and what is the liability towards the bank. The Opposite Party would contend during course of argument that the EMI’s paid by the Complainant adjusted to clear the loan at the time of pre-closure. When clarification was sought for the 1^st & 2^nd Opposite Parties have produced statement of account in respect of the housing loan availed by the Complainant for the period 01.04.2010 to 31.03.2014. As per the above statement the Complainant had paid EMI in respect of principal  amount to a sum of Rs.73,668/- and towards interest a sum of Rs.2,28,797/- totaling to a sum of Rs.3,02,465/-. However the Complainant claimed to have paid EMI’s  a sum of Rs.3,89,289/-  As per the statement produced during arguments the Complainant alleged to have paid the EMI of Rs.3,89,289/- which was not proved.  The Complainant claim a sum of Rs.3,89,289/- for Opposite Parties 1^st & 2^nd as the said sum alleged to have been paid towards the loan availed by him. The Complainant has neither produced any statement of account towards the claim made by him not the actual amount paid by him towards EMI. The Complainant relied upon Ex.A10 to  substantiate his claim. However Ex.A10 does not disclose the alleged claim amount paid by him towards EMI. Hence Ex.A10 cannot be relied upon. Moreover the claim of the Complainant is that he has paid interest more than the principle amount which was availed by him. The Complainant neither pleaded nor produced any document to show that he is entitled to pay the exact and proportionate rate of interest towards EMI. Further, the exact amount of EMI ought to have been paid was also not paid. Hence in the absence of the same the Complainant is not entitled for refund of Rs.3,89,289/- from the bank and therefore we hold that the Opposite Parties 1 & 2 have not committed any Deficiency in Service.

12. POINT: 3

          Since we held above in point no.1 & 2 that the Opposite Parties 1 to 3 have not committed Deficiency in Service, the Complainant is not entitled for  any relief from them and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 25^th   day of April  2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 07.09.2009                   Approval of Housing Loan

 

Ex.A2 dated 15.10.2009                   Agreement of sale

 

Ex.A3 dated 15.10.2009                   Developers Agreement

 

Ex.A4 dated 12.02.2010                   Deed of sale

 

Ex.A5 dated 18.12.2010                   Part Disbursement Advice

               To 25.06.2011

 

Ex.A6 dated 05.01.2011                   Home Loan Insurance

 

Ex.A7 dated 11.02.2013                   Legal Notice

 

Ex.A8 dated 27.02.2013                   Acknowledgement Card

 

Ex.A9 dated 01.08.2009                   A/Complaint Statement – Legal Fee

                      31.08.2009

 

Ex.A10 dated NIL                             A/Complaint Statement – HDFC

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

 

Ex.B1 dated 20.06.2013                   Memorandum of Understanding      

Ex.B2 dated 19.07.2013                   Affidavit for Indemnity

Ex.B3         dated 19.07.2013          Affidavit

Ex.B4 dated 20.06.2013                   Sale Deed in favour of Yashumathi H Doshi,

                                                Registered as Document No.3611 of 2013.

                  

MEMBER – II                                                                       PRESIDENT