Chandigarh

StateCommission

RP/11/2021

Housing Development Finance Corporation Ltd. - Complainant(s)

Versus

Amit Kumar - Opp.Party(s)

Shekhar Verma, Dushyant Sarvesh, Yashvir S. Balhara & Isha Janjua Adv.

28 Feb 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Revision Petition No.	:	11 of 2021
Date of Institution	:	12.11.2021
Date of Decision	:	28.02.2022

 

Housing Development Finance Corporation Limited having its branch office. at SCO 153-155, Sector 8-C, Chandigarh through its Manager/Authorised Signatory.

Petitioner

V e r s u s

 

1. Amit Kumar S/o Sh. Lekh Raj, R/o JhiklaOdar, Gharch, Kangra, Himachal Pradesh-176215
2. Aditi Kumari W/o Amit Kumar, R/o JhiklaOdar, Gharch, Kangra, Himachal Pradesh-176215
3. Gupta Builders and Promoters Pvt. Ltd. having its Office at SCO No. 196-197, Ground Floor, Sector-34 A, Chandigarh-160022 through its Wholetime Directors Sh. Satish Kumar, Sh. Raman Kumar and Sh. PardeepKuamar
4. Sh. Satish Kumar, Wholetime Directors of Gupta Builders and Promoters Pvt. Ltd. having its Office at SCO No. 196-197, Ground Floor, Sector-34 A, Chandigarh-160022
5. Sh. Raman Kumar, Wholetime Directors of Gupta Builders and Promoters Pvt. Ltd. having its Office at SCO No. 196-197, Ground Floor, Sector-34 A, Chandigarh-160022
6. Sh. Pardeep Kumar, Wholetime Directors of Gupta Builders and Promoters Pvt. Ltd. having its Office at SCO No. 196-197, Ground Floor, Sector-34 A, Chandigarh-160022
7. M/s Bajwa Developers Limited, Regd. Office at Sunny Enclave, DesuMajra, Tehsil-Kharar, Punjab, through its Director Sh. Jarnail Singh Bajwa
8. Jarnail Singh Bajwa Director of M/s Bajwa Developers Limited having its office at Sunny Enclave, DesuMajra, Tehsil-Kharar, Punjab.

…..Respondents/opposite parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

 

Present through Video Conferencing:-

                            

                             Sh.Shekhar Verma, Advocate for the appellant.

                             Sh.Savinder Singh Gill, Advocate for respondent no.1 and 2.

                             Respondent no.3 to 5 exparte vide order dated 03.12.2021

                             Revision Petition dismissed qua respondent no.6 to 8 vide order dated 03.12.2021.

 

 

PER PADMA PANDEY, MEMBER

                   The short question which falls for determination before this Commission is, as to whether, the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh, vide order dated 05.10.2021, was right in allowing application filed by the complainants and issuing directions to the appellant not to deduct the EMIs/encash security cheques given by them, against the housing loan availed by them in respect of the unit in dispute, which was purchased by the complainants, from the builder-Gupta Builders and Developers Pvt. 

2.           It is significant to mention here that the District Commission has failed to refer any document, having been placed on the main consumer complaint, in the shape of agreement or undertaking having been executed between the  complainants and the appellant-HDFC wherefrom it could be ascertained that in case the builder fails to deliver possession of the unit  purchased under subvention scheme, the complainants were at liberty to stop making payment of EMIs to the appellant-HDFC. In the absence of any such agreement or any other documents, we are of the considered opinion that no such directions should have been passed by the District Commission against the appellant-HDFC. 
3.           At the same time, Counsel for the appellant, while placing reliance on condition no.4 of the tripartite agreement dated 12.06.2019, Annexure R-1 has vehemently contended that it was agreed to between the appellant and the complainants that irrespective of the stage of construction and date of  handing over possession of the unit, the complainants/borrower shall be liable to pay to the appellant-HDFC regularly each month the EMIs as laid down in the loan agreement. Relevant condition no.4 to this effect is reproduced hereunder:-

“…4. That irrespective of the stage of construction of the Project and irrespective of the date of handing over the possession of the residential Floor to the Borrower by the Developer, the Borrower shall be liable to pay to HDFC regularly each month the EMIS as laid down in the Loan Agreement to be signed by and between HDFC and the Borrower. The Borrower shall execute an indemnity and such other documents as may be required by HDFC in favor of HDFC in this regard…”

4.           More importantly, it is also coming from the record Annexure To Tripartite Agreement (at page 27 of the paper book) that end date of subvention scheme and the assumed liability period was upto 20.06.2020. Thus, once it was candidly admitted between the complainant and the appellant/HDFC by way of tripartite agreement dated 12.06.2019, Annexure R-1, referred to above,  that irrespective of the stage of construction and date of  handing over possession of the unit, the complainants/borrower shall be liable to pay to the appellant-HDFC regularly each month and also the end date of subvention scheme and the assumed liability period was upto 20.06.2020, as such, now they cannot wriggle out of the same. It is settled law that the courts/tribunals does not make a contract for the parties. The courts/tribunals are not even open to even improve the contract which the parties have made for themselves, however desirable the improvement might be. The court’s function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been more suitable.
5.           However, the District Commission fell into a grave error, in holding to the contrary, by ordering the appellant-HDFC  on the very first day of hearing of the consumer complaint when it was not even aware of the terms and conditions of the tripartite agreement (as the complainants did not even place it on record for the reasons know to them); not to deduct the EMIs/encash security cheques given by them, against the housing loan availed by them in respect of the unit in dispute, which was purchased by the complainants, from the builder-Gupta Builders and Developers Pvt. 
6.           For the reasons recorded above, this revision petition stands allowed with no order as to cost. The order dated 05.10.2021 passed by the District Commission, which is under challenge, in this revision petition is set aside.
7.           Certified copies of this order be sent to the parties, free of charge.
8.           The concerned file be consigned to Record Room, after completion.

Pronounced

28.02.2022

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

 

Gp.