District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 420/2023.
Date of Institution: 28.06.2023.
Date of Order: 29.02.2024
1. Jagdish Chand son of Shri Kirpa Ram.
2. Smt. Sunita wife of Sh. Jagdish Chand both resident of A-2, Kailash apartment, Agra Chowk, Palwal, Haryana.
…….Complainants……..
Versus
1. Countrywide Promoters Private Limited. Regd. Office at: OT-14, 3rd floor, Next door, Parklands, sEctor-76, Faridabad-121004 through its Authorised person.
2. BPTP Limited, having their registered office at: 112-115, Fist floor, Tolstoy House, 15 & 17 Tolstory Marg, new Delhi through its Authorised person.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Devender Singh Pahil, counsel for the complainant.
Sh. Jay Shankar,AR of opposite party.
ORDER:
The facts in brief of the complaint are that the complainants had booked a Plot No. D18, BPTP District 1. Block-C, Sector-81, Faridabad of area measuring 171.820 sq. yards on 20.07.2020 and the complainants had paid all the requisite amount at the time of booking of the said Plot and also paid all the dues and construction link instalments to the respondent no. 2. When the complainant paid all the requisite amount/ instalment as and when demands raised by their officials and after completion of all the formalities they have entered into Builder Buyer Agreement vide document no. 1582 dated 20.07.2020 with the complainants and the said Builder Buyer Agreement was signed and executed by their officials in the office of Sub-Registrar Faridabad and a layout plan of the project was also signed between respondents and complainants. The complainants had paid all the dues, instalments to the respondents as and when raised by their official in respect of the actual Development of the Project. However it was pertinent to mention that the development of the project was delayed from initially on the point of the starting and delayed on their part the reason best known to respondents. However, the complainant regularly made enquiry about development from their customer care number but their customer care number has also not given any response to the complainants. When the customer care of the respondents failed to give any response to the complainants, thereafter the complainants sent many emails, but the respondents and their officials has not given any response. However the complainants already had deposited the 40% amount of the cost of the plot as per the Builder Buyer Agreement and scheduled and the complainants each and every time was ready and still ready to deposit the outstanding amount but due to rendering deficient short service by the respondents and their officials as the respondents indulge in unfair trade practice. Now the complainants came to know
that the booked above mentioned plot in the name of the complainants, the respondents want to sell the said plot to somebody else on the higher prices, whereas the respondents under are legal obligation to receive the outstanding amount from the complainants and the complainants was ready to pay the outstanding amount to the respondents in respect of the above mentioned plot and the respondents in pursuance of their unfair trade practice policy threatening to cancel the Builder Buyer agreement illegally and unlawfully. Further the complainant had not received any demand letter from respondents to deposit any outstanding amount, however the complainants each and every time remained ready to deposit the all outstanding dues and the complainant has applied for Housing loan in the September 2021 but the said loan was not sanctioned due to the negligency on the part of the respondents and due to the reason the project was not completed and respondents was not in position to deliver the occupation possession to the Bank. However the complainants always remained to pay the outstanding amount from other sources. The complainant sent legal notice dated 24.04.2023 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) receive the outstanding amount from the complainant by raising the demand letter by disclosing the actual physical development on the site of the project and
b) execute conveyance deed in favour of the complainants on receipt of the balance basic sale price.
c) handover the actual physical possession of plot as per sanctioned lay out plan after demarcating the plot.
d) pay Rs.2,00,000/- as compensation for causing mental agony and harassment .
