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Judgment
A. P. Sahi, President Member
This is a complaint regarding failure to develop a plot in IREO City Project. This was one of the earliest complaints that was filed in the year 2016 and remained pending. During the pendency of the Complaint, certain developments both by way of pronouncements and also the action taken by the Bank from where the loan was taken has come into existence. Undisputedly, the plot for which compensation is sought was booked and the allotment indicates that it is plot no. D8_01 admeasuring 404 sq. yds. IREO City Sector 60 Gurgaon. The booking of this plot took place on 29.11.2012 and the delivery was to be made within 36 months. A plot buyer agreement was executed on 12.02.2013. The plot was not offered as promised and consequently, there is an undisputed delay in the handing over of the possession, it is in these circumstances that the present complaint was filed in 2016.
Similar plot owners including one Amit Verma were aggrieved by the non-delivery of plots and complaints were filed subsequently in the year 2018 and in the year 2020. Amit Verma’s complaint being CC/385/2020 Amit Verma Vs. IREO Pvt. Ltd. was disposed off finally on 03.02.2022 extending the benefit of refund coupled with other ancillary benefits. It is correct that the decision in the case of Amit Verma (Supra)by this Commission went ex-parte to M/s IREO Pvt. Ltd., who were the Opposite parties herein in respect of the same project but the Opposite Parties filed SLP/Civil Appeal/Diary No. 25192 of 2023 that was dismissed on 24.07.2023 confirming the order in the case of Amit Verma (Supra).
This Commission in other similar matters being CC/1769/2018 (Atul Gupta & Anr Vs. M/s IREO Pvt. Ltd), CC/264/2019 (Manish Jain Vs. M/s IREO Pvt. Ltd) & CC/2706/2018 (Rajesh Chander & Anr. Vs. M/s IREO Pvt. Ltd) after hearing the Opposite Party/developer with regard to the same project and following the order in the case of Amit Verma (Supra) allowed the complaints on 21.12.2023 extending the benefit of refund of the entire deposited amount to the Complainants together with interest at the 9% per annum from the respective date of deposits till actual payment within a period of three months and litigation cost of Rs.50,000/- was also awarded.
A copy of the said order has been placed before the Bench.
This complaint had been earlier continuing along with the aforesaid complaints and the matter proceeded on 11.08.2023 but on the request made by the learned Counsel for the Opposite Party, this complaint was detagged vide order dated 12.12.2023 as it was urged that the facts of this case are slightly different.
It is in this background that the case was listed on 12.01.2024 when the following order was passed.
“ORDER
This Complaint had been earlier tagged with CC/1769/2018 and other complaints which on the last occasion was de-tagged on the request of the learned Counsel for the Opposite Party contending that they have slightly different submissions to make in this complaint. The matter was directed to come up today, the learned Counsel for the Complainant has been heard at length. No one is present on behalf of the Opposite Party, in spite of the fact that the date was fixed in the presence of the learned Counsel for the Opposite Party on his request.
The claim made in this complaint is almost similar and on the same grounds as was raised in respect of a premises of the same project in the case of Amit Verma Vs. IREO Pvt. Ltd. in CC/385/2020 decided on 03.02.2022. In fact, this complaint had been filed way back in the year 2016 itself and Amit Verma’s case came to be filed later on. Yet, it was decided earlier to this petition. The order passed by this Commission in the case of Amit Verma (Supra) of course went ex-parte to the Opposite Party and the judgment therein was confirmed by the Apex Court as the SLP filed against the same was dismissed on 24.07.2023 in Civil Appeal/Diary No. 25192 of 2023. Thus, the very same issue had been raised therein and stood concluded by the order passed in the aforesaid complaint.
The said decision was cited at the bar in all the other connected matters which were decided on 21.12.2023 by this Commission in CC/1769/2018 and other connected matters.
