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Arafat Ahmed Sheriff & Another v/s Aditya Construction Company India Private Limited & Another


Company & Directors' Information:- ADITYA CONSTRUCTION COMPANY INDIA PRIVATE LIMITED [Active] CIN = U45200TG2006PTC049293

Company & Directors' Information:- ADITYA LIMITED [Active] CIN = U45400DL2012PLC231460

Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- ADITYA AND COMPANY (INDIA) PRIVATE LIMITED [Active] CIN = U27107RJ2004PTC019073

Company & Directors' Information:- J. AHMED CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45200WB2006PTC111455

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Consumer Case No. 3 of 2015

    Decided On, 09 January 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE ANUP K. THAKUR
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE C. VISWANATH
    By, MEMBER

    For the Complainants: Sanjeev Kumar Sharma, Advocate. For the Opposite Parties: Suyodhan Byrapaneni, Advocate.



Judgment Text

1. According to the Complainant, the Representatives of the Opposite Party approached the Complainant advertising their venture; a multi-floor residential apartments/Complex to be developed in the name and style of “Aditya Heights” at Sy. No. 37, Kothaguda Village, Serilingampally Mandal and Municipality, Ranga Reddy District, Telangana. The Complainant agreed to book one Flat on the pre-condition that the pre-EMI Interest on loan amount (80% of cost of flat) would be paid by Opposite Party till execution of the Sale Deed and handover the possession of the Flat. On payment of Rs. 1,00,000 by the Complainant to the Opposite Party, letter dated 29.9.2011 was issued, confirming the allotment of residential Flat bearing No. 302, located on 3rd floor, admeasuring 2,380 sq.ft., along with space for 3 car parkings, in the residential complex being developed by the Opposite Party on the aforesaid land in the name and style “Aditya Heights”. The Complainant paid an amount of Rs. 14,67,0000 i.e. 15% of cost at the time of booking of the flat under Pre EMI scheme and Rs. 1,00,000 at the insistence of the Opposite Party to execute the Sale Agreement. Clauses 3, 4 and 6 of the Allotment Letter dated 29.9.2011 states about the pre-EMI Scheme. Though the Complainant opted for Pre-EMI scheme, still the Opposite Party as an after-thought mentioned construction linked plan in the allotment letter. Upon objection of the Complainant, the Opposite Party clarified that the schedule is general and not applicable to the case of the Complainant. The Complainant relied upon the declarations of the Opposite Party and signed the same in good faith. The Opposite Party assured the Complainant to enter into Agreement of Sale within a week from the date of allotment i.e. on or before 7.10.2011. Further, the Opposite Party assured the Complainant to develop and complete the construction of the said Flat and entire complex within 24 months i.e. 2 years from the date of allotment i.e. on or before 31.10.2013, with a grace period of 3 months. Complainant visited the office of the Opposite Party and their project site office many times to execute the Agreement of Sale and Tripartite Agreement, but in vain. On one pretext or the other, the Opposite Party tried to delay the execution of the Agreement of Sale for the reasons best known to them. The Opposite Party, contrary to the terms of allotment, instructed the Complainant to arrange sanction letter for disbursement of loan on his own. It is worth mentioning that as per the terms of the Allotment letter dated 29.9.2011 and pre-launch advertisements, the Opposite Party assured to facilitate prospective buyers to obtain loan through the Bank approved by the Opposite Party. Finding no other alternative, the Complainant got sanctioned home loan from HDFC Limited, vide sanction letter dated 6.1.2012. The Complainant submitted the sanction letter to the Opposite Party and requested them to enter into Agreement of Sale and Tripartite Agreement, so that the sanctioned loan amount could be disbursed by the Bank to the Opposite Party. Instead of executing Agreement of Sale and Tripartite Agreement under Pre-EMI Scheme, the representatives of the Opposite Party started issuing stereotype letters showing the stage of construction and demanded payment of installments, to which the Complainant stated that he did not opt for the construction-linked plan and hence the demand letters issued by Opposite Party were not applicable to him. The Opposite Party acknowledged the fact, but remained silent on the execution of Agreement of Sale. The Complainant submitted that though the sanction letter of bank loan was submitted a year back, the Opposite Party failed to execute the Agreement of Sale and his requests and reminders were not heeded by the Opposite Party. In the meantime, the time period of loan approval expired. On 16.11.2013, the Complainant submitted fresh loan approval from IDBI Bank for a loan of Rs. 75,00,000 . The Complainant while submitting the fresh loan approval, again requested the Opposite Party to execute the Agreement of Sale, but in vain. On 8.4.2014 i.e. after expiry of more than 2 years and 8 months from the date of allotment, the Opposite Party sent a copy of Agreement of Sale for signatures of the Complainant. The Complainant objected, requesting modifications on agreed terms, but the Opposite Party directed the Complainant to sign the draft format of agreement sent by them with unilateral conditions. On 10.4.2014, an Agreement of Sale was executed between the Complainant and Opposite Party. Tri-partite Agreement was also signed by the Complainant but the Opposite Party did not enter into Tripartite Agreement with the Bank for disbursement of loan. At this stage, dispute arose as to allotment of car parking spaces. As per Allotment letter, the Complainant was allotted 3 car parking spaces, but at the time of execution of Agreement, Opposite Party No. 1 mentioned only 2 car parkings. Clause 6 of the Agreement, makes it mandatory on the part of the Opposite Party to enter into Tripartite Agreement and to develop the entire project and complete the construction in all aspects as per agreed specifications within 24 months (grace period 3 months). The Opposite Parties failed to complete the construction as per specifications and gave false assurances at the time of booking. The Complainant, unaware of the mala fide intentions of the Opposite Parties, again got sanctioned home loan by HDFC Bank and provided the sanction letter to the Opposite Parties. The Opposite Parties sent an e-mail on 22.8.2014 that they had to pay the amount. On 22.9.2014, the Opposite Party again asked the Complainant for the payment of the balance amount. The Complainant shared his concern regarding issuance of the above demand letters and requested the Opposite Party to withdraw. The Complainant further replied that he has not opted for construction linked payment plan, hence, issuance of demand letters to Complainant was contrary to the terms of allotment and unwarranted. However, the representatives of the Opposite Party stated that the letters were issued mechanically and asked the Complainant to ignore the same. The Opposite Party upon execution of Agreement of Sale assured to complete the transaction within 2-3 days. However, the Opposite Party even after expiry of 2 years, deliberately failed to execute the Agreement of Sale and Tripartite Agreement. On 25.2.2013, the Complainant wrote to the Opposite Party to execute the Agreements at the earliest. The Complainant shared that he had already submitted the loan sanction from HDFC Bank and Bank Officials are chasing repeatedly for disbursement of loan amount. The Opposite Party did not pay heed to the continuous and repeated requests of the Complainant to execute the Agreement of Sale and Tripartite Agreement. The Opposite Party ignored the fact that the Complainant had not agreed for construction linked payment plan, and continued to issue further letters showing status of the construction and demanding installments. The Complainant by way of an e-mail dated 14.8.2013, showed his concern while responding to the same and raised a serious issue regarding negligence on the part of the Opposite Party in not executing the Tripartite Agreement. On 23.9.2014, the Opposite Party responded by e-mail dated 22.9.2014 with apologies and assured to enter into Tripartite Agreement. On 29.9.2014, 1.10.2014 and 7.10.2014, the Complainant again sent reminders to the Opposite Party but they did not respond. Rather, on 15.11.2014, the Complainant received an e-mail from the Opposite Party stating that his booking of the flat stood cancelled. After cancellation of the flat, on 29.12.2014 the Opposite Party made an oral proposal to Complainant to pay Rs. 5,800 per sq. ft. instead of the allotted price of Rs. 3,831 per sq. ft. The Opposite Party cancelled the allotment of Complainant with mala fide intentions and offered the same flat with a revised offer of Rs. 1,38,04,000 in place of Rs. 91,18,000 as was agreed at the time of allotment. Hence, the present Complaint was filed.

2. Alleging deficiency on the part of Opposite Party, Complainant has filed a Complaint before this Commission under Section 21 of the Consumer Protection Act, 1986, praying for relief as under:

1. To hold and declare that Opposite Parties severally and/or jointly indulged in unfair and restrictive trade practices and deficient in providing the agreed services and consequently; direct the Opposite Party severally or jointly to accept the balance sale consideration and execute proper sale deed before the Sub-Registrar.

Or in alternate:

Direct the Opposite Party severally and/or jointly to enter into Tripartite Agreement with the bank in view of housing loan approval, in compliance of the terms of allotment dated 29.9.2011 and Agreement of Sale dated 10.4.2014, so that sanctioned loan amount be disbursed by the bank.

1. Pass an ex parte ad interim orders/injunctions against the Opposite Party, their agents, representatives, servants, employees, assignees etc. severally and/or jointly, thereby restraining them to sell, alienate, mortgage, transfer or create any kind of third party rights or interests in the flat bearing No. 302, located on 3rd floor, admeasuring 2,380 sq. ft. along with space for three car parkings, in the residential complex being developed by the Opposite Party on Sy. No. 37, Kothaguda Village, Serillngampally Mandal and Municipality, Ranga Reddy District, Telangana, in the name and style “Aditya Heights”.

2. Direct the Opposite Party severally and/or jointly to pay consolidated sum of Rs. 20,00,000 towards Compensation and damages for humiliation, mental agony and harassment suffered by the Complainant.

3. Direct the Opposite Party severally and/or jointly to pay interest @18% per annum on the awarded amount payable to the Complainant, till realization.

4. Direct the Opposite Party severally and/or jointly to pay cost of this forced litigation in favour of the Complainant.

5. Any other orders which may be deemed fit and proper in the facts and circumstances of the present case.

3. Written arguments have been filed by the Opposite Party. The Complainant opted for Pre-EMI scheme and as per the said scheme, the Complainant had to pay 15% of the sale consideration within 7 days and get a housing loan for 80% of the sale consideration sanctioned and disbursed and in such an event the balance 5% of the sale consideration could be paid at the time of execution of the sale deed and delivery of possession of the flat. The total sale price of the flat booked was Rs. 91,18,000. The Complainant after paying a minimum booking amount, did not pay any further amount, in spite of receiving demand letters issued by the Opposite Party. The Complainant having failed to get the loan disbursed from HDFC Bank, requested the Opposite Party for extension of time and for not demanding the payments as per the payment schedule. The Opposite Party has not cancelled the allotment for more than 3 years, in spite of not paying any amount after the payment of the minimum booking amount in December 2011. The Opposite Party never stopped the construction activity, despite the Complainant having failed to pay installments in time as per the payment schedule and every stage of construction was duly intimated to the Complainant through project progress/payment status demand letters dated 10th October, 2012, 11th December, 2012, 11th March 2013, 13th July, 2013, 9th April, 2014 and 1st May, 2014 respectively. The Complainant produced in-principle sanction letter 16.11.2013 issued by IDBI Bank and requested the Opposite Party to execute an Agreement of Sale and also Tripartite Agreement with the Bank as a party. The Opposite Party executed an Agreement of Sale dated 10.4.2014 and a Tripartite Agreement on 10.4.2014 and handed over the same to the Complainant. After executing the Agreement of Sale and the Tripartite Agreement, the Complainant could not get loan sanctioned from IDBI Bank and as a result, the Tripartite Agreement was not signed on behalf of the Bank and the same was never acted upon. This fact was not even mentioned in the Complaint but admitted in their Rejoinder. The Complainant on his own volition submitted another in-principle loan sanction letter dated 15.9.2014 issued by the HDFC Bank, to the Opposite Party and requested them to execute another Tripartite Agreement with HDFC Bank. After the loan sanction letter dated 15.9.2014 was submitted by the Complainant, the Opposite Party followed up the same with the Bank and assisted the Complainant to the extent possible for getting loan sanctioned. However, being not satisfied with the financial eligibility of the Complainant, the Bank has not come forward to disburse the loan amount. It is submitted that a Tripartite Agreement cannot be executed without there being a loan agreement between the Complainant and the Bank. The Opposite Party cancelled the booking of flat vide letter dated 10.11.2014. The Complainant has never been able to get the loan agreement executed by the concerned Banks, because he did not have the financial eligibility to procure the loan amount. The present Complaint is not maintainable before this Hon’ble Commission as the amount involved is below the pecuniary jurisdiction of this Hon’ble Commission and the present complaint is liable to be dismissed on this ground alone. The following are the admitted defaults committed by the Complainant in respect of the terms of the letter of allotment dated 29.9.2011.

4. (i) The Complainant was supposed to pay a minimum booking amount of Rs. 13.67 lakh as on 29.9.2011 or latest by 6.10.2011 but the Complainant paid only an amount of Rs. 1,00,000.

(ii) The Complainant paid the balance minimum booking amount of Rs. 13.67 lakh on 17.12.2011 which is beyond the stipulated time under the terms of the allotment letter.

(iii) The Complainant has utterly failed to get home loan sanctioned/disbursed in favour of the Opposite Party.

(iv) The customer who fails to submit the required documents and execute loan documents within 10 days of issuance of the allotment letter, automatically gets disqualified from Pre-EMI payment scheme. In the instant case, admittedly the Complainant has not executed the home loan documents, thereby disqualifying from the Pre-EMI Scheme. After issuance of an in-principle sanction letter, it was the responsibility of the Complainant to get the same processed and the loan amount disbursed in favour of the Opposite Party. The Complainant after having obtained the in-principle sanction letter, has not been able to get the loan amount disbursed. Opposite Party has sent reminder letters to the Complainant requesting payments as per the payment schedule. In the instant case the Complainant has neither adhered to payment schedule for making the minimum booking amount payment nor has been able to get the loan amount disbursed. Having failed to adhere to the time schedule prescribed, the Complainant cannot demand the application of the Pre-EMI scheme in perpetuity and expect the Opposite Party to extend the same as per the convenience of the Complainant. In the instant case, admittedly the minimum booking amount was paid on 17.12.2011 and therefore the question of assuring that Agreement of Sale will be executed even before the booking was confirmed does not arise. The Complainant having obtained Agreement of Sale and Tripartite Agreement on 10.4.2014 miserably failed to make any payments to the Opposite Party.

5. Heard the learned Counsel for the Complainant as well as the Opposite Party. They reiterated the arguments stated above. Also very carefully perused the record.

6. The Opposite Party has raised the issue of maintainability of the Complaint before the National Commission alleging that the amount involved in the present Complaint is below the pecuniary jurisdiction of this Commission. The total sale consideration of the Flat booked by the Complainant, as per the booking letter dated 29.9.2011, was Rs. 91,18,000. If interest @ 18% per annum is added on the amount paid by the Complainant in 2011, it would cross Rs. 1 crore, which falls within the Jurisdiction of this Commission, as laid down by Larger Bench of this Commission in Ambrish Kumar Shukla and Ors. v. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC)=CC/97/2016 and allied matters decided on 7.10.2016. Hence, the Complaint is maintainable.

7. The Complainant booked Flat No. 302 measuring 2,380 sq. ft. on 28.9.2011 for a consideration of Rs. 91,18,000. Complainant opted for Pre-EMI Scheme and as per the scheme, had to pay 15% of the sale consideration, obtain housing loan of 80% of the sale consideration and pay the balance 5% at the time of execution of sale deed and delivery of possession of the flat. The Complainant paid Rs. 1,00,000 as advance by cheque on 28.9.2011 and Rs. 12,67,000 on 17.12.2011 totalling to Rs. 13,67,000 towards 15%. Rs. 1,00,000 was also paid on 13.9.2014 towards execution of Sale Agreement. The Complainant got approval of Housing Loan from HDFC Bank vide letter dated 6th January, 2012. The Opposite Party delayed finalization and signing of the Agreements, as is clear from the series of e-mails placed on record. Mr. Gautham, representative of the Opposite Party informed the Complainant, vide e-mail dated 11.1.2013, that they were working on the agreement approval process and that they would get back positively in 2 to 3 working days. On being again enquired about updates, Mr. Gautham, vide e-mail dated 29.1.2013, again informed as follows “as discussed, we are working on your agreement and the delay is due to some internal approvals pending. We will positively come back to you by this weekend for further process”. The Opposite Party on one pretext or the other did not finalise the Sale Agreement or the Tripartite Agreement. The Complainant, vide e-mail dated 25th February 2013, addressed to Mr. Gautham, informed that he has already submitted Bank’s loan sanction for release of funds and requested for the action by the Complainant. He again sought to know the management decision on the loan account, so as to execute the Agreement for Sale Document, vide e-mail dated 14th August 2013. Due to lapse of time, the Complainant got another Home Loan sanctioned from IDBI Bank on 16.11.2013. Finally, Agreement of Sale was executed between the Complainant and the Opposite Party on 10th April, 2014, i.e. after 2 years of booking of the Flat. Again, on 22 August 2014, protracted correspondence started between both the Parties. Mr. Sheik Masthan, on behalf of the Opposite Party, sent an email on 22.9.2014 to the Complainant to arrange payment in 2 days or else the Flat booking would be cancelled. The Complainant sent e-mail to Mr. Masthan on 23rd September, 2014, informing that loan amount has been sanctioned thrice and to advise whether Tripartite Agreement is ready for execution so that funds could be released by the Bank to the Opposite Party. The Complainant also requested to execute the Tripartite Agreement or take the entire amount and register the flat. The Complainant again informed the Opposite Party, vide another e-mail dated 23.9.2013, that all Bank approvals has been provided and any delay was solely on their part to which Mr. Gautham replied that their team is working on the Tripartite Agreements and further guidance will be given. A fresh loan sanction letter from HDFC was obtained on 15.9.2014. On 1st October, the Complainant again sent an e-mail enclosing the sanction letter for execution of the agreements to advise Bankers to initiate disbursement.

8. On 15th November 2014, an email

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is sent by Mr. Masthan to the Complainant enclosing a copy of cancellation of Flat dated 10th November, 2014. 9. On merits, it is very clear from the above detailed correspondence, the Opposite Party delayed execution of the Sale Agreement and despite the Complainant obtaining several letters of loan sanction, has not executed the Tripartite Agreement with the Bankers. The Complainant has repeatedly reminded the Opposite Party to close the Agreements, but on one pretext or other as detailed above, the Opposite Party evaded finalizing the Agreements. The Complainant even offered to pay the entire cost of the flat vide e-mail dated 23.9.2014 but instead of accepting the offer or executing the Tripartite Agreement, the Opposite Party chose to cancel the Flat booking. This speaks of the callousness and indifference on the part of the Opposite Party and amounts to deficiency in service and Unfair Trade Practice. 10. In the letter dated 29.9.2011 of the OP, there is a clear mention in para 7 of the terms and conditions, that in case of delay of making payments for the first 30 days, an interest @ 18% p.a. will be levied and delay beyond 30 days will attract an interest @ 24% p.a. The Complainant paid Rs. 1 lakh as advance by cheque dated 28.9.2011 and Rs. 12,67,000 on 17.9.2011 totalling to Rs. 13,67,000 .He also paid Rs. 1 lakh on 13.9.2014 towards execution of sale-agreement. Having received the money, the Opposite Party did not close the Tripartite Agreement on one pretext or the other as mentioned above. OP would have merrily utilized the money so deposited and denied the Complainant a flat, pushed him to litigation involving expenditure and causing mental harassment. 11. In view of the above, the Opposite Party is directed to refund the entire amount received from the Complainant, along with compensation in the form of interest @ 18% per annum from the date of deposit till the date of payment. The Opposite Party shall also pay Rs. 10,000 as cost of litigation to the Complainant. The payment, in terms of this order, shall be made within six weeks from today. The Complaint stands disposed of accordingly. Complaint disposed of.
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