…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Himanshu Raj , counsel for the complainant.
Sh. M.P.Dagar, counsel for opposite party No.1.
Sh. Mukesh Kumar, counsel for opposite party No.2.
Sh. Sagar Bhatia, counsel for opposite party No.3.
ORDER:
The facts in brief of the complaint are that on the basis of the information furnished by the Respondent No. 1in the shape of Brochure and assurance of timely delivery of possession; the Complainant booked an Apartment in Respondent No. 1's project on 03.11.2015. On 04.11.2015, the Respondent No. 1 issued an Allotment Letter to the Complainant wherein Unit No. T-04-1403 13th Floor, Tower-04 measuring super area of 1565 sq. ft. was allotted to the Complainant. The Complainant has booked another apartment in the same project on 04.11.2015 but that was booked by the complainant for gifting his Children at the time of their marriage whereas the present Apartment was purchased for Personal use and staying peacefully with the family. Thus both the properties purchased by the complainant were for the personal use and consumption of his own self as well as for his children. It would not be out of place to mention here that on the basis of the information provided through verbal assertions by Respondent No.1, the complainant agreed to deposit the hard earned money in Respondent No. 1's project, "RPS AURIA". The complainant had paid a sum of Rs 61, 54,680/-(Sixty one lakhs fifty four thousand six hundred and eighty only) out of the sale Consideration of Rs 76,93,350/-. The complainant had not only paid the EMIs which was the responsibility of the Respondent No. 1 (as well as Respondent No. 2) but had paid a huge interest on EMIs as well as Defaulted /Delayed Interest on the EMI's which took place due to default by Respondent No.l and Respondent No. 2. On 05.11.2015, the complainant and Respondent No.1 executed apartment buyer’s agreement for the said Apartment, which was completely dominated by the terms and conditions favourable to the Respondent No. 1. Initially the Complainant opted for construction linked plan. As per clause 22 of the Apartment buyer Agreement, the construction of the unit was supposed to be completed within a period of 48 months from the date of execution of the Agreement i.e. on or before 05.11.2019. But the Respondent No. 1 failed miserably to fulfill the promise of making timely delivery of the possession of the Apartment leaving the complainant to suffer financially and mentally. Along with the Buyer's Agreement, the Respondent No. 1 entered into MOU with the Complainant. The MOU was in addition to the Buyer's Agreement and the same was renewing after every 6 months with same terms and conditions. The MOU after renewal was taken back by the Respondent No. 1 It would not be out of place to mention here that in the MOU, the Respondent No. I allured and fascinated the Complainant by providing a Special Scheme i.e. Interest Subvention Scheme, wherein as per Clause 7 and Clause 11 of the MOU, the Respondent No. 1/Company had to pay the Pre EMI'S/Interest for first 6 months and after the expiry of the 6 months, the Developer/Company alone would be responsible for the payment of the Pre EMI'S/Interest and foreclose the Loan. The Clause 7 and Clause 11 are reproduced below for ready reference:
CLAUSE 7:-"That as a special scheme under the name "INTEREST SUBVENTION SCHEME" the Company is providing Pre-EMI/Interest each month paid by the buyer to the Bank/Financial Institution to the customer for first 6 months."
CLAUSE 11-"That after the expiry of 6 months developer will initiate the process of foreclosure of the Loan and complete the same within a maximum period of 60 days. Further note that after expiry of 6 months Developer shall alone be responsible for payment of Pre-EMI/Interest to the Bank as per the terms and conditions of the Bank Loan Agreement. After that the Complainant entered into Tripartite Agreement with Respondent No. 1 and the Respondent No. 3 i.e. ICICI Bank. The Complainant further entered into Facility Agreement Dated 01.12.2015 with Respondent No. 3.In the Facility Agreement, the details pertaining to sanctioned Loan as well as Pre EMI'S/Interest were mentioned. It would not be out of place to mention here that all these traps were made by the Respondent No 1 so as to win So as tothe trust of the consumer, however without having an intent to fulfill the obligations, thus leading to the passing of the time and enjoying the fruits of the money as received from the complainant/consumer.
