Haryana

StateCommission

CC/219/2015

VIJAY DEVI - Complainant(s)

Versus

BPTP PARKLANDS PRIDE LTD. - Opp.Party(s)

DEEPAK GIROTRA

25 Apr 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.219 of 2015

                                             Date of Institution: 11.12.2015

          Date of Decision: 25.04.2017

 

Vijay Devi W/o Sh.Nand Kishore R/o 915/18, Gani Pura, Rohtak, Haryana through her husband Sh.Nand Kishore S/o Sh.Daya Kishan being Special Power of Attorney.

…..Complainant

 

Versus

 

1. M/s BPTP Parklands Pride Ltd, Faridabad having its office at M-11, Middle Circle, Connaught Circus, New Delhi-110001.
2. BPTP Limited having its office at Sector 82, Parklands, Faridabad, Haryana-121009.

          …..Opposite Parties

 

3.      Housing Development Finance Corporation Limited having its Branch Office at HDFC Limited, The Capital Court, Olof Plame Marg, Munarika, New Delhi 110067.

…..Performa Opposite party

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mr.Urvashi Agnihotri, Member.                                      

For the parties:  Mr.Deepak Girotra, Advocate for the complainant.

                             Mr. Hemant Saini, Advocate for the opposite party Nos.1 and 2.

                             None for the opposite party No.3.

                            

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

 It is alleged by the complainant that she booked flat with opposite party (O.P.) Nos.1 and 2 valuing Rs.44,48,298/- and deposited Rs.3,09,370/- on 09.05.2012. She was allotted unit NO. PA-184-S.F. in Sector 77, Faridabad vide letter dated 21.05.2012.   O.P.  promised to complete construction of the flat and this project by the year 2012-2013 itself, but, construction is not completed and possession is not offered as yet. When he purchased present flat plaster work was already complete. As the construction of structure was complete and project was to be completed  within 2-3 months and possession was to be delivered shortly, so Floor Buyer’s Agreement was not got executed initially. Ultimately they got executed buyer’s agreement on 24.04.2013 at Gurgaon fraudulently.  O.P.Nos.1 and 2 demanded payment from time to time which was deposited as detailed below:-

“Deposited Amount	Dated
Rs.3,09,270/-	09.05.2012
Rs.10,785/-	02.11.2012
Rs.4,14,977/-	12.11.2012
Rs.5,19,565/-	14.01.2013
Rs.1,53,2855/-	27.09.2013
Rs.82,171.81/-	27.09.2013

As per statement of account she deposited Rs.38,39,500.01/- Amount about club membership was on higher side. She visited site alongwith her husband and son, but, was surprised to see that there was no construction. Her loan was approved by O.P.No.3 on 12.09.2013. As the construction is not complete as yet O.ps. be directed to refund the amount deposited by her alongwith interest @ 24% per annum from the date of deposit till realization, besides compensation of Rs.five lacs for harassment, mental agony etc and Rs.50,000/- as litigation expenses. 

2.      In reply booking of apartment and payment made by complainant is admitted by O.P.Nos.1 and 2, but, it is alleged that she was regular defaulter in payment. Reminders were issued to her time and again on different dates as mentioned below:-

“23.07.2012, 26.10.2012, 25.12.2012, 14.06.2013, 01.07.2013, 15.07.2013, 31.07.2013, 14.08.2013, 13.09.2013, 02.04.2014 and receipts dated 02.11.2012, 12.11.2012, 14.01.2013, 30.07.2013, 27.09.2013.”

They were always ready to refund the amount paid by her after deduction of earnest money as per terms and conditions of agreement. She was never misguided to sign agreement.  As per LOI project was at the fag end and possession was to be delivered shortly, but, she has filed this complaint. Total sale consideration was to be finalized at the time of delivery of possession.  They did not charge excess amount qua club services etc. as alleged by her. The amount is still outstanding towards her and she is not entitled for the relief claimed. The averments raised by complainant are altogether false and the same be dismissed.

3.      O.P.No.3 admitted the advancement of loan and alleged that it has nothing to do with the dispute in between complainant and O.P.Nos.1 and 2. As per terms of tripartite agreement in case of payment it is having first charge thereupon.

4.      The parties have led their evidence. Arguments heard. File perused.

5.      Learned counsel for the O.P. Nos.1 and 2 vehemently argued that complainant did not make payment as per agreement and that is why reminders were issued time and again as mentioned above. When she did not make payment in time she was not entitled for any interest rather she is liable to pay penal interest. They are ready to refund the amount after deductions as per agreement. As complainant was also at fault she is not entitled for the relief claimed and complaint be dismissed.

6.      This argument is of no avail. From the perusal of statement of account Ex.C-6 dated 05.10.2015 it is clear that complainant has deposited entire amount except Rs.8788/- i.e.

also subject to dispute.  As per statement of Ayush Gupta, witness of  O.Ps., interest was payable to the tune of Rs.70595/- whereas complainant has deposited Rs.56765/-. The O.Ps. have failed to give details about interest to this extent.  So, it cannot be presumed that there is any lapse on the part of the complainant. For ready reference the said statement of account is reproduced as under:-

“Charges	Total Net Cost (Rs)	Called (Rs)	Received (Rs)	Balance (Rs)
Basic Sales Prices	3,565,002.00	2,940,129.40	2,945,171.01	5,041.61
Club Membership charges	75,000.00	77,318.00	77,318.00	0.00
Development Charges	331,800.00	359,685.00	359,685.00	0.00
Fire Fitting & Power Backup install CHGS	67,500.00	0.00	0.00	0.00
Interest Free Maintenance Security	52,500.00	0.00	0.00	0.00
Interest payable	0.00	70,595.00	56,765.00	13,830.00
Park Facing	356,496.00	400,561.00	400,561.00	0.00
Total	4,448,298.00	3,848,288.40	3,838,500.01	8,788.39

 

 As per clause 5 (i) of Buyer’s agreement Ex.C-5 dated 23.04.2013 the possession was to be delivered within 30 months from the date of execution of agreement i.e. October 2015, but, the same was not offered till filing of complaint on 11.12.2015. There is clause about grace period of Rs.180 days, but, in case of subject to grant of an occupation certificate from concerned authority etc.  The O.Ps. have miserably failed to show that they have approached the authorities to grant occupation certificate etc. after expiry of thirty months.  It means that there is lapse on the part of the O.Ps. and complainant is entitled for refund of entire amount and O.P. Nos.1 and 2 cannot deduct earnest money as opined by Hon’ble Supreme Court in Chandigarh Housing Board Vs. Avtar Singh and others 2010 (3) CPC 201, Hon’ble National Commission  in Greater Mohali Area Development Authority vs. Priyanka Nayyar 2017 (1) C.P.R. 249 and Broadway Tower India Pvt. Ltd. Vs.Sharat Chawla  III (2006) CPJ 59 (NC).

7.      As a sequel to above discussion complaint is allowed and O.P. Nos.1 and 2 directed to refund the total amount deposited by the complainant alongwith interest @ 09% per annum from the date of deposit till realization.  Complainant is also awarded compensation of Rs.21,000/- for mental agony, physical harassment besides Rs.11,000/- as litigation expenses. First charge on this amount will be of O.Ps. No.3.

 

April, 25th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.