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Rukhsana Shaheen Khan & Anr. vs M/S. Amrapali Grand (A … on 15 July, 2021

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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   CONSUMER CASE NO. 1016 OF 2017   1. RUKHSANA SHAHEEN KHAN ANR. Flat No. 1801, Imperial Tower No.1, jaypee Wish town, Sector 128, Noida-201304 UTTAR PRADESH 2. DR. SYEDA BAKHTAWAR . ………..Complainant(s) Versus   1. M/S. AMRAPALI GRAND (A PARTNERSHIP FIRM) ANR. Through its partners having its Address At:
Amrapali Corporate Tower, C-56/40, Sector-62, Noida-201307 2. ICICE BANK LIMITED ICICI TOWERS, NBCC PLACE BHISHM PITAMAH MARG PRAGATI VIHAR NEW DELHI-110003 ………..Opp.Party(s)
BEFORE:     HON’BLE MR. C. VISWANATH,PRESIDING MEMBER   HON’BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER
For the Complainant : Mrs. Rukhsana Shaheen Khan (In person)
Mr. Mohammad Shoaib Khan, Advocate For the Opp.Party : For O.P. No. 1 : Mr. Manoj Singh, Advocate

For O.P. No. 2 : Mr. Arpit Gupta, Advocate
Mr. Anand Shankar Jha, Advocate
Dated : 15 Jul 2021 ORDER

1.

      Heard Mrs. Rukhsana Shaheen Khan (In person), along with Mr. Mohammad Shoaib Khan, Advocate, for the complainants, in the Court Room and Mr. Manoj Singh, Advocate, for opposite party-1 and Mr. Anand Shankar Jha, Advocate, for opposite party-2, through video conferencing.