Despite of the Interest Subvention Scheme, the Respondent No. 1 kept on demanding money from the Complainant stating that the construction was progressing. The complainant had paid a sum of Rs 61, 54,680/- out of the sale Consideration of Rs 76,93,350/- . The complainant had not only paid the EMIS which was the responsibility of the Respondent No. 1 (as well as Respondent No. 2) but had paid a huge interest on EMIS as well as Defaulted /Delayed Interest on the EMI's which took place due to default by Respondent No.l and Respondent No. 2. The Complainant was continuing to pay EMI's/Interest to the Respondent No. 3. Furthermore when the Respondent No. I failed to hand over the possession within the stipulated time period i.e. by 05.11.2019, the Respondent No. 1 in connivance with Respondent No. 2 again defrauded and misled the Complainant. The Respondent No. 2 (in connivance with Respondent No. 1) entered into another MOU dated 12.12.2019 with the Complainant and in the new MOU, the Respondent No. 2 agreed to foreclose the loan amount of the Complainant. This was specifically done for and under the instructions of Respondent No 1 who happens to be in hand in glove with the Respondent No 2, so as to cheat and defraud the complainant. As per Clause 11 & 12 of the MOU, the Respondent No. 2 agreed that after the expiry of 6 months the Respondent No. 2 would be liable to foreclose the loan amount of the Complainant within 90 days The Complainant had no other option but to agree with every now and then with the Respondent No. 1 & 2 as whooping amount was paid to the Respondent No. 1. All the promises by way of Agreement and MOU turned out to be fallacious.
Neither the Respondent No. 1 nor Respondent No. 2 paid the EMI's/interest as promised, but the Complainant alone has to bear the unnecessary burden of paying the entire EMI's/interest despite of the Interest Subvention Scheme. It is not out of place to mention here that the huge sum of money was already deposited by the complainant with the Respondent No. 1 & 2, hence, the Complainant had no other option but to agree to the unreasonable schemes of the Respondent No. 1 & 2. As per the Agreement, the possession was to be delivered by 05.11.2019, but till date the Complainant has not received the Possession. The Respondent No.1 & 2 has failed to refund the principal amount paid by the Complainant, as well as failed to refund the defaulted EMI's as well as defaulted/delayed Interest. The complainant had filed similar case before the Ld. Adjudicating Officer, HRERA Panchkula. It has been held by the Hon'ble Supreme Court that a Buyer can seek relief from both the platforms (i.c. RERA as well as Commission) simultaneously. It is pertinent to mention here that the cases which were earlier filed before the RERA, Panchkula are being dealt as Writ Petition No. 38144 of 2018 titled Experion Developers Pvt. Ltd vs State of Haryana &ors along with other writ petitions has been ordered to be stayed by Hon'ble Apex court. Interalia, for this specific reason the present complaint is being filed, apart from the reason of an extra ordinary delay from the side of the RERA AUTHOIRTY PANCHKULA. The complainant craves the indulgence of this Hon'ble Commission so as to withdraw the RERA complaints at an appropriate stage as and when the time comes.. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) refund the principal amount paid by the Complainant along with interest @14% per annum for the delay in handing over the possession as per the committed date of possession i.e. 5th November 2019.
b) pay the Defaulted EMI'S (Easy Monthly Installments) along with 14% interest as well as delayed/defaulted interest as per the MOU between the Complainant & the Respondent No. 1 & Respondent No.2 to the complainant as the same were paid by the complainant though the same was the duty of the Respondent No 1 & 2. Though the Exhibit C-8 is excluding the interest /defaulted interest and the same may be calculated @ 14% pa from the date of payment.
c) pay the Pending/Future EMI's (Easy Monthly Installments) along with the interest/ delayed/defaulted interest, and penalties as levied/leviable by opposite party No.3 directly to opposite party No.3 as per the MOU between the complainant & the opposite party No.1/opposite party No.2 (as the same was the responsibility of the contesting opposite parties Nos.1 & 2).
d) pay Rs. 1,000/- as compensation for causing mental agony and harassment .
