Haryana

StateCommission

CC/260/2016

PAWAN KUMAR SHARMA - Complainant(s)

Versus

BPTP LTD. - Opp.Party(s)

S.K.SUD

04 Jul 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.260 of  2016

Date of the Institution:06.09.2016

Date of Decision: 04.07.2018

 

Pawan Kumar Sharma aged about 67 years S/o Sh.Babu Nand Sharma, R/o H.No.525, Ward No.20, Pul Bazar, Narnaul District Mahendergarh 123001 (Haryana).

                                                                   .….Complainant

Versus

1.      M/s BPTP Ltd., through its Managing Director, Park Arena, Village Badouli, Sector-80, Faridabad (Haryana).

2^nd Address

          M/s BPTP Ltd., through its Managing Director, M-11, Middle Circle, Connaught Circus, New Delhi-110001.

2.      M/s Countrywide Promoters Pvt. Ltd., through its Authorized signatory Sh.C.M.Sharma S/o Sh.Dev Raj Sharma, Registered office:- M-11, Middle Circle, Connaught Circus, New Delhi-110001.

3.      M/s Sunglow Overseas Pvt. Ltd., through its Authorized Signatory Sh.C.M.Sharma S/o Sh.Dev Raj Connaught Circus, New Delhi 110001.

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.

 

Present:-    Mr.Nitin Sood, Advocate for complainant.

Mr.Hemant Saini, Advocate counsel for opposite parties.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

1.                The brief facts given rise for the disposal of the present complaint are as such, complainant is resident of House No.525, Ward No.20, Pul Bazar, Narnaul District Mahendergarh.  The complainant is a ‘Consumer’ as enshrined under the provisions of Section 2(i) (d) of the Consumer Protection Act, 1986 (For short “C.P.Act”).  The complainant had opted to book a dwelling unit with the opposite parties (O.Ps.), which was floated under the name and style of “Park Arena” in Sector-80, Faridabad.  As per the brochure published by the O.Ps., there was a schedule of making the payment of the amount in different phases. 

2.                It has further been alleged that Buyer’s Agreement was executed on 31.05.2011 for the purpose of raising the construction and then to deliver the possession to the complainant which are complete in all respect.  In fact the construction was to be completed within 36 months with the grace period of six month.  For the purpose of allotment of a dwelling unit, the complainant had deposited the amount of Rs.38,96,398/- by way of different cheques and on different stages.  In the Buyers Agreement, there is a specific clause that in case, there is a breach in making the payment of the installment, in that eventuality, the interest @ 18% would be charged.

3.                It has further been alleged that without the consent of the complainant, the O.Ps. have Suo Moto issued a re-allotment letter qua the dwelling unit No.B-1004, 10^th Floor, tower-B, Park Arena, Parksland in Sector-80 on 20.02.2014.  The specifications and the area of the flat or the dwelling unit which was initially booked by the complainant and the subsequent allotted who is also mentioned therein.  However the construction was not completed and the possession was not delivered. 

4.                It has also further been mentioned that there was a specific condition in the agreement that in case of delay in delivery of the possession, a sum of Rs.5/- per sq. feet per month for the super area of the flat would also be paid to the complainant.  Since the possession has not been delivered in spite of the fact that the period of more than three years have expired and making the repeated request have not brought any fruitful result.  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.Ps. to make payment of a sum of Rs.38,96,398/- which had been deposited by the complainant alongwith interest @ 18% per annum from the date of respective deposits and till actual payment. The compensation of Rs.10/- lacs had also been sought for  mental and physical agony. Similarly the amount of Rs.5,00,000/- lacs had also been sought for  deficiency in service and the amount of Rs.55,000/-   as litigation expenses.

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

6.                While taking the preliminary objection it has been alleged that the complaint is not maintainable as there is a specific clause for referring the matter in dispute for adjudication to the arbitrator.  Similarly a plea of “Consumer” has also been raised with the averment that the complainant is not the consumer of the O.Ps.  The jurisdiction of the Commission has also been challenged and since there is no negligence on the part of the answering O.Ps. or  no substantial loss has been caused to the complainant and similarly, there is no deficiency in rendering the services of the answering O.Ps. on these sole ground, the complaint is liable to be dismissed.

