Chandigarh

StateCommission

CC/31/2024

VIKAS CHANDRA - Complainant(s)

Versus

STATE BANK OF INDIA THOUGH ITS ASSISTANT GENERAL MANAGER - Opp.Party(s)

LT COL P K SARAN

18 Dec 2024

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

============

Consumer Complaint No.	:	CC/31/2024
Date  of  Institution	:	01/05/2024
Date   of   Decision	:	18/12/2024

 

 

 

 

 

Vikas Chandra son of Sh. Jagdish Chandra, Resident of 71, Tribune Society, Raipur Khurd, Chandigarh – 160003.

 

…. Complainant

 

Versus

 

1.     State Bank of India, Retail Assets Central Processing Centre, Ground Floor, A-Block, DAO Building, II Sansad Marg, New Delhi – 110001, through its Assistant General Manager.

 

2.     M/s Puri Construction Pvt. Ltd., 4-7B, Ground Floor, Tolstoy House 15 and 17 Tolstoy Marg, New Delhi – 110001, through its Authorized Person.  

 

…… Opposite Parties

 

 

BEFORE: PADMA PANDEY             PRESIDING MEMBER

                PREETINDER SINGH     MEMBER

 

 

PRESENT	:	Lt. Col. P.K. Saran, Advocate for the Complainant alongwith Sh. Vikas Chandra, Complainant in person (on V.C).
		Opposite Party No.1 ex-parte vide order dated 10.07.2024.
		Ms. Tanika Goel, Advocate for the Opposite Party No.2.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

1.         In brief, the facts necessary for the disposal of the instant Consumer Complaint are that one Sh.Sanjeev Bhatiani and Smt.Sunita Bhatiani had entered into a Buyers Agreement with M/s Puri Construction Pvt. Ltd. (Opposite Party No.2) for buying the unit. In June 2013, consequent upon the Complainant showing his desire to buy the unit, the said Sh.Sanjeev Bhatiani and Smt.Sunita Bhatiani had applied to get the allotment of unit transferred in the name of the Complainant, wherein approval of Opposite Party No.2 was obtained in writing. To cater the funds, a retail home loan was got sanctioned by the Complainant from State Bank of India (Opposite Party No.1) with a limit of ₹1,39,25,000/-. On 26.06.2013 under a Tripartite Agreement (between Complainant, Opposite Party No.2 and Opposite Party No.1), the allotment of unit was transferred in the name of the Complainant from the names of Sh.Sanjeev Bhatiani and Smt.Sunita Bhatiani; wherein, a payment of ₹99,88,000/- was disbursed from loan account by the Opposite Party No.1 and balance of the margin money was paid directly by the Complainant. It has been averred that owing to the developed over confidence; due to nearness and strong bonding between the staff of the Opposite Parties; the left over signatures of the Opposite Party No.2 on the Tripartite Agreement (TPA) and submission of Permission to Mortgage (PTM) with the Opposite Party No.1 by the Opposite Party No.2, was left pending by Opposite Party No.1 at their own mutual understanding, risk & responsibility after taking verbal assurance from the Opposite Party No.2. It has been alleged that without there being any authenticated construction progress report, Opposite Party No.2 raised demand for ₹18,53,736.50/- (Annexure C-3A). The Complainant accordingly approached Opposite Party No.1 to disburse the ibid amount from his loan account, however Opposite Party No.1 showed its inability to disburse the demanded amount to Opposite Party No.2, as the PTM was not submitted by it to Opposite Party No.1. As such, the Complainant visited the office of Opposite Party No.2 and after frantic efforts, PTM dated 08.05.2014 was submitted by Opposite Party No.2 with Opposite Party No.1 directly. After submission of original PTM by Opposite Party No.2 with Opposite Party No.1, the Complainant again visited office of Opposite Party No.1 on 23.06.2014 for disbursing the outstanding amount to Opposite Party No.2, but this time the same was not done taking another excuse that Opposite Party No.2 did not return the TPA duly signed by its competent authority. Again, after numerous visits of the Complainant to the office of Opposite Party No.2, it also confirmed having sent original copies of the TPA to Opposite Party No.1 duly signed by its competent authority. Thereafter, on 20.10.2015, the Complainant approached Opposite Party No.1 for disbursing an amount of ₹18,35,632/- to Opposite Party No.1, which though was processed, but was withheld at the last minute with a fresh excuse that they have not received the ink signed copies of TPA back from Opposite Party No.2 yet. The Complainant claimed that Opposite Party No.2 was supposed to offer possession of the unit latest by 25.05.2016 including grace period, but foreseeing its inability to handover possession of the unit, Opposite Party No.2 in collusion with Opposite Party No.1 lingered on the issue of release of payment from the loan account on pretext of original PTM and TPA and kept the resolvable dispute of penal interest alive. However, to the utter surprise of the Complainant, he received a letter dated 05.02.2018 from Opposite Party No.2 offering one time offer for revival of the booking of the unit stating that it had cancelled booking of the unit on 20.03.2015 (which was never received by the Complainant). Besides sending reply to the said letter, the Complainant also visited the office of Opposite Party No.2 on 14.02.2018 and discussed the entire matter in person. The Complainant was assured that he would be offered possession soon after waiving off the accrued interest upon the generated demands. Subsequently, Opposite Party No.2 offered possession of the unit for the first time on 14.07.2018 to the Complainant. Consequent upon offer of possession, the Complainant visited the project site; inspected the unit and found numerous defects/snags in the unit rendering the same unfit for possession. The same was also conveyed to the office bearers of Opposite Party No.2, upon which it was assured that the unit will be ready for possession towards the end of 2019, but the possession was not offered as assured stating that the same was under progress and would take some time. In the meantime, COVID-19 pandemic engulfed the country thereby putting all the real estate projects across the country on a standstill. Since owning to his medical condition, the Complainant was susceptible to COVID-19, he sent his representative in the month of January 2021 to physically check progress on completion of the unit, wherein it was reported that the work was not resumed on the project till then. As a good borrower, the Complainant repaid installments in the loan account to include interest accrued thereon to Opposite Party No.1 till as late as 22.01.2021. However, unable to bear further harassment by the Opposite Parties in connivance with each other and with no resolution and timeline, the Complainant was forced to stop further payments to the Opposite Party No.1.  To save himself from impending colossal financial loss, the Complainant filed a complaint before the Haryana Real Estate Regulatory Authority, Gurugram (HRERA) against Opposite Party No.2 wherein Opposite Party No.1 was also impleaded as Respondent No.2 seeking no relief against it. The moment, the Complainant filed the complaint before the HRERA, the Opposite Party No.2 after seeking fresh details of the outstanding amount from the Opposite Party No.1, repaid the outstanding loan amount to Opposite Party No.1 to wash their respective hands rendering irreparable financial loss to the Complainant. The Complainant eventually filed a complaint with the RBI Ombudsman which was decided unfavourably on 18.12.2023 by overlooking all material facts placed on record.  Alleging the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainant has preferred the instant Consumer Complaint under Section 47 of the Consumer Protection Act, 2019.

