Chandigarh

StateCommission

CC/63/2022

Syed Humayoun Shabir - Complainant(s)

Versus

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

Rajesh Verma & Mukesh Verma Adv.

13 Oct 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	63 of 2022
Date of Institution	:	10.08.2022
Date of Decision	:	13.10.2022

 

Syed Humayoun Shabir S/o Mr. Syed Shabir Ahmed, Resident of Sidiqui Colony, Hatharan, Soibugh, Badgam, Jammu and Kashmir – 191111.

 

……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 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.153-154-155, 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 03.10.2022.

Ms. Neetu Singh, Advocate for opposite party no.6-HDFC Ltd.

 

Complaint case No.	:	64 of 2022
Date of Institution	:	10.08.2022
Date of Decision	:	13.10.2022

 

Heena Arora D/o Sh. Ashok Arora, Resident of House No.6-A, Sardar Avenue Kanu Street, Majitha Road, Amritsar, Punjab - 153001.

 

……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 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.153-154-155, Sector 8-C, Madhya Marg, Chandigarh-160008. Email id:- support@hdfcbank.com

…..Opposite party no.6

 

                  

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

Opposite parties no.1 to 5 exparte vide order dated 03.10.2022.

Ms. Neetu Singh, Advocate for opposite party no.6-HDFC Ltd.

 

 

Complaint case No.	:	65 of 2022
Date of Institution	:	10.08.2022
Date of Decision	:	13.10.2022

 

Ishaan Gogna S/o Sh. Kamal Kishore Gogna, Resident of House No.88, Logarh, Sigma City, Zirakpur, SAS Nagar, (Mohali), Punjab, 140603.

 

……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 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.153-154-155, Sector 8-C, Madhya Marg, Chandigarh-160008. Email id:- support@hdfcbank.com

…..Opposite party no.6

 

                  

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

Opposite parties no.1 to 5 exparte vide order dated 03.10.2022.

Ms. Neetu Singh, Advocate for opposite party no.6-HDFC Ltd.

 

PER  RAJESH  K.  ARYA, MEMBER.

          By this common order, we shall dispose of aforesaid three consumer complaints bearing Nos.63 of 2022, 64 of 2022 and 65 of 2022 filed by the respective complainants against the opposite parties.

2.      As common questions of facts and law have been emerged in above captioned complaints and the facts thereof are analogous to each other to a great extent-therefore, this Commission would like to take them together and decide with a common order.

3.      However, the facts necessary for disposal of these complaints, as culled out from one of the consumer complaint bearing No.63 of 2022 titled ‘Syed Humayoun Shabir Vs. M/s Gupta Builders and Promoters Pvt. Ltd. & Ors.’  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.606, 6^th Floor in Tower/Block No. T-5 also called as SPECTRUM, measuring 1149 square feet and carpet area 750.56 square feet (as per RERA Guidelines), in the project named ‘Athens-1’, situated at Village Ramgarh Bhuda, Hadbast No.42, Tehsil Derabassi, District SAS Nagar, Punjab, for total sale consideration of Rs.49,23,420/- (as per allotment letter, Annexure C-3, Rs.48,48,971/-). It has been stated that the said unit was purchased for residential purposes only, on making payment of booking amount of Rs.5,00,000/- vide receipts dated 12.02.2020, Annexure C-1 Colly. The said payment was further acknowledged by the builder, vide agreement to sell (Annexure C-2) dated 12.02.2020.  It is further alleged that the builder issued letter dated 12.02.2020 (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 him. The complainant applied for housing loan of Rs.38,75,000/- from opposite party no.6 (in short the HDFC). Loan was approved vide letter dated 27.02.2020 (Annexure C-5), for an amount of Rs.38,75,000/-, subject to legal and technical clearances of the property being financed. The said loan was repayable to the HDFC as under:-

• Amount approved = Rs.38,75,000/-
• Rate of Interest     = 8.40% p.a. on variable rate basis
• Term                     = 20 years
• Repayment terms = Monthly rest
• EMIs                     = Rs.33,384/- per month.
• Payable in             = 240 installments
• Processing fee       = Rs.2,950/-
•       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-10 Colly., it has been averred that the construction of the tower in question has not even reached to 2^nd Floor and that too is in shabby condition.  In this situation, the complainant filed this complaint seeking following reliefs: -

“………(i) The Tripartite Agreement dated 02.03.2020 (Annexure C-6) 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.5,00,500/- 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.………”

5.      Alongwith these complaints, the complainants have also filed Miscellaneous Applications bearing No.605 of 2022, 606 of 2022 & 607 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 & 9 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. There are violations of legal and technical verifications of the property mortgaged by the Opposite Party No.6. The Property which has been mortgaged by the Bank is not even in existence. The Apartment of the Complainant is at 6^th Floor, whereas, the construction of the building has not been reached to 2^nd Floor.

