State Consumer Disputes Redressal Commission
Naveen Aggarwal vs Lic Housing Finance Ltd. & Ors. on 29 October, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 29.10.2013 Case No. C-234/13 NAVEEN AGARWAL - COMPLAINANT S/O ISHWAR CHANDRA AGARWAL R/o House No. 195-B, Pocket 4, Garudd Apartments Mayur Vihar, Delhi 110091. Versus 1. LIC HOUSING FINANCE LTD. - OPPOSITE PARTY-1 Lakshmi Insurance Building, Asaf Ali Road, New Delhi. Through Its Manager. 2. GOLF COURSE SAHAKARI AWAS SAMITI LTD OPPOSITE PARTY-2 D-162, 1st Floor Sector 10, Naoida. Through its Chairman. CORAM : S.A. SIDDIQUI - Presiding Member S.C. JAIN - Member 1. Whether reporters of local newspapers be allowed to see the judgment? yes 2. To be referred to the Reporter or not? Yes S.A. SIDDIQUI (ORAL) ORDER
1. An interim injunction was granted on 6.5.2013 in favour of the complainant whereby OP-1, LIC Housing Finance Ltd. was restrained to recover the monthly installments hitherto till the next date and notice was issued to the OPs for filing objection and to show-cause as to why order dated 6.5.2013 be not made absolute pending the disposal of the complaint.
2. OP
-1, LIC Housing Finance Ltd., filed reply to the complaint as well as objection against ex-party ad-interim injunction supported by an affidavit.
3. Sh.
Ashok Kr. Lal, Ld. Counsel for the complainant as well as Karnail Singh, Ld. Counsel for the OP-1 were heard and record was examined.
4. Despite best efforts, OP-2, Golf Course Sahkari Samiti Ltd., did not appear.
5. It has been alleged by the complainant Naveen Aggarwal that OP-2 with support of OP-1 planned to develop a Group Housing Scheme of Residential Units Shivkala Charms Luxury Apartments and made an advertisement in newspapers inviting application for allotment of the flats. Complainant moved an application for membership and allotment of flat for a price of Rs. 28 Lacs. The applicants were allotted Flat No. 3031, Plot No. 7, Sector PI2, Shivkala Charms Luxury Apartments, Greater Noida. Out of 28 Lacs, 18 Lacs were paid through housing loan granted by OP-1.
6. It has further been alleged by the complainant that OP-1 in collusion and connivance with OP-2 has granted loan to the applicant on the same flat which was already mortgaged with PNBHFL as revealed through notices issued by various Banks and Financial Institutions (annexed with the complaint).
7. Due to multiple allotments, fraud and breach of trust committed by the OP-1 in collusion with the builder, complainant had to suffer great financial loss, mental agony and pain and stood fully cheated by the OPs.
8. OP-1 extended Advanced Processing Facility to OP-2 so that any number of retail disbursements in the project could be facilitated without having to undergo individual legal and technical appraisal clearance in a shorter time as against their claim of providing loan as case to case basis. OP-1 approved the project through upfront approval process without following due diligence. It was because of the failure of certain legal duties and due-diligence the fraud occurred against the innocent purchasers including the complainant, who are paying installments with the hope that they will get a residential flat but the same actually could never come to them. It is also noteworthy that OP-1 have themselves financed multiple loan on single flat by their own branches (Total to 15 numbers) and are the aliasing/recovering EMI from each borrower. In addition, OP-1 has given loan to virtual/non-existing flats (total number of such flats being 49 or more). The aforesaid facts have been confirmed by National House Bank, report of which has been annexed with the main complaint. This shows that OP-1 has involved in fraud/scam in collusion with OP-2, which is ranked deficiency in service.
9. On the other hand, counsel for the OP-1 maintained that OP-1 is an independent Finance Company of repute and have no connection with OP-2, which is the main culprit in the ill-fated project. The present complaint is liable to be dismissed against OP-1 as complainant had no grievance against OP-1. It is pertinent to note that OP-1 manages public funds and grants loans to applicants with great care, caution and responsibility. It had no role in property selection. It was the complainant who himself approached the OP-1 for grant of loan. Thus, OP-1 only aided by giving financial assistance to the complainant. This financial assistance has been given from the companys public fund. Complainant in order to avoid payment of outstanding loan/EMI, recovery proceedings, filed the complaint by twisting the facts and making a false story. The OP-1 performed its duty and obligations in consonance with the guidelines issued by NHB and no deviations whatsoever was made. The complainant has deliberately and intentionally dragged OP-1 in this complaint. The alleged fraud on the part of the OP-2 cannot clog the legal right of OP-1 for recovery of EMIs. No deficiency of service at any stage had been committed by the OP-1. The complainant at the time of disbursement of loan has executed a format named as APF-7 in which complainant clearly admitted to have understood terms and conditions of application for allotment and further admitted that he was aware of necessary permissions and approvals from the concerned authorities. It was also admitted that LICHFL shall not be held responsible for any delay or deferment of the project and shall be paying installments to OP-1.
10. As a matter of fact, fraud has been played by OP-2 by making multiple allotment of flats against which the allottees and the OP-1 have filed complaint with the Economic Offences Wing (EOW) of Delhi Police and that on the basis of the FIR case under Section 420/409/467/468/472/120B IPC has been registered with PS EOW. It was emphasized that it is settled law that when complex question of facts and law are to be decided, the Consumer Courts have no jurisdiction and the matter can be decided only by Civil Courts. The criminal case lodged against the OP-2 is under investigation. OP-1 has not concealed any fact(s) from his borrowers and lodged FIR along with allottees against OP-2 who indulged in multiple allotments in society beyond its sanctioned number of flats and indulged into fraud, misappropriation of funds and breach of trust.
11. The fraud, misappropriation of funds and breach of trust allegedly committed by the OP-2, Golf Course Sahkari Samiti Ltd is under investigation by the EOW of Delhi Police. OP-1 is an independent Finance Company and has no connection with OP-2. The facility of loan has to be extended to the needy person with due care and caution. At this stage, there is no sufficient prima-facie evidence to prove that OP-1 was in collusion with OP-2 in commission of alleged fraud, misappropriation of public fund and criminal breach of trust etc. The EWO of Delhi Police is seized with the matter and investigation is in progress and we are of the considered view that the alleged fraud on the part of the OP-2 cannot clog the legal right of the recovery of the EMIs by the OP-1.
12. As regards the alleged lack of competence of this Commission to entertain such complaints, the issue shall be adjudicated when this point is specifically pressed and heard.
13. In view of the above discussion and legal position, we come to the conclusion that interim injunction order dated 06.05.2013 granting ad-interim injunction in favour of the complainant deserves to be vacated.
14. Accordingly, ad-interim injunction dated 06.05.2013 stands vacated.
15. A copy of this order as per the statutory requirements be provided to the parties free of cost.
( S.A. SIDDIQUI) PRESIDING MEMBER (S.C. JAIN) MEMBER rn 29.10.2013 C-234/13 PRESENT: Sh. Ashok Kumar Lal, Counsel for the Complainant.
Sh.
Karnail Singh, Counsel for the OP.
1. Ad-interim injunction order passed on a separate sheet of paper.
2. Fix 28.1.2014 for filing evidence by the complainant.
( S.A. SIDDIQUI) PRESIDING MEMBER (S.C. JAIN) MEMBER rn