 

2.         Notice of the complaint was sent to Opposite Parties seeking their version of the case. However, nobody appeared on behalf of Opposite Party No.1 despite service, therefore, it was proceeded ex-parte on 10.07.2024.

 

3.         Opposite Party No.2 filed its written statement, admitting the basic facts of the case. It has been pleaded that the cancellation of the apartment was done on 20.03.2015 due to failure of the Complainant to make payment as per the demands raised. In fact, the Complainant was a chronic defaulter as since 2013 till date of cancellation in 2015, he had not made payment of single penny to Opposite Party No.2 and all the payments were made by him to earlier allottees - Sh.Sanjeev Bhatiani and Smt.Sunita Bhatiani. After transfer of the unit took place from original allottees to Complainant, no amount was disbursed in the account of Opposite Party No.2. It has been asserted that Opposite Party No.2 raised the demands of installments to the Complainant strictly in accordance with the agreed construction linked payment plan and the demands were raised only after the particular milestone of the construction was achieved. Also, the Opposite Party No.2 has been uploading regular updates of the construction on its website and the Complainant out of his own volition ignored the demands raised by Opposite Party No.2. It has been also pleaded that after cancelling the unit, Opposite Party No.2 vide letter dated 05.02.2018 provided one time opportunity by way of one time settlement scheme requesting him to come forward and make payment of balance amounts to restore the said unit within a period of fifteen days but the Complainant chose not to make any payments in furtherance of the said one time settlement scheme also. It has been submitted that the Opposite Party No.2 has already made the payment of ₹98,19,809/- to Opposite Party No.1 towards the loan facility availed by the Complainant from State Bank of India (Opposite Party No1), as the said loan account of the Complainant has become NPA and demand letters dated 25.08.2021 and 27.07.2022 were issued by the SBI and in furtherance of the said demand letters, the Opposite Party No.2 had made the requisite payments as mentioned in the said letter to Opposite Party No.1 and for the remaining applicable refundable amounts the Opposite Party No.2 issued cheque for ₹33,30,880/- in favour of the Complainant as a result of the cancellation of the allotment of the unit in question. Therefore, the present complaint cannot be proceeded against Opposite Party No.2. It is denied that Opposite Party No.2 was foreseeing its inability to handover possession of the unit, hence it apparently in collusion with Opposite Party No.1 lingered on the issue of payment. It has been submitted that all the allegations were made by the Complainant in the complaint filed before the HRERA which was disposed off by HRERA vide order dated 01.12.2022 vide which the cancellation of the unit has been held to be valid. On these premises complaint was sought to be defended. Pleading that there was no deficiency in service or unfair trade practice on its part, a prayer has been made by the Opposite Party No.2 for dismissal of the complaint.
4.         Controverting the allegations contained in the written statement filed by Opposite Party No.2 and reiterating the pleadings in the complaint, the Complainant filed the rejoinder.

