State Consumer Disputes Redressal Commission
Deepak Goyal vs Idbi Bank on 1 July, 2010
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR COMPLAINT NO: 19/2010 Deepak Goyal s/o Sh.Vinod Kumar Agarwal r/o Plot no. 624, Rani Sati Nagar, Janpath, Nirman Nagar, Jaipur. Complainant Vs. Industrial Development Bank of India Ltd. (in short called as IDBI Bank ) D- 24, Durlabh Niwas, Prithviraj Road, Subhash Marg, C-Scheme,Jaipur through Collection Manager. Opposite party Date of Order 1.7.2010 Before: Hon'ble Mr.Justice Sunil Kumar Garg- President Mrs.Vimla Sethia- Member
Mr.Shashi Kumar Pareek-Member Mr.Anant Bhandari counsel for the complainant Mr. Sanjay Rahar counsel for the opposite party 2 BY THE STATE COMMISSION This stay application has been filed by the complainant in a complaint u/s 17 of the Consumer Protection Act, 1986 ( hereinafter referred to as " the Act of 1986" ) before this Commission on 28.4.2010 against the opposite party Bank seeking following prayer-
a) The operation of notice dated 26.2.10 (Anx.10 ) issued by respondent bank to the complainant be stayed during the pendency of the complaint.
b) The respondent bank to be restrained from making any recovery in respect of loan account no. 013675100030986 from the complainant during the pendency of the complaint.
c) The respondent bank should be restrained from lodging security cheques mentioned in para 28 of the complaint in the bank during the pendency of the complaint.
d) During the pendency of the complaint, respondent bank should be directed that they should not declare the complainant as defaulter the respondent bank should be directed that they should get the information in CIBIL 3 corrected in regard to loan account no. 013675100030986 of the complainant and should not show complainant as defaulter in repayment of loan.
2. The brief facts giving rise to the stay application may be summarised as follows-
That the complainant had filed a complaint before this Commission on 28.4.10 and in that complaint he had filed a stay application alleging that the complainant came to know from paper publication that opposite party bank had entered into an agreement with the builder ( not made party in this complaint ) known as Amay Home Services Ltd. ( hereinafter referred to as ' builder' ) wherein opposite party bank had agreed to finance many projects of the said builder pertaining to the land situated in Jaisinghpura Tehsil Sanganer etc. etc. It was further stated in the complaint that if any person was interested in purchasing the flat from the builder, the opposite party bank would give a loan directly to the builder and the liability of the payment of that loan would be of the builder till the possession of that flat was handed over to the complainant.
It was further stated in the stay application that the complainant was not aware who was the builder and as per the scheme the opposite party had entered into an Tripartite Agreement dated 7.7.08 with the builder and 4 the complainant and further on the same day a Memorandum of Understanding was also executed between the parties. It was further stated in the stay application that the builder had terminated the agreement for the reason that the builder had stopped the construction work completely, had closed down its office and all directors and officers of the builder are absconding and the possession of property was taken by the Rajasthan Financial Corporation.
It was further stated in the stay application that as per clause 15 of Tripartite Agreement the opposite party bank is entitled to recover entire loan, interest, overdue interest and other payment due to the bank only from the builder and not from the complainant.
It was further stated in the stay application that inspite of the fact that no possession of the flat was given by the builder to the complainant, still the opposite party bank had issued a notice dated 26.2.10 ( Anx. 10 at page 44 ) by which a sum of Rs. 50113/- was found outstanding against the complainant in respect of the loan account no. 013675100030986 and thus the complainant was asked to make payment of Rs. 50113/- failing which opposite party bank would take further steps. It was further stated in the complaint that the said notice was in clear breach of the terms and conditions of the agreement as the complainant had no 5 liability to make the payment in respect of the loan to the opposite party bank.
It was further stated in the stay application that the complainant had further apprehension that opposite party bank could declare the complainant as defaulter and for the reasons stated above the above mentioned complaint alongwith stay application had been filed by the complainant with the prayer as stated above.
A reply was filed by the opposite party bank before this Commission on 1.7.10 and it was stated in the reply that the complainant had approached the opposite party bank for home loan of Rs. 10,56,600/- for purchase of a flat on 16.1.08 and the copy of that loan application is marked Anx. R-1. It was further stated in the reply that in pursuance of that application Anx. R-1, the loan was sanctioned by the opposite party bank to the complainant through Anx. R-2 . It was further stated in the reply that while sanctioning the home loan, a home loan agreement and several other documents were executed by the complainant and the copy of home loan agreement signed and executed by the complainant is marked Anx. R-3.
