National Consumer Disputes Redressal
Jayant Kumar Dutta vs Three Platinum Softech Pvt. Ltd. & 2 Ors. on 18 July, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1223 OF 2019 1. JAYANT KUMAR DUTTA ...........Complainant(s) Versus 1. THREE PLATINUM SOFTECH PVT. LTD. & 2 ORS. ...........Opp.Party(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Complainant : Mr. Rajeev Ranjan Kumar, Advocate For the Opp.Party :
Dated : 18 Jul 2019 ORDER
Hon'ble Mr. Dinesh Singh, Member
1.We heard learned counsel for the complainant on admission, and perused the material on record.
2. This complaint has been filed against a builder co. (Three Platinum Softech Pvt. Ltd.) and its two directors (Vipul Jain and Deepak Kumar Garg) and a bank (Axis Bank) for alleged deficiency in service and unfair trade practice.
3. For ready appreciation of the specificities of the case, we may first quote the following extracts:
" Date of Events and Synopsis"
06/03/2014 An Allotment cum Flat Buyer Agreement was got executed between O.P. No. 1 and Complainant pertaining to Unit No. G 403, Floor-4th, Type-3 Bedroom + 2T (small) (1350), Super Area-1350 Sq ft, Covered Car Parking-1, Basic Sale Price - Rs. 71,55,000/-, total other charges - Rs. 58,750/- and total cost of the Flat / Unit was Rs. 72,13,750/- (the Unit / Flat). and possession within 36 months.
17/01/2014
- 04/04/2014 O.P. no. 2 sanctioned the Loan Account bearing no. PHR06300981572 for an amount of Rs. 45 Lacs to complainant @ 10.25% as base rate under floating rate linked to base rate, Instalments - 218 months and on 27/03/2014 a Tripartite Agreement among Complainant and both O.P. No. 1 abd 2 was got executed and on 02/04/2014 and O.P. No. 4 on 04/04/2014 in one sort disbursed Rs. 36,49,630/-.
Jan 2017 O.P. no. 2 instituted O.A. no. 133 of 2017 in DRT-II, New Delhi against the Complainant and Op. No. 1 Builder.
09/08/2017 O.P. No. 2 cancelled the allotment of the Unit 403 due to default in payment / EMI and informed the same to O.P. Builder.
08/03/2018 OP Bank instituted Sec 138 NI Act CC case no. 9025/2018 and later on withdraw the same on 22/03/2019.
20/05/2019 Criminal Complaint bearing no. 17555/2019 U/s. 209, 211, 408, 409 and 499 IPC was lodged by complainant and still pending in the Court of Shri Himanshu Raman Singh, MM, Dwarka Courts, New Delhi.
28/06/2019 Complainant instituted a complaint having no. 13098/19 Under Section 409, 420 read with 120-B I.P.C. before the District Court South West, Saket, Delhi.
(extracts from "Date of Events and Synopsis") (emphasis supplied by us) " Complaint"
5. That O.P. no. 4 is Axis Bank Ltd having its Registered office at: Trishul, 3rd floor, Opposite Samartheswar Temple, Law Garden, Ellisbridge, Ahmedabad, Gujarat and its branch office is at Noida from whom the Complainant borrowed loan.
10. That Complainant took the housing loan from the O.P. No. 4 Bank against the property bearing no. 403, 4th Floor, Tower G, Amarapali Heartbeat City-1, Plot No. GH01/C, Sector - 107, Noida, Uttar Pradesh (the Unit) as per the documents and support of O.P. No. 1 under Construction Link Plan (CLP). All the columns of opposite party in agreement were blank at the time of signing of agreement and the signature of the complainant were obtained in a hurry as a general practice.