e) pay Rs. 11,000 /-as litigation expenses.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that the complaint was not maintainable in its present form and the samewass liable to be dismissed, as the present complaint was time-barred and ccould not be maintained before this Honorable Consumer Court, as Section 69 of the Consumer Protection Act 2019 clearly stipulates a limitation period within which consumer complaints must be filed. The said limitation period had already been lapsed a long ago, rendering the consumer complaint non- maintainable. The Complainants were aware at least since 2020 that the allotment made in their favour had been cancelled/ terminated and admittedly, the present Complaint had been filed in the year 2023; i.e. after expiry of about 2 years, 9 months, 7 days after the termination of the booking/ allotment of the Plot in question. The provision of limitation under the Consumer Protection Act, 2019 was peremptory in nature. It had been held by this Hon’ble National Commission and Hon'ble Apex Court that the Consumer Commission must deal with the complaint on merits, only if sufficient cause of action was shown by the Complainants. It had also been held by Hon'ble Supreme Court that the complaint was barred by time and yet, the consumer commission decides the complaint on merits, the commission would be committing an injustice and therefore the aggrieved party would be entitled to have such order set aside. It is also held by Hon'ble Supreme Court that law of limitation mas be applied with its entire rigor when the statute specifically prescribes. In view of the facts and circumstances stated above, the Complaint is hugely barred by limitation and therefore, the same deserves to be dismissed at the threshold with exemplary costs without any further adjudication. It was further submitted that the entire case of the Complainants were premised on the ground that the OPs had failed to honour their commitment under BBA, to handover possession of Plot no. D-18, District -1
, Faridabad to the Complainants till date. However, the entire Complaint was based on misrepresentation and suppression of material facts and documents and is hugely barred by limitation, which was evident from the following-
• the Complainants had wrongly alleged that they booked a plot on 20.07.2020 while the Complainants had entered into transaction with Op No. 1 on 8.11.2019 which was evident from the allotment letter detod 08.11.2019 issued by OP No. 1 in favour of the Complainants .
- The Complainants had deliberately misrepresented before this Hon’ble Commission that the Complainants had made payment of all the demands called from them while concealing from thie Hon’ble Commission the fact that they have, in multiple instances, failed to fuilli their obligations toward the OP's. that despite demande made by OP's, the Complainants only made partial payments and dogarded the payment requests put forth by the OP's. This transpired despite the issuance of letters on the dates of 25th November 2019 and 3rd December 2019, which even otherwise were time linked payments but despite the same, demand letters were issued to the Complainants Following these letters, the Complainants proceeded to make only partial payments on 3 December, 2019, 7th of December 2019 and the 3rd of January 2020,
- Consequent to the aforementioned partial payments, further reminder letter and demand letters were raised by the OP's, to clear the outstanding amount on the 8th of January 2020, 2nd of March 2020 and the 28th of April 2020 along with corresponding email communications and a reminder notice dated 8th of May 2020. However, the Complainants once again demonstrated a lack of full commitment by making only modest payments on the 4th of May 2020. Furthermore, a demand letter dated 15th May 2020 was issued to the Complainants, which they did not honor.
- This ongoing pattern left the OP's with limited recourse. Despite numerous
opportunities being extended to the Complainants, the OP's were eventually compelled to issue a termination letter dated 14th July 2020 due to the Complainants' persistent failure to fulfill their obligations.
- Following the receipt of the termination letter, the Complainants approached the OP and requested that the allotment not be cancelled and they be granted one last opportunity to clear the dues. In this regard, the Complainants provided assurances of adhering to the stipulated installment payments. The OP's being a consumer-friendly organization, opted to accommodate the Complainants' request not to terminate the allotted Unit and subsequently entered into a Builder Buyer Agreement (BBA) with them. It was pertinent to point out that OP No. 1 had vide letter dated 08.11.2019 while allotting the plot in question, issued the BBA for execution but the Complainants did not execute the same. Thereafter reminders dated 10.02.2020 and 19.02.2020were issued to the Complainants were still the BBA was not executed by them. Hence, the Complainants were not only in material breach in terms of making timely payment of all the installments but also for execution of BBA.
