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Judgment
Heard Mr. Aneesh Mittal, Advocate, for the complainant-decree holder and Mr. Raushan, Advocate, for opposite party-judgment debtor.
Above execution application has filed for executing order/decree of this Commission, dated 23.12.2019, passed in Consumer Complaint No.1649 of 2018, allowing the complaint with cost of Rs.10000/- and directing M/s. Nexgen Infracon Private Limited (the opposite party) to refund the amount deposited by the complainant with interest @12% per annum from the date of respective deposit till the date of refund, within one month, with default clause. This order has been modified by the Supreme Court in Civil Appeal No.5109 of 2021, by order dated 01.10.2021, in respect of rate of interest and the opposite party was directed to pay interest on the amount deposited by the complainant @9% per annum. After the order of Supreme Court, the opposite party refunded Rs.23348072/- on 12.04.2022, vide cheques Nos.199550037 and 199549936. According to the opposite party Rs.14189172/- was principal amount, Rs.9158900/- was interest on it and Rs.10000/- was cost and the decree has been satisfied in terms of order of Supreme Court. The complainant does not dispute above figures and payment.
The dispute between the parties is in respect of Rs.2590993/- deposited on 19.04.2014. The complainant filed receipt of this amount on page 189 of the complaint, which was admitted by the opposite party, in the Affidavit of Admission/Denial of the documents, filed by Puneet Kumar Jain. The complainant also filed of ledger as maintained by the opposite party, in which also, entry of Rs.2590993/- deposited on 19.04.2014, is shown. The complainant claimed balance decretal amount of Rs.4834083.1 as on 29.11.2023 i.e. principal amount of Rs.2590993/- and interest @9% per annum is Rs.2243090.1. The complainant stated that amount of Rs.2590993/- was disbursed by PNB Housing Finance Limited on 19.04.2014 as per statement of account dated 10.10.2022.
We have considered the arguments of the counsel for the parties and examined the record. PNB Housing Finance Limited sanctioned loan of Rs.13000000/- through tripartite agreement dated 15.04.2014. PNB Housing Finance Limited advanced an amount of Rs.10309007/- to the OP, through letter dated 19.04.2014 (Page-53). In this letter, it has been mentioned that Rs.12900000/- was disbursed. An amount of Rs.2590993/- was upfront deducted and request was made to issue receipt of Rs.13000000/-. A perusal of the receipt of Rs.10309007/- (filed on pg. 188 of the complaint), shows that in this receipt Demand Draft No.101793 dated 19.04.2014, Drawn on Punjab National Bank, New Delhi, has been noted. But in the receipt of Rs.2590993/- (filed on pg. 189 of the complaint) no detail of cheque/draft has been noted. In the light of endorsement of upfront deduction of Rs.2590993/- in the letter dated 19.04.2014 and not producing any detail of demand draft/cheque through which, this amount was paid, statement of the opposite party that this amount was not paid, appears to be correct. In case of denial of payment of this amount, the complainant has to adduce evidence in the form of details of demand draft/cheque and transfer of this amount in the account of the opposite party and certificate of PNB Housing Finance Limited and Punjab National Bank. But the complainant could not adduce any evidence except the receipt and earlier Affidavit of Puneet Kumar Jain. We therefore find that the decree has been fully satisfied. The decree holder has filed copy of the tripartite agreement dated 15.04.2014. In this tripartite agreement it is nowhere mentioned that the builder will bear pre-EMI. Therefore, it the PNB Housing Finance Ltd. had deducted upfront of Rs.2590993/- then this burden cannot be imposed upon the builder. The complainant has taken the loan. If the full amount of the loan was not paid to the builder nor the builder has agreed to bear pre-EMI then the actual amount paid to the builder is only to be refunded.
ORDER
In view of the aforesaid discussions, the execution application is disposed of with observation that the decree has been satisfied.