11. That on 17/01/2014 O.P. No. 4 sanctioned the Loan amount of Rs. 45 Lacs to complainant @ 10.25% as base rate under floating rate linked to base rate, Instalments-218 months and on 27/03/2014 a Tripartite Agreement among Complainant and both O.P No. 1 and 4 was got executed. On 02/04/2014 O.P. No. 4 Bank has disbursed the eligible loan amount of Rs. 36,49,630/- in a single sort, without following the procedure of the disbursement of housing loan under agreed CLP (Construction Link Plan) but in connivance of the O.P. No. 1 Builder which should be as per CLP scheduled time and this must be raised through demand letter. This was also informed by the Complainant to the O.P. Bank in consideration of disbursement of the percentage of payment after verification of the construction but the O.P. no. 4 Bank - without following the procedure, construction and payment schedule, had directly paid out in connivance with O.P. no. 1 Builder and made the payment of the eligible loan amount of Rs. 36,49,630/- to the O.P. Builder in a single sort. Hence no liability was raised upon the Complainant due to its own wrong, deficient and negligent act of O.P. Bank. It seems that there was nexus and connivance in between the O.P. Bank and O.P. Builder. The O.P. Bank in O.A. no. 133/2017 in Debt Recovery Tribunal -II, New Delhi, itself admitted that the O.P. had funded 202 Flats having loan sanctioned amount of Rs. 117 Crores (approx.) and the Loan disbursed value till date is Rs. 77 Crores and further admitted its visit on site and no further construction at site and no physical possession in coming years and the O.P. Builder have sold the same apartment / unit in question to 02 different individuals with the financial help from different creditors against the same Flat / Unit in question causing duplicity of transaction and security in violation of agreement. The question of connivance is itself clear that O.P Bank misappropriated the public money and there is huge financial transaction was held without verification of construction link plan and also with the conspiracy with O.P Builder.
13. - - - But as both O.P. have / had connivance with each other put the complainant in such an awkward situation as neither cancelling the Unit at that time but in future the same Unit was threatened to be got cancelled.
15. That the Complainant has no liability with the O.P. No. 4 Bank concern to the housing loan because on 09.08.2017 the O.P. Bank issued the foreclosure letter to the O.P. Builder that the allotment of the Unit allotted to the Complainant got cancelled and the same Unit was mortgaged with the O.P. Bank as per Tripartite Agreement. Hence after cancellation of the allotment of the said Unit to the Complainant no liability arises against the Complainant in the eyes of law against the home loan account PHR063600981572 taken by the Complainant.
16. That to a utter surprise the O.P. Bank with a vested interest and to harass the Complainant presented the three cheques bearing no. 094608 dated 05/12/2017, 094609 dated 06/12/2017 and 094610 dated 07/12/2017 having amount of Rs. 46,000/- each total amount of Rs. 1,38,000/- of ICICI Bank, Sector-18, Noida on 29/12/2017 and the cheques were returned for the reason 'Funds Insufficient' and on the basis of that again without confirming from its Ledger or record issued Legal Demand Notice dated 25/01/2018.
17. That again the O.P. Bank without verifying from its own record lodged Criminal Complaint bearing no. 9025 dated 08/03/2018 before the Ld. Court of ACMM, District Court, Dwarka, Delhi. The said Complaint was assigned to Shri Mridul Gupta, MM, Dwarka Courts and in this matter the pre summoning evidence of O.P. Bank was recorded, documents exhibited and arguments placed and relying on that the Ld. Court opined that prima-facie case under Section 138 N I Act, 1881 was made out against the Complainant and took cognizance under Section 138 N I Act and summoned and fixed date 20/07/2018.
18. That the Complainant appeared on 20/07/2018 and was enlarged on bail and matter referred for mediation to explore the possibility of settlement on 07/08/2018 and report back to court on 14/09/2018.
19. That on 14/09/2018 the Complainant filed application U/S 145(2) N I Act and copy supplied to O.P. Bank and date fixed for 30/11/2018 for report of mediation but the O.P. Bank do not bothered to read / verify the application stated above.
20. That on 30/11/2018 the matter was received back from mediation as not settled. The Complainant stated that the allotment of the Flat / Unit had been cancelled by the bank and the same was detailed in Section 145(2) application and the O.P. Bank sought time to verify the same and the matter was adjourned for 22/03/2019.
21. That on 22/03/2019 Counsel for the O.P. Bank on instruction from the O.P. Bank withdraw CC No. 9025/2018 as received full amount towards Cheque (s) in question and also stated that nothing remains due towards cheque(s) in question.
