COURT DIRECT POLICE TO INVESTIGATE CHEATING CASE FILED AGAINST MERLIN PROJECTS LTD & UNION BANK OF INDIA.
A cheating case was filed against Merlin Projects Ltd & Union Bank of India for offences committed u/s 420/427/120B of the Indian Penal Code and the Chief Judicial Magistrate, Alipore Court, Kolkata, giving due cognizance to our complaint, directed the Police to investigate the case.
Case Ref No.is 1326/08 and Process No. is 775/08.
To know more, please go to consultcal.googlepages.com/merlinprojectsltd,cheatingcase
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  • Why only NRI's .. This should be for everybody..

    The nexus is prevalant even with reputed builders. Hiranandani Oragadam doesnt have many approvals in place Yet its project is 'approved' by most of the leading banks. Name the bank you will find it is approved.
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  • Pay for their Greed !!!

    Its fine that NRI's are getting treated like this. They are the one of the Biggest Culprit for the Highly Over priced Indian Real Estate market. These NRI's want fast and quick money and have increased the value of the Market. At last they are getting kicked out from US?UK ... and coming back again to India.
    Na Ghar Ka Na Ghat ka !!!:D
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  • Pretty Sad

    Originally Posted by arin_12
    Its fine that NRI's are getting treated like this. They are the one of the Biggest Culprit for the Highly Over priced Indian Real Estate market. These NRI's want fast and quick money and have increased the value of the Market. At last they are getting kicked out from US?UK ... and coming back again to India.
    Na Ghar Ka Na Ghat ka !!!:D


    Arin,
    Its sad that you have these views. How many NRI did you meet, before drawing this conclusion? What stats do you have that NRI are responsible for this price hike? I am NRI and waiting to buy property since 2007.
    There are all kinds of people in the world. Its not just NRI, there are many stupid, impatient people in India too, who felt that RE always goes up and invested like stock market, buy now and sell after year, to get 100% returns. I personally know 3 people in India who have invested like this.
    So dont just blame NRI. It sounds more like you are frustrated that you are not NRI.
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  • GREED not NRI

    It is the greedy builders/re agents who are the ones to be blamed .It is very easy to blame a particular group of people cause talk is cheap
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  • Greed and NRI

    In the name of right to speak, someone has blamed the NRI for the high prices in property market in India. The opinion is not true as NRI always pay the white money and the money they have earned the hard way whereas our Indian counterpart always will pay in white and black . How many workers in many gulf countries are paying big money to agents in India and then send to the gulf at meager salaries where they have to work in very hot and hard conditions to at least work for one year to pay for those agents and then can save some money for their families. NRI never believes in any show off whereas if you go to any restaurent, mall , cinema hall in India, you can see resident Indian spending money lavishly whereas a NRI think ten times before spending any money and often wonders that who says most of the Indian are poor when in cities they are spending money lavishly. NRI earns money honestly and with hard labour whereas in India many earns money by bribery, corruption and with political links. A Cholle wala created such a Chooegate kand in Delhi, which is not possible in any other part of the world.
    NRI is not rising the prices in India but they are often cheated by many builders.
    Jai Hind
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  • I am an NRI and trying to buy a property in india since 2006. I did not buy any property cause I can not afford and so does most of other NRI's. Biggest question is if NRI's can't afford then who is buying all these over priced inflated properties? Definitely people with black money like politicians, mafia people and most of the business people who does not pay taxes to the government.

    As other fellow said, an NRI earn money honestly working under severe weather conditions away from family and friends. Absolutely false statement that NRI's are culprits. We think 100 times to spend money when we come to india because its hard earned money.

    Take back your workds. Your words speak about your immature mind. Think twice before you write.
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  • WITHOUT PREJUDICE

    Dear All,

    We have learnt that one Mr. Partha Roy has been sending letters and e-mails to you with certain allegations.

    The matter is subjudice and Mr. Partha Roy is sending distorted information suppressing a number of facts and his defaults.

    We would like to emphatically state and place on record, that the said allegations are ill motivated, ill conceived, fabricated and totally unwarranted with motive of illegal gains.

    We would like to inform the readers some past records about Mr. Partha Roy & his son Pandav Roy.

    A. Mr. partha roy is Defaulter in 12 cases involving different banks/financial institutes.
    B. his son, Pandav Roy (joint agreement holder) is defaulter in 5 cases involving different banks/financial institutes.
    C. The defaults by both father and son are against home loan, credit card bills, car loans, education loan and personal loans as per reports by Credit Information Bureau (India) Ltd. (CIBIL), a company promoted by and serving to banks and financial institutes, such as icici, hdfc, sbi and other banks etc.
    Report from Credit Information Bureau (India) Ltd. in the name of Mr. Partha Roy and Pandav Roy showing their default is attached herewith.

    D. mr. partha roy was also accused in Cheating case being no. 82/2004 at Kalighat Police Station, kolkata.


    To briefly sum up, Mr. Partha Roy & his son Pandav Roy paid us a token amount against their commitment, towards the initial payment and arranged with Union Bank of India, to finance the balance payment, of the purchase consideration.

    As per records, Merlin Group never had any transaction with Union Bank of India, Sarat Bose Road branch, apart from the home loan matter of Mr. Partha Roy and Pandav Roy.

