ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not refunding the 50% of the total advance paid while booking the flat with interest @ 18% p.a., i.e., of Rs. 2,06,901.50 to refund the same and to pay to the bank which has financed for purchase of the flat or the Tripartite Agreement and to pay the pre EMI and the principle with interest to the bank to clear the charge on the flat and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant agreed to purchase a flat for Rs.82,76,077/- and paid an advance of Rs.4,13,803/- and entered into an agreement, wherein the axis bank advanced Rs.38,89,758/- as home loan @ 8.3% interest.  The scheme was under 5:80:15 scheme, wherein complainant to pay 5% of the total amount the remaining 38,89,758/- by the bank. It was agreed by OP to hand over the possession of the flat on or before December 2020. Due to unforceable reasons beyond his control, he had to cancel the agreement and cancelled the same and requested OP to refund 50% of the amount advanced i.e., 50% out of Rs.4,13,803/- and also pay the amount due to the bank along with EMI. Inspite of repeated request and demand, though agreed to refund the amount and to pay the loan amount to the axis bank, OP did not do the same and went on dodging to pay the said amount and ultimately did not pay the same. Hence he had to file this complaint and prayed this commission to allow the complaint as there is deficiency in service in not refunding the amount agreed and also in not paying the pre EMI charges and the amount of loan obtained by the OP under the tripartite agreement from the bank on behalf of the complainant and prayed to allow the complaint.

3.      Upon the service of notice, OP appeared before the Commission and filed the version admitting the entire facts of the complaint except allegations made against it. Further it has contended that it is ready to pay the amount of 50% out of the total advance received i.e., Rs.2,06,901/- whereas, complainant did not return the original agreement and rushed to this commission to file the complaint.  The complainant has not suffered financially as it is the bounden duty of the OP to repay the amount to the bank which has lent the money and also to pay the pre EMIs to the bank and there will be a charge continuing over the said flat, even in case the complainant do not come forward to purchase the said flat.  It is his duty to clear the loan when once the agreement is cancelled. Due to severe crunch and due to widespread second wave covid 19 pandemic situation, he could not pay certain pre EMIs and also some interest to the bank and if any amount is paid by the complainant to the bank towards interest or pre EMI, if the same is shared by the complainant, OP is bound to pay the same and will pay the same. OP is ready to execute an undertaking to the bank to absolve the responsibility and liability of the complainant in respect of the amount paid to it by the bank and also ready to pay the amount of 50% of the advanced amount in case complainant come forward to return the original agreement.

When the complaint and version are taken into consideration, OP has admitted its liability to pay 50% of the total advance received i.e., Rs.2,06,901/-.  It is the specific case that complainant did not come forward to hand over the original agreement and also to execute cancellation deed and hence it could not pay the said amount. It also undertaken that the charge will continue over the flat even in case OP has not discharged the loan liability of the complainant.  In view of the same there is deficiency in service on the part of OP in not refunding the amount as agreed above. Hence we pass the following

ORDER

OP is directed to refund Rs.2,06,091/- along with interest at 12% p.a., from the date of cancellation i.e., 17^th July 2020 and further to discharge the loan obtained by OP1 from axis bank on account of the tripartite agreement entered into by the complainant, OP and the bank.  In case the loan is to be continued by OP then necessary documents to be executed by OP discharging the liability of the complainant under registered documents.  OP also directed to pay the entire EMIs, interest up-to-date till discharge document is registered in favour of the complainant.  OP1 is also directed to pay all the interest and EMIs paid if any by the complaiannt.

OP is directed to pay a sum of Rs.10,000/- towards litigation expenses.

OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

Send a copy of this order to both parties free of

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 31^ST DAY OF MARCH 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of my Aadhaar Card

Ex P2: Copy of the agreement of sale

Ex. P3: Tripartite Agreement

Ex P4: Email correspondences

Ex P5: Legal notice

Es P6: Postal acknowledgement

Ex P7: Certificate u/s 65B of the Indian Evidence Act.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.V.Vijaya Bhaskar Reddy

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Authorization letter.

MEMBER                 MEMBER                       PRESIDENT

HAV*