Delhi

StateCommission

CC/11/406

RUDRESH SINGH - Complainant(s)

Versus

BPTP LTD - Opp.Party(s)

05 May 2017

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 05.05.2017

Complaint Case No. 406/2011

In the matter of:

1. Aroop Kumar Singh

R-1103, Ratnagiri Building, Kaushambi​

Ghaziabad-201010

 

2. Smt. Shanti Devi

R-1103, Ratnagiri Building, Kaushambi​

Ghaziabad-201010

 

3. Mrs. Sunita Singh

90/A, Upper Ground Floor,

Gali No. 4, Mahavir Enclave

PalamDadri Road

New Delhi

 

4. Mrs. Anita Singh

Resident of C-28/A

Samrajya-I Society

AkotaMunjmahuda Road

Vadodara                                        .........Complainants

 

Versus

 

 

Director

BPTP Limited

M-11, Middle Circle

Connaught Circle

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

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGMENT

1.         Complainant Sh. Rudresh Singh since deceased got booked a flat bearing No. T7-101 in Tower 7 of Parks Floors BPTP Sector 76 Faridabad in December 2008. An amount of Rs. 2.5 lacs was admittedly paid by the deceased complainant on 26.08.2008. Sh. Rudresh Singh died on 29.12.2013 i.e. during the pendency of the present complaint. His LRs stepped into his shoes. It is also an admitted case of the BPTP Ltd. Faridabad (in short the OP) that the complainant deposited in all an amount of Rs. 16,04,533/- during the period from 26.08.2008 to 27.04.2009. The area of the flat booked was 1414 sq. ft. and the total sale consideration was Rs. 27,84,866/-.  Letter of allotment dated 15.12.2008 was issued by the OP to the complainant. A formal flat buyers’ agreement was however executed between the parties on 19.06.2009. As per clause 2 of the said agreement, physical possession of the flat was to be handed over to the complainant within a period of 36 months from the date of issuance of the sanction letter of the building plans of the said colony.
2.         OP vide its e-mail dated 01.03.2011 informed the complainant that the construction of the flat had not been initiated by them. In the event of continuation of the allotment, the complainant was given a choice to either transfer the funds to an alternate unit or get the refund of the amount deposited with 9% simple interest. Surrender documents were sent to the complainant alongwith the aforesaid e-mail. Admittedly the complainant sent the surrender documents after duly signing the same on 26.03.2011. After the receipt of the said documents, OP sent a cheque dated 03.05.2011 for an amount of Rs. 15,31,790/- which was got encashed by the complainant. On receipt of the said amount, the complainant wrote a letter to the OP on 07.07.2011 stating that he was lured by the OP and he fell into his trap. Complainant stated that in case of refund of money, OP was liable to pay interest. On the contrary, OP had deducted an amount of Rs. 72,743/- out of the principle amount. Complainant asked the OP to refund the said amount of Rs. 72,743/- alongwith interest @ 18% p.a. till the date of realization. He also called upon the OP to pay interest @ 18% p.a. on the various deposits that kept on lying with the OP. Besides this, compensation to the tune of Rs. 20,00,000/- was also asked for.
3.         OP vide its letter dated 30.08.2011 stated that as per clause 10.6 of the flat buyers’ agreement, the earnest money was to be liable for forfeited. OP took a stand that the deduction of the amount of Rs. 72,743/- was on account of ‘brokerage’. He referred to the surrender letter vide which the complainant had agreed for the refund of the principle amount after deduction of all the charges/interest as per rates of the OP.
4.         After completion of pleadings parties filed their respective affidavits towards evidence. Written arguments too have been placed on record by the parties.
5.         With the aforesaid spectrum of facts I am confronted with the question whether the OP was guilty of ‘unfair trade practice’or committed any ‘deficiency in service’. Counsels present have taken me through the documents on record. The OP in its e-mail dated 01.03.2011 clearly admitted that the construction of the flat had not started at that time. He gave an option to the complainant to either go for some other unit or seek refund of the amount deposited alongwith interest @ 9% p.a.
6.         There are no reasons putforth by the OP for not even starting with the construction of the project uptil 01.03.2011 when he had taken the booking amount on 26.08.2008. What compelled the OP to receive money from the complainant and other such buyers when his project had not even taken off.Hon’ble Supreme Court and the Hon’ble National Commission have held in a catena of the authorities that the builders of sheer greed start receiving money from the gullible buyers and do not invest the same in the project, the rosy pictures of which is shown to the buyers. It was in these circumstances that the legislature had to enactReal Estate (Development and Regulation) Act 1916.
7.         Now coming to the question of refund of the amount of Rs. 15,31,790/-, the OP wriggled out of his promises made in the e-mail dated 01.03.2011. OP was required to pay interest @ 9% p.a. on the amount deposited by the complainant. The e-mail also does not refer to any deduction on any count whatsoever. Having once given an option to the complainant to seek refund alongwith interest @ 9% p.a., it did not lie in the mouth of the OP to fall back on the flat buyers’ agreement. OP thus illegally and unjustifiably made the deduction of the amount of Rs. 72,743/- from the amount deposited by the complainant.
8.         Plea of the OP that after having received the amount of Rs. 15,31,790/-, the complainant was not left with any grievance whatsoever. The Hon’ble Supreme Court in the case of R L Kalathia and Company v. State of Gujarat, (2011) 2 SCC 400 held that the issuance of ‘no dues certificate’ did not disentitle the contractor to agitate if there was an acceptable claim. Para 13 of the judgment is relevant in this context and the same is reproduced below:

“(i) Merely because the contractor has issued “no-dues certificate”, if there is an acceptable claim, the court cannot reject the same on the ground of issuance of “no-dues certificate”.

(ii) In as much as it is common that unless a discharge certificate is given in advance by the contractor, payment of bills are generally delayed, hence such a clause in the contract would not be an absolute bar to a contractor raising claims which are genuine at a later date even after submission of such “no claim certificate”.

(iii) Even after execution of full and final discharge voucher/receipt by one of the parties, if the said party is able to establish that he is entitled to further amount for which he is having adequate materials, he is not barred from claiming such amount merely because of acceptance of the final bill by mentioning “Without prejudice” or by issuing “no-dues certificate”.

 

9.         In view of the legal position referred to above, the complainant is not estopped from claiming the amount of Rs. 72,743/- deducted by the OP and a reasonable interest on the money of the complainant lying with the OP from the date of deposit till the date of refund.
10.  Before parting it may be mentioned here that the complainant has prayed for payment of an amount of Rs. 11,03,634/- on account of appreciation in the price of the flat, relying upon the information disclosed by the OP on its website. Since the complainant has opted for refund of the amount, he cannot seek money on account of any appreciation that took place in the price of the property.
11. In view of the discussion above, the OP is directed to pay to the complainant as under:

a.       to pay an amount of Rs. 72,743/- alongwith interest @ 12% p.a. from 03.05.2011 uptilthe date of its realization.

b.       to pay to the complainant interest @ 18% p.a. on the amount deposited by the complainant from the dates of deposit uptil 03.05.2011.

c.       to pay to the complainant compensation for harassment, inconvenience, frustration and mental agony caused to the complainant to the tune of Rs. 2,00,000/-.

d.       to pay to the complainant litigation charges of Rs. 20,000/-.

 

        The abovesaidamounts shall be paid by the OP to the complainant within a period of sixty days from today failing which these amounts shall carry interest @ 24% p.a. Complaint is accordingly disposed of.

12. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

 

(N P KAUSHIK)

MEMBER (JUDICIAL)