    Further, it was Mr. Partha Roy / Mr. Pandav Roy who wanted the home loan from Union Bank of India because his wife had an account in the same branch.

    Mr. Partha Roy / Mr. Pandav Roy thereafter gave another cheque of Rs. 1, 93, 750/- favouring Merlin Projects Ltd. towards approximately 15% of the total consideration. This cheque of Rs. 1, 93, 750/- was dishonoured twice upon presentation (copy attached).

    One Tripartite Agreement was entered into between the accused, Merlin Projects Ltd and Union Bank of India, Rash Behari Branch for the purpose of availing of home loan by accused from Union Bank of India.

    However inadvertently, the fact of dishonour of the cheque for the sum of Rs. 1, 93, 750/- escaped the notice of us and so the provisions of the Tripartite Agreement was laid down without mentioning the fact of dishonour of the cheque of Rs. 1, 93, 750/- .
    Mr. Partha Roy was required to repay Union Bank of India, Rash Behari Branch, a sum of Rs. 13, 020/- w.e.f April 2004 by way of several equal monthly installments (EMI’s). After repayment of the first 5 or 6 EMI’s, i.e. from October 2004 (Intimation letter dated 2nd March 2005 from Bank attached), Mr. Partha Roy & his son Pandav Roy started defaulting in making repayment of the EMIs to Union Bank of India. The Union Bank of India after waiting for nearly two years, during which they repeatedly requested, reminded and insisted upon the Mr. Partha Roy & his son Pandav Roy to repay their dues to the Bank through EMIs, got the Row House sold to M/s. Murarka Advisory & Holdings Pvt. Ltd by invoking the provisions of the SARFAESI Act.
    Mr. Partha Roy has alleged that we have not registered the Sale deed in favour of his son / himself. But the registration of the Row House No- B-15 at Merlin Greens Complex could not be executed in favour of Mr. Partha Roy for the following reasons:

    a. The sum of Rs. 1, 93, 750/- which was due from Mr. Partha Roy remained and still remains unpaid.

    b. Mr. Partha Roy and his son never came up with the stamp papers or the amount required to be paid towards stamp duty or any pay order favouring the Registrar of Assurances for the purpose of registration of the Deed of Conveyance.

    c. Several letters from time to time were addressed by the Bank to Mr. Partha Roy and Mr. Pandav Roy, with a copy being marked to Merlin Projects Ltd. reminding that they were turning out to be a progressive defaulter. Upon coming to know that Mr. Partha Roy is not making the repayment to the Bank, Merlin Projects Ltd. grew apprehensive, because in the event of Mr. Partha Roy’s failure to repay the Bank, Merlin Projects Ltd being the guarantor, was required to replenish the Bank. While harbouring such a sense of fear, it was not possible for Merlin projects Ltd to transfer the property to Mr. Partha Roy, notwithstanding the sum of Rs. 1, 93, 750/- which was already due. A number of letters were also sent by Merlin Projects Ltd to Mr. Partha Roy in this regard.

    The bank vide their notice ref. NRO:KOL:CRLD:940A:07 dated 24.04.07 (copy attached) addressed to Mr. Partha Roy, with a copy to us, informed him, of their decision for enforcement of Security Interest Action Notice, in respect of the said premises and demanded that all outstanding, inclusive of interest, be paid by them failing which, the Bank would invoke Section 13(2) of the Securitization and Re-construction of Financial Assets and Enforcement of Security Interest Act 2002

    As per information available to us, Mr. Partha Roy paid a very small amount only covering few EMIs towards repayment against a loan of approx Rs.14, 00, 000/-. Against this default, bank foreclosed his loan account under SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT SECURITY INTEREST ACT, 2002 (SARFAESI) in Mid 2007.

    Mr. Partha Roy approached Kolkata High Court and requested for Stay in proceedings under SARFAESI Act initiated by the bank but the High Court ordered the Union Bank to take its own course (order of High Court enclosed) .

    Union Bank of India, took possession of Row House No- B – 15 on 24.08.07 under SARRFAESI Act by the Authorised Officer of the Bank. The Minutes dated 24.08.07 (copy attached) of taking possession, of the Row House and secured assets of Mr. Partha Roy and Mr. Pandav Roy, would clearly go to show that the borrowers Mr. Partha Roy and Mr. Pandav Roy, had voluntarily delivered physical possession of the Row House and secured assets which were taken in possession in his presence by delivering a copy of the possession notice as per Rule 8(1). As per the Minutes, the house was found to be vacant and only some unused utensils and clothes were found lying inside the premises, inventory of the same was made as per Rule 4(2). The Minutes were drawn in presence of witnesses and was duly signed by Mr. Partha Roy.

