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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against the opposite parties as detailed above, inter aila praying for (i) to hand over the possession of the premises against full payment from the complainant and/or (ii) to pay claim of Rs.1,57,14,905/- along wih interest @18% (iii) to pay compensation of Rs.50 lakh towards mental harassment and agony, humiliation suffered on account the deficient service and unfair trade practice and (iv) any other direction/order the commission deems fit.
Notice was issued to the opposite parties on 29.03.2019 giving them 30 days’ time to file their written statement.
It is averred/stated in the complaint that:-
(i) The complainant booked a flat at premises A-33, 2nd floor, C.R. Park, New Delhi with OP-2 for Rs.4.30 crore and entered into an agreement for sale/purchase on 05.03.2016 with OP-2 and OP-5 for the purpose of construction of the residential building at at the said premises. On 15.03.2016, a Tripartite Agreement was executed between Complainant, OP No. 4 and OP No. 5 and a loan of Rs.1,38,75,000/- was approved. The proposed date for possession was October 2016. The complainant paid Rs.10,00,000/- and Rs.1,02,71,000/- was paid by the Bank to OP-3 till15.03.2018 (total Rs.1,12,71,000/-).
ii) The complainant and the Bank paid the amount to the Builder as per the payment plan as per the agreement. The complainant wrote letters to the builder for status of construction and position regarding handing over the flat. The complainant also wrote letter to the Bank regarding the status of housing loan. The complainant came to know that there is some illegal money transfer to the loan account. The complainant wrote a complaint to the OPs-2,3 & 4 regarding the instalment payment for the month of December, 2018 and January, 2019 that as per SBI statement some amounts had been paid by some unknown account holders without the knowledge of the complainant which is illegal and requested not to accept any payment from any other person than the complainant. On 04.12.2018, the complainant sent an email to the OP-2 regarding possession of the said flat. The complainant came to know that the flat has been sold to a third party without any intimation to the complainant.
iii) Having paid the amount, the complainant did not get the possession. Hence, on 02.02.2019, the complainant wrote a letter/notice regarding payment claim. The OP-2 agreed to make the payment on account of delay but no payment has been received by the complainant nor the possession of the premises.
iv) Hence, the complainant filed the complaint before this Commission against the opposite parties.
The written statement/reply of OP-1 & 2, having been filed after the permissible time limit, was rejected vide order dated 03.08.2022. In their written arguments OPs-1 & 2 stated that:-
i) the complainant started defaulting in making payments to OPs-1 & 2 right from the beginning, paid advance payment in the sum of Rs.10,00,000/- only but was required to pay Rs.1.1. crores by 15.09.2015. In the receipt for advance payment dated 13.10.2015 and dated 19.10.2015, it is recorded that the draft copy of agreement for sale/purchase submitted by the Builder through Shri Pradeep Banerjee. It is also recorded that in case the Agreement is not executed, this advance would be refunded within three days from the date of demand without any demur. But the complainant never made any demand for refund of the advance as the Agreement for Sale/Purchase was entered into between the complainant and OP-1 to the satisfaction of the complainant, which was binding of both the parties. Thereafter, the parties entered into Agreement for Sale/Purchase. On various forms of duress and coercion prevailed upon OP-1 & 2, complainant forced the OPs to enter into the agreement dated 05.03.2016, which the OP-2 was not inclined to enter into, but had to because of the imposing, domineering and threatening attitude of the complainant. The complainant assured the OP-2 that the complainant would strictly adhere to the terms of the original agreement for sale/purchase entered into in November 2015.
ii) By 09.08.2016, the complainant had paid Rs.1,12,71,000/-, however, the complainant was obliged to pay the amount of Rs.3.60 crore. Having reneged Agreement for Sale/Purchase executed between the parties in November 2015, vide letter dated 13.10.2016, the complainant asked for repayment of the amounts paid by him to OP-1. The OP-1 & 2 incurred a huge loss due to the complainant walking out of the said original agreement for sale/purchase entered into November 2015.
