Delhi

StateCommission

CC/646/2014

SANDEEP BATRA - Complainant(s)

Versus

BPTP LIMITED - Opp.Party(s)

RAHUL RATHORE

05 Aug 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :05.08.2019

Date of Decision :02.09.2019

COMPLAINT NO 646/2014

In the matter of:

 

1.         SANDEEP BATRA

            S/O L.C. BATRA,

            R/O H.NO. 793, SEC-8

            FARIDABAD (HARYANA), PIN-121006

2.         SMT. SHILPY BATRA

            W/O SANDEEP BATRA

            S/O L.C. BATRA,

            R/O H.NO. 793, SEC-8

            FARIDABAD (HARYANA), PIN-121006

 

           

                                                            ………Complainant

Versus

           

1.         BPTP LTD, M-11, MIDDLE CIRCLE, CANNAUGHT PLACE,

            NEW DELHI-110001 THROUGH ITS CHIEF EXECUTIVE OFFICER

 

2.         M/S COUNTRYWIDE PROMOTERS PRIVATE LIMITED, M-11

            MIDDLE CIRCLE, CANNAUGHT PLACE, NEW DELHI0-110001

            THROUGH ITS CHIEF EXECUTIVE OFFICER

 

3.         M/S ASG OVERSEAS PVT LTD, M-11

            MIDDLE CIRCLE, CANNAUGHT PLACE, NEW DELHI0-110001

            THROUGH ITS CHIEF EXECUTIVE OFFICER

 

4.         M/S SUNGLOW OVERSEAS PVT. LTD., M-11

            MIDDLE CIRCLE, CANNAUGHT PLACE, NEW DELHI0-110001

            THROUGH ITS CHIEF EXECUTIVE OFFICER

 

5.         M/S SUPER BETLS PVT. LTD., M-11

            MIDDLE CIRCLE, CANNAUGHT PLACE, NEW DELHI0-110001

            THROUGH ITS CHIEF EXECUTIVE OFFICER

 

6.         M/S GARNISH COLONISERS PVT. LTD., M-11

            MIDDLE CIRCLE, CANNAUGHT PLACE, NEW DELHI0-110001

            THROUGH ITS CHIEF EXECUTIVE OFFICER

 

……..Opposite Party

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

 

Shri O.P. Gupta, Member (Judicial)

 

 