- To create a misleading impression with the intention of deceiving the Opposite Parties, the Complainants purported a commitment to adhere to the stipulated payment plan. Subsequently, the Complainants made a partial payment, which was duly acknowledged by the OP's through a Receipt dated 1st September 2020. However, it was evident that this payment was made with the intent to deceive, as it was merely a ploy to create a facade of cooperation. The Complainants' history of habitual default continued to persist. They once again defaulted on their payment obligations and took to avoid multiple telephonic communications initiated by the OP.
- Adding to this pattern of non-compliance, the Complainants remained unresponsive to the OP's efforts to establish contact. In view of the substantial
outstanding amount, it became evident that the OP was faced with limited options. Considering the huge outstanding dues, the OP was left with no alternative but to take decisive action.
- Consequently, a reminder letter dated 10th September 2020, followed by email dated 13.09.2020 were issued to the Complainants, drawing attention to their repeated defaults and urging them to rectify the situation. Regrettably, despite the reminder and the ongoing efforts to facilitate resolution, the Complainants delinquency remained unresolved. The accumulating arrears and the Complainants' persistent failure to engage in a constructive manner, the OP was compelled to exercise its prerogative. And, on 21st September 2020, the OP had norecourse but to terminate the Allotment.
- The Complainants despite knowing that their booking/ allotment stands terminated since September, 2020 wherafter on various emails, the same was reconfirmed such as vide email dated 21.08.2021, alleged to have applied for home loan in September, 2021 as averred in the Complaint. Without prejudice to the fact that in none of the communication exchange between the parties, there was any reference of home loan, even otherwise, admitedly, once the booking/ allotment stood terminated, such acts became infractuous.
-It was crucial to note that, following the cancellation of the allotment on21st September 2020, the OP's diligently made multiple bona fide requests for the complainant to collect the cheque amounting to Rs. 11,89,018.00/-, subsequent to the deduction of the stipulated Earnest Money, which equates to 10% of the total sales consideration, as prescribed under the Deen Dayal Jan Awas Yojana (DDJAY) policy. Despite these best efforts, the complainant failed to appear for collection. The OP's persistently pursued further communication, including a final email dated 11.09.2021, urging the complainant to collect the cheque; however, the complainant deliberately didn't come forward, to collect the aforementioned
cheque. This Deduction of earnest money had been endorsed by the esteemed Real Estate Regulatory Authority (RERA), Gurugram. Their validation of the aforementioned policy was manifest in a judicial pronouncements bearing titles 'M/s AMK Agropro Trading Impex Pvt Ltd v M/s Puri Contstructions Private limited' (RERA-GRG- 1339-2020) and 'Maboob Aryaman v M/s Pareena Infrastructures Private Limited (RERA-GRG-1151-2022), unequivocally lends legitimacy to the stipulation regarding the Earnest Money deduction from the total sales consideration.The Complainants had misrepresented that the OP's never responded to them. In this regard, it was pertinent to mention here OP had always acted well within their right and it is the Complainants who failed to perform their part. Thus, for instance, email from Complainants dated 20.08.2021 received a prompt response from the OP on the same day, intimating them clearly that their booking/ allotment stands terminated for non-payment despite grant of numerous opportunities. Likewise, the email dated 01.09.2021 from the Complainant, was replied by the OP on the same day, reiterating the fact of termination due to non payment. Similar was the fate of email dated 18.08.2022 which was promptly replied to vide email dated 19.08.2022. From the above, it was evident that complainants deliberately neglected to clear their dues and being fully aware that due to their own defaults, their booking/ allotment was cancelled and the transaction between the involved parties had already been concluded upon the cancellation or termination of the booking or allotment, owing to the complainant's repeated failure to make payments in accordance with the agreed-upon payment plan. As a result, there remains no substantive matter for the purpose of lodging the complaint. Opposite parties denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
To establish his case the complainant has led in his evidence, Ex/PW1/A – affidavit of Jagdish Chand, Ex.P-1 – legal notice, Ex.P-2 – postal receipts, Ex.P-3 – letter dated 08.01.2020, Ex.P-4 – letter, Ex.P-5 – Agreement for sale.
