Delhi

StateCommission

CC/11/178

MEENA YADAV - Complainant(s)

Versus

BPTP LTD. - Opp.Party(s)

06 Sep 2018

ORDER

 IN THE STATE COMMISSION: DELHI

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

Date of Decision: 06.09.2018

Complaint No.178/2011

In the matter of:

Ms. Meena Yadav w/o. Sh. Mahender Yadav, R/o. H. No. 1689, Sector-B, Vasant Kunj, New Delhi

:

Complainant

           

Versus

 

 

BPTP Limited Through its Managing Director/ AR AT M-11, Middle Circle, Connaught Place, New Delhi

:

Opposite Party

 

                            

CORAM      :        N P KAUSHIK

:

Member (Judicial)

 

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

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

 

 

Cases relied upon

 

1.         Shri Puneet Malhotra vs. M/s Parsvnath Developers Ltd.,
II (2015) CPJ 18 (NC)

2.         Subhash Chander Mahajan vs. Parsvnath Developers Ltd. in CC No. 144/2011 decided on 05.05.2014

3.         Swarn Talwar and Others vs. Unitech Limited decided by National Commission in CC No. 347/2014 on 14.08.2015

4.         Satish Kumar Pandey & Anr. vs M/s. Unitech Ltd. and Others decided by Hon’ble National Commission in CC No. 427/2014 decided on 08.06.2015

 

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGEMENT

1. Complainant Ms. Meena Yadav booked a flat bearing no. 1404, J Tower at Princess Park, Sector-86, Faridabad with BPTP Limited, M-11, Middle Circle,   Connaught Place, New Delhi (in short the OP).  A flat buyer’s agreement was entered into.  Total sale consideration of the flat was Rs.34,93,825/-.  Grievance of the complainant is that the OP had never been serious in completing the construction.  Complainant always remained uncertain of getting physical possession of the flat.  OP asked her for covered car parking charges and club membership charges which never found a mention in the original application.  Immediately after receiving the payment plan showing car parking charges and club membership charges, complainant approached the OP and expressed her unwillingness to get club membership.  Grievance of the complainant is that the OP trapped her either to pay as per his whims and wishes or lose the amount initially deposited.  OP thus demanded an amount of Rs.17,94,156/- alongwith interest @18% per annum vide his notice dated 28.05.2011.  Complainant submitted that the OP was bent upon cancelling the allotment under the garb of non-payment of dues alongwith interest @18% per annum. 

 

2. Next grievance of the complainant is that the OP failed to deliver the flat.  Not even ground work on the site of construction had been done.  Even on date OP failed to indicate any time period for completion of the flat. 

 

3. With the aforesaid averments, complainant has prayed for directions to the OP not to cancel the flat and not to charge interest @18% per annum on the outstanding dues.  Complainant has prayed for declaring the notice dated 28.05.2011 issued by the OP as null and void. 

 

4. OP in its defence raised a preliminary objection that this Commission lacks pecuniary jurisdiction as the compensation prayed for was below Rs. 20 lakhs.  OP submitted that the complaint is also barred by limitation.  Contention of OP is that the demand for car parking and club membership charges came to the knowledge of the complainant when she signed the application for allotment and further vide letter of demand dated 12.07.2008.  There was no protest from the side of the complainant at that time. 

 

5. OPs submitted that the flat in question was originally allotted to one Mr. Somen.  Allotment in favour of the complainant was endorsed by the OP on 19.03.2008. 

 

6. OP further submitted that the complainant defaulted in making payment of instalments.  Allotment should be treated as cancelled.  OP relied upon clause 17 of the application of allotment providing that the terms and conditions of the flat buyer’s agreement were mandatory.  In case of non-compliance with the provisions, OP shall entitled to forfeit the entire earnest money.  OP referred to several letters of demand/ reminders ranging between the period from 14.05.2008 and 16.02.2011.  Final opportunity to make payment was given to the complainant vide letter dated 28.05.2011.