e) pay Rs. 1,00,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the project i.e. Tower No. T-04 in which the unit NO. 1405 in RPS Auria, Sector-88, Grater Faridabad, which was subject matter of the present complaint was registered under HRERA vide RERA Registration Certificate No.200 of 2017 dated 15.09.2017 and n terms thereof, the date of complete of the project/unit was declared as 14.09.2021. It was submitted that the Hon’ble Haryana Ral Estate Regulatory Authority constituted under the provisions of the Real Estate Rules, 2017 had, vide its advisory dated 26.05.2020 & subsequently advisory dated 09.08.2021, suto moto extended the completion of construction period of project for nine months due to Covid Pandemic i.e. upto 14.06.2022 thus, the delivery date of said unit had been extended by 14.06.2022 thus, the delivery date of said unit had been extended by 14.06.2022. The answering opposite party had completed the construction of Tower NO.4 RPS Auria, Sector-88, Faridabad including the unit NO. T-04-1405, located in said tower NO. T-04 much prior to the completion date and had applied to the Director General, Town and country Planning, Haryana at Chandigarh, hereinafter referred to as the DGTCP for issuance of requisite Occupation certificate on 05.04.2022 and upon issuance of occupation certificate the possession of unit in question i.e. Unit NO. T-04-1405 located in said tower No, T-04, RPS Auria, Sector-88, Faridabad would be delivered . It was submitted that the complainant was not a consumer under the provisions of the Consumer Protection Act, 2019 because on 03.11.2015, he had applied and got allotted the unit in question i.e. Unit NO. T-04-1405 located in said Tower NO. T-04, RPS Auria, Sector-88, Faridabad for profit and not for his personal use. It was submitted that on the same day i.e. on 03.11.2015, the complainant had applied and got allotted 2 residential units one bearing unit NO. T-04-1403 located in said Tower NO. T-04, RPS Auria, Sector-88, Faridabad and other bearing unit No.T-04-1405 located in said Tower NO. T-04. RPS Auria, Sector-88, Faridabad. Prior to filing the present complaint, the complainant had filed three complaints against the opposite party No.1 bearing complaint Nos. 340 of 2020, complaint NO. 538 of 2020 and complaint NO. 542 of 2020 before HRERA, Panchkula, Haryana in respect of both units bearing Unit Nos. T-04, 1403 and T-04-1405 RPS Auria, Sector-88, Faridabad but the complainant had never taken this plea which he had taken in the present complaint that he had booked one unit for himself and other unit for his children. This plea was taken here in the present complaint for the first time was not only an afterthought but also with an ulterior motive to bring the present complaint under the provisions of the Consumer Protection Act, 2019 and bring himself under the definition of Consumer. The complainant was barred to take new plea which he had not taken earlier. When the complainant knew a about the fate of the complaints, the complainant had filed the present complaint and thereafter withdraw his all three complaints bearing complaint NO. 340 of 2020, complaint NO. 538of 2020 and complaint No. 542 of 2020 before HRERA, Panchkula, Haryana in respect of both units bearing unit NO T-04, 1403 and T-04-1405 RPS Auria, Secator-88, Faridabad which were dismissed as withdrawn. It was submitted that on 29.12.2015 the complainant had deposited Rs.7,00,000/- as booking amount against the said unit NO. T-04-1403 which was allotted in favour of the complainant for a total sale price of Rs.76,93,350/- besides IFMS of Rs.78,,250/-. It was submitted that that the complainant had not deposited any sum towards booking amount, however, the said unit NO. T-04-1405 was allotted in favour of complainant for a sale price of Rs.76,15,100/- besides IFMS of Rs.78,250/-. Subsequently, the complainant on his own approached the state Bank of India as well as the ICICI Bank for availing Housing Loan against both units unit NO. T-04-1403 and T-04-1405 and got sanctioned housing loan from State Bank of India as well as ICICI Bank. The ICICI Bank had disbursed a sum of Rs.50,56,401/- vide cheque No. 050796 dated 11.12.2015 against said unit NO. T-04-1403 whereas the State Bank of India disbursed a sum of Rs.49,54,680/- vide cheque No. 705138 dated 30.12.2015 against said unit NO. T-04-1405. As desired by the banks, the opposite party No.3 had issued No Objection certification for mortgage the said both units unit NO. T-04-1403 and T-04-1405 as security for repayment of loan sanctioned/disbursed to the complainant in respect of the said both