In the present case, the facts which are undisputed are that the booking was done on 29.11.2012 with a promise for the delivery of the booked plot within 36 months. A builder-buyer agreement was also executed on 12.02.2013 which the Complainant alleges to be one sided and containing clauses which are otherwise arbitrary. The claim is for refund of the entire amount which has been paid by the Complainant after taking a loan from Axis Bank. It is necessary to point out that the entire consideration amount for the plot was Rs.5,35,68,526/-.As against the aforesaid amount after taking loan from the bank the Complainant together with his own contributions paid a total of Rs.4,34,36,120/-. These facts have been stated in paragraph 9 of the Complaint and the said amounts as indicated and the details of payment have not been disputed by the Opposite Party in Paragraph 9 of their written version where it is stated that the same are matters of record.
During the pendency of the Complaint, since there was a subvention scheme and a tripartite agreement with regard to the payments of the EMIs through the bank, the bank seems to have satisfied the demands of the builder/developer and a foreclosure letter was issued on 06.09.2017. The letter is extracted hereunder:
“SUBJECT: CANCELLATION OF ALLOTMENT OF-PLOT NO D8_01 (Admeasuring 404 Sq. yds.) IREO CITY SECTOR-60 GURGAON
Dear Sir,
With reference to the captioned subject we would like to inform you that the unit was allotted to Mrs. Ashwarya Nagpal and Mr. Ashish Nagpal where the customer has availed a Loan of Rs.3,49,16,845/-(Rupees Three Crore Forty Nine Lakhs Sixteen Thousand Eight Hundred Forty Five Only) from Axis Bank Ltd. And the units is mortgaged to the Bank with your permission.
Further, the customer has been defaulting in Payment of EMI’s to the Bank and inspite of several notices/communication, the customer has not paid the dues to the Bank.
The Bank has decided to exercise the rights as per Tripartite Agreement executed between the Builder, Borrower and the Bank specified in clause number 4,6& 12 thereby we request to cancel the property allotted to the customer and close the account (A/c No PHR012601160290) of the customer as per foreclosure letter enclosed herein within 7 days of receipt of this letter. We have also send Demand-cum-Loan Recall Notice Dated 11.08.2017. You are requested to refund the customer any dues after selling the property and taking appropriate transfer charge as per Tripartite Agreement.
We hope for an early action and settlement of the loan account as per Foreclosure letter attached in annexure-1 within the stipulated time. You may intimate the customer on the same as per you cancellation process. This notice is being issued without prejudice to bank’s rights and contentions in the recovery suit/Original Application filed by the bank if any against the Borrowers and You the above mentioned addressee before respective Distt. Courts/Debts Recovery Tribunal.”
A perusal of the said letter also indicates that the bank had clearly instructed the Opposite Party developer to refund the customer any dues after negotiating the property and taking appropriate transfer charges as per the tripartite agreement.
The fact therefore that emerges is that way back in 2017 the developer had already received an amount of Rs.3,48,66,838.75/- from the bank as against the outstanding dues against the Complainant in respect of the plot in question. This consideration therefore had already passed on to the Opposite Party from the bank.
Learned Counsel for the Complainant submits that the bank is still maintaining some account as against the Complainant calling for payment of dues.
It is in this background it is urged that the refund needs to be directed straight away and the amount therefore received by the Opposite Party through the Bank also needs to be refunded and adjusted in terms of the payments already made.
The fact remains, however, that the payments which have been made as against the loan account seems to have been followed on account of the stated cancellation of the allotment of the plot. In that view of the matter, the relief prayed for refund has to be considered accordingly.
As noted above, the complaint of Amit Verma (Supra) was allowed, even though ex-parte, but the grounds of opposition in the present complaint by the Opposite Party are the same.
In spite of the fact that an opportunity was given to proceed with this matter separately, no one has appeared on their behalf. This complaint therefore deserves to be proceeded with as the learned Counsel for the Complainant has already filed his evidence by way of affidavit.
