IN THE STATE COMMISSION: DELHI

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

Date of Hearing:07.10.2021

Date of Decision:27.01.2022

Complaint No. 261/2015

IN THE MATTER OF

SMT. YOGESH KUMARI

W/o Sh. Arvind Berry,

R/o House No. 498,

Faridabad, Haryana….Complainant

VERSUS

BPTP LIMITED

Registered Office

M-11, Middle Circle,

Connaught Circus,

New Delhi-110001

BUSINESS PARK MAINTENANCE

SERVICES PVT. LTD.

Registered Office

M-11, Middle Circle,

Connaught Circus,

New Delhi-110001                                                                          ....Opposite Parties

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. Gagan Gupta, Counsel for the Complainant

                        Sh. Pragyan Pradeep Sharma, Counsel for the OPs

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.       Short question for adjudication in this complaint filed by Smt. Yogesh Kumari resident of Faridabad, Haryana, for short complainant, against the BPTP Limited, and anr. (Business Park Maintenance Services Pvt. Ltd.) hereinafter referred to as OPs, under Section 17 of the Consumer Protection Act 1986, the Act, is whether the demand of Rs. 4,36,192/- towards EEDC, Rs. 2,83,715/- towards electrification and STP charges and of Rs. 1,90,700/- towards maintenance and other miscellaneous heads, as raised by the OPs from the complainant and non-payment of their of amounted to depriving the complainant the physical possession of the plot bearing number W8-01, admeasuring 317 sq. yd allotted to the complainant in the year 2008, is legally valid and justified.
2.       Facts of the case necessary for the adjudication of the complaint are these.
3.       One Mr. Jagjot Singh had booked a plot of land bearing number W8-01, admeasuring 317 sq. yd. in the project of the OPs namely “Parklands” at Sector-76 Faridabad in the year 2008 but later the complainant stepped into the shoes of Mr. Jagjot Singh. In order to get the registration of the plot changed in her name from the original buyer Sh. Jagjot Singh paid a total sum of Rs. 35,73,872/- to OP no. 1 towards entire basic sales prices amounting to Rs. 28,53,000/- (BSP), conveyance deed charges amounting to Rs. 1,42,650, external development charges (IDC) amounting to Rs. 3,24,608/-, infrastructure development charges (IDC) amounting to Rs. 1,41,065/- and utility connection charges (UCC) amounting to Rs. 15,000/- with a further amount of Rs. 1,75,678/- to Business Park Maintenance Services Pvt. Ltd. (O.P. No. 2). This was on the assurance that the possession of the plot would be handed over expeditiously. But the OPs failed to hand over the possession. On the contrary the OPs pressed for further payment under various heads like enhanced External Development charges, Electrification and STP Charges, Stamp Duty which were otherwise not part of the agreement. Possession was offered in September 2008 and alongwith the offer the complainant was asked to make some payment but that did not include any payment under the Head EDP, STP and EC charges which means these demands so made are afterthought to which the complainant vehemently sought the withdrawal of these said notice for payment under these heads. The complainant has further alleged that these demands of the OP were illegal and unenforceable in law as the demand of EEDC  having been stayed by virtue of the order dated 19.03.2013 passed by the Hon’ble High Court of Punjab and Haryana in CWP No. 5835 of 2013 titled “Balwan Singh versus State of Haryana”. But despite that the OPs continued to precipitate their demand under those heads. Secondly, the demand of OP-1 for an amount of Rs. 2,83,715/- in the name of Electrification and STP charges is also illegal and not maintainable under the in law as Chief Administrator, HUDA and other concerned authorities have already clarified that such facilities of Electrification Charges/Setting up of grids and STP are to be created and taken care of by the HUDA and payment of the same stood paid and recovered from them by the OP-1 under the Head EDC. Besides the OP-1 has neither created any STP facility nor any electrification/gird station etc. which means the demands of OP-1 under the heads/in the name of such STP/Grid station are even otherwise patently illegal. Further the claim under the maintenance charges when possession has not been handed over is contrary to the verdict of the Hon’ble NCDRC. The requisite amount having already been received by the OPs, having been deposited by the original buyer, the complainant sought for the refund of the amount which amount not having been refunded, this complaint has been filed for the redressal of the grievances praying for the relief as under:-

1. Direct the OP-1 to withdraw its demands of Rs. 4,36,192/- towards EEDC, of Rs. 2,83,715/- towards Electrification and STP Charges, of Rs. 1,90,700/- towards Stamp duty, and its demands towards interest and maintenance charges.
2. Direct the OP-1 to immediately handover possession of plot/unit W8-01, Parklands, Faridabad to the complainant.
3. Direct the OP-1 to pay to the complainant a sum of Rs. 24,12,363/- as interest computed @ 18% per annum w.e.f. 01.07.2011 on the sum of Rs. 35,73,872/- deposited by her with the OP-1 in the month of June 2011 or in alternative.  