JUDGEMENT

1. By this common order I shall be disposing of two complaints bearing no. 646/2014 and 649/2014 both titled as Sandeep Batra and another Vs. BPTP and others. The reason being that both the complaints pertain to one flat no. 703, tower-Microsoft in ‘Princess Park’ Faridabad, the parties are same. The only difference is that former complaint pertains to possession and occupation certificate whereas the later complaint pertains to recovery of illegal charges received by OP on account of super area, EDC, maintenance charges etc.
2. The case of the complainants is that they are husband and wife, they booked flat -703 supra with super area, 1677 sq. ft. Builder Buyer Agreement dated 22.06.2007 was executed and registered conveyance deed dated 27.11.2014 was executed  in favour of the complainant. In the end of 2007, complainant no-2 to looking for purchase accommodation in on around Faridabad in NCR for their residence. They stepped into shoes of original allottee Bharat Pal Singh. The OPs promised to complete the flat by 31.03.2010 and deliver possession with occupancy Certificate by 30.09.2010. However they were given keys  of the flat on 14.02.2014 after delay of almost 4 years and only for the purpose of carrying out fit-out. During said period, complainants had to stay in rented accommodation while also making their EMIs for payment of home loan taken against subject flat from the bank. The OPs did not have occupancy certificate till the date of filing the complaint for Tower-M in which the subject flat was located. The building did not have any fire safety or electric connection. OPs had promised to pay delayed possession penalty in builder buyer agreement.  
3. When OP could not given possession by promised date. Complainant asked about compensation to which they were assured by OPs that delayed possession penalty would be adjusted in final payment at the time of possession. However the complainant were shocked to see that in the final payment letter, instead of adjusting the penalty amount, OPs asked for more payments under various heads. 
4. Clause-2.1 of the builder buyer agreement required OPs to hand over the possession within the period of 36 months from the date of sanction of building plan. The OPs were also entitled to a grace period of 180 days after expiry of 36 months for applying and obtaining the occupation certificate. The Original building plans were sanctioned on 30.03.2007. The OPs were prompt in recovering payment from allottees with interest @ 18% pa for delay in payment.
5. Next round  of harassment started when belatedly OPs issued an offer of possession letter dated on 19.12.2013 falsely representing that the flat was ready for possession as a precondition for registration and possession, apart from other illegal demands and threatened that in case of delay in payment interest @ 15% pa and holding charges @ 5 psf per month would apply. The letter stated that physical possession of the flat would be handed over to the complainant simultaneous to the execution of conveyance deed which would be executed within 90 days of complete compliance of terms of the said letter. Induced by the OPs to believe all clearance had been obtained by 16.01.2010 the complainant made all payments and completed pre-conditions set out in the offer of possession letter. Including depositing of stamp duty and registration charges.
6. On 14.02.2014 OP gave keys of the subject flat to complainant for fit outs only. The complainants were called to the sub registrar’s office on 08.05.204 for execution of conveyance deed  but OPs did not turn up with required  documents for registration of flat. As the complainants had issued termination notice to their landlord on the expectation raised by the possession letter offer, they had no option but to vacate the rented accommodation and shift their residence  to the subject flat on 30.03.2014.
7. They sent legal notice dated 09.09.014 to the OPs. They received a phone call from staff of OP-1 informing that registration of conveyance  was scheduled for 27.11.2014. the complainants were allowed to see the conveyance deed for the first time at the time of registration on 27.11.2014. They had no option but to execute the conveyance on 27.11.2014 in the standard format imposed by OP.  They were shocked to read many unfair clauses which sought to absolve or discharge OPs from all their liabilities. They protested but OP refused to change the said clause. Immediately after executing and registering the conveyance, complainants issued a protest  email reserving all their rights and claims copy which is annexed C-9, C-10/
8. Though the builder buyer agreement stipulated meagre rate of Rs. 5 per square feet per month for delay in possession, the same is unfair, inequitable and unconscionable. The reason being that OP charged 18% for delayed in payment. 
9. The OPs were liable to pay interest of Rs. 23,39,592/- to the complainant up to the date to conveyance.

 

10. OP recovered Rs. 3,69,900/- towards fire fighting and power back up charges, Rs. 15,000 towards electricity connection charges.
11. Hence this complaint for directing OP to deliver legal possession of the flat after obtaining OC certificate or completion certificate as required, direct OP to install fire safety or fire fighting equipments, to obtain electricity  connection, to pay Rs. 23,39,592/- as compensation for delay, to continue  to pay @ Rs. 60000/- per month in future till OC certificate is procured. They also prayed for compensation of Rs. 2,50,000/- for mental harassment and suffering.
12. In subsequent complaint no. 646/2014 the complainants prayed for directing OP to reverse demand raised on the basis of alleged increase in super area. As a corollary to direct OPs to refund additional amount of Rs. 4,53,810/-. Comprising Rs.3,11, 225/- charged under BSP Rs. 21,100/- charged under the head PLC, Rs. 42,200/- charged under the head of fire fighting and power backup, Rs. 27,112/- charged under the head EDC, Rs. 3483/- under the head IDC, Rs. 38,140/- charged under the head stamp duty and Rs. 10500/- charged under the head IFMS. The said amount is liable to be refunded with interest @ 18% pa calculated from the date of deposit till the date of refund  which came to Rs. 70,496/- till date of conveyance. The complainant also sought sum of Rs. 1,60,097/- as compensation  for reduction in carpet area, Rs. 84,891/- being the excess amounts charged towards EDC, Rs. 4,36,431/- toward enhance EDC, Rs. 1,49.131/- towards IFMS and all maintenance charges calculated till date. They further sought Rs. 3,00,000/- on account of increased burden of maintenance charges due to increase in super area, to refund Rs. 1,78,804/- for excess liability towards stamp duty and registration charges, Rs. 55,255/- being the interest on amount calculated on amount of stamp duty and registration charges. Not only this they sought refund of Rs.1,88,800/-, Rs. 3,00,000/- as compensation and unfair trade practice, Rs. 50,000/- as legal expenses.
13. The first complaint was filed on 22.12.2014 whereas the second complaint was filed on 23.12.2014.
14. The reliefs cited in the second complaint were available at the time of filing the first complaint. So the OP has rightly taken an objection that the second complaint is barred under order 2 rule 2 CPC.
15. The OP filed written statement raising preliminary objection that complaint is bad for mis-joinder of parties, complainant have deliberately and maliciously impleaded OP-2 to OP-6 despite being aware that they are neither necessary nor proper parties. This Commission has no territorial jurisdiction as immoveable property in question is situated in Faridabad. As per clause 31 Courts at Faridabad alone had jurisdiction. Complainants satisfied himself of the flat and its ancillary points, with clear knowledge. In view of clause 28.2 of the flat buyers agreement, complainant is not maintainable. Vide clause 2 of the conveyance deed, the complainant undertook that he is satisfied in all aspects and had completed given diligence and after due satisfaction, entered into conveyance deed. The complainant signed an indemnity and waiver clause duly undertaking that the complainant has no claim against Op with regard to any ground what so ever.
16. The total cost of the unit was about Rs. 40,56,266/- whereas by filing separate complaint, they are demanding the claim so that this Commission is unable to see the falsity and greed of the complainant in claiming refund to the tune of Rs. 57,82,870/-
17. The OP had already applied for OC for the said tower among others on 25.06.2013. The delay, if any, is on the part of Competent Authority and same was beyond the control of the OP.
18. Occupancy certificate for tower D,E,F,G was granted on 18.11.2012 and OC for tower B, C, J, H was granted on 06.09.2012.
19. On merits the OP denied allegations made in the complaint. 
20. The complainant filed rejoinder and evidence of complainant-2 in evidence.
21. OP raised objection of maintainability of complaint, before filing their evidence by affidavit.
22. I have gone through the material on record and heard arguments.
23. Counsel for OP submitted and rightly so that complainant conveniently allaged in complaint that he had to accept possession on 30.03.2014 under compulsion. But the same is demolished by letter agreement dated 15.04.2014 copy of which is at pages 138 to 140 of bunch of written statement. The same is 15 days after acceptance of possession on 30.03.2014. still it incorporates in paras 2, 3, 5 & 6 that they knew that OP had yet to receive occupation certificate, they undertook not to hold the vendor responsible for delay and have no claim of any nature whatsoever.
24. Conveyance deed dated 27.11.2014 was executed on 27.11.2014 and registered. Copy of the same is at pages 61 to 73 of bunch of written statement. No protest was made on that time also, by complainants.
25. It is settled law that after taking possession the complainant does not remain consumer anymore and he cannot seek his remedy under Consumer Protection Act. This was so held in Harpal Arya Vs. Haryana Housing Board 2016 SCC online NCDRC 361, Smita Roy Vs. Excel construction- II (2012) CPJ 2011 NC.
26. The same view has been reiterated by National Commission in a recent judgement dated 02.07.2019 in CC-1055/2015 titled as Rashid Ahmed Usmani Vs. DLF limited.
27. The counsel for complainant relied upon the decision of the National Commission in CC-739/17 titled as Vikas Garg Vs. EMAR MGF land Limited decided on 9.01.2019.
28. In view of consistent decisions referred to above I am unable to follow the decision citied by counsel for complainant.
29. In view of the above discussion both the complaints are dismissed. The complainant would be at liberty to seek their remedy in Civil Court as per law.
30. Copy of the order be sent to both the parties free of costs.
31. One copy of the order be place in file of CC-649/2014.
32. File be consigned to record room.

      (O.P. GUPTA)                                                     

MEMBER (JUDICIAL)