    The said Inventory was prepared on 24.08.07 at 3.30 P.M. in presence of Mr. U. K. Sinha & Mr. Srikant Das. The Inventory was also signed by Mr. Partha Roy. In the said Inventory it was clearly stated that only the following articles were found.
    1) Aluminium Trolley
    2) One plastic chair
    3) 3 cartoons containing utensils etc.
    4) One bag with old clothes
    5) Kitchen utensils
    6) Five ceiling fans
    7) Light fittings

    The estimated value stood at Rs. 5, 000/-. It was further stated in the inventory that all the movable items were kept in the house which was taken possession in presence of Mr. Partha Roy. It was further laid down in the inventory that according to Mr. Roy, “the items are used and household one without any value”.
    In the light of the Minutes and the Inventory that was prepared on 24.08.07, it is clear that the property was re-possessed by Bank and Merlin Projects Ltd was not involved in such recovery process by Bank, as such, all allegations and claims made by Mr. Partha Roy against Merlin Projects Ltd. are totally absurd and frivolous and without any legal force.
    The Order passed by State Consumer Disputes Redressal Commission in favour of Mr. Partha Roy and his son is stayed by National Consumer Disputes Redressal Commission on the grounds:

    (1) Mr. Partha Roy has cunningly not made Union Bank of India a party in the aforesaid case

    (2) Mr. Partha Roy has intentionally suppressed many facts of the case including his defaults of payment which was to be made to the bank as EMI and to us against the Earnest Money (Rs. 1, 93, 750/- and the most important fact that the Union Bank invoked SARFAESI Act due to default.

    Mr. Partha Roy should update his website with the aforesaid facts and stop misleading people.


    After the re-possession of the Row House by bank, Mr. Partha Roy started creating red herrings by way of raising baseless disputes, in the matter and thereafter, sending various letters, complaints and e-mails to different forums.

    With regard to the complaint before the Learned Chief Judicial Magistrate, this is nothing but an exercise to harass us. The Learned Chief Judicial Magistrate has directed the Police Authority to investigate into the matter. There is no Order to proceed against us as claimed by Mr. Partha Roy. Truth will prevail.

    As a matter of fact, the motive of Mr. Roy is to harass us and squeeze money from us as per subsequent letters sent to us (Copy attached).

    The e-mails sent and website created by Mr. Partha Roy are full of wrong information created as per the convenience of Mr. Partha Roy. However, the attachments will throw light on the actual story.


    For and on behalf of

    Merlin Projects Ltd.


    List of Attachments can be seen at link. http://sites.google.com/site/proysdocsandfacts/home/asd ]
    1. CIBIL Report in the name of Partha Roy
    2. CIBIL Report in the name of Pandav Roy
    3. Information from bank about bouncing of cheque
    4. Letter from the bank informing default by Mr. Roy.
    5. Order of High Court
    6. Order passed in proceedings of SARFESI Act
    7. Minutes signed between the bank and Mr. Partha Roy recording the repossession by bank.
    8. Letter sent to us by Mr. Partha Roy requesting us to give him another bungalow. ]
    1. CIBIL Report in the name of Partha Roy
    2. CIBIL Report in the name of Pandav Roy
    3. Information from bank about bouncing of cheque
    4. Letter from the bank informing default by Mr. Roy.
    5. Order of High Court
    6. Order passed in proceedings of SARFESI Act
    7. Minutes signed between the bank and Mr. Partha Roy recording the repossession by bank.
    8. Letter sent to us by Mr. Partha Roy requesting us to give him another bungalow. ]
    1. CIBIL Report in the name of Partha Roy
    2. CIBIL Report in the name of Pandav Roy
    3. Information from bank about bouncing of cheque
    4. Letter from the bank informing default by Mr. Roy.
    5. Order of High Court
    6. Order passed in proceedings of SARFESI Act
    7. Minutes signed between the bank and Mr. Partha Roy recording the repossession by bank.
    8. Letter sent to us by Mr. Partha Roy requesting us to give him another bungalow.
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  • Inflated prices and NRI

    Originally Posted by javaguy_pk
    I am an NRI and trying to buy a property in india since 2006. I did not buy any property cause I can not afford and so does most of other NRI's. Biggest question is if NRI's can't afford then who is buying all these over priced inflated properties? Definitely people with black money like politicians, mafia people and most of the business people who does not pay taxes to the government.

    As other fellow said, an NRI earn money honestly working under severe weather conditions away from family and friends. Absolutely false statement that NRI's are culprits. We think 100 times to spend money when we come to india because its hard earned money.

    Take back your workds. Your words speak about your immature mind. Think twice before you write.


    Hello friends,
    I am an NRI and had been trying to buy a flat in Navi Mumbai since 2005.
    First I booked a 2 BHK in Sanpada in 2005 800/s.ft. Before the first instalment was due, the builder told me rates went up to 1400/s.ft. I had to cancel because I could not afford. The builder will not give me the whole booking amount. I lost 25% of the booking amount.

    So, after 5 years, I decide to buy a flat India bulls Green in Panvel, they quoted 2400/ sq.ft and I was ready to book and in the process of transfering money, I get a mail from the builder that all the flats in phase I are sold out and new prices on phase II is 3350/s.ft.

    It is all the nexus of the real estate agents. NOT NRI'S. Real Estate prices in India has come to a point where even a 50 year old NRI cannot afford a flat in a decent city in India. All I am looking is for a 2BHK to stay for a few months every year after our retirement.

    5000 flats sold in one day in a property exhibition? It should be mostly by the brokers. with 10 lakhs you can book 10 flats. Then inflate the prices and sell. That is how the prices went up. NOT THE NRIs.
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  • An impartial legal opinion

    An impartial (and free) legal opinion on the above issue:

    The reply of Merlin Projects Ltd appears to incriminate them further instead of absolving them. Reasons for expressing this opinion are duly explained below:

    1. The matter of Bank Loan defaults/CIBIL Reports are not relevant to the cases filed against Merlin and will not absolve them if they are proved to be otherwise guilty;

    2. CIBIL reports can only be accessed by CIBIL Members (generally Banks). If Merlin is not a member and have used the reports for purposes other than intended then they could be slapped with severe criminal charges under IPC and the IT Acts.

    3. The CIBIL Reports appear to be incorrect because names of the lender banks (except ICICI Bank) are not displayed in the reports which would appear to indicate that ICICI Bank passed on the reports to Merlin Projects Ltd.

    4. Even if the CIBIL reports are genuine, the complainants would most likely file criminal charges against Merlin & ICICI Bank for illegal access and misuse of the said CIBIL reports and could obtain compensation in Crores of Rupees from Merlin and ICICI Bank.

    5. From the content of their website, it appears that the complainants are quite well off, well educated, are tax payers and do not seem to be the typical types who would cheat Banks by taking multiple loans. Their website would invoke public sympathy and favourable court decisions. Also, as per the CIBIL Reports, the complainants are PAN card holders and it is quite impossible for Pan Card holders to obtain repeated loans from different Banks. This matter should have been verified thoroughly by Merlin before publicizing the issue of loan default by the complainants. However, in this respect, Merlin seems to have already burnt their fingers by accessing and displaying the CIBIL Reports.

    5. From the High Court Order it appears that applicability of the SARFAESI Act for repossession of the property was not admitted and the matter was kept open for mention. It also appears that the Court directed the Bank not to take any action in regard to the property till the writ petition was disposed off. Therefore if Merlin and / or the Bank disposed off the property while the said writ application was 'sub-judice' then such action would be deemed as invalid and the sale would be cancelled. Also, both the parties would face charges for having acted in violation of High Court Orders.

    6. The personal items left by the complainant in the property seems to be a bait set up by them with the motive of retaining symbolic possession of the property till their writ petition was disposed off. If Merlin and/or the Bank allowed access rights of the property to any 3rd. party before applicability of the SARFAESI Act on the property was admitted by the High Court then the complainants can, even falsely, claim losses, damages or theft to prosecute the Bank and Merlin and it is likely that their charges would stick.

    7. The complainant appears to have received a very favourable Order from the Consumer Court. It is unlikely that higher Courts will overrule this very strong Order passed by a Senior High Court Judge.

    8. From their action of filing cases in various courts, it appears that the complainants are investing large sums of money to entrap Merlin and/or the Bank in a legal manner. The complainants do not appear to have any interest in getting back their house and are only mentioning this to garner public support as well as the sympathy of Courts and law enforcement officers.

    9. It appears that the Police are delaying the matter to see if the case can be mutually settled by the concerned parties or if Merlin can somehow pressurize the complainant to withdraw the cases filed by them. However, going by the evidence submitted by the complainants and the Order passed by the Consumer Court, it seems impossible for the Police to avoid issuing a charge-sheet against Merlin and the Bank and if they do not do so, the complainant may approach the CBI in which case even the concerned Police Officials may face charges.

    If the complainants have really defaulted on loans then they would care two hoots for their reputation after managing to swallow the loan amounts and they would be fully aware that only the concerned Banks can prosecute them and not Merlin.

    If they are not loan defaulters then they would slap Merlin with other charges and make them stick.

    If the Police or any other law enforcement agency should file a charge sheet against Merlin (which appears to be inevitable) then the complainants would cause huge loss of reputation to Merlin by widely publicizing the matter.

    For Merlin it is a case of "heads you win, tails I lose".

    FREELEGAL


    Originally Posted by meconsult
    COURT DIRECT POLICE TO INVESTIGATE CHEATING CASE FILED AGAINST MERLIN PROJECTS LTD & UNION BANK OF INDIA.
    A cheating case was filed against Merlin Projects Ltd & Union Bank of India for offences committed u/s 420/427/120B of the Indian Penal Code and the Chief Judicial Magistrate, Alipore Court, Kolkata, giving due cognizance to our complaint, directed the Police to investigate the case.
    Case Ref No.is 1326/08 and Process No. is 775/08.
    To know more, please go to ="http://consultcal.googlepages.com/merlinprojectsltd%2Ccheatingcase"]consultcal.googlepages.com/merlinprojectsltd,cheatingcase
    CommentQuote
  • Justice for NRI.

    Please read below order passed by the Apex Consumer Court directing builder to pay approx. Rs.75 Lakhs to the complainant (former NRI)
    NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
    NEW DELHI
    FIRST APPEAL NO.128 of 2009
    (From the order dated 24.02.2009 in Complaint No. 07/0/2007 of the West Bengal State Consumer Disputes Redressal Commission.)

    1. Merlin Projects Ltd.,
    Merlin House,
    79, Sambhunath Pandit Street,
    P.S. Bhowanipore,
    Kolkata – 700 020.

    2. Mr. Vikas Mimani,
    Manager, Merlin Projects Ltd.,
    79, Sambhunath Pandit Street,
    P.S. Bhowanipore,
    Kolkata – 700 020.
    …..Appellants
    Vs.
    1. Mr. Pandav Roy,
    T-C/3, 2nd floor, Golf Green Phase-I,
    Uday Shankar Sarani, Near T.V. Station,
    P.O. Golf Green, Kolkata – 700095.
    West Bengal.

    2. Mr. Partha Roy,
    T-C/3, 2nd floor, Golf Green Phase-I,
    Uday Shankar Sarani, Near T.V. Station,
    P.O. Golf Green, Kolkata – 700095.
    West Bengal.

    …..Respondents


    BEFORE: -
    HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT
    HON’BLE MRS. VINEETA RAI, MEMBER
    HON’BLE MR. VINAY KUMAR, MEMBER


    For the Appellants: Mr. Nakul Dewan, Advocate with
    Mr. Abhijeet Sinha, Mr. Shiv Ramakrishnan, & Ms. Azal Khan, Advocates.

    For Respondents: Mr. Prasanta Banerjee, Advocate with
    Mr. Partha Roy, R-2 in person.

    O R D E R
    (Pronounced on 23rd day of May, 2014)

    D.K. JAIN, J. PRESIDENT

    This First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), has been preferred by the Colonizer, a Company incorporated under the Companies Act, 1956 and their Manager, questioning the correctness and legality of order, dated 24.02.2009, passed by the State Consumer Disputes Redressal Commission, West Bengal (for short “the State Commission”) in SC Case No. 07/0/2007. By the impugned order the State Commission has directed the Appellants, who were arrayed in the Complaint as Opposite Parties No. 1 and 2 respectively, to execute and register the Deed of Conveyance in respect of the subject flat in favour of the Complainants upon payment of the costs of registration as agreed to between the parties. The State Commission has also awarded a compensation of `50,000/- to the Complainants as also `5000/- towards costs.
    2. Briefly stated, the material facts giving rise to the present Appeal are that on being approached by the Respondents / Complainants, the Appellants allotted to them Row House No. B-15, Merlin Gardens, South 24 Parganas, Kolkata by way of an Agreement of Allotment on 01.05.2003. The total sale consideration for the said house was settled at `14,25,000/-. The Respondents paid a sum of `50,000/- as earnest money by cheque dated 01.05.2003. A supplementary agreement was executed on the same day incorporating certain new clauses, not relevant for the present case. The Respondents applied for housing loan of`15,00,000/- from Union Bank of India and on sanction thereof, on 21.01.2004, a Tripartite Agreement was executed between the Appellant Company, the Bank and the Respondents. The Complainants paid a further sum of `1,93,750/- towards the balance earnest money to the Appellant Company. The receipt of`2,43,750/-, by the Appellant Company from the Respondents, was acknowledged in the said Tripartite Agreement. Out of the sanctioned loan of `15,00,000/-, the Bank released to the Appellant Company a sum of `13,81,250/-, by pay order dated 25.02.2004 leaving a balance of `1,18,750/- for the purpose of registration of Deed of Conveyance in favour of the Respondents. Thus, the Appellant Company received a total sum of `16,25,000/- towards full consideration of `14,25,000/- for the said property and an additional sum of `2,00,000/- as contribution to the Corpus Fund for facilities as defined in Article I of Agreement dated 01.05.2003.
    3. The Respondents were put in possession of the suit property on 20.04.2004 and were provided with water, electricity and other allied facilities. It seems that on certain issues, relations between the Respondents and Appellant No.1 turned sour and exchange of unpleasant letters ensued. Ultimately, vide letter dated 23.10.2006, Appellant No. 2 informed the Respondents that since they had failed to fulfil their financial obligation, in as much as the cheque in the sum of`1,93,750/- issued by them on 22.09.2003 had been dishonoured twice and they had also defaulted in payment of instalments to the Bank, Agreement dated 01.05.2003 had been cancelled and they were being treated as trespassers. They were informed that the security and management staff had been instructed to desist from rendering any of the common services and/or facilities including disconnection of generator service. The Respondents were asked to immediately vacate the said premises and handover the same to them.
    4. The Respondents responded to the said letter on the same day, inter-alia stating that the amount of `1,93,750 had already been paid and accounted for and having accepted payment for Life Time Maintenance Charges – Corpus Fund (in terms of the Supplementary Agreement), they were contractually obliged to provide all essential services. The Appellants were requested to leave the issue of payments to the Bank, to be dealt by them directly with the Bank. It was alleged that the Appellant Company was avoiding execution of Conveyance Deed with a view to sell the same at a higher price.
    5. However, all the basic facilities having been withdrawn, the Respondents shifted from the house on 23.10.2006. Having failed to get the Conveyance Deed executed in their favour, on 01.03.2007, they filed Complaint under Section 17 of the Act in the State Commission, inter-alia, praying for directions to the Appellants to deliver possession of the suit property; restore essential services and execute and register Conveyance Deed, etc. A compensation of`14,00,000/- was also demanded from the Appellants. It appears that during the pendency of the Complaint, the Bank initiated proceedings against the Respondents under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act”). The Respondents amended the Complaint praying for, in the alternative, a compensation of a sum of `19,44,000/- as computed therein.
    6. The Complaint was resisted by the Appellants on several grounds. It was pleaded that the Complaint was bad for non-joinder of necessary party in as much as the Bank, which was one of the parties to the Tripartite agreement dated 21.01.2004, had not been impleaded. Justifying their action in cancelling the said agreement it was stated that the Respondents were also under obligation to pay `10,00,000/- and `3,00,000/- plus `2,00,000/- by 20.05.2003 and 30.05.2003 respectively, besides they were liable to pay a further sum of `75,000/- at the time of taking possession of the suit property, which amounts were not paid despite demand. It was also alleged that cheque in the sum of `1,93,750/- issued by the Respondents as earnest money was dishonoured twice and the said amount was never paid. The receipt of a sum of `13,81,250/- directly from the Bank was however, not denied. It was asserted that since the Respondents were not willing to pay the amount against the dishonoured cheque for `1,93,750/-, Agreement dated 01.05.2003 was cancelled.
    7. On consideration of the pleadings and evidence adduced by the parties by way of Affidavits, the State Commission has held that since the Tripartite Agreement, dated 21.01.2004 itself records payment of `2,43,750/- by the Respondents and payment of a sum of `13,84,250/- by the Bank to them was not disputed, no portion of the total consideration of `14,25,000/- for the flat remained unpaid. Rejecting the stand of the Appellants that the amounts mentioned in para 6 supra, were due from the Respondents, the State Commission has come to the conclusion that the Schedule of payment, in para 2.1 of Agreement of Allotment dated 01.05.2003, stood modified on payment of `13,81,250/- by the Bank and the Respondents were entitled to the relief of possession, execution and registration of Conveyance Deed, as also compensation for illegal withholding of the flat. Accordingly, the State Commission has directed the Appellants to execute and register the Deed of Conveyance in the respect of the aforesaid flat in favour of the Respondents within 60 days from the date of the order, upon payment of cost of registration, as agreed to by the parties, along with compensation of `50,000/- and `5,000/- as costs. In the event of default, the Respondents have been allowed to get the Deed registered through the State Commission and recover the said amounts along with interest 9% p.a. for the period of default. Hence, the present appeal.
    8. Mr. Nakul Dewan, Ld. Counsel appearing for the Appellants, in his oral submissions, questioned the legality of the impugned order mainly on three grounds, viz. (i) the bank being party to the Tripartite agreement dated 21.01.2004, having a charge on the said property, it was a necessary party and, therefore, the complaint should have been dismissed on the ground of non-joinder of necessary parties; (ii) Being defaulters themselves for not paying a sum of `1,93,750/- against the dishonoured cheque, the Respondents were estopped from accusing the Appellants of deficiency in service for not executing Conveyance Deed in their favour and (iii) Since the possession of the flat had already been delivered to the bank in proceedings under SARFAESI Act, the same had been auctioned, the auction purchaser was put in possession after execution of Conveyance Deed in their favour, the impugned directions are incapable of being implemented.
    9. Per contra, Mr. Prasanta Banerjee, Ld. Counsel for the Respondents and Respondent No. 2, who appeared in person, submitted that the Appellants having received full amount of consideration for the flat, in terms of Tripartite agreement dated 21.01.2004, they could not demand any amount over and above the consideration mentioned in the said agreement. It was argued that it was only on confirmation of receipt of earnest money of `2,43,750/- from the Respondents, as noted in the Tripartite agreement dated 21.01.2004, that the Appellant company had collected from the Bank the balance sale consideration of `13,81,250/-, otherwise the Bank would not have released the balance amount. It was strenuously urged that had the Appellants executed the Conveyance Deed in respect of the subject property on time, having already paid 18 EMIs (`2,32,654 in addition to `2,43,750/- as earnest money), the Respondents would not have stopped paying further EMIs, inviting unwarranted harassment, besides being deprived of the property. It was argued that the Appellants were not concerned with the issue of recovery of balance of loan amount by the Bank from the Respondents, yet they delivered the possession of the flat to the Bank unilaterally and even executed Conveyance Deed in favour of a third party (the Auction Purchaser), during the pendency of the complaint before the State Commission. It was contended that although entire proceedings under the SARFAESI Act were illegal, as admittedly no equitable mortgage by deposit of title deeds of the flat was created in favour of the Bank, still the Respondents have settled their account with the Bank.
    10. Having bestowed our anxious consideration to the material on record, we are of the opinion that there is no substance in the contentions urged on behalf of the Appellants and the Appeal is devoid of any merit.
    11. There is no dispute that the total agreed consideration for the subject flat was `14,25,000/-, which was payable in installments as mentioned in Article II of the Agreement of Allotment dated 01.05.2003. Stamp duty and registration charges were also to be borne by the Respondents. By a supplementary agreement of even date, the Respondents had agreed to pay an additional sum of `2,00,000/- to the Appellants for providing infra-structural maintenance, etc. facilities. The Appellants were to receive from the Respondents a total sum of `16,25,000/-. Thus, the short controversy is whether the Appellants were justified in refusing to execute Conveyance Deed in favour of the Respondents and forcing them to shift from the flat, on the allegation that the Respondents had failed to pay the agreed consideration for the flat and had defaulted in discharging their debt towards the Bank.
    12. In order to adjudicate upon the issue, it would be necessary to refer to a few documents on record. As noted above, after the booking of the flat and the Bank agreeing to finance the same on 21.01.2004, a Tripartite Agreement was entered into between the Respondents, the Appellant Company and the Bank. The material recitals in the agreement read as under:
    “Whereas the Builder agreed to sell a Row House to the Borrowers under an Agreement of Sale dated May 01, 2003, entered into between the builder and the Borrowers, which contains the terms and conditions for sale of the Row house in favour of the Borrowers and in furtherance thereof has already paid the Builder a sum of `2,43,750/- as and by way of earnest money. The balance of sale consideration is payable by the borrower based on stages of construction, which are detailed in the said agreements.
    Whereas the Bank on the written application and request of the Borrowers has already sanctioned a loan of `15,00,000/- to the Borrower (vide Sanction dated 22.01.2004) and has agreed to disburse/release the loan soon after the Borrowers creates an equitable mortgage by deposit of title deeds relating the Row House to be purchased by them from the Builder.
    Whereas the Borrowers requested the Bank for release/ disbursement of installments directly to the Builder and the Bank has agreed to release the loan amount provided the Builder agrees to stand as guarantor for the payment effected to them.”
    13. Clause (3) of the terms of covenants stipulated that the Appellant Company shall deliver possession of the flat to the Respondents only after obtaining No Objection Certificate to that effect from the Bank and further, the Appellant shall create equitable mortgage in favour of the Bank by deposit of title deeds of the flat, agreed to be sold vide Agreement of Allotment dated 01.05.2003.
    14. In furtherance of the Tripartite agreement, the Bank sent to the Appellant Company a pay order in the sum of `13,81,250/- with a covering letter dated 25.02.2004, which reads as follows:-

    “Re: P.O. no. 003142 for `13,81,250/- dated 25.02.2004 fvg. yourself in respect of Housing loan of S/Shri Pandav Roy and Partha Roy.
    Enclosed please find the captioned pay order issued towards your payment in respect of purchase of Row House No.315 in the complex The Terrace Marlin Green, Kriparampur 24 Parganas (s) pertaining to S/Sri Pandav Roy and Partha Roy.
    Kindly acknowledge receipt and formally hand over the property to the purchaser. We take this opportunity to thank you for entering into a Tripartite Agreement with our Bank alongwith the Borrower. It has really marked the beginning of new relationship which (illegible) will grow more and more in near future.”
    15. It is manifest from the afore-extracted recitals of the Agreement that the Tripartite Agreement dated 21.01.2004, did not contemplate possession first and payment later. While noting sanction of bank loan of `15,00,000/-, it records that a sum of `2,43,750/- has already been paid to the Appellants /Builder. Later, the Bank released a sum of `13,81,250/- on 25.02.2004 and possession of the flat was handed over to the Respondents on 20.04.2004. The afore-extracted covering letter dated 25.02.2004 also lends support to the stand of the Respondents that possession of the flat was delivered to them on the asking of the Bank. This clearly shows that possession was given after receipt of the agreed consideration in full. The explanation of Mr. Shiv Kishan Mohata, deposing on behalf of the Appellants, that at the time of signing the Tripartite Agreement, the matter of non-payment of `1,93,750/- “was taken lightly, on the basis of assurances and the gentlemanly behavior of the Complainants as a result of which the documents were not preserved and same is presently not available with Merlin Projects Ltd.” carries no conviction at all. It does not sound well even as a prudent business proposition. No colonizer such as the Appellant Company, would quietly wait for two and a half years for payment of a hitherto unpaid sale consideration. We are convinced that the claim of `1,93,750 raised by the Appellants in 2006, in lieu of a cheque dishonoured in the year 2003 was a ruse to avoid execution of Conveyance Deed in favour of the Respondents and sell the subject flat at a higher price. Furthermore, no evidence is brought on record to show that any demand was raised on the Respondents, or a request was sent to the Bank, in this behalf between the period when Tripartite Agreement dated 21.01.2004 was entered into and the delivery of possession of the flat three months later, on 20.04.2004 for directing the Respondents to pay any outstanding amount. In fact, the question of outstanding balance of a sum of`1,93,750/- was raised for the first time on 15.09.2006, i.e. two and a half years after delivery of possession. This completely destroys the credibility of the claim that failure to register the Conveyance Deed stems from incomplete payment of consideration.
    16. In view of the above, we are in complete agreement with the State Commission that there was no evidence to show that any part of the consideration had remained unpaid and therefore, Appellants’ failure to execute the Conveyance Deed in favour of the Respondents was a clear deficiency in service on their part.
    17. As regards the objection of the Appellants that the Complaint was bad for non-joinder of necessary party i.e. the Bank, in our opinion, this plea also deserves to be rejected. Apart from the fact that clause (3) of the covenant (Tripartite Agreement) lends support to the stand of the Respondents that on 20.04.2004 they were put in possession of the flat on the direction of the Bank and as such there was no occasion for them to allege deficiency in service on the part of the Bank, it is not even the case of the Appellants that the Bank had initiated any proceedings against them as guarantor of the loan. It is also not their case that any obligation was cast upon them to recover the loan on behalf of the Bank. Therefore, the alleged default in repayment of the loan by the Respondents to the Bank, relied upon as one of the grounds for cancellation of the Agreement on 07.11.2006, was wholly unjustified. In their letter dated 23.10.2006 to the Appellants, the Respondents had requested them to let them sort out the issue of default in EMI payments directly with the Bank. In the absence of any evidence that the Bank had sought the intervention of the Appellants for recovery of their dues, or that there was any threat of adverse action against them by the Bank, in our view, the Appellants not only deprived the Respondents of the pleasure of owning a flat for residence, they made an unholy attempt to justify their illegal action of cancelling the allotment on the ground that the Respondents were defaulters to the Bank on a technical ground, which cannot be accepted. Instead of remedying the wrong done to the Respondents, the Appellants are still trying to brazen out the illegal act by putting forth technical contentions.
    18. At this juncture, it is also pertinent to note that during the pendency of this Appeal, an application (MA No.1090 of 2011) was filed by the Appellants, seeking leave to urge additional grounds, including the ground that the State Commission had failed to consider the question of impleadment of the Bank, though it was so urged. The said application was dismissed vide order dated 29.05.2012. The Special Leave Petition filed by the Appellants against the said order was dismissed as withdrawn.
    19. Accordingly, we affirm the finding recorded by the State
    Commission that no balance amount was due to be paid by the Respondents when they were put in possession of the subject flat and therefore, the Appellants were not justified in refusing to execute Conveyance Deed in favour of the Respondents in terms of Agreement to Allotment dated 01.05.2003.
    20. Having come to the above conclusion, the next question requiring consideration is as to what relief can be granted to the Respondents as during the pendency of the Complaint, the flat in question has been auctioned by the Bank in proceedings under the SARFAESI Act; possession has been delivered to the auction purchaser and even Conveyance Deed in their favour has been executed by the Appellants. In this behalf, it is pertinent to note that on receipt of re-possession notice, dated 28.07.2007, from the Bank under the provisions of the SARFAESI Act, the Respondents had filed an application in the State Commission for amendment of the Complaint, inter-alia stating thus:
    “Complainants now pray that in view of all that is stated above and taking into consideration the changed situation the complainants may be granted alternative relief of `19,44,000/- (Rupees Nineteen Lakhs Forty Four Thousand only).”
    Under the stated circumstances, the Respondents prayed for the following alternative relief:
    “Alternative a sum of `19,44,000/- (Rupees Nineteen Lakhs Forty Four Thousand only) as mentioned in paragraph No. 1 hereinabove may be awarded as Compensation to the complainants.”
    21. The application was opposed by the Appellants, inter-alia, on the plea that it was a ploy to mislead the State Commission by incorporating subsequent events and that enhancement of compensation was not permissible under the Act. However, the specific plea regarding the booking price of similar projects in Merlin Gardens at `31,68,000/- in the year 2007, when the said application was filed, as against the booking price of `16,25,000/- in the year 2003, was not specifically denied by the Appellants. In the absence of any other material in regard to the market value of the subject flat on the date (24.02.2009) when the impugned order, directing registration of Conveyance Deed and delivery of possession of the flat, was made, we feel that instead of remitting the matter back to the State Commission at this stage, for determination of compensation in lieu of the flat, the ends of justice would be sub-served if keeping in view the comparative Housing Price Index issued by the National Housing Board for the year 2007 and 2009 (100 : 162), the value of the flat, as in February 2009, is taken at `50,00,000/-.
    22. Resultantly, the appeal is allowed in part to the extent that in lieu of the flat in question, the Appellants shall pay to the Respondents a sum of `50,00,000/- with interest 9% p.a. from the expiry of sixty days (the time granted for compliance) of the date of the impugned order till the date of actual realization. Other directions regarding compensation etc. are maintained. We are convinced that the Appellants have engaged the Respondents in unwarranted litigation and, therefore, it is a fit case for imposition of exemplary costs on them. Accordingly, we direct that the Appellants shall pay to the Respondents a sum of Rs.50,000/- as costs. All the said amounts shall be paid to the Respondents within 30 days of the receipt of a copy of this order. The appeal stands disposed of accordingly.

    23. It will be open to the Appellants to withdraw the statutory amount of Rs.35,000/- deposited by them with this Commission at the time of filing of appeal along with interest accrued thereon.
    I.A. No. 8034 of 2013
    24. In view of order in the main appeal, no orders in this application seeking permission to bring on record documents/orders pertaining to Writ Petition No. 18936/07 (Sri Pandav Roy & Anr. Vs. Reserve Bank of India & Ors.) and CS (OS) No. 271/10 (Merlin Projects Ltd. & Anr. Vs. Nilmani Dutta & Anr.) are called for. The application is disposed of accordingly.

    ………………….
    (D.K. JAIN, J.)
    PRESIDENT

    …………………… (VINEETA RAI)
    MEMBER

    …………………… (VINAY KUMAR)
    MEMBER


    Ar/yd
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  • Please remove this thread.
    Regards
    Partha Roy
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