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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member
Pandav Roy and Ors. —Appellants
versus
Merlin Projects Ltd. and Ors. —Respondents
First Appeal No.1822 of 2019 and First Appeal No.1868 of 2019
Decided on 4.1.2022
Consumer Protection Act, 1986 – Section 19 [Consumer Protection Act, 2019 – Section 51] – Services – Banking – Appeal against order of State Commission – Tripartite Agreement dated 21.01.2004, Opposite Party No.3 i.e., Union Bank of India was supposed to release the loan amount after equitable Mortgage – Whether Bank was deficient in service in releasing the loan amount without creating an equitable mortgage – As per the language of the Tripartite Agreement dated 21.01.2004, Opposite Party No.3 i.e., Union Bank of India was supposed to release the loan amount after equitable Mortgage was created but it is observed that the Bank released the loan amount before and without creating any equitable mortgage – Therefore, the Bank also failed to release the amount of Rs.1,18,750/- withheld for stamp duty, due to which the sale deed could not be executed – Thus, National Commission endorses the observation made by State Commission that Respondent No.3/Bank was deficient in service in releasing the loan amount without creating an equitable mortgage – Therefore on facts, State Commission erred by not fixing the liability on Respondent No.3, when deficiency in service on the part of Respondent No.3 is established – Appeal disposed off. [Paras 19 to 21].
Held: First Appeals are disposed of in the following terms:-
(i) Opposite Party No.1 is directed to make payment of Rs.25,63,896/- in lieu of the property subject to deduction of Rs.25,00,000/- which has already been deposited by OP No.1 Company with the State Commission and withdrawn by the Complainants.
(ii) Opposite Parties Nos.1 & 3 are further directed to make payment of Rs.5 lakhs each as compensation for harassment and mental agony caused to the Complainants due to deficiency in service;
(iii) They shall also pay Rs.50,000/- each as costs of litigation to the Complainants;
(iv) Above payments shall be made within 6 weeks from the date of this order, failing which the amount shall carry interest @ 9% p.a. from the date of the order till its realization.
Result: Appeal disposed off.
ORDER
C. Viswanath, Presiding Member.—Appeal No. 1822 of 2019 is filed by the Complainants under Section-19 of the Consumer Protection Act, 1986 against the Order dated 13.08.2019 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the “State Commission”) in Complaint No.SC/07/O/2007.
2. Cross Appeal No. 1868 of 2019 has been filed by the Opposite Parties No.1 and 2 under Section 19 of the Consumer Protection Act, 1986 against the Order dated 13.08.2019 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the “State Commission”) in Complaint No. SC/07/O/2007.
3. The case of the Complainants is that on 01.05.2003 they entered into an Agreement with Opposite Party No.-1 for purchase of a ‘Row House’ being House No.B-15 in the Complex “The Tarrace” at Merlin Greens situated at Mouza, Kriparampur, P. S. – Bishnupur, District – South 24 Parganas for a total consideration of Rs.14,25,000/-. Complainants paid Rs.50,000/-, vide cheque No.745541 dated 01.05.2003, towards earnest money. The Complainants also paid a sum of Rs.1,93,750/- towards the balance of earnest money totaling to Rs.2,43,750/-. Supplementary Agreement was executed on the same day i.e., 01.05.2003. Thereafter, the Complainants approached Opposite Party No.-3 for obtaining house loan of Rs.15,00,000/- which was duly sanctioned. Thereafter, Tripartite Agreement between the Complainants, Opposite Party No.1 and Opposite Party No.-3 was executed on 21.01.2004. Opposite Party No.-3 released a sum of Rs.13,81,250/- directly to Opposite Party No.-1 out of the sanctioned House loan of Rs.15,00,000/- and kept a sum of Rs.1,18,750/- for registration of the Deed of Conveyance. The Complainants paid in total Rs.16,25,000/- out of which Rs.14,25,000/- was the total consideration for the Row house and Rs.2,00,000/- towards contribution towards the Corpus Fund and for other charges like maintenance charges etc. The Complainants got possession of the house on 20.04.2004 and Opposite Party No.2 provided water supply, electricity, generator service and security services. On 30.06.2004, the Complainants requested Opposite Parties No.1 & 2 to get the Deed of Conveyance duly registered in their favour, but the same was not done. Opposite Party.2 informed the Complainants, vide letter dated 23.10.2006, that since they failed to fulfil their financial obligation, cheque of Rs.1,93,750/- being dishonored twice and default in payment of installments to Opposite Party No.3 i.e., Bank, the Supplementary Agreement dated 01.05.2003 stood cancelled. The Complainants would be treated as trespassers and had to vacate the Row House. All the basic facilities were withdrawn and the Complainants were compelled to shift from the Row House to a rented house on 23.10.2006. Opposite Party No.2 took repossession of the property and transferred the same to a third party in collusion with Opposite Party No.3 at Rs.20,51,000/- though it was officially valued at Rs.31,25,100/- as per the report of the Sub-Registrar Office. Though the Complainants were ready and willing to repay their home loan in full, they were not allowed.
4. Aggrieved by the action of the Builder, the Complainants filed a Consumer Complaint in the State Commission on 01.03.2007 which was disposed by the State Commission in favour of Complainants by order dated 24.02.2009. Challenging the said order, the Builder preferred an Appeal in the National Commission, being First Appeal No.128 of 2009, which was dismissed, vide order dated 23.05.2014.
5. Aggrieved by the order of this Commission, the Builder filed Special Leave Petition before the Hon’ble Supreme Court, being SLP No.21217 of 2014 which was later converted into Civil Appeal No.-6849/15. Hon’ble Supreme Court 2014, vide order dated 01.09.2015, set aside the order passed by the National Commission as well as State Commission and remanded the matter to the State Commission with a
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