JUSTICE ANOOP KUMAR MENDIRATTA, MEMBER

ORDER

1. Factual Narration in Brief

Present complaint has been preferred under Consumer Protection Act, 1986 seeking inter alia refund of amount deposited towards consideration of the flat as under:-

(i) Refund by the Respondent No.1 of amount of Rs.63,00,000/- along with interest @ 18% per annum from the date of payment i.e. 30.04.2015 thus totaling a sum of Rs.98,00,000/- as on 30.05.2018.

(ii) In the alternative, Refund by the Respondent No.2 of amount of Rs.14,88,945/- paid as EMIs along with interest @ 18% per annum & direct the Respondent No.2 not to collect further EMIs or any other amount from the Complainant and to collect the loan amount plus whatever interest and other legally permissible charges from the Respondent No. 1 and credit it to the Complainants' loan account.

(iii) Refund by the Respondent No.1 of amount of Rs.11,85,000/- along with interest @ 18% per annum from the date of payment i.e. 07.05.2015 thus totaling a sum of Rs.18,24,900/- as on 30.05.2018.

(iv) Compensation for causing Mental agony, harassment & torture etc.: Rs.5,00,000/-.

(v) Litigation Expenses : Rs.1,00,000/-

(vi) Pendente-lite interest & Cost: As may be allowed by this Hon'ble Commission.

(vii) Any other or such further orders that this Hon'ble Commission may deem fit and proper under the facts and circumstances of the case of the Complainant may also be passed for which act of kindness the humble complainant shall forever pray as in duty bound.”

2. In brief, after negotiations, complainant booked a flat with OP-1 (Rudra Buildwell Projects Pvt. Ltd.) in the project “Palance Heights’ at GH-02B, Sector-1, Noida Extension, Greater Noida, in the month of April, 2015 for consideration of Rs.76,54,000/- plus service tax. Complainant made a payment of Rs.11,85,000/- by 07.05.2015 from his personal resources and approached OP-2 for taking financial assistance for loan amount of Rs.63,12,407/-. The loan was sanctioned by OP-2 @ 9% p.a. (floating) on 28.04.2015. As per the complainant, the Builder Buyer Agreement was not in subsistence at the time of availing the loan on 28.04.2015 but an amount of Rs.63,00,000/- was credited by OP-2 in favour of OP-1, contrary to the payment plan, which was linked with construction of project. Complainant alleges that OP-2 should have released the loan amount only after ascertaining the terms and conditions in the Builder Buyer Agreement executed on 07.05.2015 and the same would have reduced the net payable interest by the complainant if the loan was released in stages linked with construction.

3. It is further the case of complainant that after unearthing the irregularity committed by OP-2 Bank in releasing of entire loan amount without being linked to construction plan, he tried to seek reasons for the same from the OPs. However, the same yielded no success. In the afore-said circumstances a legal notice dated 06.01.2018 was served on the OPs. OP-2 Bank responded to the afore-said legal notice. However, finding no response from OP-1, present complaint was preferred inter alia seeking refund of the consideration amount, as noticed above.

4. Vide Order dated 26.03.2019, right to file written version by OP-2/ ICICI Bank was closed as the same was not filed within the stipulated period.

5. In the written version filed on behalf of OP-1, maintainability of complaint was challenged on the grounds of pecuniary jurisdiction. It was claimed that the construction of the project is in advanced stage and the units are likely to be tentatively delivered around March, 2019. OPs further submitted that complaint was pre-mature, since the expected date of delivery of possession was 36 months with grace period of 12 months in terms of Builder Buyer Agreement (BBA) executed in April, 2015. It may be noticed at this stage itself that the date of agreement is missing in the Builder Buyer Agreement and the same is claimed by the complainant to have been executed on 07.05.2015. OP-1 further av