Chandigarh

StateCommission

CC/58/2022

Indu Rani Jagga - Complainant(s)

Versus

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

Rajesh Verma & Mukesh Verma Adv.

29 Sep 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Indu Rani Jagga, W/o Mr.Harmesh Kumar, Resident of House No.631, Buria Sarai, Jagadhri, Yamuna Nagar, Nagal Khajuri, Haryana-135001.

……Complainant

V e r s u s

1. M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34A, Chandigarh-160022 through its Managing Director. Email id:gbp.derabassi@gmail.com
2. Sh.Satish Kumar Gupta, Managing Director/Director/ Promoter/ Developer, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34A, Chandigarh-160022. Email id: gbp.derabassi@gmail.com
3. Sh.Anupam Gupta, Director/Promoter/Developer, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34A, Chandigarh-160022. Email id:gbp.derabassi@gmail.com
4. Sh.Raman Gupta, Director/Promoter/Developer, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34A, Chandigarh-160022. Email id:gbp.derabassi@gmail.com
5. Sh.Pardeep Gupta, Director/Promoter/Developer, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector-34A, Chandigarh-160022. Email id:gbp.derabassi@gmail.com

... Opposite Parties no.1 to 5

6. Housing Development Finance Corporation Limited (HDFC), through its Manager, SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh-160008. Email id:-support@hdfcbank.com

…..Opposite party no.6

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MRS. PADMA PANDEY, MEMBER

                   MR. RAJESH K. ARYA, MEMBER.

                   MR.PREETINDER SINGH, MEMBER

Present:-     Sh.Rajesh Verma, Advocate for the complainant.

Opposite parties no.1 to 5 exparte vide order dated 27.07.2022.

Sh.Shekhar Verma, Advocate for opposite party no.6.

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   By this order we shall dispose of the review application bearing no.16 of 2022, filed by the Housing Development Finance Corporation Limited-opposite party no.6 (in short the HDFC)  under Section 50 of Consumer Protection Act, 2019 (in short the CPA 2019) seeking review of the following order dated 27.07.2022, passed by this Commission in consumer complaint bearing no.58 of 2022 alongwith MA/544/2022:-

“……  As per office report, service of notice upon the opposite parties has been effected through email on 25.07.2022 but none has put in appearance today on their behalf. Waited sufficiently. Hence, the opposite parties are proceeded against expate.

                   Heard on the application bearing MA No.544 of 2022 filed by the complainant.

                   By relying upon Agreement for Sale dated 30.08.2018, Annexure C-2, Ld. Counsel for the complainant has submitted that as per Clause 1.11 of Agreement for Sale, the Promoter agrees to pay all outgoings before transferring the physical possession of the apartment to the allottees, which it has collected from the allottees, for the payment of outgoings and in failure to do so, the Promoter agreed to be liable, even after the transfer of the property, to pay such outgoings and penal charges, if any, to the authority or person to whom they are payable and be liable for the cost of any legal proceedings, which may be taken therefor by such authority or person. He further relied upon Annexure C-7, which is Tripartite Agreement dated Nil, Annexure C-7, wherein at Page 2 of the said agreement, it was specifically mentioned as under :-

“The Builder has also agreed and confirmed that since the entire land of the project is mortgaged with LICHFL, they will provide certificate of No Objection to mortgage from the LICHFL, for the apartment financed/agreed to be financed by HDFC.”

He further relied upon Subvention Letter dated 30.08.2018, Annexure C-4, wherein it was specifically stated as under:-

“This is to inform you that company/developer shall bear interest under the subvention for your unit till intimation of possession of the said unit as such customer will not bear interest and EMI till intimation/offer of possession of the said unit. This facility is offered for approval of bank loan under the subvention scheme.”

                   In view of above, we direct that during the pendency of the present complaint, Opposite Party No.6 i.e. Housing Development Finance Corporation Limited (HDFC) shall:-

1. not encash security cheques given by the complainant;
2. not deduct any EMI’s against the home loan;
3. not charge any interest/penal interest from the loan account of the complainant; and
4. not declare the account of the complainant and her husband as NPA.

                   However, Opposite Party No.6 – HDFC Ltd. is at liberty to seek appropriate remedy with regard to mortgaged property.

                   Accordingly, MA/544/2022 stands disposed of.

                   Now to come up for filing evidence, if any, and arguments on 13.09.2022. Written arguments, if any, be filed within a period of three weeks from today with advance copy in exchange.

                   Certified copy of this order be given dasti to the Ld. Counsel for the complainant.