22. That it is submitted that on 30/12/2017 the O.P. Bank received Rs. 9,12,000/- against the Loan Account PHR063600981572 but despite knowing the said facts of deposit the O.P. Bank intentionally lodged CC No. 9025/2018 before the Ld. ACMM, Dwarka Courts, Delhi and falsely implicate and harassed the Complainant in a false criminal proceeding and put his reputation damaged in public life.
23. That the O.P. Bank was very negligent and deficient in CC No. 9025/2018 and not only harassed the Complainant rather wasted the precious and valuable time of Hon'ble Court. The O.P. Bank without reading and examining its own record filed the false and frivolous case against Complainant and put him in mental agony and anxiety.
24. That on the basis of wrong and forged documents of O.P. Bank the Complainant was put in trouble / harassed and for this the O.P. Bank cannot evade from its own liability of negligence, deficiency in service and the O.P. Bank must be punished for malicious prosecution against the Complainant in a matter where the payment was already received and despite knowing the said facts unnecessarily harassed the Complainant for almost one and a half year in the Court and wasted his precious time and money as well as of Hon'ble Court. The Complainant was / is not only physically harassed rather morally and mentally also. His reputation in society was damaged which cannot be revived / compensated.
25. That the act, omissions and submissions of O.P. Bank is deficient and negligent and the Bank breached the trust of Complainant in the business as a banker and committed criminal breach of trust in respect of that transaction which had been paid prior before lodging the CC No. 9025/2018 and dishonestly / fraudulently with a intent to injure or annoy made / lodged CC No. 9025/2018 before the Hon'ble Court of ACMM, District Court, Dwarka, Delhi which the O.P. knew to be false as the same was withdrawn by the O.P. Bank.
26. That on 20/05/2019 a Criminal Complaint bearing no. 17555/2019 U/s. 209, 211, 408, 409 and 499 IPC was lodged by complainant and on 21/05/2019 it was listed and heard in the Court of Sh. Himanshu Raman Singh, MM, Dwarka Courts, New Delhi and the Hon'ble Court was pleased to fix date of hearing on 25/11/2019 for pre-summoning of evidence.
27. That the complainant on 28/06/2019 lodged a complaint under section(s) 409, 420 read with 120-B I.P.C. against the Opposite Party at the Ld Court of CMM, District South West, Saket, Delhi and the same was listed on 01/07/2019 and the Ld Court of Shri Anubhav Jain, MM, South East, was pleased to seek the ATR (Action Taken Report) from the SHO of P.S. Okhla Industrial Area, Delhi and the next date fixed i.e. 07.08.2019 and the matter is pending for adjudication.
28. That the O.P. Builder and O.P. Bank are in connivance with each other and the O.P. Bank being the agent of the complainant never followed the instruction or check the whereabouts of O.P. Builder and thus committed criminal breach of trust and the Builder never followed the terms of agreement, sold the flat to two persons as alleged by O.P. Bank and also there is huge charge on O.P. Builder of Bank of Maharashtra. The O.P. Builder misappropriated the funds, deficient in service and very negligent towards the Complainant and thus have committed a wrong and on this ground the complaint kindly be redressed.
29. That in this way in connivance with each other the O Ps have not only misappropriated the funds of complainant rather cancelled the allotment of Flat in question and thus both are very negligent and deficient in service and adopted unfair trade practice and harassed the complainant.
30. That the Complainant visited the offices i.e; registered office, corporate office and site office of O.P. No. 1 then it was known that the directors are running the office from their house and the offices were opened as per their convenience. No one was present / seen in the offices of complainant. Then the complainant visited the house of directors but they refused to meet and redress his grievances.
(extracts from the "Complaint") (emphasis supplied by us)
4. On a careful perusal of [a] the "Date of Events and Synopsis" and [b] the "Complaint", we first note that the requisite clarity, and the holistic and complete details, are not forthcoming.
That being as it is, what we gather, from the averments and allegations made in [a] the "Date of Events and Synopsis" and [b] the "Complaint", is that the OP no. 4 Axis Bank provided loan to the complainant for making payment to the OP no. 1 builder co. towards the subject flat.
The Axis Bank instituted proceedings before the DRT against the complainant and the builder co. The present position of the said proceedings has not been stated by the complainant.
The Axis Bank presented the complainant's three cheques for realization, which were returned for reason of 'funds insufficient'.
The Axis Bank filed a criminal complaint under section 138 (Dishonour of cheque for insufficiency, etc., of funds in the account) of the Negotiable Instruments Act, 1881 against the complainant in the Court of the ACMM. Pre-summoning evidence of Axis Bank was recorded. The Court found prima facie case under section 138 of the Act 1881, took cognizance under section 138 of the Act 1881 and summoned the complainant. The complainant appeared before the Court, and was granted bail. The matter was referred to mediation. The matter was received back from mediation as "not settled". The Axis Bank withdrew its case on receiving the full amount towards the cheques in question, stating that nothing remains due towards the said cheques.
Subsequently, the complainant lodged a criminal complaint against the Axis Bank under sections 209 (Dishonestly making false claim in Court), 211 (False charge of offence made with intent to injure), 408 (Criminal breach of trust by clerk or servant), 409 (Criminal breach of trust by public servant, or by banker, merchant or agent), 499 (Defamation) of the IPC, wherein the next date of hearing is 25.11.2019.
The complainant also lodged a criminal complaint against the builder co. under sections 409 (Criminal breach of trust by public servant, or by banker, merchant or agent), 420 (Cheating and dishonestly inducing delivery of property) read with 120B (Punishment of criminal conspiracy), wherein the next date of hearing is 07.08.2019.
Both matters are pending adjudication.
5. We also note that inter alia averments and allegations of: "All the columns of opposite party in agreement were blank at the time of signing of agreement and the signature of the complainant were obtained in a hurry as a general practice"; "nexus and connivance in between the O.P. Bank and O.P. Builder"; "O.P. Builder have sold the same apartment / unit in question to 02 different individuals with the financial help from different creditors against the same Flat / Unit in question causing duplicity of transaction and security in violation of agreement"; "O.P Bank misappropriated the public money"; "O.P. Bank with a vested interest and to harass the Complainant presented the three cheques"; "the cheques were returned for the reason 'Funds Insufficient'"; "O.P. Bank without verifying from its own record lodged Criminal Complaint"; "O.P. Bank intentionally lodged CC No. 9025/2018 before the Ld. ACMM, Dwarka Courts, Delhi and falsely implicate and harassed the Complainant in a false criminal proceedings and put his reputation damaged in public life"; "O.P. Bank was very negligent and deficient in CC No. 9025/2018"; "O.P. Bank without reading and examining its own record filed the false and frivolous case against Complainant"; "on the basis of wrong and forged documents of O.P. Bank the Complainant was put in trouble / harassed"; "O.P. Bank must be punished for malicious prosecution against the Complainant"; "the Bank breached the trust of Complainant in the business as a banker and committed criminal breach of trust in respect of that transaction which had been paid prior before lodging the CC No. 9025/2018 and dishonestly / fraudulently with a intent to injure or annoy made / lodged CC"; "in connivance with each other the O Ps have not only misappropriated the funds of complainant", have been made in the complaint.
6. We further note that the requisite material details of "OP builder have sold the same apartment / unit in question to 02 different individuals with the financial help from different creditors against the same Flat / Unit in question causing duplicity of transaction and security in violation of agreement" have not been furnished, and specifically the requisite material details of the said "02" other "different individuals" have not been furnished.
The 02 other different individuals have not been made opposite party (ies) in the memo of the array of the parties.
7. We, thus, note that pertinent material details are missing.
8. And we, thus, also note the extensive complexity in the whole matter.
9. We further note that, the two, the builder co. and the bank, were differently placed in respect of their respective roles and duties, and that the complainant's case against the builder co., which had to provide the subject flat on payment of the consideration amount, and the complainant's case against the bank, which had provided loan to the complainant for making payment to the builder co., have been inseparably entwined with each other (inter alia refer: "nexus and connivance in between the O.P. Bank and O.P. Builder"; "in connivance with each other the O Ps have not only misappropriated the funds of complainant", mentioned in the complaint).
