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May 10, 2008
Housing Loan
COURT DIRECTS POLICE TO INVESTIGATE CHEATING CHARGES AGAINST
MERLIN PROJECTS LTD & UNION BANK OF INDIA LODGED BY CONSUMER
A case was filed before the Chief Judicial Magistrate, Alipore Court, Kolkata against the above parties for cheating a customer in connivance with each other- offences punishable u/s420/427/120B of IPC.
Giving due cognizance to the said complaint, the Chief Judicial Magistrate, Alipore Court, Kolkata directed the Police to investigate the said complaint.
After making preliminary investigations, the Police has issued an FIR and started due investigations.
The complaint filed is given below in detail:
DISTRICT : SOUTH 24 PARGANAS
IN THE COURT OF LEARNED CHIEF JUDICIAL MAGISTRATE AT ALIPORE.
C. CASE NO.1326 OF 2008
IN THE MATTER OF:
A petition of Complaint u/s. 156(3) of the Code of Criminal Procedure:
AND
IN THE MATTER OF:
PARTHA ROY,
Son of Late Provat Samir Roy at present residing at 3B & 3C, Siddhartha Golf View Apartments, 27/4, P.G.M Shah Road, Golf Green, P.S. Jadavpore, Kolkata 700 095.
... COMPLAINANT
-Versus-
1. MERLIN PROJECTS LTD.
Merlin House, 79 Sambunath Pandit Street P.S. Bhowanipore, Kolkata -700020. Represented by Mr.Sushil Mohta, Director
2. SUSHIL MOHTA,
Director, Merlin Projects Ltd, Merlin House, 79 Sambunath Pandit Street, P.S. Bhowanipore, Kolkata -700020.
3. VIKASH MIMANI,
Project Manager, Merlin Projects Ltd, Merlin House, 79 Sambunath Pandit Street, P.S. Bhowanipore, Kolkata -700020.
4. SUPRIYO SENGUPTA
The then Manager,
Union Bank of India, Sarat Bose Road Branch, 57, Rashbehari Avenue, P.S. Tollygunge, Kolkata 700026.
………………………Opposite Parties
Date of occurrence : 01.05.2003 and it continues…..
Offence committed : U/s.420/427/120B I.P.C
The humble petition of Complaint
of the Complainant above named
Most Respectfully Sheweth:-
1. That the Complainant is a retired executive and a former NRI. At present he has been residing at the address mentioned in the cause title.
2. That on 01/05/2003 the complainant along with his son Pandav Roy entered into an Allotment Agreement and a Supplementary Agreement with accused no.1 for purchase of a Duplex Row House in Merlin Greens, a complex developed by accused no.1 being Row House No.B-15 in Merlin Greens, Kriparampore, Diamond Harbour Road, P.S: Bishnupur, 24 Parganas (S) for a total consideration of Rs.16, 25, 000/- which included an amount of Rs.2, 00, 000/- towards life-time maintenance charges of the property, provision of common services including water supply, generator power back-up, security services etc., and club membership as specified in the said Supplementary Agreement.
3. That on execution of the said Agreements, the Complainant paid a sum of Rs.50, 000/- to accused no.1 as Booking Advance against a proper receipt.
4. That as per the terms of the said Allotment Agreements, the Complainant had to pay a sum of Rs.10, 00, 000/- as second installment by 20th May, 2003, a sum of Rs.3, 00, 000/- as 3rd installment by 30th May, 2003 and the balance amount of Rs.75, 000/- as final installment on possession of the property.
A Xerox copy of the said Allotment Agreement is annexed herewith as Annexure “A”.
5. That within a few days after execution of the said agreement accused no.3 informed the complainant that the said property was ready for immediate delivery instead of within 12 months as stated in the above Allotment Agreement.
6. That since the date of possession was advanced by accused no.1, the complainant told accused no.3 that the required funds were not immediately available and he would have to avail a housing loan to purchase the property.
7. That on learning of the intention of the complainant to avail of a housing loan, Mr. Sushil Mohta, accused no.2 and Mr. Vikas Mimani, accused no.3 assured quick sanction of the loan expressing they had good connections with the top management of the Bank and introduced the complainant to the then Manager of Union Bank of India, Sarat Bose Road Branch and requested him to assist the complainant for quick processing of the loan. The said Bank Manager on reviewing income and personal documents of the complainant and his son confirmed that they were eligible for getting a housing loan.