2.      This complaint has been filed for a direction to M/S Amrapali Grand (opposite party-1) to return a sum of Rs.2,03,89,200/- along with pendent lite  interest @ 24% per annum, award cost of litigation and exemplary damages and any other order, deemed fit and proper in the facts and circumstance and in the interest of justice. The facts as stated in the complaint and emerged from the papers attached with it are that Amrapali Grand was a partnership firm, registered under Partnership Act, 1932 and engaged in developing, constructing a multi-story buildings and selling its unit, under self-financing group housing scheme. In the year 2007, the opposite parties advertised that Armaplai Grand was constructing a multi-story building of 3 BHK (configuration 1850 Sq. feet) and 4 BHK (configuration 2950 Sq. feet) residential flats over plot No. GH-09, Sector Zeta-01, Grater Noida, under Cash Down Payment Plan, of which possession would be given in December, 2009. Induced with the advertisement, the complainants approached the office of opposite parties, where they explained their plan and assured for possession till December, 2009; in case, for any reason possession is delayed then opposite party-1 would reimburse the EMI of the bank on the loan, for the delayed period. They further informed that in case of onetime payment of 85% of the cost of the flat, opposite party-1 would give a discount of 10% on total sale consideration. Remaining 5% of the sale consideration was required to be paid at the time of possession. Total cost of 4 BHK flat was Rs.81,07,550/-. Booking amount was worked out to Rs.7,56,675/-, remaining 85% was worked out to Rs.69,72,540/- and remaining 5% was worked out Rs.3,78,335/-. The complainants agreed for one time payment of 85% of sale consideration, taking loan from ICICI Bank. The complainants booked a 4 BHK flat and deposited booking amount of Rs.7,56,675/- through account payee cheque No. 018189, drawn on ICICI Bank, on 26.05.2007. In counter part of Booking Form, opposite party-1 endorsed that Rs.7,56,675/- was deposited on 26.05.2007, towards booking amount, Rs.69,72,540/- was required to be deposited within 30 days and Rs.3,78,335/- on the date of possession. Amrapali Grand issued a letter dated 26.05.2007 to the complainants, allotting Unit No. T-VI/403, in Block T-VI on Fourth Floor, with super built area 2950 Sq. feet. A sale agreement on a printed proforma was executed between the parties on 26.05.2007. Opposite Party-1 issued a Demand Letter dated 26.05.2007, mentioning therein that Rs.7,56,675/- was deposited on 26.05.2007, towards booking amount, Rs.69,72,540/- was required to be deposited within 30 days and Rs.3,78,335/- on the date of possession. Amrapali Grand issued a letter dated 26.05.2007 to ICICI Bank, confirming the allotment of the aforesaid flat to the complainants on deposit of Rs.7,56,675/- along with an undertaking of the complainants that in case allotment is cancelled for any reason then after forfeiting the booking amount they would return money to ICICI Bank. They admitted first charge of ICICI Bank over the flat. The complainants approached to ICICI Bank for grant of loan on 23.04.2007. ICICI Bank sanctioned a loan of Rs.71,71,257/- (i.e Rs.69,72,540/- for Armapali Grand and Rs.1,98,717/- for ICICI Lombard General Insurance Ltd.). A Facility Agreement dated 23.04.2007 was executed, in which loan of Rs.71,71,257/- was required to be repaid in 120 monthly instalments of Rs.1,02,887/-, from 01.07.2007. Subsequently, ICICI Bank obtained signatures of the complainants on a letter, mentioning therein that necessary permission and approval from the concerned authority was still to be obtained by the builder and it would not hold ICICI Bank responsible for any delay or deferment of the said project at any subsequent date. ICICI Bank directly handed over Cheque No.115127 dated 31.05.2007 of Rs.69,72,540/-, which was credited to the account of Amprali Grand on 04.06.2007 and Rs.1,98,717/- to ICICI Lombard General Insurance Ltd., who insured flat No. T-VI/403, Fourth Floor Amrapali Grand for the period of 31.05.2007 to 30.05.2012, covering risk from fire of the building and its contents and burglary of the contents. The complainants were regularly paying monthly instalment of Bank. When opposite party-1 failed to give possession over the flat in December, 2009, then the complainants approached to its office. The officials of opposite party-1 assured that construction would be completed within a short period and possession over the flat would be given to them. According to the promise as given at the time of allotment, they gave the cheques to the complainants for some months of amount of the monthly instalment but after August, 2010 they stopped giving cheque. They totally withheld information regarding completion of the construction and delivery of the possession. The complainants run from pillar to post and tried best at their level for delivery of possession. They approached the offices of opposite parties frequently but except false assurance nothing was done. The complainants then obtained information from Greater NOIDA Industrial Development Authority on 26.06.2015, about the issue of Completion Certificate to opposite party-1, which was supplied to them, mentioning therein that Completion Certificate was issued on 18.03.2013. Then they made a complaint to opposite party-1 for not giving any notice to them for possession and final sale deed, on which, the officials of opposite party-1 informed that they had to deposit Rs.7,56,675/- along with interest of 24% per annum apart from balance of Rs.3,78,335/- and denied discount of 10% of sale consideration at the time of agreement. The complainants then opted for return of their money along with interest which was paid by them to the bank and rent paid by them for  renal accommodation, during this period. It has been stated that complaint-1 retired from Government service in 2010. Due to delay in construction and delivery of possession her position had become of a nomadic and she had to change rental accommodation within a short interval and also paying rent. She gave a legal notice dated 30.06.2015 to opposite party-1 in this respect. When nothing was done then complainants filed the present complaint on 11.04.2017.               