                   Certified of order be also sent to Opposite Party No.6 – HDFC Ltd. for strict compliance. 

                   Copy of the order be sent to the opposite parties for information through email/whatsapp.….”

2.           The facts necessary for disposal of this case are that the complainant entered into sale agreement with opposite parties no.1 to 5 i.e. GBP (in short the builder) and four Directors, for purchase of a 2BHK flat no.617, 6^th Floor in Tower/Block No. T-2 also called as SPECTRUM, measuring 1149 square feet and carpet area 750.56 square feet (as per RERA Guidelines), in the project named ‘Athens’, situated at Village Ramgarh Bhuda, Hadbast No.42, Tehsil Derabassi, District SAS Nagar, Punjab, for total sale consideration of Rs.46,82,000/-. It has been stated that the said unit was purchased for residential purposes only, on making payment of booking amount of Rs.4,50,500/-. The said payment was acknowledged by the builder, vide agreement to sell (Annexure C-2) dated 30.08.2018.  It is further alleged that the builder issued letter dated 30.08.2018 (Annexure C-4) vide which it undertook to bear the interest under subvention scheme till intimation of offer of possession of the said unit, meaning thereby that the complainant was not to bear loan EMIs till intimation of offer of possession of the unit to her. The complainant applied for housing loan of Rs.35 lacs from opposite party no.6 (in short the HDFC). Loan was approved vide letter dated 03.12.2018 (Annexure C-5), for an amount of Rs.35 lacs, subject to legal and technical clearances of the property being financed. The said loan was repayable to the HDFC as under:-
   • Amount approved = Rs.35 lacs
   • Rate of Interest     = 9.15% p.a. on variable rate basis
   • Term                     = 20 years
   • Repayment terms = Monthly rest
   • EMIs                     = Rs.31,829/-
   • Processing fee       = Rs.10327/-

3.           It has been stated by the complainant that the builder has abandoned the project in question and its Directors have left the country, thus its project is not complete. While relying on the photographs, Annexure C-12 colly. it has been averred that only three partially constructed floors have been raised and that too are in the shabby condition.  In this situation, the complainant filed this complaint seeking following reliefs: -

“………(i) The Tripartite Agreement dated NIL (Annexure C-7) be declared illegal, null and void being one-sided and unfair contract, as defined under Section 2(46) of the Consumer Protection Act, 2019.

(ii) The Opposite Party(s) No. 1 to 5 may kindly be directed to refund the amount of Rs. 4,50,500/- already paid to the Opposite Party(s) No. 1 to 5 by the Complainant along with adequate rate of interest.

(iii) The Opposite Party No. 6 may kindly be directed to not to recover the loan amount from the Complainant, if any recovery is to be made, that may kindly be made from the Opposite Party(s) No. 1 to 5.

(iv) The Opposite Party No. 6 may kindly be directed to refund the amount deducted from the account of the Complainant as EMI's or Pre-EMI which otherwise is the responsibility of Opposite Party(s) No. 1 to 5.

(v) The Opposite Party No. 6 may kindly be directed to not to deduct any EMI from the account of Complainant and not to charge any interest/penal interest on the loan amount and not to adversely affect the CIBIL Score of the Complainant and not to make the account of the Complainant as NPA in view of the judgment passed by the Hon'ble Supreme Court of India in WP(C) No. 940/2017 titled as Bikram Chatterji and Others Versus Union of India and Others decided on 18.04.2022, during the pendency of the Present Complaint.

(vi) Adequate Compensation on account of mental agony and harassment along with costs of present litigation amounting to Rs.30,000/ to the Complainant, in the interest of justice.

(vii) Any other relief to which this Hon'ble Commission deem fit in the facts and circumstances of the present case may also be awarded.………”

4.           Alongwith this complaint, the complainant has also filed application bearing no.544 of 2022  for issuing ex-parte directions to HDFC- Opposite Party No. 6 to not to encash the security cheques given by the complainant; not to deduct any EMI's against the home loan; and not to charge any interest/penal interest from the loan account of the complainant; and not to adversely affect the CIBIL Score of the complainant and her husband; and not to make the account of the complainant and her husband as NPA in view of the judgment passed by the Hon'ble Supreme Court of India in WP(C) No. 940/2017 titled as Bikram Chatterji and Others Versus Union of India and Others decided on 18.04.2022, during the pendency of the present complaint. In this application, it has been averred in para nos.4 to 7 as under:-

“…… 4. That now, the Opposite Party(s) No. 1 to 5 has abandoned their projects and has run away to foreign countries, the Opposite Party No. 6 i.e., HDFC is asking the Complainant to clear the Pre-EMI Interest and EMI, which is otherwise the Obligation of Opposite Party(s) No. 1 to 5 to pay the Pre-EMI Interest and EMI till intimation/offer of possession of the said unit.