Direct the OP-1 to pay a sum of Rs. 10,00,000/- towards compensation for all the harassment, torture, agony and loss of enjoyment of property suffered by the complainant.

4. Direct the OP-2 to refund a sum of Rs. 1,75,678/- to the complainant along with interest @ 18%, collected by it from her towards maintenance charges.
5. Direct OP to pay a sum of Rs. 55,000/- towards litigation charges.
6. Any other order/relief in favour of the complainant and against the OP.

4.    OPs were noticed and in response thereto they have filed their reply resisting the complaint both on technical ground and on merit stating that there is no valid cause of action against the OP-1 as all issues of the complainant stood resolved when plot no. W8-01 was offered for possession within the timelines stipulated in Plot Buyer’s Agreement dated 05.07.2013. Secondly there is no deficiency in services on the part of the OP-1 in offering its services with respect to the plot allotted to the complainant as per the terms of the agreement. It is pertinent to submit that the plot was ready in all respect in September, 2008, which is amply evident by the fact that this plot was offered for possession to the former allottee vide offer of possession dated 11.09.2008, which is already a matter of record. Thirdly, after this plot was transferred and allotted to the complainant from former allottee, the complainant had understood and agreed that all outstanding amounts have to be paid as per the terms of the duly executed agreement. It is further submitted that the complainant fabricated and concealed the fact that demand of Enhanced EDC was well known to the her and was acknowledged by her vide letter dated 27.06.2011 to the OP-1 in which the complainant confirmed and undertook to pay Revised/Enhanced External Development Charged as and when demanded by the OP-1.  It is further pertinent to submit that the demand for Rs. 4,92,618/- towards Enhanced EDC was raised in accordance with the notification dated 25.05.2011, as per the letter dated 03.02.2012 requesting the complainant for execution and registration of conveyance deed upon payment of revised External Development Charges., vide Memo No. HUDA.CCF.ACCTT-1-2011/17903. Fourth the present complaint under reply is not maintainable for lack of territorial jurisdiction as the plot is situated in Faridabad and it has also been agreed between the parties while executing the agreement that, according to Clause 48, the courts at Faridabad alone shall have the jurisdiction. Fifth, the complainant was also defaulter in making timely payments to demands raised by the OP-1 as per the agreement. Sixth, the instant complaint is not maintainable in the eyes of law and deserves a dismissal inasmuch as the entire complaint is based on purely frivolous, baseless and fraudulent allegations.
5.       The complainant had thereafter filed rejoinder rebutting the contentions raised in the reply filed by the OPs and reiterating his allegation as contained in the complaint. Parties to the case have filed their evidence by way of affidavit in support of their pleadings. Written arguments are on record.
6.       This complaint was listed before this Commission for final hearing on 07.10.2021 when the counsel for both sides appeared and advanced their arguments, the complainant for the refund of the amount demanded and claimed by the OPs which otherwise were not to be legitimately demanded and secondly for handing over possession of the plot after obtaining the completion certificate from the concerned authorities for which the complainant is ready to pay the balance amount if any, while the OPs for the dismissal of the complaint, no cause of action been subsisting in the subject matter as against them qua the complainants. I have heard the arguments and perused the records of the case.
7.       An application for interim prayer is also pending disposal but now that the complaint is being disposed of finally, the ld. Counsel for the complainant submits that he is not pressing the said application for interim relief as of now.
8.        There exists primarily three issues in the complaint whether the payment demanded by the OPs and made by the complainant allegedly under pressure was justified in the facts and circumstances of the case. However in the first instance I would examine the objection of the OPs regarding territorial jurisdiction of this Commission. For this purpose I may advert to the provision of section 17(2) of the Act (Supra). The said provision posits as under:-

• A complaint shall be instituted in a State Commission within the limits of whose jurisdiction:

1. The OP or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain.
2. Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such each either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution
3. The cause of action, wholly or in part, arises.

9.       On perusal of the provision of the Act it is manifestly clear that the place where OPs carry their business shall be the determinant for arriving at the conclusion regarding territorial jurisdiction of this Commission. OPs in the given case are in Delhi which means, relying on the said provision of the Act, this Commission is not handicapped hearing this case. The argument that as per agreement Faridabad is the place for determining territorial jurisdiction for resolving dispute if any cannot be accepted as the terms of agreement cannot over ride the statutory provision. Hence this objection since not sustainable cannot be allowed and it is overruled accordingly.
10.       Coming to the merit of the case as per the Haryana Ownership Act, 1983 and the Haryana Apartment Ownership Rules, 1987, the complainants are obliged to pay “Common expenses” including expenses of administration, maintenance, repair or replacement of the common areas and facilities, as lawfully assessed by the association of apartment owners and not as per the demands raised by the developer. Besides the demand to this effect before handing over possession is not in order. The allegation of the complainants is that the clause contained in the agreement, indicating that the amount is payable, being contrary to the legal position, tantamounts to unfair trade practice. The ld. Counsel for the OPs on the other hand argued that the amount sought for under this head has to be as per the agreement with which both of them are bound. However relying on the judgment of the Hon’ble NCDRC in the matter of Kamal Kishore versus Supertech as reported in II [2017] CPJ 483 (NC) holding as under:-

