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Judgment
Sudip Ahluwalia, Member
This Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice on the part of the Opposite Party and seeking compensation for loss on account of payments that were made before the subvention clause along with ancillary reliefs.
The Complainant's case centres on the inconsistency in the subvention period for her Apartment in the 'ATS Casa Espana' project. The Complainant was attracted by the advertisement of 'Chandigarh Tricity Property Solutions' and approached the Opposite Party No. 1 in September 2015. After being allotted Apartment No. 8031, she signed an Apartment Buyer Agreement on 26.09.2015, with a sale price of approximately Rs. 1.00 crore. According to Clause 6.2 of the Agreement, possession of the Apartment was to be delivered within 42 months, with a grace period of 3 months. The Complainant chose a Construction-Linked Payment Plan and a subvention scheme, allowing her to defer EMIs for 36 months, starting at a stage when the construction would be nearing completion. A Tripartite Agreement was also entered into on the same day. Till October 2017, the Opposite Party No. 1 honoured the subvention scheme by paying the interest as per the Tripartite Agreement. However, a letter dated 28.09.2017 informed the Complainant that the interest subvention was ending in October 2017, making her liable for pre-EMI/EMI from November 2017. This was contradictory to the agreed subvention period of 36 months. Despite the Complainant's attempts to seek clarification from both parties, the discrepancy remained unresolved. As a result, she had to borrow around Rs. 20 lakhs from her relatives to prepay the EMIs. Being aggrieved with the unfair practices and service deficiencies, she filed the present complaint.
In view of the aforesaid facts, the Complainant has prayed as following two main reliefs-
“i. Pay the loss suffered by the complainant of Rs. 3,47,010/- on account of on account of interest paid for the period which should have been covered by subvention clause and further loss of interest of Rs. 1, 80, 000/- on the prepayment made to respondent No. 4 of Rs. 20 lakhs;
ii. Pay compensation of Rs. 26,00,000/- for deficient, service, and harassment and cost of litigation”
The Complainant appearing in-person has argued that she was initially attracted to the Construction-Linked Payment Plan and loan subvention scheme offered by the Opposite Party No. 1, as advertised on 26.08.2015. The advertisement clearly indicated a 36-month subvention scheme, which was also reflected in the subsequent Tripartite Agreement dated 26.09.2015 under Clause 3. According to this Agreement, the Opposite Party No. 1 was to make payments during these 36 months. However, despite the Agreement and the advertisement, she received a letter dated 28.09.2017 from the Opposite Party No. 1, demanding EMI payments much earlier than expected. In a meeting with the officials of Opposite Party No. 1 on 15.3.2019 at the Project site, the officials of Opposite Party No. 1 acknowledged the 36-month subvention scheme but failed to rectify the discrepancy. This premature demand for EMIs placed a significant financial burden on the Complainant. With a substantial EMI of Rs. 42,241/- and a personal existing monthly rental liability of Rs. 33,000/-, she was forced to borrow Rs. 20,00,000/- from her relatives. This prepayment reduced her subsequent EMIs to Rs. 23,431/-, which further decreased to Rs. 21,810/- from January 2018 due to a 1% interest rebate for women; That this discrepancy between the advertised and actual subvention period was not only misleading, but also resulted in a loss of interest to her. The payments had to be made in advance, causing her to incur additional costs due to the premature end of the subvention scheme at 24 months, instead of the promised 36 months.
Ld. Counsel for the Opposite Party No. 2 has submitted that they merely provided a loan facility to the Complainant as part of the Subvention Scheme initiated by the Opposite Party No. 1. The said Opposite Party No. 2/Housing Development Finance Corporation Ltd. (HDFC Ltd.) had no involvement in the Subvention Scheme's terms or its execution and their role was solely to fund the Complainant's Apartment purchase based on her request; That they had extended the loan to the Complainant based on her explicit commitment to repay it and any disputes or discrepancies between the Complainant and the Opposite Party No. 1 did not absolve her of the repayment obligations to the Opposite Party No.2/HDFC Ltd.; That the complaint lacked merit against them in the absence of specific allegations or prayers for relief against them in the complaint; That there is no basis for holding them liable for any alleged deficiencies in service or unfair trade practices.
This Commission has heard both the Ld. Counsel for Complainant and the Opposite Parties, and perused the material available on record.
The vital fact to be decided is, “what was the net financial loss sustained by her, as a consequence of payment of the loan instalments one year before her liability would have commenced in terms of Tripartite Agreement?”
It is to be noted that the composite compensation claimed by her is under various headings such as deficiency in service, mental agony, pain and suffering as well as litigation costs. But in her prayer clause, in Item No. (i), she has claimed loss of interest assed at Rs. 3,47,010/- on account of the interest paid for the period which should have been covered by the Subvention Clause. She further claimed loss of interest of Rs. 1,80,000/- on the pre-payment to Respondent No. 4 of Rs. 20,00,000/-.