units. The complainant had concealed the material facts. After getting the loan disbursed by both the banks, the complainant approached the opposite party No.2and expressed his desired to transfer his right of allotment in respect of both units i.e unit Nos. T-04-1403 and T-04-1405 for a premium of Rs.2,00,000/- each and had transferred his right of allotment in respect of both units i.e. Unit Nos. T-04-1403 and T-04-1405 in favour of opposite party NO.2 and had received Rs.4,00,000/- as premium i.e. a premium of Rs.2,00,000/- each in respect of both units i.e Unit Nos. T-04-1403 and T-0401405. Since the complainant had surrendered his right of allotment and had transferred his right of allotment in respect of both units i.e. Unit Nos.T-04-1403 and T-04-1405 in favour of opposite party Nos., the complainant ceased of as consumer and thus, the present complaint was misconceived. Opposite party No. 1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant to be true, the answering opposite party agreed to purchase the said unit at a premium of Rs.2,00,000/- and signed an Memorandum of Understanding dated 24.12.2019 to this effect with the complainant. Pertinently, the applicant/opposite party N.2 remitted a sum of Rs.2,00,000/- and signed an memorandum of understanding dated 24.12.2019 t to this effect with the complainant. Pertinently, the applicant/opposite party No.2 remitted a sum of Rs.2,00,000/- vide cheque No. 110699 dated 24.12.2019 as premium amount in favour of the complainant against the said unit. As per the MOU dated 24.12.2019 entered between the complainant and the answering Respondent, the complainant assigned his rights and interest in the said Unit in favour of the answering Respondent and in life of that, the complainant had received from the answering opposite party as premium/consideration a sum of Rs.2,00,000/- by way of the above-referred cheque and had assigned/transferred his rights in respect of allotment of said Unit. The complainant was duty bound to fulfill its contractual obligations arising out of the MOU dated 24.12.2019 and maintain its allotment right in the said unit in favour of the answering opposite party as per the agreement entered into between the Complainant and the answering Respondent. Since the complainant had suppressed the fact of assigning his right in favour of the answering OP, the complaint suffers from suppression of material facts and since the complainant had ceased to be an allottee on the date of institution of the instant complaint, he had no authority and competence to invoke jurisdiction of this Hon'ble Commission. The complainant availed housing loan against both the Units bearing Nos. T-04-1403 and T-04-1405 and thereafter he had transferred his rights in respect of allotment of both the Units bearing Nos. T-04-1403 and T-04-1405 in favour of answering Respondent No.2 and earned profit of Rs.3,00,000/- against these two Units. The complainant had not taken this plea in his Complaints before HRERA, Panchkula and he had taken this plea for the first time before this Hon'ble Commission just in order to get his complaints falls within the definition of consumer. Thus, the present complaint was not maintainable before the Hon’ble Commission. Opposite party No. 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. Opposite party No.3 put in appearance through counsel and filed written statement wherein Opposite party No.3 refuted claim of the complainant and submitted that the complainant Mr. Pankaj Kumar alongwith Shri Suresh Chand, as Co-applicant/Borrower had approached ICICI Bank for Home Loan and after considering his request and assessing his eligibility, the answering opposite party had sanctioned the loan of Rs.6,318,108/- I November 2015 vide loan account NO. LBGUR00002446713. Post sanctioning the case, loan account was given through the technical valuation and legal verification of property to ascertain suitability of accepting the property for mortgage. The facility agreement dated 30.11.2015 was executed between the answering opposite party and the complainant for home loan under aforesaid loan account. The complainant opted for ‘Interest Sunbvention Scheme’ of opposite party NO.1 for which tripartite agreement was executed between complainant, opposite party No.2 and answering opposite party. The loan was disbursed based on the request received from the complainant and the disbursal request form signed by the complainant. The answering opposite party bank had disbursed the loan upon receiving all the required documents from him. Following was the disbursement details of his loan account:
