Delhi

New Delhi

CC/447/2015

Shobha Kumar - Complainant(s)

Versus

BPTP Limited - Opp.Party(s)

02 Mar 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC/447/2015

 

IN THE MATTER OF:

 

SHOBHA KUMAR

B-5/116, SAFDARJUNG ENCLAVE

NEW DELHI 1100027                                                                  COMPLAINANT

VERSUS

 

BPTP LIMITED

M-11, MIDDLE CIRCLE

CANNAUGHT CIRCUS

NEW DELHI 110001                                                                             OPPOSITY PARTY                                                  

Quorum:

Ms. Poonam Chaudhry, President

          Shri  Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                             Dated of Institution :10.07.2015

                                                                             Date of Order         :02.03.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

Hearing through Video Conferencing.

 

1. The present complaint has been filed under section 12 of the consumer protection act, 1986 (as amended upto date) (in short CP Act.). Briefly stated the facts of the case are that the Complainant booked a unit in the project of opposite party (in short OP) namely FUTURE PROJ-01 and paid a sum of Rs. 4,00,000/- (Rupees Four Lakhs Only) i.e. 25% of the total price to OP for a plot admeasuring 250 Sq. Yards. It is also alleged that respondent is engaged in the business of real estate. It is further stated that Complainant is a Consumer within the definition of CP Act.
2. It is further stated that respondent launched the project in Faridabad, Haryana under the name of Future Proj-1 (ParkLand). Complainant was induced by advertisement given by the OP and he booked the plot in the above project. It is also stated Complainant was asked to pay 25% of the total amount i.e. Rs. 4,00,000/-(Rupees Four Lakhs), at the time of registration. The registration amount was paid vide cheque no. 084739 drawn on Indian Bank dated 31.08.2005. The said payment was acknowledged by OP vide receipt No. PF-1/S0136. It is also stated Complainant was told that allotment would be made after some time and Complainant would be informed regarding the developments and necessary demands for further payments would be made after commencement of construction. However OP did not inform the complainant about the development of the project and allotment of the plot.
3. It is further stated the Complainant came to know from the General Manager Marketing of OP that plots were yet to be allotted and was asked to book a single unit of 500 Sq. Yards together with his son as Complainant had also booked a plot of 250 Sq Yards, by giving request in writing. The Complainant after much pursuance of OP gave a formal written request for consolidated allotment of 500 Sq. Yards.
4. It is also stated that Complainant was however, shocked when he was informed by OP vide letter dated 26.05.2008, regarding the cancellation of registration of plot, alleging that Complainant did not participate in the process of allotment and failed to make payment of outstanding amount despite various communications sent to him. It is also stated that respondent did not raise any demand for further payment nor did it allot the plots. The issue of further demand would have arisen only after allotment of plots. The respondent has not been able to show any document/letter regarding the allotment. It is also stated no demand for payment was raised by OP after receiving the initial booking amount but in 2014 OP sent an email stating that they had raised demands whereas, in fact no demand was raised nor Complainant was informed of it in any of the meetings he had with OP.
5. It is also stated that respondent has been acting in an unfair and unjust manner. The respondent kept the Complainant in dark for almost 8 years and suddenly cancelled the allotment vide letter dated 26.05.2008 without ever raising any demand or allotting a plot or informing the Complainants the price of the plot. It is alleged the respondent has misappropriated the earnest money paid by Complainant, the OP without allotment cancelled the provisional allotment on false pretext alleging non-payment by complainant. The respondent has indulged in unfair trade practice to cheat the complainants. It is prayed that OP be directed to allot a plot of 250 Sq. Yards in BPTP Parkland to the Complainant or to refund 25% of the value of the property based on the current market rate.
6. OP contested the claim and filed Written Statement, taking preliminary objections that the complaint is misconceived not maintainable. It was also stated that the same is barred by limitation. It was further stated that it is an admitted fact that OP sent a termination/cancellation notice to the Complainant on 26.05.2008, as such the Cause of action for filing of complaint expired in 2010. It was also alleged that the Complainant is not a Consumer as defined in the Consumer Protection Act. but is a Prospective Investor.
7. It was however, admitted that Complainant applied for a 250 Sq Yards in the project of OP. It was further stated that, after the booking, the Complainant failed to approach OP for about 3 years as such the OP was left with no alternative but to cancel/ terminate the allotment of the Complainant. It was also stated that after the booking was terminated, complainant sent various mails to OP for earning wrongful gains.
8. On merits it was denied that there was any deficiency of service on behalf of the OP or OP indulged in unfair trade practice. It was stated that Complainant was never allotted any plot as Complainant never approached the OP after the allotment was made, Complainant wrote to OP in the year 2014 to enquiry about the property. It was also stated that the Complainant failed to show that she was offered any plot in the year 2008. It was prayed that the complaint be dismissed.
9. Complainant thereafter filed rejoinder reiterating the averments made in the complaint and denying the entire allegation made in the written statement. Both parties thereafter filed their evidence by affidavits.
10. An application was also moved on behalf of the OP for dismissal of the complaint, alleging that, the complaint was barred by limitation as it was filed 7 years after the termination letter sent by OP to the Complainant. It was further stated that Complainant was not a consumer within the definition of the Consumer Protection Act.
11. The application had been opposed by Ld. Counsel for Complainant.
12. As the objections raised by OP in the application are overlapping with the objections taken in the Written Statement, the application is being decided with the main case.
13. The Complainant relied upon a cheque of Rs. 4,00,000/- given towards the registration for the plot, receipt of the said amount issued by OP. Complainant also relied upon the letter sent to OP for allotment of plot consolidated of 500 Sq. Yards. The Complainant also relied upon the letter sent to OP stating that no demand was raised for further payment and no allotment letter was sent to Complainant.
14. On the other hand OP relied upon authorization letter of its authorized representation of OP to file the affidavit of evidence advanced registration form. Thus it is an admitted fact from the evidence led by the parties, that Complainant booked a plot in the project of OP. The receipt of payment of Rs. 4,00,000/- has not been denied by the OP.
15. We have heard the Ld. Counsels for parties and perused the record.
16. It was contended on the behalf of the complainant that OP was deficient in providing services. It was also contended that complainant had paid 25% of the cost of the flat i.e. Rs. 4,00,000/- (Rupees Four Lakhs Only) at the time of registration but OP failed to allot the plot. It is to be noted that Hon’ble Supreme Court has heldin Arifur Rahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
17. On the other hand it was contended on behalf of the OP that a termination letter was sent to the Complainant as Complainant failed to approach OP for about 3 years after registration of plot. However, it is to be noted that no such letter and its postal receipts have been placed on record by OP. Thus we are of the view that the said contention is without merits and is rejected.
18. As regards the contention of OP that the Complainant is barred by limitation, section 24(A) of Consumer Protection Act. relates to limitation period and provides that complaint shall be admitted unless it is filed within 2 years from the date on which cause of action has arisen. It is to be noted cause of action is continuining one as the amount paid by the Complainant had not been refunded to her neither the possession of the plot was handed over to him. We are thus of the view that said contention is also without merit.
19. As regard the submission of OP that Complainant is not a consumer as defined in CP Act and he has booked a plot for investment purpose. It is to be noted that section 2(1)(d) defines the terms consumer. It is pertinent to note that mere allegation made in this regard by OP but no evidence has been led to prove the said contention. In this regard Hon’ble Supreme Court has held in Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, held:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit.”
20. It is also held in it is to be noted that Section 2 (47), It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243byHon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
21. Section 2(r) of the Consumer Protection Act, 2019, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …” and includes any of the practices enumerated therein. The Hon’ble Supreme Court also held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
22. It is also pertinent to note that Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’:Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.
23. We thus hold OP guilty of deficiency in service, we are also find that Complainant was not at fault for the delay in the allotment of plot. We are accordingly, direct OP BPTP Limited, to refund to the Complainant Rs. 4,00,000/- with interest @ 9% p.a. from the date of deposit of registration amount till realization within the period of 4 weeks from the date of receipt of this order. We also award Rs. 10,000/- as cost of litigation. In case of delay in payment beyond 4 weeks. OP is liable to pay interest 12% for the delayed period. The application moved by OP stands dismissed for the foregoing reasons.
24. Copy of the order be provided to all the parties free of cost. An order uploaded on the website of this Commission.
25. File be consigned to record room along with a copy of the order.

 

 

(POONAM CHAUDHRY)

President

 

        (BARIQ AHMAD)                                                                           (ADARSH NAIN)           

         MEMBER                                                                                               MEMBER