Haryana

StateCommission

CC/454/2017

SANDEEP KUMAR - Complainant(s)

Versus

BPTP LTD. - Opp.Party(s)

PARDEEP SOLATH

25 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:31.07.2017

                Date of final hearing:25.04.2023

                                                Date of pronouncement: 28.04.2023

 

Consumer Complaint No.454 of 2017

 

IN THE MATTER OF

 

1.      Sandeep Kumar S/o Shri Raghbir Singh R/o K-103, Princess Park, BPTP, Sector-86, Faridabad.

2.      Sunita Chaudhary W/o Shri Sandeep Kumar, R/o K-103, Princess Park, BPTP, Sector-86, Faridabad.

3.      Mandeep Kumar S/o Shri Raghbir Singh, R/o K-103, Princess Park, BPTP, Sector-86, Faridabad.                                                                                                                   .….Complainants.

 

Through counsel Mr. Pardeep Solath, Advocate

 

Versus

 

1.      M/s BPTP Ltd., Regd. office at M11, Middle Circle, Connaught Circus, New Delhi through its Chairman/Managing Director.

2.      M/s Countrywide Promoters Pvt. Ltd., Regd. Office at M11, Middle Circle, Connaught Circus, New Delhi through its Chairman/Managing Director.

3.      M/s Business Park Maintenance Service Pvt. Ltd., Regd. at M11, Middle Circle, Connaught Circus, New Delhi through its Chairman/Managing Director.

….Opposite parties.

 

Through counsel Mr. Hemant Saini, Advocate

 

CORAM:   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. Pardeep Solath, Advocate for the complainants.

Mr. Hemant Saini, Advocate for the Opposite Parties.

 

O R D E R

S. C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that the opposite parties (‘Ops’) launched a housing project under the name & style of “Princess Park” situated at Sector-86, Faridabad (Haryana). OP No.1 is the seller and OP No.2 as the confirming party has allotted a Flat No.K-103, measuring 1677 sq. ft. in their project, to the original allottee namely Shri Prateet Gupta and complainants are the second allottee of said flat as the same was purchased by complainants from its original allottee. Total sale consideration of the said flat was Rs.24,73,547/- exclusive of EDC charges, maintenance charges, club membership etc. Builder Buyer’s Agreement dated 20.09.2008 was also executed in favour of original allottee. Thereafter, the said flat was allotted to the complainants by way of transfer vide endorsement form dated 06.12.2011 and Flat Buyer’s Agreement was also endorsed in favour of the complainants. The complainants had opted construction linked plan.  The complainants made all the payments in time. It is alleged that as per clause 2.3 of the agreement, in case, builder failed to deliver possession of the said flat within a period of 36 months from the date of sanction of building plan, then the builder shall be liable to pay compensation @ Rs.5/- per sq. ft., every month for the delayed period till the actual possession. OPs failed to deliver possession of the said flat within stipulated period, despite their several requests and Ops are liable to pay interest @ 18% on account of delay in possession of the flat as Ops have charged same rate of interest from them several times. Further, it is alleged that Ops had charged excess amount from the complainants. On 25.03.2014, the Ops charged an amount of Rs.5,38,000/- on account of execution of conveyance deed, whereas the same was executed on 09.08.2016. Similarly, the IFMA charges and administrative charges of Rs.1,71,405 were deposited by the complainants on 25.03.2014 and interest of Rs.11,811/- was deposited on 28.04.2014. Thereafter, a bank guarantee of Rs.2,79,424/- was also deposited with the Ops, which was issued on 30.01.2016. It was further alleged that the conveyance deed was executed on 09.08.2016, but no occupation certificate was issued by the OPs and without occupancy certificate deed of apartment was not executed. Thereafter, OP No.1 had issued statement of account dated 16.08.2014, as per which, OPs have clearly charged excess amount of Rs.3,05,000/- from the complainants. OPs mentioned that the complainants have deposited an amount of Rs.83,580/- in the IFMS while complainants have deposited an amount of Rs.94,400/- vide receipt dated 25.03.2014. Ultimately, the complainants served legal notice dated 25.11.2014 upon the OPs, on which they delivered the possession of flat on 09.01.2015, without providing basic facilities such as club, grounds, parking etc. Thus, there was deficiency in service on part of the Ops and the complainants prayed for compensation on account of delay in delivering the possession of the flat in question and also prayed for other reliefs as mentioned in the prayer clause of the complaint.

