Delhi

StateCommission

CC/12/172

JITENDRA KUMAR SINGH - Complainant(s)

Versus

BPTP LTD. - Opp.Party(s)

13 Jan 2020

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:­­­ 13.01.2020

And

17.01.2020

                                                                                                              

                                                                   Date of decision:28.01. 2020

 

Complaint No.172/2012

 

IN THE MATTER OF

 

MR. JITENDRA KUMAR SINGH,

RCC. GREF

CC/99/APO Army Post Office

Faridabad 930071, India….Complainant

 

VERSUS

 

DIRECTOR,

BPTP LIMITED,

M-11 Middle Circle,

Connaught Circle,

New Delhi....Opposite Party

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

 1.   Whether reporters of local newspaper be allowed to see the judgment?    Yes     

 2.   To be referred to the reporter or not?                                                         Yes

 

Present:         Sh. Sarvesh Singh alongwith Ms. Tanya Counsel for the complainant

                        Sh. Pragyan Pradeep Sharma and Ms. Bharti Singh, Counsel for the OPs

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             This complaint has been filed before this Commission by Sh. Jitender Kumar Singh, resident of Faridabad, Haryana, for short complainant, under Section 17 of the Consumer Protection Act 1986, the Act, against BPTP Limited, New Delhi, hereinafter referred to as OPs, alleging deficiency of service and unfair trade practice, they not having refunded the amount due and praying for the relief as under:-

 

The complainant therefore most humbly prays that this Hon’ble Forum may be pleased to direct the OP herein the following:

1. Rs. 44,195/- to be refunded with interest @ 18% till realisation.
2. Interest @ 18% on the amounts deposited on various dates, as this rate was chargeable by the OP for the payment of instalments, till the date of payment.
3. As per the claim of the OP, the property in its project has seen the appreciation of approx. Rs. 750/- per sq. ft. at the time of refund of money. Hence there is loss of 1414 X Rs. 750= Rs. 10,60,500/- to the claimant solely due to the fake allotment by the OP.
4. Though the sum of mental harassment cannot be computed as a false promise was made and a fake allotment was made, a sum of Rs. 20,00,000/- is payable on this ground. Moreover, the claimant is a govt. official without a dwelling unit in NCR of Delhi.
5.  The legal expenses borne by the claimant till date of Rs. 25,000/-.
6. Pass such further and other order as may be deemed fit and proper in the circumstances of the case and render justice.
7. The total dues arrive at Rs. 31,29,695/- with interest.

 

2.             Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant, responding to an advertisement of the OPs, had applied for a flat in their upcoming project at Sector 76, Faridabad and paid the booking amount of Rs. 2,50,000/- on 18.09.2008. The Ops had thereafter allotted to the complainant a flat number T-7/102, Park Floors, BPTP, Sector 76, Faridabad on 15.12.2008 by which time total amount of Rs. 5,00,000/- was deposited. Further payment of Rs. 4,09,485 and Rs. 3,10,511/- was made on 10.01.2009 and 16.02.2009 respectively which means an amount of Rs. 12,19,996/- was paid. An amount of Rs. 16 lakhs was sanctioned to the complainant by the LIC Housing Limited, to be released on demand from the OPs. Possession of the flat was agreed to be handed over by March, 2011.
4.           The complainant has stated that the OPs had sent a mail to him on 01.03.2011 the contents of which are as under:-

 

“....would like to inform you that construction is not yet initiated. However, in case you do not wish to continue you can either transfer funds to any alternative unit or else on your request we can proceed with the refund of the amount paid by you with 9% simple interest. Please find attached the surrender documents.”

 

5.              Construction not been complete within the agreed period and secondly the OPs admitting about their inability to complete the project and offering the complainant to seek refund with interest, the complainant signed the blank surrender forum and sought for the refund of the deposited amount with interest but the OPs in response thereto had refunded only a sum of Rs. 11,75,801/- deducting the remaining amount allegedly for no tangible ground.
6.             The complainant took up the matter with the OPs for the refund of the entire deposited amount with interest and in response thereto the OPs vide their letter dated 20.05.2009 had promised to pay the compensation for the delayed period but no payment to this effect was made. Secondly the construction having not been completed within the agreed time the fact as evident by way of their mail referred to above, they were entitled to the compensation even otherwise. But the OPs did not respond to his appeal leading to filing of this complaint before this Commission for the redressal of his grievances.
7.           OPs were noticed and in response thereto they have filed their written statement resisting the complaint both on technical ground and on merit, stating that the complainant is not a consumer since the relation of Consumer and Service Provider came to an end upon the unconditional acceptance of refund cheque and on getting the same enchased. The complainant had already surrendered the allotment of Unit No. T-7/102, vide his surrender application dated 20.04.2011 and had agreed to accept the refund of the deposited amount against the booking/allotment after deducting all the charges/interest as per the guidelines of the company as full and final amount payable to him. In view thereof, the OP in acceptance of the said surrender had issued to the complainant the refund cheque for the total amount deposited by the complainant after deduction on account of the brokerage amount of Rs. 44,195/- vide cheque No. 464176 dated 03.05.2011 drawn on Punjab National Bank, New Delhi, in the sum of Rs. 11,75,801/- which was duly accepted without raising any protest whatsoever. The OPs have further submitted that upon encashment of the above-said cheque, the complainant ceased to be their Customer and hence, the complainant is not covered within the definition of consumer as defined under the Consumer Protection Act. Secondly, the OPs relying on clause 11.16 of the Flat Buyer Agreement, are under an obligation only to refund the amount received from purchaser without any interest or compensation. The relevant extracts of the agreement is indicated below:-