On the other hand counsel for the opposite parties strongly agitated and opposed. As per the evidence of the opposite parties Ex.RW1/A – affidavit of Shri Jay Shankar, Authorized representative of opposite parties,, Ex.R-1 – Minutes of meeting,, Ex.R-3 – photos, Ex,R-3 – allotment letter,, Ex.R-4 & 5 – receipts, Ex.R-6 – letter dated 25.11.2019, Ex.R-7 – Receipt,, Ex.R-8 – letter dated December 03,2019,, Ex.R-9 – receipt, Ex.R-10 – letter dated 08.01.2020,, Ex.R-11 – email, Ex.R-12 – email, Ex.R-13 – letter dated march 02,2020 regarding payment request, Ex.R-14 – letter dated 16.04.2020, Ex.R-15 – email dated 28.04.2020,, Ex.R-16 – letter dated 08.05.2020, Ex.R-17 – receipt, Ex.R-18 – letter dated May 15,2020, Ex.R-19 – letter dated 14.07.2020,, Ex.R-20 – Agreement for sale, Ex.R-21 & 22- Receipts, Ex.R-23 – letter dated 10.09.2020,, Ex.R-24 – email, Ex.R-25 – letter dated 21.09.2020, Ex.R-26 – photocopy of cheque dated 01.03.2021 for Rs.11,89,018/-, Ex.R-27 – photocopy of cheque dated 01.03.2021 for Rs.11,89,017/-, Ex.R-28 to 35- emails.
5. In this case the complaint was filed by the complainant with the prayer to: a) receive the outstanding amount from the complainant by raising the demand letter by disclosing the actual physical development on the site of the project . b) execute conveyance deed in favour of the complainants on receipt of the balance basic sale price. c) handover the actual physical possession of plot as
per sanctioned lay out plan after demarcating the plot. d)pay Rs.2,00,000/- as compensation for causing mental agony and harassment . e) pay Rs. 11,000 /-as litigation expenses.
For this, the complainant has led in his evidence Ex.P1 to P5 and opposite parties also led in their evidence Ex.R-1 to R-35.
6. After going through the evidence, counsel for the complainant argued at length and agitated on these ground termination of the plot is null and void. (letter issued for termination is null and void). Refunded cheques dated 01.03.2021 vide Ex.R-26 & 27 never received by the complainant and there is no evidence for the postal receipts or courier receipts and also argued at length that the complainant has paid Rs.2,378,035/- and as per Builder Buyer Agreement is a registered document which cannot be cancelled by the opposite parties in this way. As per Builder Buyer Agreement Ex.R-20
clause 24 Events of defaults and consequences
24.2.2 Upon occurrence of the Allottee Default as listed above:
(a) In case of default by the Allottee under Clause 24.2.1(a) above, in addition to the due amounts, the allottee shall be liable to pay interest to the promoter on the unpaid amount at the rate prescribed in the rules. However, in case the allottees unable to pay the due amount alongwith the interest within a period of 90 (ninety) days of the notice from the promoter in this regard, the Promoter, at its sole discretion, after due notice of 30(thirty) days to the allottee, shall have the night to cancel the allotment and apply the amounts in the manner provided in Clause 7.2 hereinabove.
(b) In case of default by the allottee under Clause 24.2.1(b) above, the Promoter, at its sole discretion, after due notice of 15(fifteen) days to the allottee, is entitled to cancel this agreement and apply the amounts in the
manner provided in Clause 7.2 here in above.
(c) In case of default by the allotteee under Clause 24.2.1© above, the Allottee authorizes the Promoter, upon receipt of such request from the financing agency without any reference to the allottee, to forthwith cancel the allotment of the plot and apply the amounts in the manner provided in Clause 7.2 hereinabove.
