BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION: NEW DELHI

COMPLAINT NO. 1630 OF 2019

IN THE MATTER OF:

RIJU SUJI & ANR ... COMPLAINANTS

VERSUS

EMAAR MGF LAND LTD. & ANR. …. OPPOSITE PARTIES

REJOINDER ON BEHALF OF COMPLAINANTS TO THE REPLY

FILED ON BEHALF OF THE OPPOSITE PARTY NO. 2 (HDFC
BANK)

Most Respectively showeth:

1. That the complainants deny each and every averment made in the reply
unless any averment is specifically admitted in this rejoinder. The contents of
the complaint are reiterated and may be treated to be a part and parcel of this
rejoinder. Before dealing with the averments made in the reply, the following
preliminary objections / submissions are being put forth for the consideration
of this Hon’ble Commission.

PRELIMINARY OBJECTIONS & SUBMISSIONS:

2. At the outset, the complainants submits that the reply on behalf of the
Opposite Party No.2 cannot be taken on record as the same has been filed way
beyond the statutory period as provided in the Consumer Protection Act. That
neither any permission has been sought from this Hon’ble Commission for
filing reply beyond the statutory period nor the reply is accompanied by any
application seeking condonation of delay in filing reply by OP No.2. And as
such, the right of OP No.1 for filing reply to the l Complaint stands
diminished in the eyes of law as per statutory period stated under Section
13(2)(a) of the Consumer Protection Act, 1986. The Hon’ble Supreme Court
in the judgment dated 04.03.2020 in the matter of ‘New India Assurance
Company Ltd. vs. Hilli Multipurpose Cold Storage’ has held as under:
“Ld. Consumer Forums do not have the power to extend the time
beyond 45 days as prescribed under the Consumer Protection Act,
1986 for filing of written version by the Opposite Party. Commencing
point of limitation of 30 days under Section 13 of the Consumer
Protection Act, 1986 would be from the date of receipt of the notice
accompanied with the complaint by the Opposite Party, and not mere
receipt of the notice of the complaint.”

3. That it is a matter of record that there is no OP No.3, as alleged. It is

submitted that due to typographical error and inadvertent bonafide mistake
OP No.2 (HDFC Bank) is wrongly numbered as No.3 in memo of Parties and
complaint. It is submitted that OP No.3, as appearing in complaint, may be
read as OP No.2.

4. That it is relevant to bring to the fore that the whole reply of OP No. 2
stands majorly on the biased tripartite agreement form that was signed by the
complainants along with the OPs.. That it is pertinent to mention here that the
said T.P.A is infested with clauses that strip away the bargaining power of the
 complainants as a consumer in the face of giant corporation like OPs. A test
of reasonableness or fairness of a clause in a contract where there is inequality
of bargaining power must be always be kept at the pinnacle of order. That the
said agreement has systematically unarmed the complainants by making them
sign off on various clauses that ultimately crippled the bargaining power of
the complainants. An immoral bargain is an unprincipled bargain that would
be antithetical to what is just and equitable.

PARA-WISE REPLY TO PRELIMINARY SUBMISSIONS

5. With further reference to the averment made in para 3 of Preliminary

Submissions of reply, it is submitted that the contents thereof are denied being
wrong and concocted. That it is a matter of record that there is no OP No.3, as
alleged. It is submitted that due to typographical error and inadvertent
bonafide mistake OP No.2 (HDFC Bank) is wrongly numbered as No.3 in
memo of Parties and complaint. It is submitted that OP No.3, as appearing in
complaint, may be read as OP No.2.

6. With further reference to the averment made in para 4 of Preliminary

Submissions of reply, it is submitted that the contents thereof are denied being
wrong and concocted. That it is a matter of record that OP No.1 and OP No.2
in connivance with each other has usurped hard earned lifetime
savings/earnings of complainants.
7. With further reference to the averment made in para 5 of Preliminary
Submissions of reply, it is submitted that the contents thereof are denied being
wrong and concocted. That the complainants have made specific prayer of
handing over of said flat to complainants which in effect OP No.2 will have to
restore their loan.

8. With further reference to the averment made in para 6 to 8 of

Preliminary Submissions of reply, it is submitted that the contents thereof are
matter of record.

