M. Shreesha, Member
Challenge in this First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short the “Act”) is to the order dated 10.04.2017 passed by the West Bengal State Consumer Disputes Redressal Commission, (for short “the State Commission.”) in CC No. SC/07/O/2007.
2. By the impugned order, the State Commission has allowed the Complaint and directed the First and Second Opposite Parties to pay a sum of ?50,00,000/- in lieu of the subject property within a period of 60 days from the date of order failing which it would carry interest @ 9% p.a. from the date of order till its full realization. The State Commission had also directed to pay a sum of Rs.10,00,000/- towards compensation and an equal amount towards costs to be payable within 30 days from the date of order, in default the said amount would also carry interest @ 9% p.a. from the date of order till realization.
3. Succinctly put, the facts of the case are that Mr. Pandav Roy and his father Mr. Partha Roy (hereinafter referred to as “the Complainants”) had entered into an Agreement on 01.05.2003 with Merlin Projects Ltd. (hereinafter referred to as “the First Opposite Party”) to purchase a Row House measuring 3 cottahas having a total constructed area of 1380 sq. ft. bearing No. B-15 in the Complex titled “The Tarrace” at Merlin Greens situated at Mouza Kriparampur, P.S. Bishnupur, District South 24 Parganas at a total consideration of Rs.14,25,000/-. They paid a sum of Rs.50,000/- to the First Opposite Party towards earnest money vide cheque no. 745541 dated 01.05.2003 drawn on Bank of Baroda. Thereafter a Supplementary Agreement was also executed between the parties on the same day i.e. on 01.05.2003 regarding maintaining of Corpus Fund. The Complainants later on also paid the balance amount of earnest money to the tune of Rs.1,93,750/- and thus paid a total sum of Rs.2,43,750/- towards full and final settlement of earnest money which was duly reflected in the Tripartite Agreement between the parties executed on 21.01.2004. It was stated that the Complainants had approached Third Opposite Party Bank i.e. Union Bank of India for obtaining a House Building Loan of Rs.15,00,000/- which was duly sanctionedand Third Opposite Party Bank released a sum of Rs.13,81,250/- to the First Opposite Party out of the sanctioned loan amount of Rs.15,00,000/- keeping a sum of Rs.1,18,750/- for the purpose of registration of Deed of Conveyance. Thus the First Opposite Party received a total sum of Rs.16,25,000/- out of which Rs.14,25,000/- was consideration money and Rs.2,00,000/- was towards contribution in the Corpus Fund. The Complainants were put in possession on 20.04.2004 and the Opposite Parties provided facilities such as water supply, electricity, generator service and security. On 30.06.2004, the second Complainant requested the Opposite Parties to get the Deed of Conveyance duly registered in their favour but the same had not been done. It was stated that the Opposite Parties despite receipt of entire consideration amount and also Rs.2,00,000/- towards contribution to the Corpus Fund did not execute the Sale Deed. Subsequently, by letter dated 23.10.2006, second Opposite Party informed the Complainants that since they hadfailed to fulfil their financial obligation, in as much as the cheque of Rs.1,93,750/- had been dishonoured twice and they had also defaulted in payment of instalments to the Bank, the Deed of Agreement dated 01.05.2003 had been cancelled and they were being treated as trespassers. Complainants were asked to vacate the subject premises. As all the basic facilities had been withdrawn, the Complainants were compelled to shift from the said premises on 23.10.2006. The first Complainant replied vide letter dated 30.10.2006 to the effect that total consideration money had already been paid to the Opposite Parties and thereafter they were given possession of the subject premises. It was stated that the first Opposite Party had taken the possession of the subject property malafidely and transferred the same to a third party in collusion with the third Opposite Party Bank at Rs.20,51,000/- though it was officially valued at Rs.31,25,100/-. It was submitted by the Complainants that although they were ready and willing to repay their home loan in full but with the designed motive they were not allowed to do the same. Aggrieved, the Complainants filed the Complaint seeking directions to the Opposite Parties to pay Rs.56,25,000/- towards compensation in lieu of the subject property; Rs.16,25,000/- towards reimbursement of the house rent paid by them after being unlawfully evicted from their property; Rs.10,00,000/- towards damages for harassment and mental agony and Rs.10,00,000/- towards costs.
4. The First Opposite Party (hereinafter referred to as “Developer”) and the Second Opposite Party namely Manager of the First Opposite Party filed their Written Version. It was stated that the cheque of Rs.1,93,750/- issued by the Complainants towards the earnest money was dishonoured twice and the said amount was never paid. The First and Second Opposite Parties justified the cancellation of the Agreement on the ground that the Complainants were under obligation to pay Rs.10,00,000/-, Rs.3,00,000/-and Rs.2,00,000/- by 20.05.2003 and 30.05.2003 respectively besides they were liable to pay an additional sum of Rs.75,000/- at the time of taking possession of the said property. It was stated that as the Complainants were not willing to pay the dishonoured cheque amount of Rs.1,93,750/-, the Agreement was cancelled.