25. Cancellation/Withdrawl of allotment and compensation.
25.1 Cancellation by Promoter – The allottee agrees and confirms that, in the event it becomes impossible for the Promoter to implement the Project due to ‘force mejeure’ court orders, Government policy/guidelines, decisions affecting the regular development of the Project, then this allotment shall stand terminated and the Promoter shall refund to the Allottee the entire amount received (after deducting the brokerage paid for the plot and interest for the delayed payments) by the Promoter from the Allottee within 90 (ninety) days from the date of termination. The Promoter shall intimate the allotee about such termination at least 30(thirty) days prior to such termination. After refund of the money paid by the Allottee, the Allottee agrees that he/she shall not have any rights, claims etc. against the promoter and that the promoter shall be released and discharged from all its obligations and liabilities under this agreement.
On the other hand, counsel for the opposite parties argued at length and strongly agitated that the complainant has no money and for the termination opposite parties sent a series of email & letters to the complainant for delay of money which is Ex.R-13 to R-18. Even after the termination was done on non payment of the complainant. The counsel for the opposite parties argued in good gesture of the company they have executed a builder buyer agreement on dated 20.07.2020. Even after that the complainant failed to make the payment and the
complainant also sent an Email dated 03.09.2021 vide Ex.R-30 in which it has been mentioned that “With reference to your email dated 20.08.2021, I have not received any demand letter after November 2020. However I have applied for the loan in HDFC Bank also but it was not sanctioned. I have applied again for the loan for payment to BPTP. For any outstanding payment, please send me the details of the same and I will pay the amount.” As per email dated 20.08.2021 vide Ex.R/30 their loan was not sanctioned and the complainant has no means for the balance payment of the plot as per Builder Buyer Agreement and the termination notice was also sent to the complainant on different dates which are denied by the complainant.
7. Opposite parties sent emails as well as the written notices to the complainant for the default of the payment done by the complainant. Opposite parties terminated the plot in question and create third party interest to this plot.
8. During the course of arguments counsel for the complainant also given the copy of the sale deed vide Annexure X & Y to show the means to buy the plot in question. After going through the Annexures X & Y, it was only the valued of Rs.9 lacs. + 950 sq. ft. apartment.
9. After going through the evidence led by the complainant, the Commission is of the opinion that the complainant was physically present during the course of arguments and he admitted that these emails or emails address are belongs to him. As per email sent by the complainant vide Ex.R-30 looks that the complainant has no source of balance payment of plot as per slab of the Builder Buyer Agreement clause No. 25.1 & 24.2.2. But as per Apex Court the builder cannot forfeit the deposited amount of the complainant in whole. The money is still lying with the builder, As per refunded cheques vide Ex,R-26 & R-27 which were not sent by the opposite parties. As per the order passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled Mohinder Singh & anr. Vs. Swatantra Land & Finance Ltd. in Revision petition No. 3206 of 2012 decided on 22.01.2020 in which it has been held that “On conjectures and surmises, Hon’ble Supreme Court has held in various judgements that where the deposited amount is lying with opposite parties, the cause of action continues till the needful is done. This Commission, in the case of DLM Enclave & Anr. Vs. . Naraesh Batham being revision petition NO. 2984 of 2013 relying on the findings of Hon’ble Supreme Court in the case of Meerut Development Authority Vs. Mukesh Kumar has clearly held that even if the complaint has been filed with a delay of twelve years from the date of agreement and nine years form the last payment, if the possession is not given and sale deed is not executed the cause of action is a continuing one. The builder can not forfeit the amount in whole. In the interest of justice, the complaint is allowed for refund only.
10. Opposite parties Nos.1 & 2, jointly & severally are directed to refund the amount @ 8% p.a. from the respective dates of deposit till its realization. Opposite parties are directed to pay Rs.11,000/- as compensation on account of mental tension, agony and harassment alongwith Rs.11,000/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record
Announced on: 29.02.2024. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
