Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 97.
Instituted on : 08.02.2021.
Decided on : 10.08.2023.
Surender Singh Rajliwal age 39 years, son of Shri Malik Ram, resident of Quilla Colony, Jhajjar, at present House no.4, XEN, Block, OPH Colony, near Old ITI, Rohtak-124001.
………..Complainant.
Vs.
- M/s BPTP Limited, M-11, Middle circle, Connaught circus, New Delhi-11001, through its Authorized signatory.
- Kabul Chawla, Chairman/Managing Director, M/s BPTP Limited, M-11, Middle Circle, Cannaught Circus, New Delhi-11001.
- Jawahar Chawla, Director, M/s BPTP Limited, M-11, Middle Circle, Cannaught Circus, New Delhi-11001.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER.
Present: Sh.D.S.Chauhan, Advocate for the complainant.
Sh. Arun Samota, Advocate for opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case, as per the complainant are that he booked a flat measuring 906 Sq. feet (84.169 sq.meters) in BPTP at Faridabad(Haryana) with the respondents vide customer ID No.121685, in project name “Park Elite Premium” at Park Land, Faridabad, Haryana. Accordingly an agreement was duly executed between the parties on 28.12.2010. The complainant paid an amount of Rs.200000/- as booking amount through cheque no.547491 dated 13.07.2009 of OBC bank, to the respondents and for this respondents issued receipt bearing no.2009/1400013076 dated 21.07.2009, again Rs.227025/- through cheque no.378127 dated 15.10.2009(ICICI Bank) and for the same, receipt was given by the respondents dated 19.10.2009. The respondents allotted the flat no.D-G01 to the complainant on dated 19.09.2011 at ground floor mentioned in receipt no.2011/1400031168 dated 17.11.2011 and the possession was to be delivered within 36 months to the complainant from dated 28.12.2010. The complainant made full and final payment of the said flat as per statement of account dated 22.02.2013. The complainant contacted the respondents many a times through email and as well as personally with respondent no.3 and requested to hand over the possession of the aforesaid flat to the complainant as nothing is due against the said flat but despite his repeated requests, possession of the said flat has not been given to the complainant. It is also submitted that the respondents as per agreement were to provide 5% rebate to the complainant on deposited amount from the date of deposit till actual possession but the respondents did not provide the same to the complainant due to which, he suffered a great mental agony and harassment. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to provide the possession of the allotted flat, to pay interest @ 18% p.a. on the amount deposited by the complainant for the allotted flat from the date of deposit of full payment till its possession and to pay Rs.5500/- for notice expenses, compensation of Rs.500000/- on account of mental agony and financial loss and Rs.30000/- as litigation expenses to the complainant as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties. Opposite parties in their reply has submitted that the complainant had booked the unit solely for the purpose of investment and as a profit making activity. It is further submitted that no specific averments have been made as against the opposite party No.2 & 3 and as such their names may be deleted from the array of parties. On merits, it is submitted that on 28.12.2010 both the parties the complainant and the respondents entered into Flat buyer’s Agreement(FBA) without any demur and protest, under the norms prescribed by the concerned authorities. The complainant submitted the booking form alongwith booking amount Rs.200000/- vide cheque no.547491 against which receipt dated 21.07.2009 was issued by the respondent. Respondent raised next demand on completion of 90 days payable by 19.10.2009 and the complainant chose to make timely payment vide cheque bearing no.378127 against the receipt dated 19.09.2011 and the complainant availed the benefit of timely payment discount. It is denied that respondent allotted the flat no.D-G01 to the complaint on dated 19.06.2011 at the ground floor mentioned in receipt 2011/1400031168 dated 17.11.2011. It is denied that the flat possession was to be delivered within 36 months to the complainant from 28.12.2010. It is further stated that vide clause no.3 of FBA, the complainant is duly aware that the proposed time period of 42 months (36 months + 180 days) was tentative and subject to force majure circumstances, timely payment and other factor. But the complainant defaulted in all the demands and still failed in clearing his outstanding. It is further submitted that the opposite parties have completed the construction of the project and already applied for Occupation Certificate with the concerned authorities and will offer possession after receiving Occupation Certificate at the earliest. There is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C18 and closed his evidence on 03.11.2021. Ld. counsel for the complainant also tendered affidavit Ex.CW1/B, documents Ex.C19 in additional evidence and closed his additional evidence on dated 11.05.2022. Ld. counsel for the opposite parties has tendered affidavit Ex.RW1/A, document Ex.R1 to Ex.68 and closed his evidence on dated 13.04.2022.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. After going through the file and hearing the parties it is observed that the contention of ld. Counsel for the complainant is that the possession of the flat has not been given to the complainant despite his repeated requests. As per terms and conditions of the agreement, in case possession of the flat is not offered within the prescribed period, opposite parties were to provide 5% rebate to the complainant on deposited amount from the date of deposit till its actual possession but neither the possession has been given nor the rebate has been given to the complainant.