5. The Third Opposite Party i.e. Union Bank of India filed a separate written version. It was stated that due to non-payment of housing instalment, the housing loan of the Complainants was classified as Non Performing Asset (briefly stated as ‘NPA’) in March, 2007 and a demand notice was issued to them on 24.04.2007 u/s 13(2) of Securitisation And Reconstruction of Financial Assets And Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the SARFAESI Act”) and on expiry of 60 days the possession notice U/s 13(4) of SARFAESI Act was issued on 24.08.2007. As noted-above, the State Commission allowed the Complaint and granted the aforenoted relief.
6. However, in the said Complaint, Union Bank of India (in short “the Bank”) was not impleaded as a Party. The Bank wrote a letter dated 24.04.2007 to the Developer invoking the SARFESI Act against the subject property. An auction notice was published in the newspapers in August, 2007. The Complainants wrote a letter dated 07.08.2007 to the Bank requesting further 60 days period for making payment. A Writ Petition bearing W.P No. 18936(W) of 2007 was also filed before the Hon’ble Calcutta High Court, inter alia, impugning the steps under the SARFAESI Act adopted by the Bank. Vide its order dated 24.08.2007 in AST No. 1076 of 2007. The Hon’ble Calcutta High Court permitted the Union Bank to proceed with the matter and take the possession of the property under the SARFESI Act. From 24.08.2007 to 27.08.2007, the Bank took possession of the property and recorded the Minutes of taking possession which was signed by the second Complainant.
7. The State Commission, vide its order dated 24.02.2009, allowed the Complaint and directed the Appellants to execute and register the Deed of Conveyance upon payment of Registration Costs and also to pay compensation to the tune of Rs.50,000/- along with Rs.5,000/- towards the costs. The Developer filed an Appeal, bearing No. FA/128/2009 against the said order before this Commission. This Commission vide its order dated 23.05.2014 allowed the said Appeal and set aside the directions of the State Commission qua execution and registration of the Deed of Conveyance upon payment of Registration Costs. However, this Commission directed the Appellants to pay a sum of Rs.50,00,000/- as compensation to the Complainants in lieu of the suit property along with Rs.50,000/- towards costs.
8. Against the said order, the Developer preferred a Special Leave Petition before the Hon’ble Supreme Court. Vide its order dated 01.09.2015, the Hon’ble Apex Court set aside the said order and remanded the matter back to the State Commission with a direction for deposit of Rs.25,00,000/- before the State Commission.
9. The State Commission disposed of the same with the afore-noted directions. Hence the present Appeal.
10. We have heard the Learned Counsels for the parties and perused the record.
11. It is the case of the Respondents/ Complainants that the possession of the unit was delivered on 20.04.2004 after the Appellant had received the full consideration on 25.02.2004; that there was no further liability and hence the Appellant was duty bound to enter into a Sale Deed or Conveyance Deed, which was to be given to Union Bank of India for approval; that the local Registry office was to calculate the applicable Stamp Duty which was to be paid by the Bank; that despite repeated requests the Deed of Conveyance was never entered into; that the property could not be registered as the requisite amount for Stamp Duty payment was never received; that the question of payment of Stamp Duty by the Bank did not arise as the Appellant did not enter into any Sale Deed or Deed of Conveyance and did not mention the correct stamp duty which is to be paid; the Appellant withdrew all essential services on the property on 23.10.2006 thereby rendering it inhabitable; despite receipt of the entire sale consideration of Rs.16,25,000/- which included an amount of Rs.2,00,000/- for provision of essential services and usage of the in-house club, the Appellant did not pay the membership fees and therefore the Complainants were debarred from the membership of the Club; the Appellant had promised to execute the Sale Agreement upon payment of 15% of the consideration and despite repeated requests for registration, failed to do so, which amounts to deficiency; the present Complaint was filed on 01.03.2007, which was prior to the initiation of the SARFAESI proceedings and much after the Complainants were forced to part with their property; the initiation of SARFAESI proceedings was challenged before the High Court by way of Writ Petition and that the Appellant is deficient in service for all the aforenoted reasons. Learned counsel also vehemently contended that the Bank was also deficient as it had disbursed the entire loan amount without creation of mortgage and without a request for disbursement from the borrower; that entire amount was released on 25.02.2004 by the Bank without there being any demand or request from the Complainants behalf; that the information received under RTI on 24.08.2007 evidences that prior to loan disbursement the built up house was not inspected by the Bank appointed Architect; that after handing over of possession of the subject flat, the Bank did not receive the duly Registered Sale Deed/Deed of Conveyance; that after disbursement of amount of Rs.13,81,250/- against the subject loan amount, an amount of Rs.1,18,250/- was still remaining as balance in the Home Loan Account of the borrower for meeting stamp duty etc.; after disbursement of the loan, the borrower has to follow up with the Developer for completion of the required formalities and the Bank was under no obligation to complete the same.
