Chandigarh

StateCommission

RP/13/2022

Anuradha Priya - Complainant(s)

Versus

M/s Gupta Builders and Promoters Pvt. Ltd. - Opp.Party(s)

Rajesh Verma & Mukesh Verma Adv.

23 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Revision Petition No.	:	13 of 2022
Date of Institution	:	30.08.2022
Date of Decision	:	23.12.2022

 

1]       Smt. Anuradha Priya W/o Sh. Sumit Kumar, R/o Flat No.1002, Block A, Sky Line Park, V.I.P. Road, Zirakpur, SAS Nagar, Mohali, Punjab – 140603.

2]       Sh. Sumit Kumar, S/o Late Sh. Shambhu Sharan Prasad R/o Flat No.1002, Block A, Sky Line Park, V.I.P. Road, Zirakpur, SAS Nagar, Mohali, Punjab – 140603.

……Petitioners/Complainants.

Versus

1]       M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34-A, Chandigarh-160022 through its Wholetime Director Sh. Satish Kumar, Sh. Raman Kumar and Sh. Pardeep Kumar.

2]       Sh. Satish Kumar, Wholetime Director of  M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34-A, Chandigarh-160022.

3]       Sh. Raman Kumar, Wholetime Director of M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34-A, Chandigarh-160022.

4]       Sh. Pardeep Kumar, Wholetime Director  of M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34-A, Chandigarh-160022.

5]       Housing Development Finance Corporation Limited, through its Manager, SCO No.153-154-155, Sector 8-C, Madhya Marg, Chandigarh-160008.

……Respondents/Opposite Parties.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MR. RAJESH K. ARYA, MEMBER.

               

Argued by:-

 

Sh. Rajesh Verma, Advocate for the revision petitioners.

Respondents No.1 to 4 exparte vide order dated 04.10.2022.

Ms. Apurva Singh, Advocate proxy for Mrs. Rupali Shekhar Verma, Advocate for respondent No.5-HDFC Ltd.

 

PER  RAJESH  K.  ARYA, MEMBER.

                    By filing this revision petition, the complainants are seeking setting aside of order dated 28.03.2022 passed by Ld. District Commission-I, U.T., Chandigarh whereby stay granted by the Ld. District Commission vide order dated 16.12.2021 has been vacated in view of order dated 28.02.2022 passed by this State Commission in Revision Petition No.11 of 2021 titled ‘Housing Development Finance Corporation Ltd. Vs. Amit Kumar & Ors.’

2]                It has been argued by the Ld. Counsel for the revision petitioners/complainants that the Ld. District Commission vacated the stay without considering the facts of both the cases, which are entirely different and related to different projects and without giving any reasoning. It has further been submitted that while sanctioning the loan, respondent No.5 – HDFC Ltd.  has not complied with its own terms and conditions and disbursed the loan without any proper verification of actual status of the property, documents, approvals, ownership, proper consent for upfront disbursal etc. It has further been submitted that now respondents No.1 & 4 have abandoned their project and have run away to foreign countries and respondent No.5 is threatening the complainants to clear the pre-EMI interest/EMI’s and default in paying the same would spoil CIBIL score of the complainants. It has further been submitted that tripartite agreement was executed subsequent to the disbursal of the loan amount. It has further been submitted that respondent No.5 is hand in glove with respondents No.1 to 4 and they cannot be allowed to loot the complainants. It has further been stated that respondent No.5 has kept the land and apartment of respondents No.1 to 4 under mortgage/primary security and therefore, respondent No.5 always had an option to recover their dues from the assets, if they had made a valid mortgage. It has further been stated that respondent No.5 in a very haste manner does not even verify that the property mortgaged by it is not even in existence. On these lines, setting aside of the impugned order has been sought by the revision petitioners/complainants.

3]                On the other hand, Ld. Counsel for respondent No.5 – HDFC Ltd., while supporting the impugned order, has argued that the Ld. District Commission has rightly vacated the stay order and there is nothing wrong with the Ld. District Commission in doing so, specifically, when this Commission in number of cases has already dismissed the applications of such consumers seeking similar interim relief.

4]                After considering the rival contentions of the Ld. Counsel for the parties and going through the record, we are of the view that the revision petition is liable to be dismissed for the reasons to be recorded hereinafter. It may be stated here that it is not in dispute and rather admitted position by both the parties that the present builder has abandoned the project and left the country. Therefore, the question arises, as to in the present situation where the builder has abandoned the project and left the country, who will make payment of the loan EMIs to the HDFC. It may be stated here that similar question has already been set at rest by this Commission in judgment dated 29.09.2022 passed in the case of ‘Indu Rani Jagga  Vs . M/s  Gupta  Builders  & Promoters Pvt. Ltd. & Ors.’, Consumer Complaint No.58 of 2022 in respect of this very project, in the following manner :-

 

“16.     Now the question arises, as to in the present situation where the builder has abandoned the project and left the country, who will make payment of the loan EMIs to the HDFC. The loan agreement has been executed between the complainant and the HDFC only. So far as liability clause 2.11 of the said loan agreement is concerned, it is stated that it is the liability of the borrower to pay the loan together with interest. Clause 2.11 is reproduced hereunder:-

 

“……..The liability of the borrower to repay the loan together with interest, etc. and to observe the terms and conditions of this Agreement/and any other Agreement/s, document/s that may have been or may be executed by the borrower with HDFC in respect of this loan or any other loan or loans is joint and several….”