It was further stated in the reply that a Tripartite Agreement was entered into between the Amay Home Services Ltd.,( the builder ), the complainant and opposite party bank on 7.7.08 and the copy of that 6 agreement is marked Anx. R-4 and as per Tripartite Agreement first party which is mentioned is builder, second party is borrower i.e. Complainant and third party is the opposite party bank.
It was further stated in the reply that as per clause 2 of the Tripartite Agreement Anx. R-4, the complainant had instructed the opposite party bank to disburse the loan amount sanctioned to him directly to the builder and that is why the amount of sanctioned loan was disbursed by the bank to the builder directly which is not a party in this complaint. The opposite party has further relied upon some other terms and conditions of the Tripartite Agreement.
It was further stated in the reply that a memorandum of understanding known as MOU was also executed between three parties on 7.7.08 and as per terms and conditions of MOU also the bank had a right to recover the loan either from the builder or from the borrower i.e. Complainant.
It was further stated in the reply that since in this case no payment of any instalment was being made either by the builder or by the complainant, therefore, the opposite party bank had right to recover the amount of loan from the complainant and that is why Anx. 10 was issued by the opposite party bank to the 7 complainant and it was prayed that stay application be rejected.
3. We have heard the learned counsel appearing for both parties and have perused the entire materials available on record.
4. In this case there is no dispute on the point that the complainant had got a flat booked with the builder on 3.11.07 as is evident from Anx. 2 by paying a sum of Rs.50,000/- to the builder.
5. There is no dispute on the point that thereafter he had applied on 16.1.08 before the opposite party bank for sanctioning a loan of Rs. 10,56,600/- and that loan was sanctioned by the opposite party bank on 30.6.08 through Anx. R- 2.
6. There is no dispute on the point that the home loan agreement was executed between the complainant and the opposite party bank and the same is marked Anx. R-3 and the amount of sanctioned loan was disbursed by the opposite party bank to the builder directly.
7. There is no dispute on the point that the builder had committed fraud with the complainant as the builder had stopped the construction of the flats and had run away with the money and as per statement given by both counsel, the said builder is behind the bar.
88. There is no dispute on the point that a Tripartite Agreement Anx. R-4 was executed on 7.7.08 between the builder as first party, the borrower ( complainant ) as second party and opposite party bank as third party .
9. There is no dispute on the point that memorandum of Understanding was also executed on 7.7.08 between the parties.
10. It may be stated here that the learned counsel for the complainant has relied upon condition no. 15 of the Tripartite Agreement which reads as follows-
" 15. In case of termination/cancellation of the agreement for any reason whatsoever, the party of the first part shall refund the following amounts to the bank within 15 days from the date of such termination/cancellation-
(i) The amount of loan disbursed by the bank and
(ii) Interest, overdue interest and other payments that are due to the bank.
It is agreed and understood that M/s........shall be entitled to retain the non-refundable earnest money, if any, and/or any other amount which may be retained by M/s.....under the agreement to sell, the balance amount shall be refunded to the borrower."
911. On the other hand the learned counsel for the opposite party has placed reliance on condition no. 10 of the Tripartite Agreement which reads as follows-
" 10. The loan amount alongwith other dues is recallable on demand. The bank can recall the entire loan from the borrower on any default made by the borrower or on the borrower being declared as insolvent or incapable of handling its affairs or for delays in the completion of the project, which in the opinion of the bank would affect the repayment of the quality of the security or for any reason which in the sole discretion of the bank, warrants recall of the loan amount and other dues."
12. Further the learned counsel for the complainant has placed reliance on clause 1 of the Memorandum of Outstanding which reads as under-
" 1. Inconsideration of the bank, solely at the request of the builder and the purchaser, agreeing to release 80% of the sanctioned 85% of the loan amount being the financial assistance agreed to be provided by the bank in terms of each of the agreements entered into by the purchaser and the builder, the builder undertakes as under-
a) That the builder shall bear the interest on the said loan amount at the agreed rate as per the bank's 10 sanction on the due dates without demur.
b) The builder is aware that the non-payment of such interest on the due dates shall be treated as an event of default and the bank shall have the right to call the said amount so disbursed together with interest forthwith, irrespective of the fact that the loan was sanctioned to the purchaser.
c) The builder agrees that in such an event the builder and not the purchaser shall be treated as the principal debtor.
d) The builder agrees and undertakes to complete the project on the due dates and shall without fail handover the units to the intending purchaser on the due dates."
