NCDRC

NCDRC

FA/2311/2017

JATIN JIVRAJANI - Complainant(s)

Versus

ING VYSYA BANK(NOW KOTAK MAHINDRA BANK) - Opp.Party(s)

MR. JATIN DHAWAN & MR. PRABHAT HIMAKAR

13 Jul 2023

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 2311 OF 2017
(Against the Order dated 06/09/2017 in Complaint No. 191/2015 of the State Commission Delhi)
1. JATIN JIVRAJANI
2403, NISHANT APARTMENTS, PLOT NO.5, DWARKA, SECTOR-19 B, NEAR OPG SCHOOL.
NEAR DELHI-110075
...........Appellant(s)
Versus 
1. ING VYSYA BANK(NOW KOTAK MAHINDRA BANK)
7TH FLOOR, AMBADEEP BUILDING, 14 KASTURBA GANDHI MARG.
NEW DELHI-110001
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER

FOR THE APPELLANT :
MR. JATIN JIVRAJANI, IN PERSON.
FOR THE RESPONDENT :
MR. RAHUL RANJAN SINGH, ADVOCATE.

Dated : 13 July 2023
ORDER

         This First Appeal has been filed by the Appellant/Complainant No.1 against Respondent/Opposite Party No.1 challenging the impugned interim Order dated 06.09.2017 passed by the State Consumer Disputes Redressal Commission, New Delhi, in Complaint bearing No. 191 of 2015.

2.      The brief facts of the case are that the Complainants had booked a Flat bearing No. C-6/104, VXL Eastern Heights situated at Khasra no. 1553, 1554, 1556, 1557/1, 1557/2 and 1558 Nyay Khand – III, Indrapuram, Ghaziabad, Uttar Pradesh, in the Opposite Party No.2’s Project namely, ‘VXL Heights’ for Rs.23,50,000/- based on the representations of the Opposite Party No.1 for financing the Flat and protecting the interests of the Complainants against the Opposite Party No.2’s breaches. In the Complaint before the Ld. State Commission, the relief was sought only against the Opposite Party No.1 with regard to the transactions relating to housing loan availed from them and the Opposite Party No.2 was only a proforma party as the grievances qua the Opposite Party No.2-Builder were already adjudicated upon in Complaint Case bearing No. 196/2009 by the Ld. State Commission vide Order dated 29.08.2012.

3.      It was the case of the Complainants before the Ld. State Commission that the loan was sanctioned to them vide loan account No. 5300HL814710 through Karol Bagh, New Delhi Branch. Subsequently, in order to protect the Complainants’ interests in the event of default/ delayed delivery of flat, all the parties, i.e., the Complainants and the Opposite Parties No.1 and 2 entered into a Tripartite Agreement on 30.01.2008. Consequently, on 31.01.2008, Rs.18,41,500/- were disbursed by the Opposite Party No.1-Bank to the Opposite Party No.2-Builder. However, the Opposite Party No.2 failed to complete the construction by the due date which was also informed to the Opposite Party No.1. However, the Opposite Party No.1 refused to intervene as per the terms of the Tripartite Agreement by claiming that the dispute was between the Builder and the Complainants. Furthermore, neither any action was taken by the Opposite Party No.1 to recall the funds provided to the Opposite Party No. 2 nor they stopped demanding EMIs from the Complainants.  Rather they increased the rate of interest on loan. Further, the Opposite Party No.1 acted beyond its authority by foreclosing the loan after two months of expiry of the foreclosure letter and in spite of notice of the judgment dated 29.08.2012.  The Opposite Party No.1 accepted funds from the Opposite Party No.2 in a mischievous fashion creating more hardships for the Complainants. Therefore, being aggrieved by such acts of the Opposite Parties, the complaint was filed before Ld. State Commission.

4.      A Reply was filed on behalf of the Opposite Party No.1 on 21.07.2016 before the Ld. State Commission. The Opposite Party No.1 denied all the allegations thereby denying deficiency in service on its part. It was averred that the Complaint is hit by res judicata and waiver; the Tripartite Agreement was entered into between the parties only with the view to not create third party interest over the property as well as to avoid the early situation of cancellation of allotments by the builders; the Opposite Party No.1 is not a party to the sale and purchase of the flat and its role is limited to the disbursement of Loan Amount in the name of Complainants only; and, as per the Tripartite Agreement, the builder is liable to refund the amount disbursed in case of any breach of Agreement. Therefore, the Opposite Party No.1 prayed for dismissal of the Complaint with costs.

5.      The Ld. State Commission vide its impugned interim Order dated 06.09.2017 had deleted the Opposite Party No.1 – ING Vyasa Bank Ltd. from the array of parties and added Kotak Mahindra as the Opposite Party No.1 in its place in view of the amalgamation between the said banks and no objection by the Complainants. The Ld. State Commission had also given an opportunity to the Opposite Party No.1 – Kotak Mahindra Bank to file its written Statement as they had been added as party only on 06.09.2017 which was opposed by the Complainants stating that their defense has already been struck down vide interim order dated 04.11.2016 due to delay in filing the written statement. However, the Ld. State Commission was of the view that since Kotak Mahindra Bank was never a party in the Complaint, hence, there is no question of striking their defense.