 

17.     In tripartite agreement it has been specifically stated in clause 4 as under:-

 

“……..4. That 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 Borrower by the Builder 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 favour of HDFC in this regard…..”

 

18.     xxxxxx.

 

19.     At the time of passing the order dated 27.07.2022, HDFC was proceeded against exparte and in its absence, the application bearing no.544 of 2022 was heard and disposed of. In Annexure C-4 dated 30.08.2018, HDFC is not a party and no part of the same is binding on the HDFC.  Earlier, all the facts have not been brought to the notice of this Commission, which have been brought now. In this view of the matter, we are of the considered view that there is an apparent error on the record, while passing the order dated 27.07.2022. Thus, the review application bearing no.16 of 2022 filed by the HDFC is allowed and the order dated 27.07.2022 is set aside. Accordingly, it is held that we cannot hold the HDFC from encashing the security cheques given by the complainant or from deducting any EMIs against the said home loan. Similarly, the HDFC is entitled to charge any penal interest, as per the home loan agreement; and the account of the complainant can be declared NPA, as per Rules and policies of the HDFC.

 

20.     As far as reliance placed by the complainant on the judgment of the Hon’ble Supreme Court-Bikram Chatterji and others Vs. Union of India and others, (Writ Petition (Civil) No.940/2017) decided on 18.04.2022, is concerned, it may be said here that because this judgment is distinguishable on the facts of the present case, as such, no help can be drawn by the complainant therefrom. Resultantly, miscellaneous application bearing no.544 of 2022 filed by the complainant is dismissed.

 

                        21.     Now coming to the merits of the main consumer complaint, it may be stated here that admittedly, the National                               Company Law Tribunal, Chandigarh has passed order dated 31.05.2022, Annexure R-6/7-under Section 14 of the IB Code,                         2016 and moratorium has been declared, prohibiting continuation or beginning of any suits or proceedings against the                                builder and appointed an interim resolution professional. This fact has fairly been admitted by Counsel for the complainant.                        Since it is settled law that in view of declaration of moratorium by the NCLT, the proceedings against the company cannot                         be allowed to continue, under these circumstances, this Commission is left with no alternative than to adjourn this consumer                          complaint as sine die. Resultantly, this consumer complaint is sine die. However, the parties are directed to inform this                               Commission about final outcome of the NCLT proceedings, so that the consumer complaint can be restored accordingly.”

Not only above, similar view was held by this Commission in case titled ‘Sh. Dharamvir Singh Vs. M/s Gupta Builders & Promoters Pvt. Ltd. (GBP Group) & Ors.’, Consumer Complaint No. 27 of 2022, wherein vide order dated 23.11.2022, an application seeking similar interim relief was dismissed by this Commission on same lines as were observed in the case of Indu Rani Jagga (supra). Further, in case titled ‘Syed Humayoun Shabir Vs. M/s Gupta Builders and Promoters Pvt. Ltd. & Ors.’, Consumer Complaint No.63 of 2022 alongwith other two connected complaints, pertaining to similar project ‘ATHENS-I’, while expressing similar view, this Commission dismissed the applications filed by the complainants in the said cases vide order dated 13.10.2022 on same lines as were observed in the case of Indu Rani Jagga (supra). In our view, in this case also, we cannot hold respondent No.5 - HDFC Ltd. from encashing the security cheques given by the complainant or from deducting any EMIs against the said home loan. Similarly, respondent No.5 - HDFC Ltd. is entitled to charge any penal interest and the account of the complainants can be declared NPA, as per Rules and policies of the HDFC Ltd. Thus, the revision petitioners/complainants have failed to make out any case for setting aside of the impugned order dated 28.03.2022 passed by the Ld. District Commission vacating stay order dated 16.12.2021.

 

5]     For the reasons recorded above, the revision petition being devoid of any substance is dismissed with no order as to costs.

6]                Complete record alongwith certified copy of this order be sent to the Ld. District Commission-I, U.T., Chandigarh forthwith.

7]                Certified copy of this order be sent to the parties free of charge.

8]                File be consigned to the Record Room after completion.

Pronounced.

23.12.2022.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

 

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