Haryana

StateCommission

CC/35/2016

CHANDER MOHAN GUPTA - Complainant(s)

Versus

BPTP LTD. - Opp.Party(s)

TANMOY GUPTA

08 Apr 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.35 of  2016

Date of the Institution:16.02.2016

Date of Decision: 08.04.2019

 

Chander Mohan Gupta, R/o H.No.865, ward No.10, Sector-17, Faridabad.

                                                                   .….Complainant

Versus

 

BPTP Limited, M-11 Middle Circle, Connaught Circus, New Delhi, Delhi, 110001.

                                                .….Opposite Party

 

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

                   Mrs.Manjula, Member

 

Present:-    Mr.Tanmoy Gupta, Advocate for complainant.

Mr. Hemant Saini, Advocate counsel for opposite party.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts given rise for the disposal of the present complaint are that complainant booked a flat in an upcoming township namely Parklands Pride situated at Faridabad of the opposite party on 20.04.2011.  He made payment of Rs.3,00,000/- on the same day.  O.P. issued allotment letter to her dated 25.11.2011. The above said flat was handed over to the complainant within a period of 36 months from the date of which the booking was first made.  The total cost of the flat was Rs.44,40,488/-. Till now, he made a payment of Rs.32,17,037.68.  He requested the O.P in July 2014 to hand over the possession, but, he was shocked and surprised to see the rough structure of the building. He immediately contacted the O.Ps. to execute the buyer agreement as well as hand over the possession of the flat, but, all in vain.  He requested the OP to refund the deposited amount alongwith interest, but,  O.P. did not pay any heed.  Hence under the constraint circumstances the complainant had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.P. to make payment of a sum of Rs.32,17,037.68/- which had been deposited by the complainant alongwith interest @ 18% per annum from the date of booking  i.e. 20.04.2011. The compensation of Rs.Five lacs had also been sought  for causing mental and physical agony and the amount of Rs.55,000/-   as litigation expenses.  Thus there was deficiency in service on the part of the O.P.

2.                Notice of the complaint was issued against the O.P. and the reply was filed, wherein the averments taken in the complaint were  strongly denied and refuted and prayed for dismissal of the complaint.

3.                While taking the preliminary objection about the concealment of true facts, maintainability of complaint, jurisdiction etc. were also raised and requested to dismiss the complaint.

4.                On merits, O.P. alleged that complainant had made at least two investments with the OP for the purpose of resale and to earn commercial profits.  Apart from booking of the unit in question and being allottee of Floor No. PB-73 GF, Parklands Pride, Sector 77 Faridabad vide customer code 131865, the complainant has also invested in another floor and was the allottee of floor No. PA-155-GF Parkland Pride, Sector 77 Faridabad, vide customer code 131882 alongwith his wife.   O.P. shall make all efforts to hand over the possession of the floor within 36 months (inclusive of 180 days grace period) from the date of execution of  the floor buyer’s agreement subject to certain limitations as may be provided in the buyer’s agreement. The complainant has still not executed the agreement.  It was denied that he visited the site in July 2014 or that only rough structure was there on the site.  O.P had sent two copies of floor buyer’s agreement to the complainant at his address on 29.08.2012  and 29.01.2014 through speed post, but, he failed to execute the said agreement.  Thus there was no deficiency in service on the part of the O.P.

5.                When the complaint was posted for recording evidence of the parties, the complainant in her evidence has tendered the affidavit Ex.C-A vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-8 and closed his evidence.

6.                On the other hand in order to rebut the evidence led on behalf of the complainant the O.P. had also tendered the affidavit Ex.RA that of Mr. Siddhant Yadav representative of the opposite party and also tendered  the documents Ex.R-1  to R-21 and closed his evidence.

7.                The arguments have been advanced by Sh.Tanmoy Gupta, the  learned counsel for the complainant as well as Mr.Hemant Saini,  the learned counsel for the opposite party.  With their kind assistance the entire record including voluminous documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

8.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this court as to whether the present complainant is entitled to get refund of the amount which he has already deposited alongwith the interest. 