8. That the complainant along with his son Pandav Roy applied for a housing loan of Rs.15, 00, 000/- and by their letter dated 15.10.2003 addressed to the then Manager of Union Bank of India, Sarat Bose Road Branch they solicited early sanction of the loan in favour of the complainant and his son. It is to be noted that as instructed by the said Manager the complainant and his son had to only furnish their personal documents and they were told by the said Manager that all property related documents would be collected directly by the Bank from the Promoter-Developer.
9. That the complainant was informed by letter dated 22.01.2004 issued by the then Manager of Sarat Bose Road Branch of Union Bank of India, Mr. Supriyo Sengupta (accused no.4) that the competent authority has sanctioned the complainant’s home loan application subject to complainants paying Earnest Money @ 15% of consideration to the Builder and executing a Tripartite Agreement with M/s. Merlin Projects Ltd., acting as a Guarantor of the loan till an equitable mortgage was create in favour of the Bank.
A Xerox copy of the said letter is annexed herewith and marked as Annexure “B”.
10. That it appears in the above letter dated 22.01.2004 that the Tripartite Agreement as mentioned in the said letter is to secure advance payments made by the Bank till equitable mortgage of the property is created. However, it is a settled practice that in case of a ready property, only the Borrower is required to pay the advance (Earnest Money) to the Builder and no advance payment is made by the Bank. The Builder conveys the title to the Borrower and the duly executed Sale Deed or IGR plus other related documents are handed over to the Bank whereupon, the Builder receives his payment. Therefore, no further Guarantor is required as the property itself is hypothecated to the Bank as a Guarantee.
11. That accused nos.2, 3 and 4 insisted on the complainant to execute a “Tripartite Agreement” although, as explained above, this was not necessary for purchasing an independent house, ready for delivery of possession. This was done so that the payment could be made to accused no.1 before they completed the required formalities.
12. That accused no.4 had induced the complainant to execute the said “Tripartite Agreement” by stating that this would ensure that the loan was sanctioned quickly. He had explained that 25th February, of every year was the cut-off date for that particular financial year (ending on 31st March). Only loans logged within 25th February are included in the Bank’s disbursement target for that particular year which was always a motivation for higher authorities of the Bank to sanction the loan quickly. Accused No.4 further stated that if the matter was delayed, the urgency would be lost and the loan would then take six months to be sanctioned.
13. That accused nos.2 and 3 had induced and compelled the complainant to execute the “Tripartite Agreement” by saying that it would enable the Bank to quickly sanction the loan and accused no.1 could then deliver and transfer the property in favour of the complainant immediately. Otherwise accused no.1 would have to sell the said Row House to some other customer with ready funds.
14. That surprisingly, the said “Tripartite Agreement” was dated 21.01.2004 whereas the Bank’s letter instructing the complainant to execute the “Tripartite Agreement” was issued on 22.01.2004.
A Xerox copy of the said “Tripartite Agreement” is annexed herewith as Annexure “C”.
15. That from the facts and circumstances stated above, it appears that accused nos. 2, 3 and 4 had hatched a plan well in advance to dupe the complainant by inducing and compelling him to enter into the said “Tripartite Agreement” and the said “Tripartite Agreement” has been created by the said accused persons for misleading the complainant knowing well that such “Tripartite Agreement” or any Guarantor was totally unnecessary in the said transaction.
16. That the complainant without realizing their ulterior motive had reposed full confidence on the accused person nos. 2, 3 and 4 and in good faith, relying on the representation of the said accused persons, on or around 23.01.2004, the complainant finally agreed to execute the said “Tripartite Agreement”.
17. That on or around 28.01.2004, the complainant signed the above “Tripartite Agreement” pre-dated to 21.01.2004 after paying the balance Earnest Money due to Merlin Projects Ltd by cash as insisted by accused nos.2, 3 and 4 and on being induced by them.
18. That payment of full Earnest Money amount Rs.2, 43, 750/- was duly acknowledged by the accused no.1 and recorded in page 2, paragraph 4 of the said “Tripartite Agreement” signed by Mr. Sushil Mohta (accused no.2) and Mr. Vikas Mimani (accused no.3) on behalf of accused no.1 and witnessed by Mr.Supriyo Sengupta (accused no.4) on behalf of the Bank. The said paragraph is quoted below:
“Whereas the Builder agreed to sell a Row House to the Borrower 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 Rs.2, 43, 750 (Rupees Two Lakhs Forty Three Thousand Seven Hundred & Fifty only) as and by way of Earnest Money”
19. That the complainant was assured by accused nos. 2, 3 & 4 that all payments made by him directly and on behalf of the complainant by the Bank to accused no.1 would be recorded in the Memo of Consideration that would form a part and parcel of the Sale Deed.