3.      Amrapali Grand (opposite party-1) contested the complaint and filed its written statement on 14.12.2017, in which, it has been admitted that Amrapali Grand was a partnership firm, registered under Partnership Act, 1932 and engaged in developing, constructing of multi-story buildings and selling its unit, under self-financing group housing scheme; They advertised about construction of a multi-story building of 3 BHK (configuration 1850 Sq. feet) and 4 BHK (configuration 2950 Sq. feet) residential flats over plot No. GH-09, Sector Zeta-01, Grater Noida, under Cash Down Payment Plan; When the complainant booked  4 BHK flat, then the agreement dated 26.05.2007 was executed in their favour and Rs.69,72,540/- was received on 04.06.2007 through Cheque No.115127 dated 31.05.2007. Opposite party-1 also admitted that cheque No. 018189 of Rs.7,56,675/- was handed over to them on 26.05.2007, at the time of booking of the flat but has stated that it was subsequently returned to the complainants as they agreed to give this amount at the time of possession, they never encashed it. The construction of Amrapali Grand was completed in 2010 and all the buyers (except the complainants) had taken possession over the flats allotted to them in the year 2011. When the complainants approached them for taking possession, the were informed that out of Rs.81,07,550/- i.e. total cost of the flat, they had to pay Rs.69,72,5400/- and remaining sale consideration of Rs.11,35,010/- at time of sale deed and possession. But they did not agree for it under the pretext that at the time of booking of the flat, the were given 10% discount of the total cost. They denied that any such discount was given to the complainants at any time booking. A written agreement for sale was executed between the parties, which does not contain any clause regarding 10% discount or commitment of the construction in December, 2009. The complaint was malafidely filed to extract money from opposite party-1. The complainants did not abide with the terms of the agreement as such it stands cancelled and the complainants were not entitled to any relief. Opposite party-1 has also raised preliminary objection on the ground that entire work of Amrapali Grand was being done under the flagship of M/S Ultra Home Construction Pvt. Ltd., partner (b), which controlled the stake either by itself or through shareholders, directors and partners. The project Amrapali Grand was under the aegis of Ultra Home Construction Pvt. Ltd. On a petition of Bank of Baroda under Insolvency Bankruptcy Code, 2016 against Ultra Home Construction Pvt. Ltd., Case No. (IB) 122 (PB)/2017 was registered before National Company Law Tribunal, New Delhi, in which, moratorium was declared under Section 14 of the said Code, by order dated 04.10.2017 as such hearing of this complaint was liable to be adjourned sine die. The complaint has been malafidely filed for making exorbitant demand which is an attempt of unjust enrichment and is liable to be dismissed. 

4.      ICICI Bank (opposite party-2) filed an application under Order 1 Rule 10 C.P.C. on 18.12.2017 (registered as I.A. No. 20235 of 2017) for deleting its name from the array of the parties on the ground that no relief has been claimed against the Bank in the complaint. This application has been directed to be taken up at the time of final hearing.

5.      ICICI Bank (opposite party-2) filed its written statement on 12.07.2018, in which, it has been reiterated that no relief has been claimed against them in the complaint and relying upon the letter dated 30.05.2007, signed by the complainants, absolving the bank from any liability for delay and deferment of the said project, a plea was taken that the complaint was not maintainable against the Bank. The fact that they advertised the project on TV programme has been denied. It has been stated that when the complainants approached the Bank for loan then on evaluating their documents, loan of  Rs.71,71,257/- was sanctioned to them on 31.05.2007, which was disbursed to the builder directly. The complainants have been repaying equated monthly instalments (EMI) regularly. They denied that the Bank is liable for the act of the builder.

6.      The complainants filed Rejoinder Affidavit to the Written statement of opposite party-1 on 28.02.2018, in which they stated that Company Case No. (IB) 122 (PB)/2017 was not against Amrapali Grand, which was a partnership firm. Entire property of Amrapali Grand was in hypothecation of ICICI Band and Bank of Baroda had nothing to do with it. A show on NDTV was featured in 2007 as “Hot Property” Amrapali Grand and discount of 10% on taking cash down payment. It has been stated that the agreement for sale dated 26.05.2007 was contrary to the provisions of U.P. Ownership of Flats Act, 1976 and U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, which required for disclosing the date of completion of the building and delivery of possession as well as liability to pay penalty for delay in construction and possession. They denied other material facts contrary to the complaint and reiterated the facts stated in the complaint.

