Shyamal Kumar Ghosh, Member
The appeal under section – 15 of the C.P. Act, 1986 has been directed against the judgment and order dated 24/07/2017 passed by Ld. DCDRF Kolkata Unit – ll in CC case no – CC/16/2017 wherein the Ld. Forum concerned while disposing of the said complaint case allowed the same on contest against the ops 1 and 2 with cost and expunged the ops 3 to 5 from any liability and being aggrieved by such order, the present appeal has been preferred by the appellant/ops 1 & 2.
The brief fact of the case is that a development agreement dated 12/07/2013 has been executed between Sri Subrata Sarkar & Rita Burman (land owners) and Md. Imran & Ram Nath Shaw (developers) wherein the land owners have agreed to authorize the developers to develop the land measuring area approx 2 cottahs 4 chittaks along with one storied building by constructing a new 3 storied building. Thereafter the complainant entered into an agreement for sale (Flat) dated 21/06/2015 with the land owners and developers. In the agreement for sale dated 21/06/2015, the complainant agreed to purchase a flat being no – 6 on the 2nd floor measuring about 520 sft super built up area on the western side of the building. The total consideration amount of Rs 11,75,000/- has been settled in this respect. Complainant has paid Rs 1,20,000/- to the developers ie ops 1 and 2 and as per payment schedule the complainant has also agreed to pay the balance amount of Rs 10,55,000/-.The complainant, thereafter has prayed for a loan before the UCO bank ie op 3 and to that he made an application on 14/12/2015. The loan was sanctioned by the op bank on 16/12/2015 in favour of the complainant at an interest rate of 9.7% pa with equated monthly installments of Rs 11,228/-. Subsequently the complainant along with developers ie ops 1 and 2 entered into a Tripartite Agreement in January 2016 with the op3 bank under various obligations. As per said agreement, the ops 1 and 2 were paid a sum of Rs 9,55,000/- on behalf of the complainant in two installments for the progress of the construction work. But the developers have failed to complete the flat in question within the stipulated period of time. Thereafter the complainant made a representation to the developers on 14/03/2016 about the cancellation of the agreement for sale and also prayed for refund of the money already disbursed by the bank. Thereafter the op bank made a further representation dated 16/04/2016 to the developers about refund of the entire amount of Rs 9,55,000/- already disbursed as per Tripartite Agreement along with interest within 15 days. In the meantime, the complainant made a representation to the UCO bank ie op 3 in the instant case, requesting for cancellation of loan agreement. But suddenly on 06/05/2016 the developers ops 1 and 2 sent a letter to the bank informing that the flat was ready to provide to the complainant and extra amount of Rs 53,040/- would be paid for extra work. On receipt of such letter the complainant visited the said premises and found that the construction was totally incomplete. Thereafter the complainant sent a legal notice to the developers stating for cancellation of the agreement for sale and also prayed for refund of Rs 1,20,000/- which was paid by him as a part payment. Thereafter, the complainant’s Ld. Advocate sent another letter to the op bank with a request for issuing ‘no objection’ certificate upon necessary payment of interest till March 2016. But, no response came from the side of op bank in this respect. Thereafter, the op bank suddenly sent a letter dated 02/12/2016 to the complainant for payment of outstanding balance amount of Rs 10,24,456/- against the aforesaid loan. Under such situation, having no other alternative, the complainant knocked at the door of the Ld. Trial Forum for getting proper relief.
The ops 1 and 2 developers contested this case by filing written version stating inter alia that an agreement has been executed between the complainant and the ops. Consideration amount of Rs 1,20,000/- in respect of flat has been paid by the complainant as a part payment. The ops also stated that they would be permitted to claim extra amount for extra work as per agreement. The construction work of the said flat was fully completed, but the complainant willfully neglected to execute and register the deed of conveyance. Regarding payment of loan amount, the ops stated that the matter was exclusively related with complainant and op bank. The ops also stated that Sri Dipankar Sinha, relative of the complainant was present at the time of execution of the sale agreement. There was no fault or deficiency in service on the part of ops. So the instant case is liable to be rejected.
OP 3 also contested this case by filing written version stating inter alia that the instant case is not at all maintainable against the op bank. It is further stated that the op bank sanctioned a credit facility of Rs 10.55 lac in favour of the complainant under UCO bank home loan scheme. The complainant entered into an agreement with UCO bank wherein he agreed to repay the loan amount in 177 EMI @ Rs 11,228/- with an interest of 9.70%. On 24/03/2016 the complainant wrote a letter to the developer stating inter alia that the complainant wanted to cancel the said agreement as the complainant had an eager to opt higher study and as such he had no interest to continue the aforesaid loan. On 22/04/2016 by way of letter, the op bank requested the complainant to pay entire amount with interest. The said bank already filed a suit/application before the Debt Recovery Tribunal, Kolkata, being OA no – 74 of 2017 against the complainant claiming for a sum of Rs 10,33,457/- along with interest and the Hon’ble DRT has pleased to pass a restraining order on the said event. Accordingly the instant complaint case is liable to be dismissed as against the op3 bank.
