Delhi

StateCommission

CC/13/69

NIRAJ KUMAR - Complainant(s)

Versus

BPTP LTD. - Opp.Party(s)

12 Feb 2020

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

                                                             Date of Decision:12.02.2020

 

Complaint Case No. 69/2013

 

In the matter of:

 

Mr. Niraj Kumar

S/o. Sri Triyug Narayan Singh

R/o. Vivek Vihar, Block-O,

Flat No. 313,

Sector- 82,

Noida- 201304, Uttar Pradesh                                      .....Complainant

 

Versus

M/s BPTP Ltd.

M-11, Middle Circle,

Connaught Place,

New Delhi-110001.                                                 …Opposite Party

 

CORAM

Ms. Salma Noor, Presiding Member

 

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

2.       To be referred to the reporter or not?                                        

 

 

Ms. Salma Noor, Presiding Member

1. This complaint is filed by the complainant under Section 17 of the Consumer Protection Act (in short the ‘Act’) wherein it is stated that upon the assurances and representations made by the authorized representative of the OP the complainant paid a sum of Rs.8,50,000/- to Mrs. Sarita Chawla for transfer of the flat bearing No. L-605 in Park Elite Premium, at Parklands, Faridabad, Haryana, and entered into an agreement to sell dated 11.02.2010. OP vide letter dated 18.02.2010 informed the complainant that the OP has endorsed the booking in his name with immediate effect and the payment of an amount of Rs.8,66,012.00/-has already been paid in respect of the said allotment by Mrs. Chawla. Pursuant to the transfer and under the bonafide belief that OP would comply with all the representations and commitments made to him entered into an agreement with the OP on 25.11.2010 with respect to the Flat bearing No. L-605 in Park Elite Premium, at Parklands, Faridabad, Haryana, (the Flat) for Rs.22,80,996/- . It is stated that in terms of clause 13 of the Agreement dated 25.11.2010, the complainant has been authorized, to mortgage the allotted Flat for the purpose of getting loan from Financial Institutions. It is stated that the complainant requested the OP to supply letter of permission to mortgage and other documents to enable him to get the loan from the bank. However, OP failed to supply the same and issued the demand letter dated 06.09.2010 of Rs.2,60,883.65/-, letter dated 28.03.2011 of Rs.5,93,998.95/- and letter dated 02.05.2011 of Rs.8,92,929.30. It is stated that the OP without making the documents available issued a letter dated 31.05.2011 calling upon the complainant to make payment of Rs.8,92,929.30/- with interest of 18% and threatened to cancel the allotment upon his failure to make the payment. It is stated that in reply to letter dated 31.05.2011, the complainant on 02.06.2011 again requested the OP for supply of the documents. It is stated that OP vide letter dated 08.06.2011, apologized the complainant for the inconvenience and agreed to make the same available at the earliest. It is stated that in view of the revocation of the letter dated 31.05.2011, the OP in September, 2011, entered into a Tripartite Agreement with complainant and financing bank to facilitate the disbursement of loan amount to complainant. It is stated that immediately on receipt of the aforesaid documents, the complainant submitted the same to the HDFC Bank and the loan was disbursed on 08.02.2012. It is stated that immediately on receipt of loan amount, complainant visited the office of OP on 08.02.2012 to make the payment but the OP refused to accept payment stating that his allotment has been cancelled vide letter dated 31.05.2011. It is stated that on 09.03.2012 complainant visited the office of OP to resolve the issue amicably, but the same was of no avail. It is stated that on 04.05.2012 complainant sent a letter to Chairman of OP requesting to resolve the issue, but the same was also of no avail. The complainant had to surrender the money back to the Bank as the same was only because of false promises and misrepresentative by the OP. It is stated that since all the efforts went into vain, the complainant got issued a legal notice on 08.08.2012 to the OP, however, the same was not replied. It is stated that on 19.09.2012, complainant received a call from the representative of OP wherein he was informed that OP is willing to restore the booking on his name subject to condition that he would pay interest @18% p.a. on the amount due. It is stated that the complainant showed his willingness to settle the matter with the condition that he will pay interest only for September 2011 to 8^th February 2012 and informed the representative of the OP accordingly. However, no reply was received by the complainant, therefore, alleging deficiency in service on the part of the OP, the complainant has filed the present complaint seeking following directions to the OP.