Alongwith her Written Notes of Arguments, directly tendered in Court on 16.4.2024, the Complainant had also appended her Account Statement from the HDFC Ltd. (Annexure-A) pertaining to the period 30.11.2017 to 6.2.2017. She also filed extracts of her Loan Account Statement showing details of the instalments as well as payments made between 2.12.2017 to 5.3.2018 which is Annexure-B and thereafter the continuation of the same Statement for the period between 5.4.2018 to 5.3.2019 which is Annexure- B2 to her Written Notes of Arguments.
It is her contention that although admittedly the Subvention period was for 36 months, but copy of the Tripartite Agreement delivered to the Opposite Party No. 2/HDFC Ltd. mentioned that such period was for 24 months only, which was therefore clearly a case of forgery/misrepresentation on the part of the Opposite Party No. 1. The applicable EMI at that stage was for a whopping sum of Rs. 42,241/-, which the Complainant was not in a position to pay, on account of which she was constrained to take a loan of Rs. 20.00 lakhs from her mother/Mrs. Malvinder Kaur and her sister/Mrs. Simrit Kaur, which she made as a pre-payment in order to get the rate of EMIs to be reduced, as she was otherwise in no position to pay the same on a long term basis. In this situation after the initial EMI of Rs. 42,241/- was paid for the month of November on 2.12.2017, alongwith the pre-payment of Rs. 20.00 lakhs on the same date, the rate of the subsequent EMIs immediately came down to Rs. 23,431/- for the succeeding month and thereafter to Rs. 21,810/- from the month of January, 2018 till 5.3.2019.
In this manner, she had made payment of EMIs amounting to Rs. 2,83,772/- for the period between November, 2017 to October, 2018 totalling Rs. 2,83,772/- in addition to the pre-payment of Rs. 20.00 lakhs. She has claimed interest on the amount of Rs. 2,83,772/- which was the total of the EMIs, which she was otherwise not liable to deposit between November, 2017 to October, 2018 in terms of the actual Tripartite Agreement, but was constrained to do so because of the mistake/alleged foul play on the part of the Opposite Party No. 1 in supplying a copy of the same to the Bank in which the Subvention period was wrongly mentioned as 24 months only. The rate of interest claimed by her on this amount is 10% p.a., which is slightly excessive considering that the rate of interest payable by her to the HDFC Ltd. although floating was actually less than 10% as can be seen from her own Annexure-B and B-2 filed alongwith her own Notes of arguments which go to show that such rate was 8.55% for the period between 2.12.2017 to 5.3.2018, and thereafter 9.05% for the period following 5.4.2018.
In addition, she has also claimed loss of interest on the amount of Rs. 20.00 lakhs which she was constrained to borrow from her mother and sister in order to make the initial pre-payment for the purpose of reducing the quantum of EMIs imposed upon her. But here also the rate of interest of 10% p.a. claimed by her would similarly appear to be excessive, as there is no evidence on record to show at what rate her mother and sister had actually, if at all, invested the aforesaid amounts, loaned by them to the Complainant, which could have indicated how much would have been loss of interest to them. Needless to mention, this Commission is not inclined to give any credence to a supposition that the own mother and sister of the Complainant would have claimed interest @ 10% p.a. from her towards the amounts loaned by them. In the totality of these circumstances, this Commission is of the opinion that the Complainant would be entitled to reasonable compensation by way of interest @ 9% p.a. on the amount of EMIs deposited by her for the period between November, 2017 to October, 2018, and simple interest @ 6% p.a. only on the amount of Rs. 20.00 lakhs separately deposited by her as pre-payment on 2.12.2017.
In addition, the Opposite Party No. 1 is found responsible for gross deficiency in service by way of having provided a tampered version of the Tripartite Agreement to Opposite Party No. 2/HDFC Ltd., ostensibly to avoid payment of the instalments for which they would have been liable for the period between November, 2017 to October, 2018, and the Complainant therefore is held to be entitled to an additional amount of Rs. 2.50 lakhs towards the harassment and mental tension suffered by her, which also would include the element of embarrassment in seeking financial help from her own mother and sister. She is also held entitled to litigation costs assessed at Rs. 50,000/- since it is a matter of record that at the stage of Final Hearing, her case was not argued by any professional but by herself personally for which purpose she was otherwise constrained to commute between New Delhi and Chandigarh on the various dates of hearing.
The Complaint is, therefore, allowed with a direction upon the Opposite Party No. 1 to pay compensation by way of interest on the instalments on the EMIs paid by the Complainant between November, 2017 and October, 2018 @ 8% p.a. from the date of each respective deposit, and additional interest @ 6% p.a. on the amount of Rs. 20.00 lakhs deposited by her in the form of EMI pre-payment on 2.12.2017, apart from additional compensation and litigation costs assessed at Rs. 2.50 lakhs and Rs. 50,000/- respectively as mentioned in the preceding paragraph. Such payments shall be made by the aforesaid Opposite Parties within two months from the date of this Order, after which any outstanding amount shall attract interest @ 10% p.a. till the date of final realisation.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.