 

7. OP submitted that the complainant was left with no right except to claim refund as per terms mentioned in flat buyer’s agreement.  OP further submitted that the application for allotment shows that the complainant was aware of car parking charges.  Lastly OP submitted that the construction of the project in question was going on in full swing. 

 

8. After completion of pleadings parties filed affidavit towards evidence.  Written arguments too were filed.  During the pendency of the complaint an application under Order VI Rule 17 CPC for Amendment of the Complaint was filed by the complainant.  Vide proposed amendment complainant prayed for directions to OP for handing over the flat after accepting the balance payment.  In the alternative OP was required to refund the sum of Rs.13,26,705/- alongwith interest @18% per annum from the date of deposit till its realization. 

 

9. In its reply to the application OP submitted that the allotment was cancelled due to complainant’s default.  OP thus submitted that the question of handing over the possession did not arise. 

 

10. Since amendment sought for does not change the basic nature of the complaint, application under Order VI Rule 17 of the Amendment of the Complaint is allowed.  Amendment sought for would now be read as part of the original complaint. 

 

11. Another application under order 11 Rule 1 & 2 CPC was filed by the complainant for serving interrogatories upon the OP.  Complainant wanted the OP to give answer to the following questions:
    1. “Details/ particulars of the land i.e. as mentioned in the revenue record on which the project namely PRINCES PARK at Sector-86, Village Budena, Tehsil and District Faridabad is being constructed.

 

2. The date of completion of the project and the period of delay in delivering the possession.

 

3. Date and the copy of the completion certificate issued by the concerned authority.

 

4. Date and copy of the first sale deed executed in respect of residential flats in the project.”

 

12. In reply to the application, OP stated that information sought for by the complainant was irrelevant to the present dispute.  OP reiterated that possession could not be offered to the complainant on account of termination of HER allotment.  Regarding completion of the project, OP submitted that the information sought for was not relevant. 

 

13. Findings of the Commission on the application under Order 11 Rule 1 & 2 CPC shall be given later on, in these orders.

 

14. It has now come on record that the flat in question was booked by one Mr. Somen and the complainant Ms. Meena Yadav stepped into his shoes on 19.03.2008.  OP has evaded replies to the interrogatories referred to in the application under Order 11 Rule 1 & 2 CPC.  Neither in the pleadings nor in the evidence, OP indicated the date of completion of the project.  OP has cleverly avoided answers to any interrogatories.  An adverse inference, therefore, has to be drawn against the OP.  It simply shows that the OP has not been able to complete its project objection raised by the OP in relation to the pecuniary jurisdiction is not tenable for the reason that the total amount claimed by the complainant works out to more than Rs. 20 lakhs.  Coming to the objection in relation to period of limitation, the same again is not tenable for the reason that even in his last reminder dated 28.05.2011, OP has demanded parking and club membership charges.  OP failed to hand over the physical possession of flat in question to the complainant.  A period of more than 10 years has passed from the date of booking the flat.  Complainant was justified in not making further payment as the pace of construction was not commensurate with the payment made by the customers to the builder/ OP.  In the  present case complainant had paid an amount of Rs.13,26,705/-.  In the circumstances it would not be appropriate to direct the OP to hand over physical possession of the flat in question to the complainant. 

 

15. OP has failed to disclose any reasons for his failure to complete the project in a span of 10 years.  Be that as it may, it is a clear case of ‘deficiency in service’.  OP is, therefore, directed to pay to the complainant as under:

 

1. to refund the amount of Rs.13,26,705/- alongwith interest @18% per annum for the date of deposit till its realization.

 

2. OP shall pay to the complainant a compensation to the tune of Rs.2 lakhs for causing inconvenience, harassment, sadness, frustration and mental agony. 

 

3. OP shall pay to the complainant litigation charges to the tune of Rs.50,000/-.

 

The aforesaid amounts shall be paid by the OP to the complainants within a period of 60 days from today failing which these shall carry interest @24% per annum.
Complaint is accordingly disposed of. File be consigned to Records.

 

 

(N P KAUSHIK)

MEMBER (JUDICIAL)

13.