 

6. That most importantly the Opposite Party No.6 has sanctioned the loan under subvention payment plan vide loan approval letter dated 27.02.2020, whereas, the subvention scheme was itself got banned by the National Housing Bank vide Circular dated 19.07.2019 (Annexure C-9). The Opposite party No.6 has concealed the material fact from the Complainant and has sanctioned the loan illegally, without making valid mortgage and in violation of Circular issued by the National Housing Bank.

 

7. 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.

 

8.  

 

9. 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.”

 

6.       Following prayer has been made in all the three miscellaneous applications :-

“……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 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 and order dated 27.07.2022 passed in CC No.58/2022 titled as Indu Rani Jagga V/s M/s Gupta Builders and Promoters Pvt. Ltd. and Others, during the pendency of the Present Complaint, in the interest of Justice.”

 

7.       It may be stated here that in all the three complaints, notice was issued to the opposite parties on 16.08.2022 for 03.10.2022. As per the office report, the opposite parties were duly served through email. None put in appearance on their behalf on 03.10.2022, as a result whereof, they were proceeded against exparte. On 16.08.2022, while seeking stay order, on the ground of parity, Ld. Counsel for the complainant relied upon order dated 27.07.2022 passed by this Commission in CC/58/2022 (alongwith MA/544/2022) – ‘Indu Rani Jagga Vs. M/s Gupta Builders & Promoters Pvt. Ltd. & Ors.’ Accordingly, this Commission on 16.08.2022 granted following interim relief to the complainant:-

“In the meanwhile, order dated 27.07.2022 passed by this Commission in CC/58/2022 (alongwith MA/544/2022) – “Indu Rani Jagga Vs. M/s Gupta Builers & Promoters Pvt. Ltd. & Others”, shall also apply in this case. Ordered accordingly.”

 

8.       Opposite Party No.6 – HDFC Ltd. contested these miscellaneous applications by filing its replies to the said applications and also to the main complaints. 
9.       We have heard the parties and have gone through the evidence and entire record of this case, very carefully.
10.     In CC/63/2022, the facts that vide agreement dated 12.02.2020 (Annexure C-2), the unit in question was sold to the complainant by the builder; that allotment letter dated 12.02.2020 (Annexure C-3) in respect of the unit in question was issued in favour of the complainant; that Annexure C-4 is the undertaking of the builder regarding making payment of EMIs and interest to HDFC against the loan amount; that vide letter dated 27.02.2020 (Annexure C-5) HDFC sanctioned loan amount of Rs.38,75,000/- in respect of the unit in question, which was to be repaid, in the manner stated above; that Tripartite agreement, Annexure C-6 was executed between the parties on 02.05.2020; that Annexures C-7 to C-9 are the guidelines of National Housing Bank, for disbursement of housing loan to an individual linked to the stages of construction and that 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 the units in question were not in existence at the project site; that the construction of the tower in question has not even reached to 2^nd Floor and that too is in shabby condition; 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 were the complainants 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.     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 a recent judgment dated 29.09.2022 passed in the case of Indu Rani Jagga Vs. M/s Gupta Builers & Promoters Pvt. Ltd. & Ors. (Supra) in respect of this very project, in the following manner :-
    1.  

 

“……..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.  

“……..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.  

 

19.  

 

20.  

 

21.  

 

14.     We, therefore, dismiss all the three miscellaneous applications bearing Nos.605 of 2022, 606 of 2022 & 607 of 2022 filed by the complainants on same lines as were observed in the case of Indu Rani Jagga (supra).
15.               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 these consumer complaints, wherein similar pleas and submissions have been made by the Ld. Counsel for the parties, we are of the concerted view 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 these consumer complaints as sine die. Resultantly, these consumer complaints are sine die. However, the parties are directed to inform this Commission about final outcome of the NCLT proceedings, so that the consumer complaints can be restored accordingly.
16.     Certified Copies of this order be sent to the parties, free of charge.
17.     Copy of this order be placed in the files of connected consumer complaints bearing No.64 of 2022 & 65 of 2022.
18.     The file be consigned to Record Room, after completion.

Pronounced.

13.10.2022.

 

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(PADMA PANDEY)

          MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

 

 

 

(PREETINDER SINGH)

MEMBER

 

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