5. That since, the intimation/offer of possession of the Residential Apartment has not been intimated/ offered to the Complainant, therefore, the Complainant cannot be asked to make the payment towards the Pre-EMI Interest and EMI. There is no valid mortgage created by the Bank, there are violation of the circulars issued by the National Housing Bank while granting and disbursement of loans on the part of the Bank i.e. the Opposite Party No.6. The Property which has been mortgaged by the Bank is not even in existence.

6. That the present Consumer Complaint is squarely covered by the judgment passed by the Hon'ble Supreme Court of India in WP(C) No. 940/2017 titled as Bikram Chatterji and Others Versus Union of India and Others decided on 18.04.2022, whereby, the whole subvention issue has been decided by the Hon'ble Supreme Court and directions were issued to not to treat the account of homebuyers as NPA, CIBIL Score shall not be taken to "0" level, and liability to pay all the payment will arise after the project is complete and possession is offered to the individual flat buyer.

7. That the Hon'ble National Commission vide Order dated 14.11.2019 in case titled as Anil Lale and Another Versus ICICI Bank and Others has held that till the date the possession has not been handed over by the Developer, the liability for repayment of EMI cannot be fastened on the Complainants.………”

5.           Following prayer has been made in this application (544 of 2022):-

“……It is therefore, respectfully prayed that the present application may kindly be allowed and ex-parte directions may be issued to the Opposite Party No. 6 to not to encash security cheques given by the Complainant, not to deduct any EMI's against the home loan and not to charge any interest/penal interest from the loan account of the Complainant and her husband and not to adversely affect the CIBIL Score of the Complainant and her husband and not to make the account of the Complainant and her husband as NPA in view of the judgment passed by the Hon'ble Supreme Court of India in WP(C) No. 940/2017 titled as Bikram Chatterji and Others Versus Union of India and Others decided on 18.04.2022, during the pendency of the Present Complaint, in the interest of Justice.……..”

6.           Initially, notice was issued to the opposite parties. As per the office report, the opposite parties were duly served through email. None put in appearance on their behalf on 27.07.2022, as a result whereof, they were proceeded against exparte. On that date, the complainant was heard on the application bearing no.544 of 2022, referred to above, for interim stay and the same was allowed and disposed of, in the manner stated above.
7.           Thereafter, Review Application No.16 of 2022 was filed by the HDFC for setting aside the order dated 27.07.2022 on limited ground that  though HDFC was proceeded exparte, yet, no proper service has been effected upon it, rather, the complainant has given wrong email ID of the HDFC i.e. support@hdfcbank.com which relates to HDFC Bank, which is a separate legal  entity and does not relate to opposite party no.6-HDFC. On hearing the parties, this Commission vide order dated 13.09.2022, observed that the complainant has misled by  giving wrong e-mail address in the complaint, which amounts to error apparent on record and therefore, the order dated 27.07.2022 was reviewed and set aside to the extent the Opposite Party No.6 – HDFC Ltd. was proceeded exparte.  Relevant part of the order dated 13.09.2022 is reproduced hereunder:-

“… Review application bearing No.16 of 2022 has been filed by opposite party No.6 i.e. Housing Development Finance Corporation Limited (in short ‘HDFC Ltd.’) under Section 50 of the Consumer Protection Act, 2019 for review and recalling of order dated 27.07.2022 on the ground that no service has been effected upon HDFC Ltd. It has been submitted that service has been effected on email i.e. 

                   Reply to this application has been filed today. The same is taken on record. Copy supplied.

                   We have heard the Ld. Counsel for the parties and have gone through the record.

                   Record transpires that in the Complaint, the e-mail I.D of Opposite Party No.6 – HDFC Ltd. is given as 

                   Accordingly, order dated 27.07.2022 is reviewed and set aside to the extent the Opposite Party No.6 – HDFC Ltd. was proceeded exparte. RA/16/2022 stands disposed of accordingly.

                   Ld. Counsel for Opposite Party No.6 – HDFC Ltd. has submitted that reply is ready with him and he will file the same during the course of the day. We direct Opposite Party No.6 – HDFC Ltd. to file reply to the complaint during the course of the day with advance copy to the Counsel opposite.