9. With further reference to the averment made in para 9 to 15 of

Preliminary Submissions of reply, it is submitted that the contents thereof are
denied being wrong and concocted. It is submitted that OP No.2 adopted
unfair trade practice and usurped complainants’ hard earned money in
connivance of OP No.1, without knowledge and consent of complainants. It is
submitted that OP No.2 has exploited complainants being on dominant
position to their illegal benefits. That all clause quoted and relied b OP No.2
are standard form of contract, which complainants had not option but to sign.
That the OP No.2 may be directed to place on record where any of clauses
were changed/modified/deleted to the benefit o other customer. That the said
dominant position has been explained and held by Hon’ble Supreme Court in
a case titled as CENTRAL INLAND WATER TRANSPORT CORP. VS
BRAJO NATH GANGULY reported as 1986 SCC 156, as
“Article 14 of the Constitution guarantees to all persons equality
before the law and the equal protection of the laws. This
principle is that the Courts will not enforce and will, when called
 upon to do so, strike down an unfair and unreasonable contract,
or an unfair and unreasonable clause in a contract entered into
between parties who are not equal in bargaining power. The
above principle will apply where the inequality of bargaining
power is the result of the great disparity in the economic strength
of the contracting parties. It will apply where the inequality is
the result of circumstances, whether of the creating of the parties
or not. It will apply to situations in which the weaker party is in a
position in which he can obtain goods or services or means of
livelihood only upon the terms imposed by the stronger party or
go without them. It will also apply where a man has no choice, or
rather no meaningful choice, but to give his assent to a contract
or to sign on the dotted line in a prescribed or standard form or
to accept a set of rules as part of the contract, however, unfair
unreasonable or unconscionable a clause in that contract or
form or rules may be. This principle will not apply where both
parties are businessmen and the contract is a commercial
transaction. In today’s complex world of giant corporations with
their vast infrastructural organizations and with the state
through its instrumentalities and agencies entering into almost
every branch of industry and commerce, there can be myriad
situations which result in unfair and unreasonable bargains
between parties possessing wholly disproportionate and unequal
bargaining power”.

That from the above stated position taken by the Hon’ble Supreme
Court of India, it can be inferred without a slightest bit of doubt that
the clauses in the T.P.A as well as other agreements depicts a classical
case of scheme to strip away the bargaining power of the complainant
by these corporate giants. According to the contentions raised by the
OP No.2, it states in a very clear language that whatever may be the
 situation, the complainant must put up with the payment to OPs as a
cash cow to their businesses. It’s a case of Hobson’s choice, because
even on the account of abandonment of the project by the OP No.1,
the OPs wants the complainants to make the regular payment or face
the fate of losing all the money already invested on top of losing the
flat booked without the knowledge and consent of the complainant.
And in that regard, with the precedent laid down by the Hon’ble
Supreme Court of India in the case of Central Inland Water
Transport Corp. Vs Brajo Nath Ganguly, the clauses of T.P.A
which are going against the said precedent deems to be void ab initio.

10. With further reference to the averment made in para 16 to 19 of

Preliminary Submissions of reply, it is submitted that the contents thereof are
matter of record.

11. With further reference to the averment made in para 20 & 21 of

Preliminary Submissions of reply, it is submitted that the contents thereof are
denied for want of knowledge.

12. With further reference to the averment made in para 22 & 23 of

Preliminary Submissions of reply, it is submitted that the contents thereof are
matter of record.

13. With further reference to the averment made in para 24 of Preliminary

Submissions of reply, it is submitted that the contents thereof are denied
being wrong and concocted. It is submitted that OP No.2 adopted unfair trade
practice and usurped complainants’ hard earned money in connivance of OP
No.1, without knowledge and consent of complainants.
REPLY TO PARAWISE REPLY

14. With further reference to the averment made in para 1 to 18 of

parawise reply of reply, it is submitted that the contents thereof need no
rejoinder.

15. With further reference to the averment made in para 19 of parawise

reply of reply, it is submitted that the contents thereof wrong, concocted
hence denied. It is submitted that if at all there was any default, then OP No.2
had right to recovery against complainants but instead of recovering from
complainant, OP No.2 in connivance with OP No.1 adopted unfair trade
practice and usurped complainants’ hard earned money in connivance,
without knowledge and consent of complainants.