 

“The purchaser agrees that in case the seller is unable to deliver the said flat the seller shall only be liable to refund the amount received from purchaser without any interest or compensation whatsoever and purchaser shall have no other rights to raise any dispute or claim”

 

8.           They have further stated, relying on the judgement of the Hon’ble Supreme Court of India in the matter of Bhubaneshwar Development Authority versus Susanta Kumar Mishra as reported in (2009) 4 SCC 684, that the terms of agreement is binding upon both the parties which means the complainant is not entitled for anything more than the deposited amount, keeping in view the agreement.
9.  Thirdly the refund sought for is far less than Rs. 20 lakhs in which case relying on the provisions of Section 17 of the Consumer Protection Act 1986, this Commission lacks the jurisdiction to hear and to dispose of the case. Fourth, no cause of action qua the OPs exists, the complainant himself having sought for the refund surrendering the flat allotted to him. Finally there exists no deficiency of service on their part as they have refunded the amount as due and permissible on the request of the complainant.
10. The complainant had thereafter filed rejoinder rebutting the contentions contained in the written statement and reiterating his averments contained in the complaint. Both sides have filed evidence by way of affidavit in support of their pleadings. Written arguments filed by both sides are on record.
11. This matter was listed before this Commission for final hearing on 13.01.2020 when the counsel for the complainant appeared and advanced his arguments praying for the refund of the entire amount with interest. The counsel for the OP concluded his arguments on 17.01.2020, arguing that the complainant is not entitled for anything more than the refund already done. I have perused the records of the case and considered the issues involved and the rival contentions raised.
12. Short question for adjudication in this complaint is whether the complainant is entitled to the balance amount with interest and for damages owing to the suffering caused due to the inaction of the OPs and for mental agony as prayed for by him or in the alternate he is entitled for no relief as the complainant having received the amount as full and final settlement is no longer a consumer within the meaning of Section 2(1)(d) of the Act which means he is not entitled to raise a consumer dispute as contemplated under Section 2(1)(e) of the Act.
13.  I may in the first instance advert to clause 11.16 of the agreement again which says that the complainant is entitled to for the refund of the amount deposited in the event the possession of the flat booked is not delivered. In the given clause there is no mention not even by implication that the OPs are competent to withhold the brokerage. To this extent the OPs are deficient. Secondly the complainant remains the consumer qua the OPs since the entire payment was not made. Part payment in no case would eclipse the relationship between the complainant and the OPs unless the complainant forgoes his claim as against the OPs which is not the case which means the complainant is entitled to raise a consumer dispute before the consumer forum. The defence of the OPs that this Commission lacks the pecuniary jurisdiction to hear and to dispose of the case keeping in view the claim preferred to the extent of the balance amount, is also not sustainable relying on the judgement of the Hon’ble NCDRC in the matter of Ambrish Shukla and ors versus Ferrous Infrastructure Pvt. Ltd. [CC-97/2016] decided on 07.10.2016, holding that total sale consideration and the compensation claimed would be the determinant for concluding pecuniary jurisdiction. In the given case the factors determining pecuniary jurisdiction go to show that there is no cloud for this Commission hearing this case.
14. Having reached to this conclusion the complaint has to be allowed and now the point for consideration is the relief that can be allowed to the complainant in the facts and circumstances of the case. The fact that the complainant had deposited an amount of Rs. 12,19,996/- is undisputed. This is also undisputed that the complainant had got the refund of an amount of Rs. 11,75,801/- deducting the balance amount as brokerage. This leads to a question whether the deduction made towards brokerage is in conformity the terms of the agreement. The reason is not far to seek. There exists nothing in the agreement enabling the OPs to make any deduction in the event the refund is to be done towards brokerage. To put it differently the deduction of an amount of Rs. 44,195/- while refunding the amount was not in order moreso when they had agreed of their own to refund the amount the construction not being complete with interest. The averment of the OPs that the official sending the mail agreeing to refund the deposited amount with interest, had no authority to issue such a mail cannot be accepted qua the complainant. The OPs can take action against their official for communicating such a letter without an authority but the letter mail having reached the complainant, with proper mandate or not, the complainant is entitled to the sanction contained therein.
15. Having regard to the discussion done I am of the considered view that the ends of justice would be met if a direction is issued to the OPs to pay to the complainant the balance amount of Rs. 44,195/- with simple interest at the rate of 6% on the said amount.
16.  Ordered accordingly.
17.  A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
18. File be consigned to records.

 

(Anil Srivastava)

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