Let this complaint proceed ex-parte against the Opposite Party No.1. It may also be pointed out that the order passed by this Commission allowing the other complaints dated 21.12.2023 has also been perused and hence this complaint needs to be addressed accordingly.
List on 07.02.2024 for directions.”
However, the learned Counsel for the Opposite Party appeared in this case and prayed for an accommodation. He was heard and it was pointed out to him that the matter has been directed to proceed ex-parte but nonetheless the fact remains that the legal issues involved are identical and the relief prayed for being similar, the present complaint did not require any different treatment except for the fact that the loan taken by the Complainants from the Axis Bank had to be deposited. The bank issued a letter on 06.09.2017 during the pendency of this Complaint which has been brought on record and recites as follows:
SUBJECT: CANCELLATION OF ALLOTMENT OF PLOT NO D8_01 (admeasuring 404 Sq. yds.) IREO CITY SECTOR-60 GURGAON
Dear Sir,
With reference to the captioned subject we would like to inform you that the unit was allotted to Mrs. Ashwarya Nagpal and Mr. Ashish Nagpal where the customer has availed a Loan of Rs.3,49,16,845/-(Rupees Three Core Forty Nine Lakhs Sixteen Thousand Eight Hundred Forty Five Only) from Axis Bank Ltd. and the unit is mortgaged to the Bank with your permission.
Further, the customer has been defaulting in Payment of EMI's to the Bank and inspite of several notices/communication, the customer has not paid the dues to the Bank
The Bank has decided to exercise the rights as per Tripartite Agreement executed between the Builder, Borrower and the Bank specified in clause number 4, 6 & 12 thereby we request to cancel the property allotted to the customer and close the account (A/c No PHR012601160290) of the customer as per foreclosure letter enclosed herein within 7 days of receipt of this letter. We have also send Demand-cum-Loan Recall Notice Dated 11.08.2017. You are requested to refund the customer any dues after selling the property and taking appropriate transfer charges as per Tripartite Agreement.
We hope for an early action and settlement of the loan account as per Foreclosure letter attached in annexure-1 within the stipulated time. You may intimate the customer on the same asper your cancellation process. This notice is being issued without prejudice to bank's rights and contentions in the recovery suit /Original Application filed by the bank if any against the Borrowers and You the above mentioned addressee before respective Distt. Courts /Debts Recovery Tribunal
Sd/-
Authorised Signatory
In the given circumstances, the refund which is due to the Complainant was acknowledged subject to the satisfaction of the loan amount of the Bank.
Having considered all these aspects, in the present case the Complainant moved an application on 29.11.2012 and paid Rs.43,57,895/- towards booking charges. The builder-buyer agreement was drawn up on 12.02.2013 and plot no. D8_01 with a super area of 404.7 sq. yds. was allotted. The total consideration payable for the said residential plot was Rs.5,35,68,526/-. The plot was to be delivered within 36 months plus six months of additional grace period. Accordingly, the Complainants applied for a loan and a sum of Rs.3,99,000/- was disbursed. The Complainants started paying regular EMIs and they have paid Rs.4,34,36,120/- (including of the amount of loan sanctioned by the Bank).
The fact that the plot was not delivered and the possession was delayed brought the Complainant to this Commission by filing the present complaint. Notices were issued and the matter remained pending with exchange of affidavits and as indicated above during the pendency of the complaint, other similar matters came to be finally disposed off in the manner as indicated hereinabove.
The given facts of this case the delay is established and consequently the Complainants are entitled for the benefits of refund.
The complaint is allowed. The Opposite Parties are directed to refund the entire amount to the Complainant subject to the adjustment of the loan account of the Axis Bank. The balance of the amount after satisfying amount paid to the Bank shall be calculated and be paid over to the Complainant within a period of three months from today together with interest at the rate of 9% per annum from the date of respective deposits made by the Complainant and in the event of any default the same shall carry an interest of 12%. The Complainant is also entitled to Rs.50,000/- as cost of litigation that shall also be paid within a period of three months. The complaint accordingly stands disposed off.