16. With further reference to the averment made in para 20 of parawise

reply of reply, it is submitted that the contents thereof wrong, concocted
hence denied. It is submitted that the complainants have made specific prayer
of handing over of said flat to complainants which in effect OP No.2 will have
to restore their loan.

17. With further reference to the averment made in para 21 to 25 of

parawise reply of reply, it is submitted that the contents thereof need no
rejoinder.
 18. With further reference to the averment made in para 26 and 27 of
parawise reply of reply, it is submitted that the contents thereof wrong,
concocted hence denied. That the contents of corresponding paras are
reaffirmed and reiterated. That it is pertinent to state at this juncture that the
closure of account of the complainants were done without the knowledge or
consent of the complainant. And on the closure of account and issuance of the
N.O.C as stated by the Opposite Party No.3, the stated impugned NOC was
never communicated nor received by the Complainant. And this whole act of
one sided affair by the Opposite Party done under the garb of Builder Buyer
Agreement/T.P.A is yet again an act that has been time and again condemned
by the Hon’ble Supreme Court of India. Such types of clauses present in the
Builder Buyer Agreements had also been examined by the Hon’ble Supreme
Court of India in PIONEER URBAN LAND & INFRASTRUCTURE LTD.
VS. GOVINDA RAGHAVAN, reported as II (2009) CPJ 34 (SC)”, and it
was held as under:-

“Terms of a contract will not be final and binding if it is shown

that the flat purchasers had no option but to sign on the dotted
line, on a contract framed by the builder. The contractual terms
of the Agreement dated 08.05.2012 are ex-facie one sided,
unfair and unreasonable. The incorporation of such one-sided
clauses in an agreement constitutes an unfair trade practice as
per section 2(R) of the Consumer Protection Act, 1986 since it
adopts unfair methods or practices for the purpose of selling the
flats by the Builder.”

In the above conspectus, it is most respectfully submitted that the reply filed by the
OP No.2 merit no consideration hence deserves to be dismissed and present
compliant may kindly be allowed in terms of prayer made in complaint.
 COMPLAINANTS

through

R & R Legal

Advocates
Off. : 2B, Vandhna Building,
New Delhi 11, Tolstoy Marg, New Delhi1-110001.
Phn. 011 -4039 2009 Mob. 9971127009
Dated: __.06.2023

BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION: NEW DELHI

COMPLAINT NO. 1630 OF 2019

IN THE MATTER OF:

RIJU SUJI & ANR ... COMPLAINANTS

VERSUS

EMAAR MGF LAND LTD. & ANR. …. OPPOSITE PARTIES

AFFIDAVIT
I, Riju Suji aged 46 years, W/o. Shri. Lokesh Suji resident of : R/o. A-1202, Park
View City-1, Sohna Road, Setor-46, Gurgoan-122002 presently at New Delhi do
hereby solemnly affirm and declare as under:-

1. That I am complainant in the present complaint and well conversant with the
facts of the case and as such competent to depose this affidavit.

2. That the accompanying rejoinder has been drafted by my Counsel under my

instruction and the contents of the said application are true to my knowledge
as the same have been read and understood by me.

DEPONENT

VERIFICATION

Verified at Delhi on this _____ day of June, 2023 that the contents of the above
affidavit are true to my knowledge and belief as per the record with us and no part
of it is false and nothing has been concealed there from.

DEPONENT

BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION: NEW DELHI

COMPLAINT NO. 1630 OF 2019

IN THE MATTER OF:

RIJU SUJI & ANR ... COMPLAINANTS

VERSUS
EMAAR MGF LAND LTD. & ANR. …. OPPOSITE PARTIES

AFFIDAVIT

I, Lokesh Suji aged 49 years, S/o. Shri. Vijay Kumar Suji resident of : R/o. A-
1202, Park View City-1, Sohna Road, Setor-46, Gurgoan-122002 presently at
New Delhi do hereby solemnly affirm and declare as under:-

3. That I am complainant in the present complaint and well conversant with the
facts of the case and as such competent to depose this affidavit.

4. That the accompanying rejoinder has been drafted by my Counsel under my

instruction and the contents of the said application are true to my knowledge
as the same have been read and understood by me.

DEPONENT

VERIFICATION

Verified at Delhi on this _____ day of June, 2023 that the contents of the above
affidavit are true to my knowledge and belief as per the record with us and no part
of it is false and nothing has been concealed there from.

DEPONENT