iii) On 13.02.2017, the complainant sent a letter to OP-1 & 2 the admitting to have received refund from OPs-1 & 2. Thereafter, no payments were ever received by the OP-1 for no reason at all and there is no delay in construction on the part of OP-1. As demanded by the complainant, the OP-1 made 1st repayment of Rs.1,00,000/- to the complainant on 14.07.2017 and in such circumstances, the OP-1 had no option but to look for another buyer for the said flat, which remained unsold till April,, 2019. From 14.7.2017 to 19.06.2020, the OP-1 issued refunds totalling upto Rs.1,10,38,000/-. Despite receiving the refunds, the complainant has filed this complaint.
OPs -3 & 4 in their written statement/reply dated 10.02.2020, stated that:-
i. The complainant does not claim anything against OP-3 & 4, except making an allegation that they had taken credit of two instalments from unknown person which it could not take and reverse the same and the complainant will make the payment of the said instalments thereafter. However, there is a conditional direction for repayment, which itself does not have any force as the complainant has its bounden duty to repay the regular instalments for the loan availed without any failure and that too without any such conditions and therefore, the contention of the complainant is not maintainable.
ii. That a tripartite agreement executed amongst the OP-1 as a builder and OP-5 as confirming party and the OPs-3 & 4 , whereby the builder as well as the OP-5 agreed to be guarantor for the loan facility granted to the complainant till the title deed for the said property/under construction flat is executed in favour of the complainant and he creates equitable mortgage in favour of the Bank as primary security for the credit facility granted to the complainant. In such situation if the payment has been made by any of the party being jointly and severally liable, does not make anything wrong with regard to the repayment of the loan of the answering respondents. In response to the letter sent by the complainant regarding status of construction, the OP-3 & 4 clearly informed the complainant that it is to be checked by him with the builder as the project was chosen by the complainant himself.
iii. As the complainant had not claimed any wrong on the part of OP-3 & 4, the OP-3 & 4 claims for discharge from the array of the parties.
Evidence by way of affidavit was filed by the complainant on 13.12.2021, broadly on the lines of averments made in the complaint.
Heard counsel of both the sides.
OP-1 & 2 argued that the Commission lacks pecuniary jurisdiction, OPs have already refunded an amount of Rs.1,10,38,000/- to the complainant and the crucial fact has been concealed by the complainant. Out of Rs.1,10,38,000/- an amount of Rs.42,38,000/- was repaid by the OPs-1 & 2 between 14.07.2017 to 16.11.2018 i.e. before the filing of the present consumer complaint in March 2019, and Rs.68,00,000/- was received by the complainant pursuant to the filing of the complaint. OPs-1 & 2 also annexed details of the various payments, total amounting to Rs.1,10,38,000/- to the complainant made during 14.07.2017 to 19.06.2020 alongwith their written arguments. The said statement of accounts were filed by the OPs-1 & 2 in their written statement and affidavit of evidence and till date there has been no denial by the complainant. The complainant has made a wrong averment/statement in the complaint that no payment has been received by complainant from OPs-1 & 2. By hiding such crucial facts the complainant has come to the Commission with unclean hands and is guilty of suppression of material facts. The complainant has made entirely fictional claims hiding the fact of such refund/repayment. Complainant has knowingly made false averments on oaths. OPs-1 & 2 have filed Civil Suit (OS) Comm No. 22 of 2022 before the Hon’ble High Court of Delhi inter alia, seeking damages on account of breach of contract, the consequential loss suffered by OP-1. As demanded by the complainant, OP-1 made first repayment of Rs.1,00,000/- to complainant on 14.07.2017 and in such circumstances, OP-1 had no option but to look for another buyer for the said flat, which remained unsold till April 2019. OP-1 could sell the said flat on 12.04.2019 for only Rs.2,40,00,000/- thereby incurring a huge loss of Rs.1,90,00,000/- , taking into consideration the original sale consideration agreed upon with the complainant in the agreement for sale/purchase entered into in November 2015. OPs-3 & 4 being officials of Bank of the OP-1 have been impleaded with the motive of affecting the relations of OPs-1 & 2 with the Bank. Even OP-6 viz Union of India have been impleaded only to harass, coerce and scare the OPs-1 & 2.