“Maintenance charges would be payable only after the date when occupancy certificate is obtained. Therefore the maintenance charges, in my opinion, would be payable from the date on which the possession is offered to the complainant after obtaining the occupancy certificate provided the construction of the villa is complete in all respect at that time”,

the contention of the complainant that the maintenance charges are not payable before the possession is handed over, appears to be correct and the demand of the OP in this behalf is not in order. Similar view was taken by the Hon’ble NCDRC in the matter of Madhusudhan Reddy R and J shanthamma and ors versus VDB white field Development Pvt. Limited and ors in CC-763/2020 decided on 25.01.2022. Secondly as regards the demand of the OP with respect to EEDC, relying on two judgments of the Hon’ble NCDRC in the matter of Captain S.K.Khanna versus Urban Improvement Company in FA-278/1996 decided on 10.02.2004 and in the matter of Sewa Kaur versus Urban Improvement Company in FA-627/1993 decided on 01.03.1996 and the view taken by the Hon’ble NCDRC in the matter of Sanjay Kumar Singh versus Matrix Buildwell Pvt. Ltd. as reported in II [2014] CPJ 667 (NC), holding that the developer can charge EDC as per agreement, appears to be legitimately acceptable. The contention of the complainant to this effect therefore is not accepted, subject to any order passed by the Hon’ble High Court in this very subject matter connected with the complainant.

11.       The OP No. 1 demanded Rs.2,83,715/-from the Complainant and the demand of said charges are illegal and not maintainable in law. The demand of Rs. 2,83,715/- raised by the OP is unjustified as it has already been clarified that all such facilities of Electrification Charges/ Setting up of grids and STP are to be created and taken care off by HUDA. It is further submitted that OP No.1 has wrongly demanded said charges as no STP facility or any electrification or grid facility has been provided by the OP No.1. It is further submitted that here is no justification and legality in demands of OP No. 1 towards electrification and STP charges as OP No.1 was providing electricity to different owners/allottees in the project through gensets and it has not created or put in place any facility of grid station or 220KVGIS sub-station or any other infrastructure. The OP No. 1 has also not put on record, any proof of creation of sub-station or any other infrastructure for which it could have made any demand. In these circumstances amount to this effect is liable to be refunded. It is accordingly ordered. The amount be refunded with 6% interest from the date of receipt of the amount till the date of realisation.
12.       The OP No.1 raised a demand of Rs.1,56,417/- on account of delayed interest payment vide demand letter dated 07.05.2013. on the other hand the OP having failed to deliver the possession of the plot to the Complainant are deficient in rendering services. Op No. 1 is thus liable to pay interest to the Complainant. As per Clause 22.3 of the PBA, OP No. 1 has undertaken to pay the delay charges @Rs. 6 per Sq. mtr. Since, the OP No. 1 has delayed the possession of the plot, OP No.1 is liable to pay delay charges to the Complainant Hence, the Complainant is entitled to have interest on the amount deposited i.e. Rs. 35,73,872/- @ 6% from June 2011. Ordered accordingly.
13.       Finally the allegation of the Op is that the complainant has defaulted in making timely payments despite various reminders dated 22.04.2012, 31.05.2012, 05.07.2012, 31.03.2012, 22.04.2013, 07.10.2013, 21.01.2014, 02.05.2014 and final demand notice dated 03.12.2014, having been issued Termination/cancellation letter dated 15.06.2015 was consequently issued to the complainants. But as of now the entire basic sale consideration has been paid. This Commission has passed orders on 30.07.2015 as an interim measure directing as under:-

“In the meanwhile, OP shall not create third party interest in Plot Number W8-01, Parklands, Faridabad.”

14.       In the fact and circumstances of the case the interim order so passed is now made absolute. OPs are accordingly directed to hand over within two months of the date of this order the physical possession of the plot booked, the entire sale consideration having been paid and ensure execution of the deed in this behalf within one month thereafter, subject to the complainant completing all the formalities as required.
15.       The complaint is disposed of on these lines, partly allowed. The OPs would pay to the complainant Rs. 20,000/- as litigation charges. However no case is made out for compensation for harassment as the physical possession of the plot in question is ordered to see handed over at the price of 2008 which by itself is sufficient a compensation. Interim applications pending if any as on date would be deemed to have been disposed of.
16.       A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

27.01.2022

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