IMPORTANT POINT
Parallel proceedings - When the recovery proceedings initiated against the Complainant and builders, and matter is still pending before DRT, the present complaint is not maintainable before Sate Commission.

ORDER

Huluvadi G Ramesh, President—The Complainant filed complaint U/s.17 of CPA 1986 seeking directions against OP.1 & 2/builders, OP.3/owner to refund the amount paid by him of Rs.23 lakhs vide cash and availing loan along with interest; to pay compensation of Rs.10,46,000/- towards mental agony; to pay prevailing rent; direction against OP.1/ bank to recover the loan from OP.1 to 3; to provide relief to Complainant by granting interest free EMI and further relief as deem fit in the circumstances of the case.

2. OP.1 placed exparte while OP.2 & 3 remained absent, and OP.4 appeared through his counsel and filed version seeking dismissal of the complaint against him as there was no role of him in the dispute between the Complainant and builder.

3. To substantiate the case, Complainant files his affidavit evidence and marked the documents at Ex-C1 to C12 while OP.4 also files his affidavit evidence. Heard.

4. On going through the documents, it is found that OP.1 & 2 have entered into a registered Joint Development Agreement (JDA)/Ex-C1 dtd.05.11.2012 with OP.3 to develop the property under the name and style by ‘Prabhavathi BLISS-II’ by constructing apartment buildings. Further, OP.1 & 3 by virtue of JDA, and GPA/Ex-C2 on behalf of OP.2, entered into sale and construction agreement/Ex-C3 & C4 dtd.05.12.2014 with the Complainant by fixing the sale consideration of Rs.22,43,040/- towards purchase of Flat No.G30, Ground floor having super built up area of 1026 sft, undivided 238 sft with one car parking in the said apartment building. Out of the said sale consideration Complainant has paid Rs.1 lakh vide receipts/Ex-C6 to C8 in the year 2014 and availed loan from OP.4 bank of Rs.22 lakhs. In this regard, the Complainant and OP.1 had entered into a Tripartite Agreement/Ex-C9 dtd.31.12.2014 with OP.4 for a loan of Rs.22 lakhs and authorised to OP.4 to disburse the said loan directly to OP.1. According to the agreements, OP.1 agreed to deliver the flat within 14 months with 2 months grace period from the date of construction agreement. It is the contention of the Complainant, that his hard earned money was paid by him through his salary as EMI to OP.4 bank and in turn OP.4 had debited the loan amount to OP.1. It is found that, OP.4 despite debiting the said amount, OP.1 failed to construct the flat from 2015. When OP.1 had not kept up the promise as undertaking and not delivered the said flat, he stopped to pay the EMI and till 12.09.2017 he said to have been paid the EMI of Rs.3,22,401/- which is evident from Ex-C11/bank statement. It is said that, the Criminal case had also been registered against OP.1 in Crime No/0799/2016 with regard to non-constructing the apartment and escaping from doing his duty as per the agreements.

5. It is the contention of OP.4 that as per clause 17 of the Tripartite Agreement/Ex-C9, in case of default of repayment of the loan, the Complainant shall be liable for repayment of the entire amount outstanding. In case the builders/OP.1 to 3 fails to complete the project or cancels the sale agreement with the Complainant, the builder is liable to make payment to the OP.4 and if the Builder fails to make the repayment, the Borrower/Complainant shall be liable to make the repayment thereof. As such, when Complainant stopped to make payment towards EMI, so also, Builders not turned up, OP.4 initiated suit against them by filing Original Application/8/2021 before the Debts Recovery Tribunal (DRT), Bengaluru. In this regard files a copy of the said suit, wherein could see the Petitioner as Canara Bank i.e. OP.4 herein and Respondents as S.Ravishankar/Complainant and Prabhavathi Infrastructures and Others/builders/OP.1 to 3 herein. The next date of hearing is listed on 24.01.2023. On perusal of the said suit copy and upon hearing learned counsel for OP.4, since the recovery proceedings initiated against the Complainant and builders, and matter is still pending before DRT, we are of the view that, the present compla