Delhi

North

CC/338/2024

MIRZA KIFAYAT MAQSOOD BEIGH - Complainant(s)

Versus

M/S HIMALAYA REAL ESTATE PVT. LTD. - Opp.Party(s)

NAMAN AGARWAL

27 Aug 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.338/2024

Date of filing: 07.08.2024

Date of disposal: 27.08.2024

In the matter of

Mr. Mirza Kifayat Maqsood Beigh

S/o Mr. Maqsood Ahmad Beigh

Through its Attorney Holder

Mr. Asif Maqsood Beigh

 

Having Residence At:

Reshi Pora, Sabdan, Badgam,

Jammu & Kashmir-190018               …               Complainant

VERSUS

M/s Himalaya Real Estate Pvt. Ltd.

Through its Directors/ Managing Directors/ Concerned

Having Registered office at:-

7635, Prem Nagar, Shakti Nagar,

New Delhi-110007

Having site office at:-

Himalaya Pride, GH-10 B, Tech Zone-IV

Greater Noida (West),

Uttar Pradesh-201306                        …               Opposite Party No.1

 

Punjab National Bank

Erstwhile United Bank of India

Now Amalgamated with PNB

Having office at:

C-40, office cum Shopping Complex

Defence Colony,

New Delhi-110024.

Also at:

Circle Sastra South Delhi

Upper Ground floor,

7, Bhikaji Cama Place,

New Delhi-110066                                     …               Opposite Party No.2

 

ORDER (ORAL)

27.08.2024

Present: None for the Complainant

1. This complaint is listed today for admission hearing. However there is no appearance on behalf of the Complainant in this matter. It is already 3:50 PM and neither the Complainant nor his Advocate has appeared in this matter today. Eve on the last date of hearing, there was no appearance on behalf of the Complainant. It appears that the Complainant is either not interested in pursuing this complaint or he has abandoned this complaint. In either situation, we cannot continue with this complaint and the complaint is liable to be dismissed on the sole ground of non-prosecution.
2. However, we have gone through the complaint and its annexures. The Complainant, who is stated to be staying in Dubai currently, has appointed one Shri Asif Maqsood Beigh as his Attorney by way of executing a General Power of Attorney. This complaint has been filed by the said POA holder. In the complaint, it is stated that the Complainant has booked two flats in the “Himalaya Pride” project of M/s Himalaya Real Estate Pvt Ltd. (OP-1 herein) in the month of January 2018. It is also stated that for the said booking, a bank loan was obtained from M/s United Bank of India, which has now been amalgamated with M/s Punjab National Bank (OP-2 herein). The parties have signed a tripartite agreement with respect to the said property and the bank loan. It is the case of the Complainant that the OP-1 has not provided the possession and has also not been making payment of the outstanding loan in accordance with the terms and conditions of the tripartite agreement. The Complainant fairly states that the OP-2 bank has initiated a proceeding under section 138/142, NI Act against the Complainant herein for dishonour of the cheque for repayment of the loan.
3. During argument on 12.08.2024, we also asked Shri Naman Aggarwal and Shri Arshid Bashir, Ld. Advocates appearing for the Complainant, to inform this Commission whether the OP-2 has initiated any proceedings under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) or not. Ld. Advocate had not provided any information on this till date. However, we have checked the website of Debt Recovery Tribunal (DRT) [www.drt.gov.in] and found that one proceedings against the Complainant herein is pending before DRT-II, Delhi, which has been numbered as TA/768/2022 after being transferred from DRT-1, Delhi where the case was registered as OA/805/2021. Although this case is filed by M/s Punjab National Bank, but from the details as available on the website of DRT, whether this case pertains to the loan account, which is subject matter of this complaint or any other loan account. However, as the parties are common, we are assuming that the said case pending before DRT-II, Delhi pertains to same loan account which is subject matter of this complaint.
4. Assuming that the case pending before DRT-II, Delhi, which has been filed by OP-2 herein against the Complainant herein under the provisions of SARFAESI Act, this Commission cannot exercise its jurisdiction in view of section 34 read with section 35 of the SARFAESI Act, which prohibits jurisdiction of any other authority in cases where the DRT has already initiated the proceedings.
5. At this stage, we would also like to record that in the tripartite agreement and also in the loan, the Complainant herein is one of the two applicants. There is another applicant namely Mrs Beenish Zohra, who is wife of the Complainant herein. The documents on record clearly indicate that the Complainant herein and Mrs Beenish Zohra are co-applicants, but in the complaint before us, Mrs Beenish Zohra has not been arrayed as a party. Mrs Beenish Zohra, being a co-applicant is also a necessary party and non-inclusion of a necessary party in the complaint before us is also a ground for dismissal of the complaint.
6. Accordingly, this complaint is dismissed at admission stage on all three grounds –(i0 non prosecution; (ii) lack of jurisdiction of this Commission in view of the pending proceedings under the provisions of SARFAESI Act; and (iii) non- joinder of necessary party.
7. Office is directed to supply a copy of this order to the parties in accordance with rules. Thereafter file be consigned to the record room.

 

 

                                                                                     

___________________________

Divya Jyoti Jaipuriar, President

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

___________________________

Harpreet Kaur Charya, Member