20. That the complainant received a letter dated 25.02.2004 issued by accused no. 4 on behalf of Union Bank of India informing that their loan application had been sanctioned and he was asked to meet accused no.4 to advise further course of action to be taken.
A Xerox copy of the said letter is annexed herewith as Annexure “D”.
21. That on receiving the above letter on 26.02.2004, the complainant went to the Sarat Bose Road Branch of Union Bank of India and was shocked to find that accused no. 4 had already disbursed the entire balance consideration to accused no. 1 without waiting for the complainant’s instructions as requested for in the above mentioned letter dated 25.02.2004 issued to him by accused no. 4.
22. That the complainant was given a copy of the letter dated 25.02.2004 issued to Merlin Projects Ltd., forwarding a Pay Order dated 25.02.2004 for the entire loan amount and asking accused no. 1 to hand over the Row House being premises no. B-15, in Merlin Greens, Kriparampore, Diamond Harbour Road, P.S Bishnupur, 24 Parganas (South) to the complainant. The said cover letter and Pay Order had been duly received by accused no.1 on 26.02.2004. The complainant was also given a copy of the Debit Note for Rs.13, 81, 250/- being the entire balance consideration amount which had been arbitrarily paid to accused no.1 and debited to the account of the complainant.
23. That accused no.4 had betrayed the confidence of the complainant reposed on Union Bank of India by violating the terms of payment as stipulated under paragraph 5 page 2 of the “Tripartite Agreement” which is quoted below:
“Whereas the Bank on the written application and request of the Borrowers has already sanctioned a loan of Rs. 15, 00, 000/- to the borrowers (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.”
24 That accused nos.2 and 3 told the complainant that delay in execution of the Sale Deed was because Merlin Projects Ltd. had not received the approval of Town & Country Planning Department for the project and also Completion Certificate of the Row House without which execution of the Sale Deed could not be completed or the loan disbursed.
25 That on 20.04.2004 the keys to the said premises were handed over to the complainant by accused no.3 on behalf of accused no.1 and against specific instructions issued by Union Bank of India vide their letter dated 25.02.2004 forwarding Pay Order for the entire balance consideration of Rs.13, 81, 250/- to accused no.1.
A Xerox copy of the said letter is annexed herewith as Annexure “E”.
26. That initially accused no.1 provided electricity to the said Row House from their main supply and later, accused no.1 applied for a separate meter on behalf of and in the name of the complainant. That application was duly approved and the meter was installed by WBSEB. Thereafter, the complainant started receiving electric bills in his name. Also accused no.1 provided all services and facilities as promised in the Supplementary Agreement dated 01.05.2003.
27. That the complainant discussed and sent several letters to all the accused persons for execution and registration of the Sale Deed for the said property. Accused nos.2, 3 and 4 continued to assure the complainant that the needful would be done as soon as all required clearance were received from concerned authorities, but the letters sent by the complainant were never replied.
28. That the complainant by his letter dated 03.05.2006 intimated the Manager, Union Bank of India, Sarat Bose Road Branch inter alia that the builder had received payment for the property on 26.02.2004 directly from the Bank and complainant got possession of the property 20.04.2004 as per instructions of the Bank yet the property had not been registered in their favour and the Bank had not released the cost of Stamp Duty etc.
29. That by the letter dated 23.10.2006 the accused no.2 declared the complainant as a Trespasser and withdrew related services to the property including water supply, generator back-up etc., which the accused no.1 was bound to provide as per schedule 2 of Supplementary Agreement dated 01.05.2003.
A Xerox copy of the said letter is annexed herewith as Annexure “F”
A Xerox copy of the said Supplementary Agreement is annexed herewith as Annexure “G”.
30. That being unable to cope with the harassment and threats of physical violence meted out by accused nos. 1, 2 and 3 aided and abetted by the Bank, the complainant had no other option but to vacate the property after having legally and peacefully occupied the same for 2½ years and the complainant and his wife then moved into a rented flat by incurring huge expenses and under highly humiliating circumstances.