 

1. Declare that the Letter declare that the Letter Dated 31.05.2011, is viod ab intio; and

2. Direct the opposite party to restore the allotment of Flat being Flat No. L-605, booked by the Complainant in their Project Park Elite Premium, Parkland, Faridabad, Haryana, in the complainants name, on acceptance of the amount due, without levying any interest on it; and

3. Award damage and compensation of Rs.2,00,000/- (Two Lacs Only) for the financial loss, mental and physical harassment caused to him; and

4. Award the cost incurred towards the legal expenses, by the complainant, including for the present proceedings; or

5. Award total lump-sum damage and compensation of Rs.45,00,000/- (forty five lakh only) and the interest of 18% p.a. on the same till the time of disposal of the present complaint.

 

2. Upon notice the OP put in appearance and filed written statement wherein the objection raised by the OP is twofold, firstly, that complainant has failed to disclose any cause of action and secondly, on account of termination of allotment, complainant is not entitled to possession or compensation. On merits, OP admitted the execution of flat buyer agreement dated 25.11.2010 and the payments made by the complainant as well as the booking of the flat in question and endorsement of the said booking in the name of the complainant vide letter dated 18.02.2010 and payment of Rs.8,66,012.00/- by Mrs. Chawla. It is stated that complainant defaulted in making the payment and has breached the terms and conditions of the Agreement which resulted into cancellation of allotment vide letter dated 31.05.2011. It is stated that OP vide email dated 21.06.2011 informed the complainant that he was required to make the payments within 07 days of the receipt of the NOC/PTM documents and in event of failure on the part of complainant, the letter dated 31.05.2011 shall stand good. It is stated that in  February 2012 the complainant offered the payments which were not accepted and vide email dated 17.02.2012 complainant was informed that his booking stood terminated in view of letter dated 31.05.2011. It is stated that in terms of clause 11.1 of the agreement, OP was entitled to terminate the allotment and forfeit the amount upto earnest money in event of default of any of terms of the agreement. It is stated that in terms of Clause 11.1 of agreement, the allotment stood terminated and the amount paid by complainant stood forfeited and intimation to this effect was sent to complainant vide termination letter dated 05.07.2013. OP has admitted the service of legal notice. OP denied any deficiency in service and prayed for dismissal of the complaint.
3. In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and denied those contained in the written statement filed by the OP.
4. The parties led evidence in support of their case.
5. The first question for consideration in the present complaint is whether the complainant has disclosed cause of action for filing the present complaint. The cause of action is bundle of facts which are necessary to prove for succeeding in a suit/complaint. In the present complaint, the complainant has duly disclosed the cause of action by stating the facts with regard to execution of Flat Buyer Agreement between the parties the communications exchanged and the letter of cancellation of the booking issued by the OP and the fact of cancellation of allotment by the OP. Upon these facts, I am satisfied that the complainant has satisfactorily disclosed the cause of action in the present complaint. Pertinently, the OP has also admitted the execution of the Agreement, the communications and letter of cancellation, therefore, the objection raised by the OP stands rejected.
6. The next question that falls for consideration is whether due to default of payment made by the complainant, Opposite Party rightly cancelled the unit of the complainant. At the time of arguments, it is argued by Counsel for OP that since the complainant was defaulter in making payment of installments, and even stopped making further payments, as such, complainant is not entitled for the relief, as he has breached the terms and conditions of the Agreement. Therefore, OP rightly cancelled the allotment of unit of the complainant vide letter dated 31.05.2011 (Annexure P-5). A bare perusal of the cancellation letter, it is clear that the complainant was required to pay Rs.8,92,929.32 in respect of the unit in question. As per the Agreement, it is clear that total sale price of the unit, in question, is Rs.22,80,996/-, out of which, the OP has received an amount of Rs.8,66,012/-, which fact is not denied by the OP.  The complainant duly protested the cancellation vide letter dated 02.06.2011, subsequent to which OP provide NOC and permission to mortgage the flat in question and entered into a Tripartite agreement with the complainant and Bank and upon disbursal of loan amount, the complainant on 08.02.2012, approached the OP to make the payment, however, OP refused to accept the payment stating that allotment has been cancelled vide letter dated 31.05.2011. Once the OP entered into a Tripartite Loan Agreement (Annexure P-7) after cancelling the unit in question vide letter dated 31.05.2011, the said letter has no relevance as nothing had prevented the OP from entering into the Tripartite Loan Agreement, which was only for the purpose of making payment towards the unit in question. So, it is clearly proved that Opposite Party had only threatened the complainant to cancel the allotment. As such, the cancellation made by Opposite Party in respect of the unit, in question, is null and void. It may be stated here that in case of delay in making payments of installments, Opposite Party has been charging heavy penal interest thereon. As far as the question of stoppage of making further payments by the complainant, after making payment of substantial amount in respect of the unit, is concerned, it may be stated here that upon failure of the OP to provide NOC and permission to mortgage, the complainant could not avail the loan, which was later on got sanctioned upon providing NOC and mortgage permission by the OP. Thus, it cannot be said that complainant defaulted in making the payment.
7. As regards the reliance of OP that complainant was required to make the payment within 07 days of the receipt of the NOC/PTM documents and in failure on the part of complainant the letter dated 31.05.2011 shall stand good and that in terms of clause 11.1 of the agreement, OP was entitled to terminate the allotment and forfeit the amount upto earnest money in event of default of any of terms of the agreement. The said reliance by the OP has no force, firstly, it is OP who delayed in supplying the necessary documents, secondly, there is no clause in the agreement which bind the complainant to make the payment within 07 days of the receipt of the NOC/PTM documents, thirdly, the loan amount was disbursed on 08.02.2012 and complainant personally visited the office of OP on 08.02.2012 itself to make the payment, which was not accepted by the OP. So far as, the letter dated 05.07.2013 and forfeiture of amount is concerned, the same is unfair on the part of the OP, as once the OP had intention to forfeit the amount in terms of clause 11.1 of the agreement, nothing had prevented the OP from doing so and refund the balance amount to the complainant, however, by keeping the said amount for such a long period, the OP has not only enjoyed the said money but has also indulged in unfair trade practice.
8. Further, builder cannot not be allowed to take shelter under the agreement clause to usurp the money deposited by the complainant. It is well settled law that the builder cannot forfeit the money, paid by the complainant, on account of its own fault. It is, therefore, held that the plea, referred to above, taken up by OP, in its written reply, as also during arguments before this Commission, appears to be false.  The said plea was taken up, just with a view to cover up its lapse by Opposite Party and to deny the refund of amount, claimed by the complainant. The said plea being devoid of merit is rejected. 
9. During the arguments, ld. Counsel for complainant states that since long time has lapsed, the complainant is not interested in possession of the flat and wants refund of money deposited with the OP. It is submitted that OP has used the money and enjoyed the benefit arising out of payment made by the complainant.
10. On the other hand, Ld. Counsel for OP has argued that OP is still willing to offer the flat and that refund of money is a substantive relief.  It is submitted that the same cannot be allowed without there being specific prayer in this regard in complaint case. It is contended that subject to payment of balance amount, OP is ready to offer the possession.
11. The question for consideration is whether in these circumstances, the relief for the refund of amount with interest can be awarded in favour of complainant(s), when there is no specific prayer in this regard.  The aforesaid question has been dealt by the National Commission in Parsvnath Exotica Resident Association Vs Parsvnath Developers Ltd. & Ors. Devidayal Aluminum Industries (P) Ltd. IV (2016) CPJ 328 (NC) wherein it is held that even in the absence of specific prayer, it is always open to grant relief which is justified and warranted in the facts and circumstances of the case.  The relevant portion of the judgment is as under:

 

“Though, in Consumer Complaint No.45 of 2015, the main prayer made by the complainant is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the tile deed in their favour, when this matter came up for hearing on 27.4.2016, the learned counsel for the complainant stated on instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them.  The learned counsel for the opposite party submitted in this regard that no prayer for refund has been made in Consumer Complaint No.45 of 2015.  In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief which is justified and warranted in the facts and circumstances of the case.”

 

12. In view of above discussion, even in the absence of specific prayer, keeping in mind the facts and circumstances discussed above, the relief for refund with appropriate compensation can be considered in favour of complainants. It is the admitted fact that the complainant deposited the total amount of Rs.8,66,012/- in respect of the unit, in question. So, the complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, Opposite Party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment.
13. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.8,66,012/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the OP, for its own benefit. Opposite Party No.1 was charging rate of simple interest @18% p.a. for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. In the facts and circumstances of the case, the complainant is held entitled to get refund of the amount deposited by him, to the tune of Rs.8,66,012/- alongwith simple interest @10% p.a., from the respective dates of deposits till realization. 
14. No other point, was urged, by the Counsel for the parties.
15. For the reasons recorded above, the complaint is partly accepted. Opposite Party is directed, as under:-

1. To  refund   the  amount of Rs.8,66,012/- to  the complainant, alongwith simple interest @ 12% p.a. (simple), from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.

16. A copy of this order as per statutory requirements be sent to the parties free of cost. Thereafter the file be consigned to record room. 

 

    (Salma Noor)

Presiding Member