2.                Notice of the complaint was issued against the OPs, upon which they appeared and while submitting their written version raised objection regarding maintainability, territorial jurisdiction & concealments of true facts etc. However, it was admitted that a Flat No.K-103, measuring 1677 sq. ft. for total cost of Rs.24,73,547/- has been allotted by the OPs to original allottee namely Shri Prateet Gupta and complainants are the second allottee of said flat as the same was purchased by the complainants from its original allottee. Builder Buyer’s Agreement dated 20.09.2008 was also admitted and said flat was allotted to the complainants by way of transfer vide endorsement form dated 06.12.2011 and Flat Buyer’s Agreement was also endorsed in favour of complainants. It was submitted that as per clause 35 of the said agreement, the parties have mutually agreed that the agreement and all matters arising thereof shall be subject to exclusive jurisdiction of the courts at New Delhi only.  It was further submitted that the conveyance deed was executed on 09.08.2016 and complainants took the vacant physical possession of the flat. Moreover, as per the terms and conditions of Flat Buyer’s Agreement, possession of flat was to be handed over within a period of 36 months with a grace period of 180 days and further as per the said agreement, compensation @ Rs.5/- per sq. ft. per month for the delayed period was agreed between the parties. It was further submitted that the revised building plan of the project was approved on 15.12.2010, so the timelines for possession were counted from 15.12.2010 and as per the agreement 42 months from the date of final sanctioned building plan expired on 15.06.2014. It was further submitted that the OPs offered the possession of the flat to the complainants on 18.09.2013. Other allegations made in the complaints were also denied. Thus, there was no deficiency in service on the part of the OPs and hence prayed for dismissal of the complaint.

3.                When the complaint was posted for recording evidence of the parties, learned counsel for the complainants has tendered in evidence affidavit of Mr. Sandeep Kumar Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered other documents Ex.C-1 to Ex.C-9 and closed the evidence on behalf of complainants.

4.                On the other hand, learned counsel for OPs tendered into evidence an affidavit of Mr. Inderjeet Singh S/o Sukhpal, Authorized Representative of OPs as Ex.RA alongwith other documents Ex.R-1 to Ex.R-28 and closed the evidence on behalf of OPs.

5.                The arguments have been advanced by Mr.Pardeep Solath, learned counsel for the complainants and  Mr. Hemant Saini, learned counsel for OPs. With their kind assistance the entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averments taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the complainants, the foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to get any compensation on account of delay in delivering of the possession of flat in question or not? 

7.                While unfolding the arguments, it has been argued by Mr. Pardeep Solath, learned counsel for the complainants that as far as execution of Flat Buyer’s Agreement (Ex.C-3), between original allottee and OPs and thereafter its endorsement (Ex.C-2) in the name of complainants is concerned, the same is not in dispute. It is also not in dispute that the total sale consideration of the said flat was Rs.24,73,547/-. As per the Flat Buyer’s Agreement and the terms and conditions incorporated therein, including date of delivery of the possession of the apartment, the possession complete in all respect was to be delivered to the complainants by the OPs within 36 months from the date of sanction of building plan and in case, OPs failed to do so, then the builder shall be liable to pay compensation @ Rs.5/- per sq. ft., every month for the delayed period till the date of actual possession. It is argued by learned counsel for complainants that OPs failed to deliver possession of the said flat within the stipulated period, despite their several requests and thus, the OPs are liable to pay interest @ 18% on account of the delay in handing over possession of the flat as the OPs have charged same rate of interest from them several times. He further argued that the OPs had charged excess amount from the complainants. He further argued that the complainants served legal notice dated 25.11.2014 upon the Ops, on which they delivered the possession of flat on 09.01.2015, without providing basic facilities such as club, grounds, parking etc. In these circumstances, the complainants had no other option, but, to seek compensation on account of the delay in delivery of possession of the flat in question alongwith interest and other reliefs as prayed for.

