Chandigarh

StateCommission

CC/51/2022

Bharat Kumar - Complainant(s)

Versus

Sushma Buildtech Ltd. - Opp.Party(s)

R.S. Dhull & Sandeep Malik Adv.

04 Jan 2023

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

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

 

Consumer Complaint No.	:	CC/51/2022
Date  of  Institution	:	06/06/2022
Date   of   Decision	:	04/01/2023

 

 

 

 

 

Bharat Kumar S/o Sh. Ashok Kumar, Resident of House No.100, Gulmohar Avenue, Village Dhakoli, Tehsil Derabassi, Zirakpur, Mohali (Punjab).

…. Complainant

 

Vs.

 

1]     Sushma Buildtech Limited, Office Address: Unit No.B-107, 1^st Floor Business Complex Elante Mall, Industrial Area, Phase-I, Chandigarh – 160002, through its Manager/Authorized Signatory/ Officer-in-charge/ Director Sales and Marketing.

 

2]     PNB Housing Finance Limited, SCO 323-324, 1^st Floor, Sector 35-B, Chandigarh, through its Managing Director.

…… Opposite Parties

 

BEFORE: PADMA PANDEY             PRESIDING MEMBER

                RAJESH K. ARYA           MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT	:	Sh. R.S. Dhull, Advocate for the Complainant.
	:	Sh.Vishal Singal, Advocate for Opposite Party No.1.
	:	Opposite Party No.2 ex-parte vide order dated 29.07.2022.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

 

                In brief, the facts necessary for the disposal of the instant Consumer Complaint are, the Complainant booked a flat measuring 1685 sq. ft. in the residential complex known as Sushma Elite Cross bearing Flat No.D-103 in D-Tower, located in village Gazipur, M.C. Zirakpur, S.A.S. Nagar, Mohali. Allotment letter to this effect was issued on 15.06.2015 (Annexure C-1) and Apartment Buyer’s Agreement was done on 14.07.2015 (Annexure C-2). Subsequently, the Complainant had Tripartite Agreement with Opposite Parties No.1 & 2 for taking Housing Loan for purchase of Flat vide agreement dated 14.07.2015 (Annexure C-3). The total sale consideration of the Flat was Rs.61,00,000/-, out of which the Complainant paid Rs.60,77,567/- and balance was to be paid at the time of possession. However, when despite receipt of the considerable amount, the Opposite Party No.1 failed to deliver the possession, the Complainant sent various letters, reminders apart from legal notice dated 10.12.2021, demanding possession of the flat as the Opposite Party No.2 started imposing penalty for non-submission of the registry, but to no avail. Eventually, the Complainant made a site visit on 01.02.2022 and was surprised to know that the flat in question was sold to someone else. Alleging that 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.

 

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.2 despite service, therefore, it was proceeded ex-parte on 29.07.2022.

 

3.         Opposite Party No.1 filed its written statement. While admitting the basic facts of the case, it has raised a preliminary objection to the effect that the complaint is not maintainable as the complainant is not consumer as envisaged in Consumer Protection Act, 1986. It has been pleaded that the Complainant requested for cancellation of the Unit, which request was acceded to and Opposite Party No.1 agreed to refund the amount to the Complainant after deduction of earnest money deposit/ booking amount, brokerage charges and return of original executed documents by the Complainant. Accordingly, the Opposite Party No.1 got prepared a demand draft dated 18.02.2016 for Rs.29,95,169/- in favour of PNB Housing Finance Ltd. (Opposite Party No.2) towards loan refund on account of cancellation of the unit by the Complainant. The balance amount of the loan was agreed to be returned by the Complainant to PNB Housing Finance Ltd. Thereafter, till date, the Complainant neither returned to the Opposite Party No.1 all the original executed documents pertaining to the Unit in question nor repaid the balance payable loan amount to PNB Housing Finance Ltd. Since the Complainant himself got the Unit cancelled in the year 2016 itself, the same was allotted in favour of another allottee and conveyance deed in respect of the same was also executed in favour of the new allottee on 11.01.2017. The Complainant has approached this Commission with unclean hands as he has suppressed these material facts from this Commission. Pleading that there was no deficiency in service or unfair trade practice on its part, a prayer has been made for dismissal of the complaint.

 

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

 

5.         We have heard the learned counsel for the contesting parties and gone through the record of the case, including the written arguments advanced.

 

6.         After scanning of record, including written arguments, our findings are as under:-

 

7.         It has come on record that the Complainant after making the initial payment at the time of booking of the Unit got disinterested in the purchase of the apartment in question and requested the Opposite Party No.1 to cancel the same and repay the loan amount on behalf of the Complainant and also to refund the balance amount to him after deduction of earnest money deposit/booking amount and brokerage charges as per the terms & conditions of the Apartment Buyer’s Agreement dated 14.07.2015. Acceding to said request, the Opposite Party No.1 got prepared a demand draft of Rs.29,95,169/- in favour of PNB Housing Finance Ltd. towards loan refund on account of cancellation of the Apartment (Annexure R-6). The Complainant vide authorization letter dated 19.02.2016 (Annexure R-7) duly authorized Ms.Preeti Sharma, employee of the Opposite Parties to return the housing loan and to deposit the demand draft aforesaid in favour of PNB Housing Finance Ltd.  Interestingly, this fact has nowhere been pleaded by the Complainant in his Complaint nor copy of the said authorization letter dated 19.02.2016 has been placed on record. The Complainant’s apartment having got cancelled in the year 2016 itself and was allotted in favour of another allotted (Annexure R-9) and conveyance deed of the said apartment was also executed in favour of the new allottee on 11.01.2017 (Annexure R-10). There is thus a clear suppression of material information from this Commission, by the complainant as he has suppressed material facts of having the cancellation done and making of payments by the Opposite Party No.1 Parties to PNB Housing Finance Ltd. towards repayment of the loan amount on behalf of the Complainant and also to refund the balance amount to him after deduction of earnest money deposit/booking amount and brokerage charges as per the terms & conditions of the Apartment Buyer’s Agreement dated 14.07.2015. We are of the considered opinion that a person who suppressed material facts from a Court/Commission, is not entitled to any relief. This was so said by the Hon’ble Supreme Court of India in the case titled as “Kishore Samrite Vs. State of U.P. and Ors. (2013) 2 SCC 39”, relevant part of which reads thus:-

“No litigant can play ‘hide and seek’ with the courts or adopt ‘pick and choose’. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy”

8.        For the reasons recorded above, this complaint is dismissed with no order as to costs.

 

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

 

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

Pronounced

04^th January, 2023                                                            

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

                                                        (RAJESH K. ARYA)

MEMBER

 

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

 

“Dutt”