12. It is the Complainants’ case that the Bank on 14.06.2013 inter alia wrote, “you are very much aware that in our favour no Conveyance Deed has been executed by M/s Merlin Projects Ltd. Hence the question of deposit of such Conveyance Deed with Bank for creation of equitable mortgage does not arise. Since the subject property had not been conveyed in your favour by M/s. Merlin Projects Ltd., we had informed M/s Merlin Projects Ltd. that Bank had issued sale certificate in favour of M/s. Muraka Advisory and Holdings Private Ltd. under Securitisation And Reconstruction of Financial Assets And Enforcement Security Interest Act, 2002 and M/s Merlin Projects Ltd. may execute necessary conveyance deed in favour of M/s. Muraka Advisory and Holdings Private Ltd.”
13. It was argued by the learned Counsel appearing for the Complainants that the loan was disbursed by the Bank contrary to RBI norms without creating any equitable mortgage and thus amounts to unfair trade practice. Learned Counsel also contended that the State Commission has rightly awarded Rs.50,00,000/- to be paid in lieu of property within 60 days from the date of order otherwise the amount shall carry interest @9% p.a. from this date till realization with Rs.10,00,000/- as compensation and Rs.1,00,000/-as litigation expenses to be paid within 30 days with default interest @ 9% p.a. The cost of the unit was Rs.16,25,000/- as on 2003 and the same has increased. If the Housing Price Index is taken which is issued by the National Housing Board, the price of the flat is valued at Rs.50,00,000/-. He relied on the principle of restitutio in integrum which states that one should get as near as possible to the same, which would put the party which has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation.
14. The main contention of the Appellants is that the only finding of the State Commission against the Appellant is that despite payment of entire sale consideration, the deed of conveyance was not executed which amounts to deficiency of service. Learned counsel appearing for the Appellant vehemently contended that the entire sale consideration includes stamp duty and registration charges which was not paid by the Complainants as the Bank had retained a sum of Rs.1,18,750/- for the purpose of registration of the Deed of Conveyance. Learned counsel submitted that this is a contrary finding as on one hand, the State Commission has observed that there was deficiency of service on behalf of the Appellant as the entire sale consideration was received, but on the other hand, has given a finding that the Bank had retained a sum of Rs.1,18,750/- for the purpose of registration of Conveyance Deed. Hence, the finding of the State Commission holding the Appellants liable for non-registration of the Sale Deed is contrary to its own observations. He further argued that there was no finding by the State Commission with respect to withdrawal of essential formalities to the subject property and also with respect to failure of payment of membership fee to the Club Authorities and further contended that in the entire project of the ‘Merlin Greens’, the Appellant had registered flats in favour of the purchasers who have paid the Stamp Duty and Registration Charges which also includes the adjoining row house.
15. A brief perusal of the record shows that the allegations against the Developers are four fold:
1. that they failed to collect the correct stamp duty amount, which resulted in the non-execution of the sale deed;
2. withdrawal of essential services;
3. failure to pay membership fee to the club authorities;
4. Appellant is not the sole owner of the subject property.
The allegations against the Bank are five fold:
1. that the Bank had disbursed the loan amount without inspecting the subject property by a Bank appointed Architect;
2. that the Bank did not ascertain whether the Builder transferred the title of the subject property to the borrower by means of a registered Sale Deed.
3. that the Bank did not release the balance in the Home Loan Account for meeting the Stamp Duty expenses.
4. that the Bank did not follow up with the Builder for the completion of required formalities;
5. and as under SARFAESI proceedings illegally sold the subject property to the third party.
16. The State Commission has obser
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ved that the correct stamp duty amount was not estimated by the Appellant herein and therefore the question of payment of stamp duty by the Bank did not arise. We are of the considered view that the State Commission has not appreciated the evidence on record and has not examined the role of deficiency in service of the Bank. We find force in the contention of the learned counsel for the Appellant that there is no finding in the order of the State Commission with respect to withdrawal of essential services to the subject property, which is one of the important points of consideration since it is the Complainant’s main case that it was only on account of withdrawal of essential services i.e. cutting of the supply of water and electricity by the Developer that they were forced to vacate the subject property. 17. Having regard to the fact that the State Commission has not given any finding with respect to the aforentoed withdrawals and also has not considered or appreciated the role of the Bank and also keeping in view that the Complainants did not prefer any Appeal, we are of the considered opinion that in the interest of justice, the matter should be remanded back to the State Commission to be decided afresh. The amount which has been withdrawn by the Complainants shall be retained till the disposal of the Complaint. 18. As this is a second round of litigation, the State Commission is requested to dispose of the matter expeditiously preferably within three months from the date of first appearance of the parties before them i.e. 18.03.2019 and not later than six months. Parties are directed to appear before the State Commission on 18.03.2019. The statutory amount shall stand transferred to the Appellants with accrued interest if any.