Ld. Counsel appearing for the ops 4 and 5 land owners in the instant case, contested this case by filing written version stating inter alia that the Power of Attorney has already been executed in favour of ops 1 and 2 developers in the instant case. They did not receive any consideration money from the complainant and as such they had no obligation towards the complainant.
Ld. Counsel appearing for the appellants / ops 1 & 2 drew our attention to the observations of Ld. Forum concerned and pointed out that the Forum concerned completely ignored and overlooked the materials and documents on record while passing the impugned order dated 24/07/2017. The Ld. Counsel also submitted that the matter is still pending in the Hon’ble DRT, so at this stage the instant CC case is not maintainable in the Ld. Consumer Forum and as such the Ld. Counsel has prayed for setting aside the impugned judgment dated 24/07/2017 passed by the Ld. Trial Forum.
The Ld. Counsel appearing for the complainant /respondent 1 submitted that the flat constructed by the ops 1 and 2 is not habitable in condition. The said construction was illegal/un-authorized and as such the KMC issued a STOP WORK NOTICE to the ops 1 and 2 developers. For the aforesaid reasons, the complainant was not interested to take the said flat. There is a clear gross negligence on the part of the ops 1 and 2 developers and accordingly there is no wrong in passing the judgment dated 24/07/2017. The Ld. Counsel in this respect has prayed for dismissal of the instant appeal filed by the appellant / ops 1 and 2 developers with cost.
None appears on behalf of respondent 2/UCO bank and respondents 3 & 4/land owners.
We have heard Ld. Counsel for both sides and have also carefully gone through the materials on record along with impugned order dated 24/07/2017.
Before entering into the main issues involved in the instant consumer case, at first we have to decide whether the said case is at all maintainable in the Consumer Forum/Commission or not.
It is admitted fact that the op bank has sanctioned a term loan being account no – 19870610004777 under the UCO HOME LOAN SCHEME in favour of the complainant and Mr Satya Ranjan Das on 16/12/2015 with a credit limit amounting to Rs 10,55,000/- which is clearly revealed from the annexure - D lying in the case record. It is admitted fact that a Tripartite Agreement has been executed between the bank, builder and borrower/complainant in the month of January 2016 in respect of purchase of flat wherein it has been decided that if the borrower / complainant desires to withdraw from the agreement or in the event of the cancellation of the allotment of the property for whatsoever reasons or if he fails to pay the balance amount ……..the contract between the builders and the borrowers is terminated or rescinded for whatsoever reasons, the builder shall refund the entire amount received by them along with interest to the bank. In this respect the op bank has issued a letter dated 16/04/2016 addressed to the developers ops 1 and 2 demanding the outstanding dues. The op bank also issued another letter dated 02/12/2016 addressed to the complainant demanding outstanding amount with interest.
So, from the four corner of the record, it is clear to us that after disbursing the loan amount from the end of the op/bank in favour of the complainant, neither the developers nor the complainant re-paid the amount of loan. Thereafter, the op bank has already filed an application before the Debt Recovery Tribunal, Kolkata being O.A. No – 74 of 2017 against the complainant claiming for a sum of Rs 10,33,457/- along with accrued interest and the Hon’ble DRT has passed a restraining order over this matter which is clearly revealed from the written version filed by the op/bank.
Now we try to analysis the legal field in the above referred case. Section – 18 in the Recovery of Debts Due to Banks & Fina
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ncial Institutions Act, 1993 Provides on and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court and High Court exercising jurisdiction under Arts. 226 and 227 of the Constitution) in relation to the matters specified in Sec – 17. So, under such circumstances, the proposition of law is that section – 18 of DRT Act clearly bans the jurisdiction of Consumer Court to entertain any matter when the same is pending for disposal in the Hon’ble DRT. In this regard, reliance can be placed upon the decision of Hon’ble NCDRC in Bank of Baroda vs Raj Kumar Singh, reported in III(2014) CPJ 530 and another decision in Saumya Banerjee vs Canara Bank reported in IV (2018) CPJ 234. Keeping in view of the above observations, we are of the view that the instant consumer case is not at all maintainable in the present Forum. Accordingly we allow the said appeal without cost and set aside the impugned order dated 24/07/2017. The instant appeal stands disposed of as per above observations.