Date of filing:  28.11.2022                                                          Date of Disposal: 31.05.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 31^st DAY OF MAY, 2023

CONSUMER COMPLAINT NO.248/2022

PRESENT:

    SRI.SHIVARAMA.  K                   :  PRESIDENT

SRI.RAJU K.S,                            :  MEMBER

Naresh Kumar Vijay,

A403, Vaswani Brentwood

VIBGYOR High School Road,

Thubrahalli, Whitefield,

•                                         ……       COMPLAINANT.

- V/s -

1) HDFC Limited,

Ramon House, H.T. Parekh Marg,

169, Backbay Reclamation,

Churchgae, Mumbai-400020.

(Rep. by Sri. Jai.M.Patil, Advocate)

2) Ozone Urbana Infra Developers

Private Limited, #38, Ulsoor Road,

Bangalore-560042.

(Notice served – Remained Absent)

//JUDGEMENT//

BY SRI. SHIVARAMA K, PRESIDENT

01.    The complainant has filed this complaint under section 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party No.1-Bank to collect the amount due from the builder and to stop charging Pre-EMIs from the complainant.

02.    It is not in dispute that, opposite party No.2 is the builder and opposite party No.2 had entered in to an agreement for sale dated: 28.04.2014 with the complainant agreeing to sell an apartment and a tripartite agreement also came to be executed on 27.05.2014 in between the complainant and the opposite party No.1 & 2.  Further it is not in dispute that, opposite party No.1-Bank had released 90% of the money directly to the builder.  Further it is not in dispute that, the complainant has exhausted his remedy under RERA Act and Karnataka Real Estate Regulatory Authority on 20.10.2022 in CMP/220725/0009793 has passed an order directing the respondent (opposite party No.2 herein) to pay a sum of Rs.1,09,69,781/- to the complainant.  It is the further case of the complainant that, opposite party No.1 colluded with opposite party No.2 to cheat the complainant and his family.  Further opposite party No.2-Bank drafted unfair, biased and unethical terms in the tripartite agreement to cheat complainant and the Bank has released the money without verifying the construction and progress of the project.

03.    Opposite party No.2 remained absent. 

04.    It is the further contention of opposite party No.1 that, since the complainant had availed the financial facilities from the Bank, it is the duty of the complainant to repay the amount in accordance with the terms of contract.  Further irrespective of the stage of construction of the project and irrespective of the date of handing over the possession of the residential apartment to the complainant by the vendor the complainant shall be liable to pay to OP No.1 Bank regularly each month, the EMIs as laid down in the loan agreement.  Further as per section 37 of the Indian Contract Act, 1872 it is the obligation of the parties to the contract to perform the duties accepted in the agreement.  Hence, it is sought to dismiss the complaint.

05.    To prove the case, the complainant (PW-1) has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.9 documents.  The Legal Manager of opposite party No.1-Bank (RW-1) has filed affidavit in the form of his evidence in chief and got marked EX.R.1 to EX.R.3 documents.

06.    Counsel for complainant and counsel for opposite party No.1 have filed their respective written arguments.

07.    The points that would arise for consideration are as under:-

  (1) Whether the complaint is maintainable?

  (2) Whether the complainant is entitle for the 

      relief sought ?

      (3) What order ?

08.    Our findings on the aforesaid points are as follows:-

POINT NO.1:-          In negative

POINT NO.2:-  In negative

POINT NO.3:-  As per the final order

 for the following:

REASONS

09.    POINT NO.1:-  PW.1 and RW.1 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. 

10.    It is the contention of the learned counsel for opposite party No.1 that, since the complainant has already exhausted his remedy under RERA Act against 2^nd opposite party and if the 2^nd opposite party fails to comply the order passed by the RERA, the complainant can take appropriate action against 2^nd opposite party before the competent court of law. 

11.    On perusal of the orders passed by the Karnataka Real Estate Regulatory Authority it appears that, the present opposite party No.2 is the respondent before the RERA Court.  The RERA Court has directed the respondent (opposite party No.2 herein) to pay a sum of Rs.1,09,69,781/-.  It is not in dispute that, opposite party No.1 had sanctioned loan of Rs.54,61,000/- and the same was paid to opposite party No.2.  The said amount shall be repayable by the complainant to opposite party No.1-Bank as per the terms of home loan agreement.  In the present complaint it is sought a direction to opposite party No.1-Bank to collect the due amount from builder and stop charging Pre-EMI from the complainant.  We feel since the complainant has exhausted his remedy before RERA Court and the RERA court has passed an award this Commission has no jurisdiction to grant the direction sought as the issue in between the parties has already been settled, thereby the relief sought in the present complaint is hit by principles of Resjudicata as contemplated under section 11 of Civil Procedure Code.  Even the relief of direction sought in the present case did not seek in the case directly before the RERA court, the same cannot be seek in the present complaint as the same is hit by order II Rule 3 of Code of Civil Procedure.    

12.    Further since the court which passed the order has jurisdiction to get the order executed unless the same is excluded in the special statute.  Hence the complainant has every right to approach the same authority which passed the order for execution.  Hence we answer point No.1 in the negative.

13.    POINT NO.2:-     In view of the finding given on point No.1 this point is answered in negative.

14.    POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is dismissed.  No order as to costs.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 31^st Day of MAY 2023)                                             

                (RAJU K.S)                               (SHIVARAMA. K)    

                 MEMBER                                      PRESIDENT

//ANNEXURE//

Witness examined for the complainant side:

Sri. Naresh Kumar Vijay, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.

Documents got marked for complainant side:

1. Copy of agreement of sale dt.13.05.2014 – EX.P.1.
2. Copy of construction agreement dt.28.04.2014 – EX.P.2
3. Copy of home loan agreement – EX.P.3.
4. Copy of tripartite agreement dt.27.05.2014 – EX.P.4.
5. Copy of subvention agreement – EX.P.5.
6. Copy of statement of account issued by OP – EX.P.6.
7. Copy of HDFC pre Emi statement – EX.P.7.
8. Copy of credit note issued by OP – EX.P.8.
9. Computer downloaded copy of RERA court order dt.20.10.2022 – EX.P.9.

Witness examined for the opposite party No.1 side: 

Sri. Sridhar Chinni, Legal Manager at opposite party No.1 (RW-1) has filed affidavit in the form of his evidence in chief.

Documents got marked for the Opposite Party No.1 side:

1) Copy of home loan agreement – EX.R.1.

2) Copy of tripartite agreement – EX.R.2.

3) Copy of statement of account – EX.R.3.

Witness examined for the opposite party No.2 side: 

• NIL -

Documents got marked for the Opposite Party No.2 side:

– NIL -

• RAJU K.S)                          (SHIVARAMA. K)    

                MEMBER                               PRESIDENT