It is to be noted that as per the details given in Annexure-A to the complaint of claim of Rs.1,57,14,905/- against OPs for which a prayer has been made in the complaint. It includes an amount of Rs.10,00,000/- paid as advance by complainant to OP-1, Rs.68,31,000/- on 15.03.2016 and Rs.35,50,000/- on 09.08.2016(Total Rs.1,03,81,000/-) paid by SBI to OP-1, (Grand total paid to OP-1 Rs.1,13,81,000/-), while in the complaint Rs.34,50,000/- is mentioned as having been paid by SBI to OP on 09.08.2016. At one place, the amount paid by SBI to OP on 15.03.2016, is shown as Rs.68,31,000/-, while at another place it is shown as Rs.68,21,000/-and total payments to OP as Rs.1,12,71,000/-. In the complaint, complainant has made a reference to a letter dated 13.04.2018 written to OP-1. A perusal of the letter enclosed with the case file by the complainant, as well referred to by the complainant in his evidence (marked as Exb. CW1/15) which is a letter written by M/s Tottenham India Law Associates, Advocates, to OP-1, through OP-2, on behalf of the complainant, shows that Bank (SBI) has paid Rs.1,02,71,000 and complainant Rs.10,00,000; This letter which states ‘as instructed by Sh. Bhattacharya, (complainant), your (OP-1’s ) statement handed over to us is verified as follows:- shows that, there are four ‘Money paid back entries viz. Rs.1,00,000/-, Rs.1,18,000/-, Rs.20,00,000/- and Rs.10,00,000/- (Total Rs.32,18,000/-) (this is to be seen in the light of statement made by OP-1 & 2 in written arguments that Rs.42,38,000/- have been repaid by OP-1 & 2 to complainant between 14.07.2017 to 16.11.2018. These four entries of Rs.1,00,000/-, Rs.1,18,000/-, Rs.20,00,000/- and Rs.10,00,000/- above stated letter dated 13.04.2018 produced by complainant alongwith complaint do tally with the details of Rs.42,38,000/- claimed to have been repaid by OP-1 & 2 to complainant during 14.07.2017 to 16.11.2018 wherein these four repayments are shown to be on 14.07.2017, August 17, 25.09.2017 and 02.01.2018 respectively. Notwithstanding the rejection of written statement of OP-1 & OP-2 on the ground of delayed filing. This does give credence to the argument of OP-1 & 2 that certain amounts have indeed been repaid back by OP-1 & OP-2 to the complainant, which the complainant have chosen not to disclose in his complaint.
In view of this, complainant has not been able to establish beyond doubt that no amount has been refunded by OP-1 & 2, out of total of Rs.1,03,81,000/- paid by complainant directly and/or through the bank and that this entire amount is liable to be refunded by OP-1 & OP-2 to the complainant (in addition to complainant’s claim on other heads- total amounting to Rs.1,57,14,905/-). At the same time, OP-1 & OP-2 , in the absence of their written statement/evidence on record, have not been able to establish beyond doubt that they have refunded a total amount of Rs.1,10,38,000/- to Complainant (Rs.42,38,000/- from 14.07.2017 to 16.11.2018 i.e. before filing of the complainant) and Rs.68,00,000/- after the filing of the complaint as claimed in the written arguments. Hence, the right course for the parties in the present case is to pursue civil remedies to establish their respective claims.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is disposed off with instructions to parties to pursue civil remedies, if they so desire, to establish their claims.
The pending IAs, if any, also stand disposed off.