10. In hearing a 'complaint' (as defined under section 2(1)(c) of the Act 1986) on admission, while (inter alia) seeing whether allegations of unfair trade practice and / or restrictive trade practice and / or deficiency in service are prima facie made, it has also to be concomitantly seen prima facie that the specificities of the averments and allegations are such as can be adjudicated in summary proceedings under the Act 1986, that apt adjudication is feasible in the quasi-judicial tribunal, that the tribunal will be able to do justice to the case before it.
11. Noting the entire material on record, and the specificities of the averments and allegations inherent therein, in our considered view, this case, for apt adjudication on merit, to do justice to the case, requires recording of extensive oral evidence and proving extensive documentary evidence as per the provisions of the Indian Evidence Act, 1872 and adherence to the substantive and procedural provisions of the Code of Civil Procedure, 1908, that is best undertaken in a civil court.
In other words, we do not find the case, as discernible from the entire material on record, and from the specificities of the averments and allegations inherent therein, to be such as can be aptly adjudicated on merit in summary proceedings by quasi - judicial consumer protection fora established under the Act 1986.
12. During arguments on 15.07.2019, learned counsel for the complainant was not willing to withdraw the complaint with liberty to the complainant to seek remedy in a civil court. Neither was he willing to seek instructions and revert back.
13. In the light of the discussion made above, the complaint is dismissed with liberty to the complainant to seek remedy in a competent civil court as per the law.
It goes without saying that the rights of the complainant to agitate his case before any competent authority remain unaffected.
But consumer protection fora established under the Act 1986, to provide alternative additional remedy to consumers, are not for him.
14. We may further observe that, consumer protection fora are not meant for expeditions, ex facie. A cost of Rs. 1 lakh is, thus, imposed on the complainant, to be deposited in the Consumer Legal Aid Account of this Commission within four weeks of the pronouncement of the reasoned judgement.
15. We also note that the OP no. 4 Axis Bank, a private-sector bank, is subject to the control of the central bank, the RBI. Its officers are accountable. Its accounts are subject to audit.
16 We find it appropriate and necessary to advise the chief executive of the Axis Bank to get the matter related to this whole case (in its Axis Bank, Axis House, Tower-2, 2nd Floor, 1-14, Sector-128, Noida Expressway, Jaypee Greens Wishtown, Noida-201301 branch) inquired into by an external senior responsible officer and to take the necessary appropriate steps in case of any irregularity, or of any infringement of any administrative, financial or vigilance rule / s, on the part of its said branch / officers concerned. The said inquiry officer should be higher in level than / different from the officers who have, till now, dealt with the case in any capacity and in any manner.
Towards this end, the Registrar of this Commission shall send a copy each [a] of the "Date of Events and Synopsis" and [b] of the "Complaint" along with a copy of this Order to the chief executive of the Axis Bank within ten days of the pronouncement of this Order.
17. We make it explicit that this Commission has no comments or observations on the merits in the case, of either side, i.e. of either the complainant or of the opposite parties (i.e. the builder co. and its two directors and the Axis Bank). As such, we have consciously refrained from an in-depth critique of the matter.
This Commission's order and advice are as contained paras 13, 14 and 16 above.
18. Let a copy of this Order be placed forthwith before the Registrar by the Registry for compliance of para 16 above.
19. The Registry is also directed to send a copy of this Order to the branch manager of Axis Bank, Axis House, Tower-2, 2nd Floor, 1-14, Sector-128, Noida Expressway, Jaypee Greens Wishtown, Noida-201301 branch within three days of its pronouncement.
The branch manager of Axis Bank, Axis House, Tower-2, 2nd Floor, 1-14, Sector-128, Noida Expressway, Jaypee Greens Wishtown, Noida-201301 branch is directed to bring this Order to the notice of the chief executive of the Axis Bank in reference to para 16 above within ten days of its receipt.
20. The Joint Registrar of this Commission is requested to monitor compliance of para 14 above, and to report the status of compliance to this bench on the case-file on the immediate next working day after the expiry of 4 weeks of pronouncement of this Order.
21. So disposed.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER