Delhi

StateCommission

CC/526/2016

SARANG DEV SINGH RATHORE & ANR - Complainant(s)

Versus

UNITECH LTD. & ANR. - Opp.Party(s)

ATUL

08 Nov 2017

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments:  08.11.17

          Date of Decision:      13.11.17

 

Complaint No. 526/16

In the matter of:

 

1. Sharang Dev Singh Rathore
2. Neetu Rathore

Both residents of Apartment No. 1204, Tower-20,

Sector-49, Orchid Petals,

Gurgaon, Haryana-122001.

 

3. Ranveer Singh Rahore
4. Sneh Rathore both R/o 71, Meera Path

Shivraj Niketan Colony

Near Vaishali Nagar, Jaipur-302021.                                                 ....Complainants                                                                         

   Versus

                                                                       

              Unitech Limited, Registered office 6,

Community Centre, Saket,

New Delhi-110017.

 

And also at:

1. Real Estate Division (Marketing) Ground Floor, Signature Towers

South City-1, N.H.-8, Gurgaon-122001, Haryana.

 

2. PNB Housing Finance Limited, registered office at 9^th floor

Antriksh Bhawan, K.G.Marg, New Delhi-110017.      Respondents/Opposite Parties

 

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes/No

2. To be referred to the reporter or not? Yes/No

 

SHRI O.P. GUPTA(MEMBER (JUDICIAL)

JUDGMENT

                This order will dispose of application moved by complainant for interim relief.  The plea of the complainant is that OP 1 allotted apartment No. 1001, Block D-3, Floor 10, measuring 1245 sq.ft. in Unitech South Park, Gurugram vide buyer’s agreement dated 02.09.11,  Total price was agreed to be Rs.75,01,618/- out of which loan of Rs. 46,64,000/- stood sanctioned by OP 2/PNB Housing under tripartite agreement dated 02.09.11.  OP 1 promised to deliver the flat with 36 months and OP 2 impliedly agreed that repayment of the loan to be made by the complainant was subject to performance by OP 1.  As OP 1 had violated main condition of the buyer agreement, the tripartite agreement has become non-binding on the complainant.  The amount of loan repaid by complainant is also liable to be returned by OP 2.   Hence OPs may be restrained from realising any amount either as repayment of loan or any other ground towards the flat in question during the pendency of this case,

2,        OP 2 has filed reply to the aforesaid application.  It has taken an objection that repayment of housing loan continues to subsist till entire dues are paid irrespective of the fact whether possession of flat has been handed over to the complainant or not.  It has denied that repayment of loan was subject to performance of its part by OP 1.

3.        We have gone through the material on record and heard the arguments.  The counsel for complainant drew our attention towards clause 16 of tripartite agreement copy of which is at pages 46 to 50 of bunch of complaint, The same provides that in case borrower commits any breach or does not repay its dues, the company as well as developer shall have right to terminate their respective contract with the borrower and to cancel the booking for the purchase of property.  We are unable to appreciate the argument.  This clause enables the builder as well as financer to terminate the agreement. It does not cast any obligation on the financer to make the payment to the builder.

5.        Counsel for the complainant relied upon decision of National Commission in RP No. 1145/13 titled as M/s Unitech Ltd. Vs. Dr. Abha Mullick decided on 12.05.15 in which 3 member bench by majority upheld the order of UP State Commission directing the financer to make payment of instalment to the builder.

5.        On the other hand the counsel for Op relied upon decision of Hon’ble  Supreme Court  in Civil appeal No. 3173/16 titled as M/s  Unitech Ltd. vs. Mukut Deepak decided on 28.03.16.  In last but one para at page 4, submission of counsel for the appellant that the National Commission did not have jurisdiction to pass interim orders like payment of monthly instalment by financer to the builder was noticed. The same was held to be deserving acceptance. The order passed by National Commission was set aside.

6.        In view of the order of Hon’ble Supreme Court we are unable to follow the order of National Commission.  The application is rejected.

            Copy of the order be sent to both the parties free of cost.

            List the matter on 23.07.2018 for rejoinder to WS of OP and evidence by affidavit by the complainant within 8 weeks with advance copy to OP.

 

(ANIL SRIVASTAVA)                                                                                                        (O.P.GUPTA)

MEMBER                                                                                                                             MEMBER(JUDICIAL)