8.                On the other hand, it has been argued by Mr. Hemant Saini, learned counsel for the OPs that the delay in handing over the possession of the apartment in question was due to the reasons beyond the control of OPs. It was further argued that the complainant purchased the flat in question from the original allottee and all the rights and liabilities were transferred to the complainants vide endorsement form dated 06.12.2011. He further argued that the OPs issued offer of possession dated 18.09.2013 and the same was accepted by the complainants without any objection vide undertaking dated 12.03.2014. He further argued that prior to approaching this Commission, the complainants had also approached the learned District Commission, Faridabad in the year, 2015 seeking execution of the conveyance deed and refund of excess amount of Rs.3,05,000/- with interest. Thereafter, statement dated 18.07.2016 was given by the authorized representative of Ops to the effect that the conveyance deed shall be executed within a period of a month. OPs issued NOC dated 27.12.2014 for offering physical possession of the unit in question and the complainants took physical possession of said unit on 09.01.2015. The conveyance deed was executed on 19.08.2016 i.e. within one month as per statement made before learned District Commission. He further argued that later on the matter was dismissed by learned District Commission on the ground of pecuniary jurisdiction. He further argued that the OPs are not liable to refund any amount and the OPs have not committed any breach of agreement. The complainants have no right to demand the refund as the builder has not refused to complete the developmental work and offer possession of flat to the complainants. Thus, the complainants are not entitled for the refund and interest as prayed for.

9.                In view of the above submissions and after careful perusal of the entire record, it is not in dispute that upon floating a project by the OPs-builders, a residential unit was purchased by the complainants from its original allottee for a total cost of Rs.24,73,547/-. It is also not in dispute that the Agreement dated 20.09.2008 was executed in favour of original allottee and thereafter, said flat was allotted to the complainants by way of transfer vide endorsement form dated 06.12.2011 and Flat Buyer’s Agreement was also endorsed in favour of the complainants. As per clause 2.3 of the agreement, in case, the seller/confirming party failed to offer possession of said flat within a period of 42 months from the date of sanction of building plan of the said complex, then it shall be liable to pay to the purchaser compensation @ Rs.5/-(Rs. Five only) per sq. ft. for every month of delay thereafter until the actual date of possession. It is clear and admitted fact that the OPs failed to deliver the possession of said flat within the stipulated period. As such, there is a breach of terms and conditions of the Apartment Buyer’s Agreement on part of the OPs. It is the normal trend of the developers that a developer would collect their hard-earned money from the individuals and would invest the funds in other projects. As a result thereof the project for which the home-buyers have spent their hard-earned money is not completed.  Resultantly, completion of the project and consequent delivery of the possession is delayed as in the present case. When the project is not completed as per the time schedule as agreed to by the terms and conditions of Flat Buyer’s Agreement as in the present case, this Commission is of the considered opinion that there is clear deficiency in services on part of OPs and thus, the complainants are well within their legal rights to get compensation on account of the delay in delivery of the possession of the flat in question. Even otherwise also there is a strong element of physical and mental agony caused to the complainants on their having invested a huge amount and still being deprived of and not being put into possession of the same in time and under these constrained circumstances, they had to knock at the door of this Commission even for seeking compensation of account of the delay in delivery of possession of the flat in question.  In these cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question as to whether the present complainants are entitled to get any compensation on account of delay in delivery of the possession of the flat in question is answered in the affirmative.

10.              As regards the rate of interest, as per the complainants, OPs are liable to pay interest @ 18% on account of delay in possession of the flat as OPs have charged the same rate of interest from them several times. However, as regards the rate of interest to be awarded, it may be relevant to keep the following factors into consideration. Keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by Nationalized Banks, there has been an increase in lending rate by the Nationalized banks. Accordingly it would, in considered view of this Commission, be just, fair and reasonable to award 9% as the rate of interest to the complainants.

11.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OPs are directed to pay interest @ 9% p.a. on the deposited amount from the date possession was due to the date of delivery of actual possession of the flat to the complainants within the period of 45 days from the date of issuance of copy of this order. In case there is any breach in making the payment within the stipulated period of 45 days, in that eventuality, the complainants would further be entitled to get the interest @ 12% per annum, for the defaulting period. The complainants are also entitled to an amount of Rs.25,000/- (Rs. Twenty five thousand only) on account of compensation for mental and physical agony.  In addition, the complainant is also entitled to a sum of Rs.5,000/- (Rs. Five thousand only) as litigation charges. It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

12.              Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

13.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

14.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 28^th April, 2023

 

                                                                                                S.C Kaushik

                                                                                                            Member                                                                                                                     Addl. Bench

 

R.K