7.      The complainants filed Rejoinder Affidavit to the Written Statement of opposite party-2 on 23.07.2018, stating that ICICI Bank had played a prime role in advertising the scheme of Amrapali Grand on NDTV, in which discount of 10% of total cost was offered. They denied of handing over any document to ICICI Bank for possession and asked ICICI Bank may produce the papers on which basis, loan was sanctioned to the complainants. It has been stated that Neeraj Nagar Koli and Dinesh were working as the agents of ICICI, who took active role in convincing about dignified work of opposite party-1 and finalising the deal between the complaints and opposite party-1 including sanction of loan by opposite party-2. Opposite party-2 was a proper party to the complaint and could not be deleted from array of the parties.

8.      The complainants filed Interim Application No. 5922 of 2019, for initiating criminal prosecution against Sandeep Bakshi, Chief Executive Officer Managing Director of ICICI Bank, exercising power under Section 340 Cr.P.C. and awarding exemplary cost of  Rs.10,00,000/- against the Bank, for adopting unfair trade practice, in featuring a project, which was not in existence and thereby cheating the customers. 

9.      Along with the complaint, the complainants filed copies of booking letter, Payment receipt dated 26.05.2007, Demand letter dated 26.05.2007, agreement for sale dated 26.05.2007, extract of Master Data of the both the partners of Amrapali Grand, Facility agreement executed by the ICICI Bank, Copies of Emails of the complainants sent to opposite party-1 between 2008 to 2014, copies of the letters, written by the complainants to opposite party No.1 for giving possession over the allotted flat, copy of information dated 26.06.2016 obtained under RTI Act, copy of legal notice dated 30.06.2015, cuttings of newspapers reports published against the conduct of opposite party-1, copy of the complaint made to Chief Executive Officer Greater NOIDA and a chart showing the rent paid by the complainant, after 2010.

10.    The complainants filed Affidavit of Evidence on 14.06.2018, attaching documentary evidence which contained (i) Screenshot of NDTV, featuring Amrapali Grand, in 2007, (ii) Email dated 10.05.2007 by Mayank Kaushik to the complainant, (iii) Newspaper Indian Express dated 30.03.2018, showing that Reserve Bank of India had imposed penalty upon ICICI Bank, (iv) copy of sale agreement dated 26.05.2007, (v) copy of allotment letter dated 26.05.2007, (vi) copy of demand letter dated 26.05.2007, (vii) copy of letter dated 26.05.2007 sent to ICICI Bank, (viii) Letter dated 23.04.2007, sent by the complainant to ICICI Bank, (ix) Receipt dated 26.05.2007, (x) Receipt dated 04.06.2007, (xi) Facility Agreement dated 23.04.2007, (xii) Repayment Schedule dated 31.05.2007, (xiii) Email dated 09.11.2008, (xiv) Receipt of letters dated 01.09.2014 and 03.09.2014, (xv) Information dated 26.05.2015, supplied under RTI Act, (xvi) Complaint dated 25.06.2016, made by the complaint to CEO, Greater NOIDA, (xvii) Legal notice dated 30.06.2015, (xviii) Copies of the Rent Agreement and the chart showing payment of rent (xix) Newspaper Report dated 04.02.2017, (xx) Newspaper report dated 24.02.2017 and (xxi) Newspaper report dated 18.06.2018.

11.    Along with Additional Affidavit of evidence, the complainants filed (i) Copy of the complaint dated 16.01.2018, (ii) Copy of the complaint dated 22.01.2018, (iii) Copy of the complaint dated 25.04.2018, (iv) Copy of order dated 06.04.2018, (v) Copy of the order of Deputy Registrar dated 25.04.2018, (vi) Letter of security personal dated 25.04.2018, (vii) Letter of Overnite Express Courier Service and online tracking (viii) Extract of Section 192 IPC (ix) Extract of Section 420 IPC, (x) Statement of account of State Bank of India, (xi) Statement of account of Standard Charted Bank (xii) Copy of judgment of NCDRC in M/S Nitin Bhatia Vs. M/S Parsvnath Developers Ltd., 2015 SCC OnLine NCDRC 1423. 