9.                While unfolding the arguments, it has been argued by Sh.Tanmoy Gupta, Advocate, the learned counsel for the complainant that out of the total amount of Rs.44,40,488/-, he made a payment of Rs.32,17,037/- is not in dispute.    As per the agreement, the possession complete in all respect was to be delivered to the complainant by the O.P within stipulated period of 36 months, but O.P. failed to offer the  possession of the unit within the stipulated period.   

10.                  The complainant booked the unit in the year of 2011, whereas the licence of the O.P. was cancelled in the year 2011 as the building plans were not sanctioned by the department, thereafter Govt. allowed the O.P. to construct the building in the year 2014. Why O.P. demanded huge amount from the investors from 2011 to 2014. The O.P. illegally sent demand notices to the investors vide which they mentioned in the demand letters that the construction is in full swing as the  building plans were not sanctioned by the department.  The complainant have two children and he opted to purchase two flats for his two children. Buyer agreement has not been executed by the O.P. However, the O.P. has received the huge payment from the complainant without executing the buyer agreement.  However inspite of the fact that the amount of Rs.32,17,037/- stands paid.  The period within which, the possession of the unit was to be delivered had already expired and under these circumstances the complainant had no other option, but, to seek the refund of the amount which he had already paid alongwith interest. Perusal of the file shows that the O.P. did not have any written authority to construct the building.  Even though, they have cheated all the customers who have booked the unit  and get the huge amount from the investors.

11.              On the other hand, it has been argued by Sh.Hemant Saini, learned counsel for the O.P. that the amount which the complainant had paid, was not paid as per the repayment schedule.  There was a delay in making the payment of the amount.  It is true that the documents were not executed by the complainant himself.  There was certain reasons which were beyond the control of the O.P., the possession could not be delivered to the complainant in time.  Under these circumstances, if the complainant is not executed the buyer agreement, the refund cannot be granted and the complaint may be dismissed. 

12.              In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, unit was booked by the complainant for which amount of Rs.32,17,037/- had been paid as is evident by the receipts. Since the unit was booked for the residential purpose by the complainant’s family members, as such, as per the definition enshrined under section 2 (i) (d) of the C.P.Act, 1986 the complainant  is a consumer.

13.              Now for the purpose of answering the question as to whether the complainant is entitled to get refund of the amount which he had already deposited at the different phases.  It is true that the complainant had deposited the total amount of Rs. 32,17,037/- against the receipts.  The buyers agreement was not executed by the opposite party.    Despite several letters dated 21.07.2014, 19.0-8.2015, 09.01.2016 written to the O.P. to deliver the possession, but, O.P. failed to deliver the flat to the complainant.  However, as per the clause of delivery of the possession, the possession was to be delivered within period of three years complete in all respects and even grace period of six months was also available to the developers-O.P.   To the utter surprise of this court and is very pity that inspite of the fact that period of more than three years and grace period of six months had expired, the possession of the dwelling unit has not been delivered by O.P.  O.P. also admitted that due unavoidable circumstances, the possession of the unit could not be delivered to the complainant.  As the developers or O.P. cannot be put to survive on the basis of the amount of the investors.  It is the normal trend of the developers/O.P. that builder would collect their hardened money from the investors and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hardened money is not completed. As a result thereof the delivery of possession or completion of the project is delayed in the present case.  When the project is not complete as such, this court is of the considered opinion that the complainant is well within her legal rights to get the refund of the amount of Rs.32,17,037/- which he had already deposited with the O.P.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and the possession has not been delivered within its permissible period and under the constraint circumstances, the complainant had to knock the door of this court even for seeking refund of the amount.  In such like cases  the court had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the investors and hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.P. is directed to refund of the amount of Rs.32,17,037/-  alongwith interest @ 12%  per annum from the date of respective deposits and till realization.   Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period  of  three months in that eventuality the complainant would further be entitled to get the interest @ 18% per annum, for the defaulting period.   The complainant is also entitled  of Rs.1,00,000/- for compensation of mental agony and physical harassment.  In addition, the complainant is also entitled of Rs.21,000/-  as litigation charges.    It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

 

April 08th, 2019       Manjula                                 R.S.Chaudhary,                                                                 Member                                 Judicial Member                                                                 Addl. Bench                         Addl.Bench             

S.K.