6.      Aggrieved by the above impugned interim Order dated 06.09.2017, the present First Appeal bearing No. 2311 of 2017 has been filed by Appellant/Complainant No.1 against the Respondent/Opposite Party No.1 before this Commission on the grounds that a party cannot be permitted to file two written statements as Kotak Mahindra has already filed its initial reply on 20.07.2016; the impugned Order is hit by Section 21 of the Limitation Act and no new cause of filing the written statement arises that too when the Appellant has filed his evidence and written arguments; that the impugned order amounts to reviewing of the Ld. State Commission’s own Order dated 04.11.2016; that the ING Vyasa Bank has been taken over by the Kotak Mahindra Bank and both were represented by the same Counsel; and, that the impugned Order is in violation of Order 8 Rule 9 of the Code of Civil Procedure, 1908.

7.      Heard the Ld. Counsel for Respondent and Appellant, party-in-person.  Perused the material available on record.

8.      It is seen that earlier on 4.10.2016, the Respondent/Opposite Party had filed its Written Statement in the State Commission alongwith an application for condonation of delay in filing the same on the next date (4.11.2016).

9.      After hearing the submissions of both sides, Ld. State Commission did not accept such Written Statement as it was found to have been filed beyond the statutorily permissible period of 45 days from the date of receiving copy of the complaint, in view of the decision of the Hon’ble Supreme Court in “Civil Appeal No. 10941-10942, New India Assurance Co. Ltd.  Vs. Hilli Multi Purpose Cold Storage Pvt. Ltd., decided on 4.12.2015”.

10.    It was after such rejection of the belatedly filed Written Statement that the application was moved by the Respondent/Opposite Party- Kotak Mohindra Bank on 11.4.2017 for impleadment in place of the Opposite party No. 1 i.e. ING Vyasya Bank Ltd., which had amalgamated with the Kotak Mahindra Bank in terms of the sanction accorded by the Reserve Bank of India on 1.4.2015.  Such application for impleadment was allowed by the State Commission vide the impugned order, but the Ld. Commission also granted opportunity to the Kotak Mahindra Bank to file its Written Statement in the same order, which was opposed on behalf of the Complainant on the ground that defense had already been struck down in view of the earlier Order dated 4.11.2016.

11.    Contention of the Respondent is that since it had been added as a party only on 6.9.2017, so it was entitled to file its Written Statement in the statutorily permissible period after that date.  But this contention is not convincing because first of all the party in question i.e. Kotak Mahindra Bank was already in existence much before entering appearance in the Complaint Case on 18.5.2016, and as per the own version of the Respondent, the erstwhile ING Vysaya Bank had already been amalgamated into the Kotak Mahindra Bank at the relevant time.  So much so, even the Written Statement which had already been filed earlier in the case and which had been not accepted by the State Commission on 4.11.2016, was undeniably filed on behalf of “Kotak Mahindra Bank” itself, as can be seen from the signatures on the same being those of one ‘Prasad Rao Apkari’, who not only verified the contents of the Written Statement but also affirmed the supporting Affidavit in his capacity as the Authorised Signatory for “Kotak Mahindra Bank Ltd.”

12.    So it cannot be said that the said Kotak Mahindra Bank had been added as a party only on 6.9.2017, since it had already entered the appearance earlier, and had also filed its Written Statement which was not accepted by the State Commission  as being time barred. The Respondent, therefore, clearly appears to have attempted to circumvent

the effect of the earlier order dated 4.11.2016, by contending that it ought to be “impleaded” in the case whereas actually it ought to have only been “substituted” in place of the original Opposite Party/ING Vysya Bank Ltd. which had already merged into Kotak Mahindra Bank Ltd. and did not have any entity of its own when service Notice of the Complaint was effected.

13.    Consequently, the Ld. State Commission would clearly appear to have erred in its observation that the substituted Opposite Party ought to be granted an opportunity to file its Written Statement as it had been “added” as a party only on 6.9.2017, whereas actually on that date it had only been “substituted” in place of the original Opposite Party which had no independent legal existence at the relevant time, and in a situation when even the Written Statement filed on behalf of the said substituted party i.e. “Kotak Mahindra Bank Ltd.”, had already been rejected by the State Commission as having been filed beyond the statutorily permissible period.

14.    The Appeal is, therefore, allowed after setting aside the Impugned Order of the State Commission.  Parties to bear their own costs.

15.    The Ld. State Commission is requested to dispose off the pending complaint as expeditiously as possible after noting that the defence of the Opposite Party has already been struck off.

          

 
......................................J
SUDIP AHLUWALIA
PRESIDING MEMBER

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