                   Rejoinder, if any, be filed by the complainant on or before the next date of hearing with advance copy to the Counsel opposite.

                   For argument, to come up on 15.09.2022. However, in the meanwhile, interim order dated 27.07.2022 to continue.….”

8.           Thereafter, the HDFC filed reply to the application bearing no.544 of 2022 and also written statement to the main consumer complaint. Accordingly, this Commission heard arguments of the parties, on the application bearing no.544 of 2022, review application bearing no.16 of 2022 and also in the main consumer complaint. 
9.           We have heard the parties and have gone through the evidence and entire record of this case, very carefully.
10.           In this case, the following facts are not in dispute: -
    1. Vide agreement dated 30.08.2018 (Annexure C-2) the unit in question was sold to the complainant by the builder
    2. Allotment letter dated 30.08.2018 (Annexure C-3) in respect of the unit in question was issued in favour of the complainant
    3. Annexure C-4 is the undertaking of the builder regarding making payment of EMIs and interest to HDFC against the loan amount.
    4. Vide letter dated 03.12.2018 (Annexure C-5) HDFC sanctioned loan amount of Rs.35 lacs in respect of the unit in question, which was to be repaid, in the manner stated above.
    5. Vide letter dated 12.12.2018 (Annexure C-6), the builder gave permission to the HDFC to mortgage the unit in question
    6. Tripartite agreement, Annexure C-7 was executed between the parties on 12.12.2018
    7. Annexures C-9 to C-12 are the guidelines of National Housing Bank, for disbursement of housing loan to an individual linked to the stages of construction
    8. the builder had mortgaged the entire project with the LIC Housing Finance Limited.
11.           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 infact the mortgaged unit in question (bearing no. 617, 6^th Floor in Tower/Block No. T-2 also called as SPECTRUM, measuring 1149 square feet and carpet area 750.56 square feet (as per RERA Guidelines), in the project named ‘Athens’, situated at Village Ramgarh Bhuda, Hadbast No.42, Tehsil Derabassi, District SAS Nagar, Punjab) was not in existence at the project site; that only three half/partial constructed units were standing and thus the building was not complete; and therefore the HDFC was highly negligent and unfair.
12.           On the other hand, counsel for the HDFC submitted that HDFC has acted in a highly due care manner; that it was the complainant as well as the builder, as they assured the HDFC to produce the NOC from LIC Housing  Finance Limited under which the entire project had been mortgaged, but that was never provided and thereafter, further installments of loan were stopped by the HDFC.
13.           We have given our thoughtful consideration to the rival contentions of this case. It is evident from the record that vide Clause 1.11 of agreement to sell Annexure C-2, it has been agreed to between the parties as under:-

“……1.11 The Promoter agrees to pay all outgoings before transferring the physical possession of the apartment to the Allottees, which it has collected from the Allottees, for the payment of outgoings (including land cost, ground rent, municipal or other local taxes, charges for water or electricity, maintenance charges, including mortgage loan and interest on mortgages or other encumbrances and such other liabilities payable to competent authorities, banks and financial institutions, which are related to the project). If the Promoter fails to pay all or any of the outgoings collected by it from the Allottees or any liability, mortgage loan and interest thereon before transferring the apartment to the Allottees, the Promoter agrees to be liable, even after the transfer of the property, to pay such outgoings and penal charges, if any, to the authority or person to whom they are payable and be liable for the cost of any legal proceedings which may be taken therefor by such authority or person….”

14.           Vide Annexure C-4, the builder has given assurances on 30.08.2018, as under:-

“…. This is to inform you that company/developer shall bear interest under the subvention for your unit till intimation of possession of the said unit as such customer will not bear interest and EMI till intimation/offer of possession of the said unit. This facility is offered for approval of bank loan under the subvention scheme….”

15.           Tripartite agreement was executed between the parties on 12.12.2018 (Annexure R-6/4). Vide Annexure C-5 loan of Rs.35 lacs was sanctioned on 03.12.2018; an amount of Rs.3,27,444/- was adjusted against the loan proceessing fee and Rs.11,60,056/- was paid by HDFC to the builder vide cheque no.570346 dated 27.12.2018
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.
22.           Certified Copies of this order be sent to the parties, free of charge.
23.           The file be consigned to Record Room, after completion

Pronounced.

29.09.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(PADMA PANDEY)

          MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

Sd/-

(PREETINDER SINGH)

MEMBER

Rg.