Col. Sumeet Patney vs Vatika Ltd.Vatika Tringle

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Hemendra, Advocate, for the complainant

Col. Sumeet Patney has filed above complaint for directing the opposite party (i) to fully foreclose the ICICI bank loan of Rs.9209677/- together with any additional charges, interests or penalties as levied by the bank; (ii) to pay Rs.129017/-, as interest at the rate of 15% per annum from 15.05.2017 to 07.08.2017 and also Rs.10682/- on account of interest on TDS refund for the period 15.05.2017 till date, for the delayed payment on the principal amount; (iii) to pay back Rs.126326/- towards the TDS refund that has been deducted from his receipts; (iv) pay Rs.500000/-, as the compensation for mental agony and harassment, (iv) pay Rs.200000/-, as the costs of litigation.

The complainant stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “Sovereign Next” at village Shikohpur, Sector-82-A, Gurgaon, Haryana. The complainant booked a 3BHK+S flat in said project and deposited Rs.500000/- as the booking amount on 30.09.2014. The opposite party allotted Apartment No.001, Block K, super area 2745 sq.ft., sale price of Rs.25402230/-. Payment plan was “subvention” plan, under which, the complainant had to pay 15% of sale price, 70% sale price had to be arranged from Bank Loan and 15% of sale price was payable on offer of possession. The opposite party agreed to pay Pre-EMI for a period of 30 months from the date of booking. The complainant paid Rs.3447004/- 04.11.2014. The Builder Buyer Agreement and Buy Back Agreement were signed between the parties on 26.11.2014. The complainant applied for a loan which was sanctioned by ICICI bank on 05.12.2014 and Rs.6739296/- was disbursed on 05.12.2014 and Rs.2470381/- was disbursed on 11.12.2014 to the opposite party. Buy Back Agreement gives liberty to the buyer to surrender the apartment after 30 months, from the date of booking and on surrender, the opposite party agreed to refund entire amount of the buyer with a premium of Rs.1000/- per sq.ft. and pre-pay the loan of the bank. The complainant surrendered his flat on 19.01.2017 to opposite party as per the buyback agreement. The opposite party promised to pay the amount due to the complainant in two parts by 30.06.2017 and 30.07.2017 and to foreclose the bank loan by August 30, 2017 and pay EMI until the loan is foreclosed. The opposite party paid Rs.2745000/- i.e. the amount of premium on 03.07.2017 and Rs.3947003/- i.e. the principal amount on 07.08.2017, to the complainant. Although these amounts were payable on or before 15.05.2017 under Buy Back Agreement but the opposite party did not pay interest for delayed payment. The opposite party deducted Rs.126326/- towards TDS. The opposite party did not foreclosure of loan ICICI Bank, taken by the complainant till October 30, 2017. The complainant gave a legal notice to opposite party through his counsel demanding foreclosure of the bank loan till 15.12.2017. In spite of service of legal notice the opposite party did not respond. Then this complaint was filed on 27.12.2017.

The opposite party filed its written reply on 01.03.2018, in which, material facts relating to the booking of the flat, deposit of Rs.500000/- on 30.09.2014 and Rs.3447004/- 04.11.2014, allotment of Apartment No.001, Block K, super area 2745 sq.ft., sale price of Rs.25402230/-, execution of Builder Buyer Agreement and Buy Back Agreement on 26.11.2014 and payment of Rs.6739296/- on 05.12.2014 and Rs.2470381/- on 11.12.2014 by ICICI Bank, have not been denied. The opposite party stated that the complainant gave letter for cancellation of his allotment in June, 2017. Thereafter, the opposite party processed the amount payable to the complainant and paid Rs.2745000/- i.e. the amount of premium on 03.07.2017 and Rs.3947003/- i.e. the principal amount on 07.08.2017. TDS has been deducted on the amount of premium under Section 194A of Income Tax Act, 1961, which is mandatory. Entire outstanding dues along with upto date interest and other charges of ICICI Bank of Rs.9209677/- was cleared through cheque no.010399 dated 22.02.2018. There is no deficiency in service on the part of the opposite party. The complainant was an investor for speculative gain in buy back scheme and not a consumer as such the complaint is not maintainable.

The complainant filed Rejoinder Reply, Affidavit of Evidence of Col. Sumeet Patney and documentary evidence. The opposite party filed Affidavit of Evidence of Vipin Kumar Marya. The complainant filed written submission. In Rejoinder, the complainant admitted payment of bank dues by the opposite party on 22.02.2008 but stated that there was a shortfall of Rs.2983/- and interest of Rs.51989/- was payable on premium and Rs.129017/- was payable on principal amount.

I have considered the arguments of the counsel for complainant and examined the record. Preliminary objection raised by the opposite party has no force inasmuch as the opposite party launched a group housing project, in which, the complainant booked a flat and the parties entered into Builder Buyer Agreement dated 26.11.2014. Buy Back Agreement was an assurance for timely handing over possession and was one kind of incentive and will not nullify Builder Buyer Agreement. The complainant availed the services relating to building construction from the opposite party and is a consumer.

The complainant stated that he had surrendered his flat on 19.01.2017 to opposite party as per the buyback agreement. The opposite party paid Rs.2745000/- i.e. the amount of premium on 03.07.2017 and Rs.3947003/- i.e. the principal amount on 07.08.2017. Now the opposite party settled outstanding dues along with upto date interest and other charges of ICICI Bank of Rs.9209677/- on 22.02.2018. Surrender of 19.01.2017 was premature as according to the complainant, 30 months period expired on 30.03.2017.

Relevant clauses of the Buy Back Agreement are quoted below:-

“5. The party of the first part agrees to buyback the said apartment from the party of the second part, in the event the party of second part opts to surrender his booking on expiry of 30 months from the date of booking. In case of any interest liability, the party of the first part shall be liable for the same for a period of 30 months from the date of booking.

In the event of the party of second part opting to surrender his booking, the party of the first part shall :-

(a) refund the amounts paid by the second party at the time of booking

(b) also pre-pay the loan taken by the second party to the bank

(c) also agrees to pay/give to the second party a premium of Rs.1000/- per sq.ft.

In the event the party of the first part delays in refunding the amounts as mentioned in point no.8(c) above, beyond 45 days after expiry of 30 months from the date of his booking, the party of the first part will pay interest of 15% p.a. simple interest on such amounts for the period of delay beyond 45 days after 30 months, till the time of such amounts are refunded.”

Under clause-9 of the Buy Back Agreement, interest was payable on premium amount and not on principal amount. Payment of premium is in lieu of interest on principal amount. 45 days period for payment has to be considered from the date of surrender after expiry of 30 months from the date of booking otherwise this clause will give undue advantage to the buyer. The complainant has not given any date after 30.03.2017, when he had given option for buy back. As such, statement of the opposite party that this option was exercised in June, 2017, is accepted. Payment of premium was made on 03.07.2017 as such it was within 45 days of surrender and no interest was payable. TDS was deducted as per mandatory provisions of Income Tax Act, 1961. Although the complainant has stated that there was shortfall of Rs.2983/- of bank dues but no certificate from the bank was filed in this respect.

ORDER

In view of the aforesaid discussions, the complaint is dismissed.