Haryana

StateCommission

A/400/2016

BPTP LTD. - Complainant(s)

Versus

MANJU MISHRA - Opp.Party(s)

HEMANT SAINI

03 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      400 of 2016

Date of Institution:      10.05.2016

Date of Decision :      03.10.2016

 

BPTP Limited, having its Office at BPTP Crest, 15, Udyog Vihar, Phase IV, N.H. 8, Gurgaon (Haryana)

                                      Appellant-Opposite Party

Versus

 

Mrs. Manju Mishra w/o Sh. Pradeep Mishra, Resident of Flat No.501, Tower 6A, Valley View Estate, Gurgaon (Haryana)-122003.

 

                                      Respondent-complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                                         

Argued by:          Shri Hemant Saini, Advocate for appellant.

                             Ms. Seema Pasricha, Advocate for respondent. 

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This Opposite Party’s appeal is directed against the order dated March 1^st, 2016 passed by District Consumer Disputes Redressal Forum, Gurgaon (for short ‘the District Forum’) in Consumer Complaint No.461 of 2012.

2.                Manju Mishra-complainant/respondent, filed complaint under Section 12 of the Consumer Protection Act, 1986 averring that she booked a flat with BPTP Limited-Opposite Party (appellant-hereinafter referred to as ‘the builder’) vide Registration Application dated 12^th August, 2008 (Annexure-1). She paid Rs.4.00 lacs vide receipt dated 14.08.2008. She was allotted Flat No.J-1102, measuring 1788 Square Feet in Tower-J, BPTP Park Serene, Sector 37-D, Gurgaon. The Basic Sale Price of the flat was Rs.40,85,850/-. It was construction linked plan. She further paid Rs.4,17,170/-  and thus the total amount paid by her was Rs.8,17,170/-.

3.                The grievance of the complainant was that the builder without any notice to her, cancelled the allotment of flat No.J-1102 and allotted another flat No.K-902, BPTP Park, Serene, Sector 37-D, Gurgaon. The builder further cancelled the allotment of flat No.K-902 and allotted flat No.D-902, BPTP Park Serene, Sector 37-D, Gurgaon. The above said change of the flat was without the consent of the complainant. It was stated that at the time of booking of the flat, she was residing at Sunischit Co-operative Housing Society Flat No.801, Sector-54, Plot No.96, Gurgaon. On 11.11.2009, she changed her place of residence and immediately intimated the builder about this vide letter dated 14.05.2010. Legal Notice dated 12.07.2007 followed by reminder dated 22.08.2012 were served upon the builder but to no avail. The complainant sought direction to the builder to deliver possession Flat No.J-1102, BPTP Park Serene, Sector 37-D, Gurgaon or to refund double of the deposited amount, alongwith interest @ 18% per annum besides Rs.50,000/- as compensation for harassment etc.

4.                The opposite party-builder in its written version denied the allegations of the complainant. It was stated that the complainant failed to comply with the terms and conditions mentioned in the booking application. The complainant had booked a flat on 12.08.2008 while giving preference on 8^th or 9^th floor and not for Flat No.J-1102. Thereafter, the allotment took place by draw on 28.08.2008 and the complainant was intimated vide letter dated 09.09.2008. Even after the allotment, the complainant requested for allotment of flat on 8^th or 9^th floor and in view of that request, as a goodwill gesture, she was allotted flat No.K-902 vide letter dated 31.10.2008. The complainant was well aware about the change of flat to D-902 in May, 2010. The complainant after paying Rs.8,17,170/-, did not pay the instalments despite letters issued to her. Thus, denying the claim of the complainant, it was prayed that the complaint be dismissed.

5.                On appraisal of the pleadings and evidence of the parties, District Forum vide impugned order allowed complaint. The operative part of the order is as under:-

“6.       However, after going through the facts and circumstances of the case and the evidence placed on file it is evident that OP has not raised the construction of the Flat within the stipulated period and as such there was deficiency in service on the part of the opposite party. However, at the same time the complainant has not adhered to the financial discipline as per the terms and conditions of the Application Form and as such the complainant herself was also at fault. Therefore, keeping in view the facts and circumstances of the case and to meet the ends of justice, we direct the opposite party to refund the amount deposited by the complainant with interest @ 9% p.a. from the date of filing of the present complaint i.e. 16.11.2012 till realization.  The complainant is also entitled to cost of litigation to the tune of Rs.3,000/-. The opposite party shall make the compliance of the order within 30 days from the date of receipt of the copy of this order.”

6.                Indisputably, the complainant was allotted flat by the builder. It is also not in dispute that she paid Rs.8,17,170/- to the builder and further instalments were not paid. It is also not in dispute that the builder cancelled the allotment of flat.

7.                The first question for consideration is as to whether the complainant had informed the builder about the change of her address or not?  Learned counsel for the respondent-complainant referred to document (Exhibit CW-1/4) which shows that the complainant had informed the builder about the change of her address.  There is nothing on the record to prove that the complainant was informed about the change of the allotment of her flat. The builder vide letter dated 15.05.2010 demanded Rs.28,67,677/- from the complainant and also intimated the change of flat.  No evidence was produced that the complainant was ever served the above said demand.

8.                As per agreement in case of default of the complainant, she was liable to get the earnest money forfeited, is not tenable for the reasons it was a construction linked plan as per agreement. But still the builder demanded lump sum payment. The demand notice was sent at wrong address. Despite complainant having informed the opposite party-appellant about changed address, the change of flat and demand were sent at wrong address. Under these circumstances the complainant cannot be held to be defaulter, rather the builder changed the allotment of flat without the consent and notice to the complainant. The District Forum, however, granted interest on the deposited amount from the date of complaint, that is, 16.11.2012 despite the fact that the flat was booked on 12.08.2008.

9.                Having taken into consideration the facts and circumstances of the case, no case for interference is made out. Hence, the appeal fails and is hereby dismissed.

10.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 03.10.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL