V.K. Jain, Presiding MemberOral:The Complainant/Respondent is present in person. He submits that he wants to argue his case himself. Accordingly, I have heard the learned Counsel for the Appellants and have also heard the Complainant/Respondent.2. M/s. Krishna Villa Apartment, Appellant in FA No. 310 of 2016, owned some land in Jagatpura, Jaipur and it entered into an Agreement with M/s. Gold Dream Builders & Developers for construction of residential apartments on the said land. The construction was to be carried out solely by M/s. Gold Dream Builders & Developers. The residential flats, to be constructed by the said builder, were to be shared between the Land Owner, M/s. Krishna Villa Apartment and the Builder, namely, M/s. Gold Dream Builders & Developers. 80% of the apartments could be sold by the Builder whereas 20% of the apartments were to come to the share of the Land Owner.3. The Complainant booked a residential apartment with M/s. Gold Dream Builders & Developers and Flat No. D-603 in the proposed project was allotted to him for a total consideration of more than Rs. 22,00,000/-. An Agreement to Sale was then executed on 17.1.2007 between the Land Owner, M/s. Krishna Villa Apartments, the Builder, M/s. Gold Dream Builders & Developers Ltd. and the Complainant, Mr. Pushpender Singh Sekhawat. In terms of the Agreement, the possession was to be delivered to the Complainant within 24 months of the commercial launch of the project.4. The Complainant also executed a Tripartite Agreement with M/s. Gold Dream Builders & Developers and Housing Development Finance Corporation Ltd. (HDFC Ltd.), Appellant in FA No. 370 of 2015. Under the said Agreement, a loan of Rs. 20,50,000 was sanctioned by HDFC Ltd. to the Complainant. Clause 12 of the Agreement executed between the parties required the Builder to pay the Pre EMI Interest till possession on the loan disbursed by HDFC Ltd. to the Complainant. The said Clause reads as under:“That the party of the second part called the Builder has agreed as a discount, to pay the Pre EMI Interest payable every month till possession, on the loan disbursed by the lender to the Borrower. The primary responsibility to pay the Pre EMI to HDFC shall, however, remain that of the Borrower and that he/she shall not be absolved of this responsibility and duty in any case whatsoever.”5. The construction of the flats did not commence, though part of the sanctioned loan was disbursed by HDFC Ltd. directly to the Builder. Since the construction of the flats was not forthcoming, the Complainant approached the concerned State Commission by way of a Consumer Complaint impleading the Land Owner, M/s. Krishna Villa Apartment, the Builder, M/s. Gold Dream Builders & Developers and the Financer, HDFC Ltd., as the Opposite Parties in the Complaint.6. The Complaint was resisted only by HDFC Ltd. Neither the Land Owner nor the Developer came forward to contest the Complaint.7. The State Commission, vide impugned Order dated 3.2.2015 directed as under:“1. That they should not recover any amount from the complainant prior to the delivery of possession of the allotted flat to the complainant.2. Amount of loan be recovered from the Opposite Party Nos. 1 and 2 who are the Original Debtor and the installments be received from the complainant in regular installments after delivery of possession of flat. The Opposite Party No. 3 is not entitled to recover interest whatsoever before handing over the possession.3. The Opposite Party Nos. 1 and 2 will pay Rs. 2,50,000, deposited by the Complainant, from the date of deposit till its actual payment along with interest @ 12% or possession of the flat be delivered within three months.4. With negligent acts of the Opposite Bank, the name of the complainant has been put in the CIBIL, hence, the Opposite Party No. 1 is directed that action be taken for removal of the name of the complainant from CIBIL.5. The Opposite Party Nos. 1 and 2 will pay separately Rs. 2,00,000 (Rupees two lacs only) for mental harassment and litigation cost of the complaint Rs. 25,000 (Rupees twenty five thousands only) and the Opposite Party No. 3 will pay Rs. 2,00,000 (Rupees two lac only) for mental harassment and litigation cost of the complaint Rs. 25,000 (Rupees twenty five thousands only) to the complainant within 30 days, if not paid within 30 days, interest @ 12% per annum on the above whole amount will be payable.”8. Being aggrieved from the Order passed by the State Commission, the Land Owner, M/s. Krishna Villa Apartment has approached this Commission by way of First Appeal No. 310 of 2016 whereas HDFC Ltd. has approached this Commission by way of First Appeal No. 370 of 2015.9. The first question which arises for consideration is as to whether the Complainant is entitled to any relief against the Land Owner, M/s. Krishna Villa Apartment. It is evident from a bare perusal of the Agreement to Sale executed between the Complainant, Land owner and the Builder that the entire obligation to construct the flats was upon the Builder, M/s. Gold Dream Builders & Developers. The construction was not to be carried out by the Land Owner, M/s. Krishna Villa Apartment. Therefore, if there has been a default on account of the flat having not been constructed, the said default is solely on the part of the Builder without the Land Owner being, in any manner, responsible for the said default. Admittedly, the flat was booked by the Complainant directly with the Builder and the payment was also made by him only to the Builder, M/s. Gold Dream Builders & Developers. The Land Owner was a party to the Sale Agreement, only because the land underneath the proposed construction was owned by it. Therefore, the State Commission, in my opinion, was not justified in directing the Land Owner to either deliver possession of the Apartment or refund the amount received from the Complainant. The direction for payment of compensation by the Land Owner was also not justified, there being no default on its part.10. As far as HDFC Ltd. is concerned, though as per Clause 12 of the Tripartite Agreement, despite the Builder having undertaken to pay the Pre EMI Interest till possession, the primary obligation to pay even Pre EMI to HDFC Ltd. was of the borrower, the Learned Counsel for the HDFC Ltd. states, on instructions, that they will recover the entire loan disbursed by them to the Complainant as well as interest payable on the said loan only from the Builder, M/s. Gold Dream Builders & Developers. He further submits that the grievance of the HDFC Ltd. in these Appeals is limited to the compensation awarded by the State Commission against them. In view of the said statement, I need not go into the question as to whether the Complainant is required to repay the loan which has been disbursed to him by HDFC Ltd. and/or interest on that loan. However, I am in agreement with the learned Counsel for HDFC Ltd. that in the facts and circumstances of the case, there was no justification for awarding any compensation against HDFC Ltd., there being no defect or deficiency in the services rendered by it to the Complainant.11. For the reasons stated hereinabove, the Appeals are disposed of with the following directions:1. The entire loan disbursed by HDFC Ltd. to the Complainant as well as interest payable on that loan shall be recovered only from the Builder, M/s. Gold Dream Builders & Developers;2. No compensation or costs of litigation shall be payable either by HDFC Ltd. or by the Land Owner, M/s. Krishan Villa Apartment to the Complainant;3. The Complainant shall be entitled to recover the entire principal amount paid by him directly to the Builder, M/s. Gold Dream Builders & Developers from them along with interest at the rate awarded by the State Commission;4. If M/s. Krishna Villa Apartment has been merged with M/s. Gold Dream Builders & Developers, the Complainant as well as the HDFC Ltd. will be entitled to recover the amount payable by the Builder in terms of this Order from the merged entity. In case, there is no such merger, the said amount shall be recoverable only from the Builder, M/s. Gold Dream Builders & Developers;5. The amount/FDR, if any, deposi
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ted by the Land Owner with the State Commission shall be refunded/returned to the Land Owner along with interest which may have accrued on that amount;6. The HDFC Ltd. shall take steps to get the name of the Complainant removed from the record of the CIBIL in respect of the transaction subject matter of this Consumer Complaint;7. If any amount/FDR has been deposited by HDFC Ltd. with the State Commission, that amount/FDR shall be refunded/returned to the HDFC Ltd. along with interest which may have accrued on it;8. If the possession of the allotted flat is delivered to the Complainant, the HDFC Ltd., in that case, will be entitled to proceed to recover the loan amount from the Complainant as per the terms of the loan agreement;9. The Complainant shall also be entitled to costs of litigation awarded by the State Commission only from the Builder, M/s. Gold Dream Builders & Developers.Appeal disposed of.