Chandigarh

StateCommission

CC/27/2022

Dharamvir - Complainant(s)

Versus

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

Varun Sharma & Jagjit Singh Chatrath Adv.

23 Nov 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Sh. Dharamvir S/o Late Desh Ram Kothari R/o Village & Post Office Badal, District Charkhi Dadri, Bhiwani, Haryana – 127026; Presently residing at House No.1414, First Floor, Sector 42-B, Chandigarh. 

……Complainant

Versus

1. M/s Gupta Builders & Promoters Pvt. Ltd. (GBP Group), through its Managing Director/Directors, SCO No.196-197, Sub-City Centre, Sector 34-A, Chandigarh.
2. Sh. Satish Kumar Gupta, Managing Director,
3. Sh. Pardeep Kumar Gupta, Director,
4. Anupam Gupta, Director,

M/s Gupta Builders & Promoters Pvt. Ltd. (GBP Group), Office at SCO No.196-197, Sub-City Centre, Sector 34-A, Chandigarh.

5. Housing Development Finance Corporation Ltd., Office at HDFC Limited, SCO No.153-154-155, Sector 8C, Madhya Marg, Chandigarh – 160008.

... Opposite Parties.

BEFORE:    MRS. PADMA PANDEY, PRESIDING MEMBER

                   MR. RAJESH K. ARYA, MEMBER.

                   MR.PREETINDER SINGH, MEMBER

Present:-     Sh. Sunil Kumar Dogra, Advocate for the complainant.

Opposite parties No.1 to 4 exparte vide order dated 13.09.2022.

Ms. Apurva, Advocate proxy for Sh. Shekhar Verma, Advocate for opposite party No.5-HDFC Ltd.

PER  RAJESH  K.  ARYA, MEMBER.

                    The facts in brief are that against his booking, the complainant was allotted 4BHK + SR flat No.501, 5^th Floor in Tower/Block No.A (Universe), measuring Super Area of 2319 square feet and carpet area 1661 square feet (as per RERA Guidelines) by opposite parties no.1 to 4 i.e. GBP (in short the builder) and three Directors, in the project named ‘Athens-II’, situated at Village Ramgarh Bhuda, Hadbast No.42, Tehsil Derabassi, District SAS Nagar, Punjab, for total sale consideration of Rs.1,01,25,000/- vide allotment letter dated 20.02.2019 (Exhibit  C-3). It has been stated that the said unit was purchased for residential purposes only. For the purpose of making part payment, the complainant took loan from opposite party No.5 (HDFC Ltd.) and out of the sanctioned loan of Rs.75 Lakhs, an amount of Rs.38,80,000/- was disbursed by opposite party No.5. A Tripartite Agreement dated 27.03.2019, Exhibit C-4, was also executed between the parties, as per settlement terms whereof, possession of the unit in question was to be handed over to the complainant within 36 months from the date of the said agreement. It has been averred that in case, the opposite parties failed to deliver the possession, then, they were to bear interest under Subvention for the unit till intimation of possession of the said unit. It has further been averred that possession has not been delivered to the complainant till date and HDFC Bank Ltd. committed breach of the said agreement, allotment letter and rather threatening the complainant to pay the installments of the loan amount, which was never received by him and in fact, the alleged loan amount was disbursed to opposite parties No.1 to 4.

2.       It has further been stated by the complainant that all the opposite parties, hand in gloves and in connivance with each other, played fraud and cheated the complainant as the said project has yet not been completed and even there is no further construction at the spot. The complainant also filed a complaint before the concerned Police Authority against the opposite parties but no action has been taken so far. In this situation, the complainant filed this complaint seeking following reliefs: -

“(i) To refund the entire amount paid to the OPs, along with the interest @18% p.a. to the complainant.

(ii) Not to deduct PRE-EMI or further EMI with further direction to OP No.5 to the effect that CIBIL of the Complainant and his son should not be spoiled/defaulted. The OP No.5 also be directed to refund all the PRE-EMI or EMI along with the interest @18% p.a.

(iii) No interest shall be charged on the loan amount during the pendency of the present complaint.

(iv) The Complainant is entitled to the compensation for a sum of Rs.10,00,000/- on account of harassment, mental agony and financial loss suffered by him and an amount of Rs.75,000/- for litigation expenses.

(v) Pass any other orders or directions as deemed fit in the facts and circumstances of the present case.”

3.      Alongwith this complaint, the complainant has also filed Miscellaneous Application bearing No.227 of 2022 for issuing directions to HDFC - Opposite Party No.5 not to deduct the Pre-EMI, EMI or encash the Security Cheques given by the complainant and further not to charge the interest upon the laon amount during the pendency of the complaint.

4.      It may be stated here that in this complaint, notice was issued to the opposite parties on 28.03.2022 for 12.04.2022, on which date, opposite party No.5 put in appearance through Counsel and filed reply and evidence to the main complaint and also filed reply to MA/227/2022 contesting the same. However, notice sent to opposite parties No.1 to 4 through Regd. Post on 01.04.2022 received back unserved with the remarks “Left” and further their email addresses were found closed. On filing fresh/correct address, notices were again sent to opposite parties No.1 to 4 through Regd. Post and email but position remained the same. Order sheet dated 13.09.2022 transpires that opposite parties No.1 to 4 were served through email i.e.

5.       We have heard the Ld. Counsel for the parties and have gone through the evidence and entire record of this case, very carefully.
6.       Learned counsel for the complainant vehemently contended that  both-the builder as well as HDFC have agreed to pay the interest as well as EMIs upto the date of offer of possession of the unit in question by the builder, therefore, the HDFC cannot recover the loan amount from the complainant, rather, it should be recovered from the mortgaged property; that the HDFC has not acted in a careful manner, rather, in a negligent manner, at the time of granting loan, as it failed to inspect the subject property and in-fact, till date, almost entire project remains uncompleted; and therefore, the HDFC was highly negligent and unfair.
7.       On the other hand, Counsel for the HDFC submitted that HDFC has acted in a highly due care manner; that the complainant cannot relinquish his liability to repay the loan amount and is bound by the terms and conditions of the Loan Agreement and other documents duly executed by him; that it was the inter se arrangement between opposite parties No.1 to 4 and the complainant in the form of subvention scheme, whereby the liability to pay PRE EMI was upon opposite parties No.1 to 4 for the period till October 2021.
8.       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 this 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.     Even otherwise, the payment was not deposited in the individual account of the builder but in the Escrow account, as per clause 2 of the tripartite agreement. In this view of the matter, we are of the considered view that although the builder has abandoned the project, in question, yet, the liability to refund the loan amount/EMIs cannot be fastened upon the builder, rather, the borrower/complainant are bound to refund the same to the HDFC.

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.”

9.                 We, therefore, dismiss miscellaneous application bearing No.227 of 2022 filed by the complainant on same lines as were observed in the case of Indu Rani Jagga (supra).
10.               Now coming to the merits for the case, applying the same ratio as has been held in the case of Indu Rani Jagga (supra), to this consumer complaint, wherein similar pleas and submissions have been raised, we are of the concerted view that in view of declaration of moratorium by The National Company Law Tribunal, Chandigarh Bench Chandigarh, vide order dated 31.05.2022 in CP(IB) No.237/Chd/Chd/2021, 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 adjourned 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.
11.     Certified Copies of this order be sent to the parties, free of charge.
12.     The file be consigned to Record Room, after completion.

Pronounced.

23.11.2022.

(PADMA PANDEY)

          PRESIDING MEMBER

(RAJESH K. ARYA)

MEMBER

(PREETINDER SINGH)

MEMBER

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