 

5.         Parties led evidence by way of affidavits and documents.

 

6.         We have heard the learned counsel for the contesting parties and gone through the record of the case with utmost care and circumspection.  

 

7.         After scanning of record our findings are as under:-

 

8.         It is evident on record that Opposite Party No.1 prior to disbursement from the loan account made the Complainant complete all necessary documentation on his part, however, nonchalantly did not follow the procedure/ guidelines to obtain all the documents prior to disbursement of loan. This slipshod approach of the Opposite Party No.1 is further apparent from the fact that when Opposite Party No.2 wanted to levy hefty rate of interest on due amount, Opposite Party No.1 deliberately did not disburse the amount from the loan account on pretext of not having the PTM and TPA. Further, when the bank wanted to recover the outstanding loan amount, Opposite Parties executed the transaction even without the PTM and TPA and consequently, Opposite Party No.1 closed the loan account rendering irreparable loss to the Complainant.          

 

9.         The whole evidence placed on record by the complainant corroborates the assertions set out in the present complaint. Significantly, the Opposite Party No.1 did not appear to contest the claim of the Complainant and preferred to proceed against ex-parte. This act of the Opposite Party No.1 itself draws an adverse inference against it. The non-appearance of the Opposite Party No.1 shows that it has nothing to say in its defence against the allegations made by the Complainant. Therefore, the assertions of the complainant go unrebutted and uncontroverted. In this view of the matter, it is established beyond all reasonable doubts that the complaint of the Complainant is genuine and the Opposite Party No.1 has certainly and definitely indulged into unfair trade practice as it ought to have initiated steps to redress the grievance of the Complainant promptly, which it they miserably failed to do. At any rate, the Opposite Party No.1 even did not bother to redress the grievance of the Complainant, despite having approached for the same by the Complainant time & again, which to our mind not only amounts to deficiency in service, but is a grave malpractice under the Consumer Protection Act.

 

10.         Be that as it may, now the question arises, as to what compensation should be granted to the complainant in this case? It may be stated here that Consumer Protection Act has been made to safeguard consumer rights. This Act is regarded as the 'Magna carta' (everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial) in the field of consumer protection for checking unfair trade practices, ‘defects in goods’ and ‘deficiencies in services’ and it works and protects consumers even in situations where they do not know their rights. It is well settled that the word ‘Compensation’ is of very wide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon’ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors., (2000) 7 SCC 668 are also apposite:-

“While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

 

In Lucknow Development Authority v. M K Gupta, (1994) 1 SCC 243 also, the Hon’ble Supreme Court held that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the Consumer Protection Act observed that “…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done”. Under these circumstances, the Complainant is entitled to get, special, exemplary and aggravated damages.So on account of inconvenience, physical and mental harassment suffered by the Complainant at the hands of the Opposite Party No.1, ₹5,00,000/- would be just and reasonable to be awarded as compensation. 

 

11.         In the wake of above discussion, this consumer complaint deserves to succeed. The same is accordingly partly allowed.  Opposite Party No.1 is directed as under:-

[a]    To pay compensation of Rs.5,00,000/- towards the mental agony and harassment caused to the Complainant as a result of deficiency in service and indulging into unfair trade practice on the part of the Opposite Party No.1, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which the said amount shall carry interest @9% p.a. from the date of passing of this order till realization.

[b]     To pay cost of litigation to the tune of Rs.50,000/- to the complainant, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which the said amount shall carry interest @9% p.a. from the date of passing of this order till realization.

12.         The complaint against Opposite Party No.2 fails and is accordingly dismissed with no order as to costs.

 

13.         Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

 

14.         Certified copies of this order, be sent to the parties, free of charge.

 

15.         The file be consigned to Record Room, after completion.

Pronounced

18^th Dec., 2024                                                    

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

“Dutt”