12.    The complainants filed Affidavit of Additional Evidence on 11.09.2018, attaching documentary evidence (i) Printout of the website of ICICI Bank, showing advertisement of Amrapali Grand, mentioning delivery of possession in December, 2009 (ii) Data Analytics Service Provider used by ICICI Bank (iii) Copy of FIR registered against Anil Sharma, CEO of Aprapali Grand (iv) Copy of FIR lodged by Surendra Singh (v) Copies of guidelines issued by RBI.

13.    The complainants filed Affidavit of Additional Evidence on 20.12.2018, attaching documentary evidence (i) Copy of Model Code of Conduct of ICICI Bank, (ii) Judgement of Supreme Court reported in 2011 SCC OnLine CESTATA 1583, (iii) Copies of 3 cheques given by Amrapali Grand to the complainant along with receipt relating to its deposit (iv) Home Insurance Policy Certificate issued by ICICI Lombard General Insurance Ltd., which was effective from 31.05.2007 to 30.05.2012, (v) Judgment of Supreme Court reported in (2014) 14 SCC 788, (vi) Printout of advertisement issued by ICICI Bank (vii) Letter dated 24.08.2006, issued by Greater NOIDA to Bihariji Ispat Ltd. (viii) NOC issued by Government to Amrapali Grand dated 11.09.2008, (ix) RBI notification dated 17.11.2006, issuing guidelines of Home Loan, (x) Order of Supreme Court reported in 2018 SCC OnLine 1111, (xi) Extract of Regulation-23, relating to compulsorily obtaining Occupation Certificate before giving possession, (xii) ICICI Bank’s Customers Right Policy, (xiii) Code of ICICI Bank’s commitment to the customers and (xiv) Guidelines of RBI dated 05.05.2003.

14.    The complainants filed an Affidavit of Admission/Denial dated 07.03.2018, in respect of documentary evidence filed by opposite party-1 and an Affidavit of Admission/Denial dated 10.08.2018, in respect of documentary evidence filed by opposite party-2. The complainants filed an application dated 22.03.2021, for additional evidence i.e Copy of information dated 19.02.2020, supplied by National Company Law Tribunal, New Delhi, and a judgement of Nation Consumer Dispute Redressal Commission dated 23.01.2020 passed in CC No. 2727 of 2018.

15.    Amrapali Grand filed copy of the order of National Company Law Tribunal, New Delhi dated 04.10.2017, along with written statement. An Affidavit of Admission/Denial dated 26.04.2018.

16.    ICICI Bank filed Affidavit of Evidence dated 03.08.2018 and an Affidavit of Admission and Denial dated 03.08.2018. 

17.    We have considered the arguments of the parties and examined the record. The counsel for Amrapali Grand raised preliminary objection in hearing/deciding the complaint on merit on the grounds:- (i) The project Amrapali Grand was under the aegis and flagship of Ultra Home Construction Pvt. Ltd. On a petition of Bank of Baroda under Insolvency Bankruptcy Code, 2016, Case No. (IB) 122 (PB)/2017 was registered against Ultra Home Construction Pvt. Ltd., before National Company Law Tribunal, New Delhi, in which by order dated 04.10.2017, moratorium was declared under Section 14 of the said Code, 2016 as such hearing of this complaint was liable to be adjourned sine die and (ii) Supreme Court in Writ Petition (Civil) No. 940 of 2017, Bikaram Chaterji Vs. Union of India and other connected writ petitions, by its order dated 01.08.2018, freezed Bank Accounts of Amrapali Grand and other company of the groups. By a subsequent order dated 23.07.2019 (reported in Manu/SC/0947/2019) appointed Mr. R. Venkataramani, Senior Advocate of Supreme Court as the Receiver. Home buyers were directed to get their claim, if any, registered before the Receiver, who can refund money with prior approval of the Supreme Court.

18.    So far as Case No. (IB) 122 (PB)/2017 is concerned, it is against Ultra Home Construction Pvt. Ltd., while Amrapali Grand, is a registered partnership firm and has its separate entity. It is a separate juristic person under the law. The complainants have filed an information issued on 19.09.2020 by National Company Law Tribunal, New Delhi, to the effect that no case was pending against Amrapali Grand nor any proceeding under Insolvency Bankruptcy Code, 2016 could be taken against it, which is a partnership firm. Therefore moratorium declared in Case No. (IB) 122 (PB)/2017 has no effect upon this case. So far as the order of Supreme Court in concerned, only Bank Accounts of Amrapali Grand were seized and the claim of home buyer of Amrapali Grand has to be registered before the Receiver. Adjudication of any dispute against Amrapali Grand by the authority of competent jurisdiction has not been stayed. Interim orders passed by Hon’ble Supreme Court will have effect on execution of the order, if any. For that purpose, the complainants have to go before the Receiver. Preliminary objections have no force and are rejected. 

19.    ICICI Bank (opposite party-2) has filed Interim Application No. 20235 of 2017, under Order 1 Rule 10 C.P.C. on 18.12.2017, for deleting its name from the array of the parties on the ground that no relief has been claimed against the Bank in the complaint. The complainants filed Interim Application No. 5922 of 2019, for initiating criminal prosecution against Sandeep Bakshi, Chief Executive Officer Managing Director of ICICI Bank, exercising power under Section 340 Cr.P.C. and awarding exemplary cost of Rs. 10,00,000/- against the Bank, for adopting unfair trade practice, in featuring a project, which was not in existence and thereby cheating the customers.

20.    From the documents on record, it is proved that ICICI Bank had featured a show on NDTV in 2007 as “Hot Property” Amrapali Grand, discount of 10% on cash down payment and possession in December, 2009, which is still available of its website. Such advertisements were also published in newspapers. But while granting the loan to the complainants, it took U-turn and surreptitiously obtained the signatures of the complainants on a letter, mentioning therein that necessary permission and approval from the concerned authority were still to be obtained by the builder and it would not hold ICICI Bank responsible for any delay or deferment of the said project at any subsequent date. From this letter, it is proved that it was in knowledge of the ICICI Bank that the project of Amrapali Grand was not started at the time of advertisements. ICICI Bank further gave Rs.1,98,717/- to ICICI Lombard General Insurance ltd., from the loan account of the complaints and obtained Insurance Policy of the flat No. T-VI/403, Fourth Floor Amrapali Grand for the period of 31.05.2007 to 30.05.2012, covering risk from fire of the building and its contents and burglary of the contents. Knowing well that at that time, neither the project nor the flat were in existence. Featuring about the date of possession of a project, which was not in existence at the time of advertisement and obtaining its insurance policy incurring huge amount of the complainants is not only unfair trade practice but also amounts to criminal breach of trust. Interim Application No. 20235 of 2017 filed by ICICI Bank is rejected. By way of exemplary cost and punitive damages we impose Rs.10,00,000/- (ten lakh only) upon ICICI Bank (opposite party-2) under general clause of the relief.

21.    Complainant-1 argued that she was going to retire from government service, in 2010 and did not own any house. Induced with the advertisements of the opposite parties, she decided to purchase a 4 BHK flat in this project, anticipating that she would obtain possession in December, 2009. Total cost of 4 BHK flat was Rs.81,07,550/-. Booking amount (10% of total cost) was worked out to Rs.7,56,675/- and remaining 85% was worked out to Rs.69,72,540/-. The complainants booked a 4 BHK flat and deposited Rs.7,56,675/- through account payee cheque No. 018189, drawn on ICICI Bank, on 26.05.2007, which is proved from counter part of Booking Form, allotment letter dated 26.05.2007, Demand Letter dated 26.05.2007 and receipt dated 26.05.2007. However, in sale agreement, which was on a printed proforma, facts relating to discount and delivery of possession were not mentioned. Remaining 85% of sale consideration, i.e. Rs.69,72,540/- was given through Cheque No. 115127 dated 31.05.2007, which was credited to the account of Amprali Grand on 04.06.2007. Amrapali Grand has issued a receipt dated 04.06.2007 to the complainants, which is on record. From these evidence, it is proved that 95% of sale consideration was paid by the complainants till 04.06.2007. Remaining 5% of the sale consideration i.e Rs.3,78,335/- had to be paid at the time of possession. Facts of booking 4 BHK flat, its total cost to be Rs.81,07,550/- and receiving Rs.69,72,540/- on 04.06.2007 are admitted by Amrapali Grand. However, relying upon agreement for sale dated 26.05.2007, Amrapali Grand denied that any discount was given to the complainants. Amrapali Grand took the plea that they had returned cheque No. 018189 of Rs.7,56,675/- to the complainants, shortly after 04.06.2007, as the complainants had assured that they would give 15% of the sale consideration at the time of possession.

22.    From the evidence on record it is proved that the complainant had handed over cheque No. 018189 of Rs.7,56,675/- to Amrapali Grand on 26.05.2007. ICICI Bank handed over Cheque No. 115127 of Rs.69,72,540/- to Amrapali Grand on 31.05.2007, which was encashed on 04.06.2007. For denying, the discount of 10% of the sale consideration, Amrapali Grand relies upon the agreement for sale dated 26.05.2007, which does not contain any specific averment regarding 10% concession. In clause-6 of this agreement, it has been mentioned that if the allottee opt to pay in advance of schedule a suitable discount may be allowed. Amrapali Grand took plea that cheque No. 018189 of Rs.7,56,675/- was returned to the complainants, shortly after 04.06.2007 and it was never encashed by them. The fact that cheque No. 018189 of Rs.7,56,675/- was not encashed by Amrapali Grand is not disputed. However, from returning the cheque No. 018189 of Rs.7,56,675/- and not encashing it, the only inference is drawn that opposite party No.1 had given discount of 10% of the sale consideration, in terms of their advertisement as well as clause-6 of the agreement for sale otherwise there was no reason for them to return the cheque, which was given to them by the complainants.

23.    The counsel for Amrapali Grand, relying upon agreement for sale dated 26.05.2007, argued that there was no commitment for delivery of possession in December, 2009. He submitted that the construction was completed in 2010 and the buyers (except the complainants) took possession in 2011. According the advertisement, there was commitment for delivery of possession in December, 2009. According to the complainants, Amrapali Grand further made a commitment for reimbursing the amount of EMI, for the period for which delivery of possession was delayed. The complainants have filed Photostat copies of cheques (one cheque of Rs.1,05,000/- in every month from March 2010 to August, 2010) issued by Amrapali Grand to her, while Rs.1,02,887/- was amount of EMI of ICICI Bank, of the loan granted to her. If there had been no commitment for delivery of possession in December, 2009, then there was no reason for Amrapali Grand to give cheques to the complainants. From this fact, it is proved that Amrapali Grand had assured the complainants for delivery of the possession over their flat till December, 2009.

24.    The counsel for Amrapali Grand submitted that construction was completed in the year 2010 and other buyers (except the complainants) took possession in 2011. The complainants were offered to take possession after giving remaining sale consideration of Rs.11,35,010/- at that time, when other buyers were given possession but the complainants raised dispute about 10% discount and did not take possession as such their allotment stood cancelled.

25.    From the information supplied by Greater NOIDA Authority dated 26.06.2015, it is proved that Occupation Certificate was issued to Amrapali Grand on 18.03.2013. Prior to 18.03.2013, possession could not be delivered to the buyers under the Regulations framed by Greater NOIDA Authority. Amrapali Grand has not filed copy of any notice, issued/served upon the complainants for taking possession after payment of Rs.11,35,010/- as alleged. On the other hand, it is proved that the complainants had handed over cheque No. 196011 dated 01.09.2014 of Rs.3,78,375/- to the office of opposite party-1 but nothing was done. In the absence of any notice for delivery of possession to the complainants, agreement for sale cannot be cancelled. Deficiency of service on the part of opposite party-1 is proved from the evidence on record.

26.    Due to inordinate delay in offering possession, the  present complaint has been filed for return a sum of Rs.2,03,89,200/- along with pendent lite  interest @ 24% per annum, award cost of litigation and exemplary damages and any other order, deemed fit and proper in the facts and circumstance and in the interest of justice.  Rs.2,03,89,200/- included Rs.71,71,257/-, (the loan amount sanctioned by ICICI Bank to the complainants), Rs.92,96,543/- (the interest paid by the complainant to ICICI Bank on aforesaid loan), Rs.14,21,400/- (the rent paid by the complainants for rented accommodation) and Rs.25,00,000/- for exemplary damages for metal torture and physical harassment. The complainants have filed Interim Application No. 2837 of 2021 for permitting them to hand over key of the flat in question to Resident Welfare Society of Amrapali Grand as they forgave their right of possession.

27.    Although ICICI Bank sanctioned loan of Rs.71,71,257/- to the complainants out of which, Rs.69,72,540/- was paid to Amrapali Grand  on 04.06.2007 through cheque No. 115127 dated 31.05.2007. Hon’ble Supreme Court in GDA Vs. Balbir Singh, (2004) 5 SCC 65 held that the compensation includes actual monetary loss, expected future monetary loss and punitive damages for mental and physical suffering. At present, for monetary loss, in the cases for refund of money is being given by awarding 9% interest on the money which is liable to be refunded along with refund of that money. The complainants could not show any case law in which amount of rent paid was also included in actual loss. From, Email letter dated 22.11.2008 (Exhibit-14) written by the complainants to Managing Director of Amrapali Grand, it is proved that 10% discount of total sale consideration has been denied, in the year 2008. From this it is proved that the dispute regarding payment of discount was raised much before December, 2009. If the complainants have decided to take back their money, for not giving discount of 10%, then it ought to have been done in the year 2008. The complainants are not entitled for damages towards the rent paid by them. Amrapali Grand (opposite party-1) is liable to return Rs.69,72,540/- along with interest a @ 9% per annum from 04.06.2007 till its actual payment.

O R D E R

In view of aforementioned discussions the complaint succeeds and is partly allowed.  Amrapali Grand (opposite party-1) is directed to pay Rs.69,72,540/- along with interest at the rate of 9% per annum from 04.06.2007 till actual payment and Rs.50,000/- as cost of the litigation to the complainants within two months.

ICIC Bank (opposite party-2) is directed to pay Rs.10,00,000/- as punitive damages and Rs.50,000/- as the cost of litigation to the complainants within two months.

Interim Application No. 20235 of 2017, under Order 1 Rule 10 C.P.C. is rejected.

Interim Application No. 5922 of 2019 is partly allowed.

Interim Application No. 2836 of 2021 is allowed. Additional Evidence filed along with this application is taken on record.

Interim Application No. 2837 of 2021 is allowed. The complainants are permitted to hand over key of the flat in question to Resident Welfare Society of Amrapali grand, within 15 days, who shall accept it.

  …………………. C. VISWANATH PRESIDING MEMBER ………………….J RAM SURAT RAM MAURYA MEMBER

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