Priti Sharma vs Ashiana Landcraft Realty Pvt. Ltd. & Anr

This Application, Under Section 22(2) of the Consumer Protection Act, 1986 (for short, the "Act"), has been filed by the Opposite Party No.2, namely, Housing Development Finance Corporation (hereinafter to be referred to as the "HDFC") praying for review of the Order, dated 21.01.2020, passed by a Bench of this Commission comprising me (Justice R.K. Agrawal, President) and Mrs. M. Shreesha, Member. Since, Mrs. M. Shreesha had demitted office, the President has directed to list this Application before us.

By Order, dated 21.01.2020, the I.A. No. 18194 of 2019 in Consumer Complaint No.1367 of 2019 filed by the Complainant seeking a direction to the HDFC not to make any deduction from her accounts, including NRE Saving Account, towards the recovery of loan taken by her, was allowed with the following observations:-

"We have heard learned Counsel for the parties.

It is not in dispute that a Tripartite Agreement was entered on 29.10.2015 between the Complainant, Ashiana Landcraft Realty Pvt. Ltd. (the Builder/ Opposite Party No.1) and Housing Development Finance Corporation Ltd. (HDFC/ Opposite Party No.2), wherein the parties had agreed as follows:-

"The Borrower has informed HDFC of the scheme of arrangement between the Borrower and the Builder in terms whereof the Builder hereby assumes the liability of payments under the loan agreement as payable by the Borrower to HDFC from the date of first disbursement till 31st August 2017 (the period be referred to as the "Liability Period" and the Liability be referred to as "Assumed Liability"). It is however agreed that during the liability period the repayment liability is joint and several by and between the Borrower and the Builder. The assumption of liability by the Builder in no manner whatsoever releases, relinquishes and/or reduces the liability of the Borrower and that same shall not be affected in any manner on account of any difference and/or dispute between the Borrower and the Builder under the arrangement between them."

From a perusal of the aforesaid Clause of the Agreement, we find that the Builder/Opposite Party No.1 has assumed the liability of payments under the loan agreement as payable by the Borrower, i.e. the Complainant, to HDFC/Opposite Party No.2 from the date of first disbursement till 31.08.2017, i.e. the liability period. This date of 31.08.2017 is referable to Clause-7 of the Agreement entered into between the Complainant and the Builder/Opposite Party No.1. The liability of the Builder/Opposite Party No.1 is till the buyback date. The buyback date has not yet come.

We are, therefore, of the considered opinion that the liability for payment under the loan agreement still exists on the Builder/Opposite Party No.1 and, therefore, HDFC/Opposite Party No.2 shall not deduct any amount towards loan amount from the account of the Complainant.

The Application stands disposed of."

The main grounds on which review of the Order dated 21.01.20 is sought, are as under:-

(i) The Clause relied upon by this Commission in restraining the HDFC from deducting any amount from the Complainant's Account towards recovery of the loan, has been wrongly interpreted and it unambiguously provides that the mere assumption of liability by the Opposite Party No.1 does not relieve the Complainant of her loan repayment obligation;

(ii) HDFC is contractually entitled to recover the loan jointly and severally from the Opposite Party No.1 and 2;

(iii) As per Tripartite Agreement entered into between the Complainant and the Opposite Party No.1 & 2, the Complainant will continue to be liable towards repayment of loan, irrespective of any assumption of liability by Opposite Party No.1;

(iv) The Buy Back Agreement dated 15.09.2015 has no bearing on the rights and obligation of the HDFC as the HDFC was not a party to the said Agreement;

(v) The Complainant had invested in the Project solely with the intention of making commercial benefits under the Buy-Back Scheme offered by the Opposite Party No.1 and as such she stands excluded from the definition of "Consumer" as contemplated u/s 2(1)(d) of the Act. When the Complaint itself is not maintainable, there was no question of granting any interim relief to the Complainant;

Having perused the Order, dated 21.01.2020 and the grounds urged in the Application in support of the review of the said order, we are of the considered view that the Application is bereft of any merit. The Order, dated 21.01.2020 was passed after taking into consideration all these grounds in the presence of Counsel for the parties. An order can be reviewed if there is a mistake apparent on the face of the record. We do not find any such mistake apparent on record. Consequently, the Review Application is dismissed.

This Order shall be communicated by the Registry to the Review Petitioner.