13. On the contrary learned counsel for the opposite party has placed reliance on clauses 2, 3 and 8 of the Memorandum of Understanding which reads as follows-
" 2. The purchaser agres that the purchaser shall be liable to service and repay the loan once the offer of possession or 18 months whichever is earlier given to the purchaser.
3. Notwithstanding what is stated herein the bank shall not be responsible for any delay in offer of 11 possession of the premises on the due dates and the bank reserves the right to demand the payment of interest from the purchaser and/or the builder in case of delay.
8. This MOU shall be read in conjunction with the Housing Loan Agreement dated 15.7.08 and sanction letter no. 3/13635 and dated 30.6.08. In the event of any conflict between this MOU and the said Housing Loan Agreement of the said sanction letter the interpretation, which is beneficial to the bank shall prevail."
14. In our considered opinion, looking to the above conditions of Tripartite Agreement as well as Memorandum of Understanding as quoted above, the complainant has no prima -facie case on the point that the opposite party bank could not demand interest from the complainant.
15. No doubt in this case fraud had been committed by the builder and all the allegations had been levelled against the builder but the same has not been made a party by the complainant before this Commission and since 18 months have passed when loan amount was sanctioned by the opposite party bank, therefore, the question of offer of possession had become redundant and for that clause 2 of MOU may be referred to which is quoted above and in that clause the word ' or ' is between offer of possession or 18 months; meaning thereby if possession was not given by the builder to the complainant and 18 months have passed, even 12 then opposite party bank can demand interest from the complainant or the purchaser.
16. Not only this, in this case the complainant had himself asked the opposite party bank to release the amount of loan directly to the builder and the same was released by the opposite party bank to the builder and the same was sanctioned by the opposite party bank on the application of the complainant and therefore, the contention of the complainant that he had no concern with the builder could not be found acceptable and further since fraud was committed by the builder, therefore, the complainant is bound by the terms and conditions of the agreement to pay the interest of sanctioned loan and as stated above after passing 18 months from releasing the amount, the liability of the complainant comes into picture and if in the above circumstances notice Anx.10 was issued by the opposite party bank to the complainant for demand of interest, that could not be said to be beyond power of the bank.
17. Further as per clause 3 of MOU as stated above, it is very much clear that the opposite party bank had reserved the right to demand the payment of interest from the purchaser or the builder as the case may be and in view of this, if Anx. 10 was issued to the complainant demanding interest from the complainant, it could not be said that that action was not justified. Therefore, the argument of the learned counsel for the complainant that since the possession of the flat was not given by the builder and till then the opposite party bank 13 could not demand interest from the complainant could not be appreciated.
18. Further as per the complaint, it appears that the amount in question was released to the builder by the opposite party bank at the request of the complainant but the complainant had not made the builder as a party in this complaint and in our considered opinion, in the present complaint the builder is not only a proper party but a necessary party .
19. It may be stated here that necessary party is one without whom no order can be affectively made and since in this case fraud was committed by the builder in respect of the sanctioned amount of loan, therefore, the builder is a necessary party in this case and in absence of that the dispute could not be decided properly.
20. Before deciding the stay application pending disposal of the complaint, the complainant has to make out , firstly, that he has got a prima facie title to the properties. Secondly, the complainant must establish that he will suffer irreparable injury which is a material one which cannot be adequately compensated for by damages. Thirdly, he must prove that the balance of convenience is in favour of the complainant, who is likely to suffer substantial mischief if the stay application is refused when compared to the mischief which might be caused to the opposite party if the stay is granted. Fourthly, the status quo must be maintained. The Commission has to take into consideration all these points before granting stay 14 and in this case the complainant has failed to fulfill all the conditions and for a sum of Rs. 50,113/-, it could not be said that for that amount the complainant would suffer irreparable loss, irreparable loss means which could not be compensated in terms of money, therefore, this aspect is totally missing in this case and from that point of view also the complainant is not entitled to any stay against that recovery.
21. It may be stated here that since in this case the stay application has to be decided on the terms and conditions of the Tripartite Agreement as well as Memorandum of Understanding, therefore, if all the terms and conditions are observed and seen, it clearly appears that the liability of making the payment of amount of sanctioned loan would be of both, the borrower as well as the builder and the opposite party bank has a right to recover from any one of them.
22. Apart from that it is settled preposition of law that the Court or the Commission should be reluctant in the matter of grant of stay where there is breach of terms of the contract and from that point of view also the complainant is not entitled to any stay.
23. For the reasons stated above, the stay application filed by the complainant is rejected.
Member Member President nm