31. That as a last resort, the complainant visited the office of accused no.1 on 20.01.2007 and requested the accused nos.2 and 3 to accept the draft for Rs.1, 93, 750/- illegally claimed by them and convey the title of the property to him by execution and registration of the Sale Deed, but to no avail.
32. The complainant then lodged a complaint against accused nos.1 and 3 with the State Consumer Dispute Redressal Commission which is pending.
33. That the Bank issued a Repossession Notice under SARFAESI Act, 2002 on the complainant who submitted a Writ Petition before the Hon’ble Calcutta High Court challenging the applicability of the said Act.
In the meantime the Bank Officials approached the complainant and stated that it would be best if he handed over the property to the Bank voluntarily because the Bank as empowered U/s. 13 (6) (8) of the SARFAESI Act could directly transfer the title to the Borrowers without any interference by the Promoters, Merlin Projects Ltd., and accordingly, on good faith, he handed over the property to the Bank on 24.08.2007 as stated in paragraph 30 earlier. The Bank however, failed to provide the original documents to complete the transaction though the complainant was prepared to pay the loan amount.
34. The Bank thereafter sold the property by public auction to a nominee of their Enforcement Agent for Rs.20, 51, 000/- and the personal belongings of the complainant as per list below are remaining unprotected within the said property.
35. That the accused persons under a criminal conspiracy by deceiving the complainant fraudulently and dishonestly induced him to execute the aforesaid “Tripartite Agreement” on the basis of which a sum of Rs.13, 81, 250/- being the loan amount of the complainant has been disbursed in favour of accused no.1 and thereby have cheated the complainant.
36. That inspite of receiving the entire consideration amount, the accused no.1 in conspiracy with other accused persons has not executed and registered the Sale Deed in favour of the complainant for transfer of the property agreed to be sold in favour of the complainant and thereby all the accused persons have caused damage to the complainant.
37. That the accused no.1 in conspiracy with the other accused persons have caused harm to the mind and reputation of the complainant by causing different sorts of harassment as stated above.
38. That all the accused persons under a criminal conspiracy have also caused damage to the property of the complainant as stated above.
39. That all the accused persons have committed offences punishable U/S. 420/427/120B of the Indian Penal Code.
40. That the complainant being a retired person and a senior citizen tried his best to have an amicable settlement of the dispute but due to the adamant attitude of the accused persons it could not be fruitful and hence the delay in filing this complaint which is made bonafide and in the interest of justice.
Under the above circumstances the complainant prays that your Honour would be pleased to send this petition of complaint to the O/C., Bhowanipore Police Station U/S 156(3) of the Code of Criminal Procedure for investigation of the case treating this petition of complaint as FIR, proceed with the case as per law and punish the accused persons accordingly for the ends of justice and pass such order or orders as you deem fit and proper.
And for this act of kindness your petitioner as in duty bound shall ever pray.
LIST OF WITNESSES
1. Smt. Uma Roy.
2. Agreements
3. Correspondences
4. Other related documents
LIST OF ITEMS:
SL.NO
ITEM
NOS / QTY
A
LOOSE ITEMS
1
Idol of Goddess Laxmi & Puja Items
Not listed
2
Ceiling fans
6
3
Exhaust Fans
3
4
Hanging Light fitting (Mother of Pearl - imported)
1
5
Hanging Light fittings (Metal – imported)
3
6
Wall mounted Light Fittings
12
7
Gate Lamps
2
8
Garden Lamps
2
9
Automatic Halogen Lamps
2
10
Hot Water Geysers
2
11
Aqua-guard Water Filter
1
12
Automatic Changeover Switch
1
13
TV Dish Antennae
1
14
Stainless Steel Trolley
1
15
Suitcases containing warm clothes
6
16
Cartons containing kitchen Utensils / Dining Set etc
2
17
Camp Cot with mattress
1
18
Rare and costly plants in expensive pots
50
B
FIXED ITEMS
1
Fitted Kitchen Cabinets
1 Set
2
Wall mounted storage units
1
3
Bathroom mirrors
3
4
Shower curtain fittings
2
5
Rail type curtain rods / Pelmets
12
6
Bathroom fittings
3 sets
7
Wall mounted storage unit in Balcony
1
8
Additionally reinforced fencing
NA
9
Acrylic Sun Shades
NA
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COMMENTS / SUGGESTIONS ARE WELCOME
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