7.                On merits, it has been alleged that there is no dispute that complainant is a resident of Narnaul District Mahendergarh but it was strongly refuted that the complainant is a consumer qua the answering O.Ps. In fact the O.Ps. have offered the possession  of the dwelling units or the flats to more than 20,000 customers and even delivered the possession to more than 11,000 customers.  The plea of not making the payment of the installment in time was also taken. The execution of the document executing the Buyers Agreement  was also executed on 31.05.2011 and as per the terms and conditions incorporated in the buyers agreement, the construction of the project or the flats was to be completed within a period of 36 months with further grace period of six months and  then the possession was to be offered.  Due to constraint circumstances, the construction could not be completed and however the O.Ps. have offered the complainant the flats in different other projects which are complete in all respect. 

8.                Moreover, the complainant has not booked the initial flat for his residential purpose but has booked for earning the profit that as such, since the relationship does not exist, the complaint is also liable to be dismissed.  As far as the allotment of second unit is concerned to the complainant, it is a matter of record.  The other terms and conditions incorporated in the Buyers Agreement or executing  the other relevant document has also not been disputed.  It has also been alleged that complainant had not made any request to refund the amount.  It has further been averred that the complainant had deposited the amount of Rs.38,76,160/- and not Rs.38,96,398/- as has been alleged.  The remaining averments taken in the complaint were denied and refuted but prayed for dismissal of the same.

9.                When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-6 and closed the evidence.

10.              On the other hand in order to rebut the evidence led on behalf of O.Ps. had also tendered the affidavit Ex.RA that of Siddhant Yadav the authorised representative and also tendered documents Ex.R-1 to R-15 and closed the evidence.

11.              The arguments have been advanced by Sh.Nitin Sood learned counsel for the complainant as well as Sh.Hemant Saini learned counsel for the opposite parties.  With their kind assistance the entire records as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

12.              The basic and foremost question arises before this Commission is while dealing with the contents of the complaint and reply filed thereto as to whether the complainant is entitled for refund of the amount which he has deposited with the O.Ps. on account of the flat/dwelling unit in the project?

13.              In order to substantiate this  particular issue, the complainant had tendered his affidavit Ex.CA and the documents Ex. C-1 to C-5.  As per the contents of the affidavit and the documents executed between the parties it is not in dispute that the complainant  booked the flat in the project to be developed by the O.Ps.  The payment has also been made in different phases, which has not been disputed.  As per the buyers agreement executed between the parties, the possession of the flat was to be given within a period of 36 months with grace period of  six months.  However as per the testimony of RW-1, the construction of the dwelling unit or the project has not been completed.  The O.Ps. have not in a position to deliver the possession of the flat complete in all respect.  However as per the contention raised by Sh.Hemant Saini, learned counsel for the O.Ps. the complainant has been given the different options for handing him  offer the possession of a flat in other projects which are complete in all respect but  he has flatly refused.

14.              In the considered opinion of this Commission, the payments made by the complainant at different stages is not in dispute.  It is also not in dispute that the construction of the project has not been completed within stipulated period and in fact the time is the essence for raising and completing the construction of the project.  It is also  not in dispute that even without the consent of the complainant, the flat was re-booked in a different project but it was also acceptable to the complainant subject to the condition that the possession is delivered within time.  In both the cases, the possession could not be delivered within time and as such, in the considered opinion of this Commission, there is a deficiency in rendering the service as well as not honouring the terms and conditions stipulated in the Buyers Agreement and other documents executed between the complainant and the O.Ps. 

15.              Hence with the above observation and discussion there are sufficient ground to accept the complaint and while accepting the complaint,  directions are issued to the O.Ps. to make payment of Rs.38,76,160/- (as per the details mentioned in the statement of account Ex.C-4) within the period of three months alongwith the interest @ 12% per annum from the date of its respective deposits and till realization.  In case, there is a breach in making payment within the stipulated period in that eventuality the complainant would further be entitled to get the interest @ 18% per annum, for the defaulting period.  In the interest of justice and equity a compensation of Rs.1,00,000/- is further awarded to the complainant for causing the physical harassment and mental agony alongwith litigation charges of Rs.21,000/-.  It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

July    04th, 2018                   Urvashi Agnihotri                 Ram Singh Chaudhary                                                        Member                                  Judicial Member                                                                   Addl. Bench                           Addl.Bench               

S.K.