6. In the present case, the agreement took place between the parties on dated 28.12.2010 and as per condition no.3(31) of the agreement under the head ‘possession’, it is submitted that : “The seller/confirming party proposes to hand over the possession of the Flat to the Purchaser(s) within a period of 36 months from the date of issuance of the sanction letter of the colony. The purchaser agrees and understands that the Seller/confirming party shall be entitled to a grace period of 180 days, after the expiry of 36 months, for applying and obtaining the occupation certificate in respect of the Colony from the Authority”. As per condition no.33(3) of the agreement, it is submitted that: “If the Seller/Confirming party fails to offer possession of the Flat within a period of 42 months from the date of issuance of the sanction letter of the colony, it shall be liable to pay to the Purchaser(s) compensation equivalent to the Holding Charges calculated @ Rs.5/- per sq. ft for every month for delay thereafter until the actual date fixed by the Seller/confirming party for handing over of possession”. But in the present case, the possession of the aforesaid flat has not been delivered to the complainant by the opposite parties on the ground that they will offer possession after receiving Occupation Certificate at the earliest. Opposite parties were required to hand over the possession of flat within 42 months but till date i.e. after expiry of approx.12 years, no possession of flat has been handed over to the complainant despite the fact that the amount has already been deposited by the complainant.
7. We have minutely perused the documents placed on record by both the parties. The account statement dated 22.02.2013 of unit no.D01 has been issued by the respondent officials to the complainant which is placed on record as Ex.C7. The perusal of this statement shows that the basic sale price of the unit was Rs.1708102/- and opposite party demanded/called the complainant to pay Rs.1652601/- with the respondent against the basic sale price and the complainant deposited an amount of Rs.1629469/- with the respondent against the basic sale price of the unit. In this way on dated 22.02.2013 only an amount of Rs.23132/- was due against the complainant regarding the basic sale price of the unit. The complainant had also paid covered parking charges as Rs.153400/- whereas the total net cost of the covered parking charges was Rs.150000/- and he deposited amount of Rs.3400/- in excess. The complainant has deposited an amount of Rs.500/- on account of cheque bouncing charges, Rs.271024/- on account of enhanced external development charges. The net cost of external development charges and infrastructural development charges is Rs.136008/- and the opposite party demanded Rs.137364/- and the same was deposited by the complainant on account of external development charges and infrastructural development charges and Rs.98810/- against ground floor charges and also deposited an amount of Rs.23149/- on account of interest. In this way the complainant deposited total amount of Rs.2313717/- with the respondent. On dated 22.02.23013, the outstanding amount against the complainant was Rs.23132/- on account of basic sale price and Rs.23397/- on account of interest.
8. We have also perused the documents Ex.C14 page no.2, statement of account dated 07.10.2020. The bare perusal of Ex.C7 & Ex.C14 itself shows that as per Ex.C7 the respondent officials has received an amount of Rs.1629469/- against the basic sale price whereas as per Ex.C14, the respondent officials have received only Rs.1596156/- against the basic sale price. So there is a clerical mistake on behalf of the respondent officials at the time of preparing the account statement of the complainant. This document shows that all the charges have been paid by the complainant except the basic sale price i.e. Rs.56445/- whereas it was Rs.23132/- on dated 22.02,.2013, VAT amount of Rs.23198/- has been added in the account statement issued on dated 07.10.2020(Ex.C14). As per Ex.C14 page no.2 complainant had paid remaining interest amount Rs.23397/- with the respondent with Rs.2015/- in excess. In this way Rs.77628/- were pending on dated 07.10.2020. No doubt the perusal of the affidavit and written statement itself shows that the possession of the unit has not been handed over to the complainant till date. It has been admitted by the respondent that they have not yet received occupation certificate from the authorities so they are unable to hand over the possession to the complainant. There is no fault of the complainant as he has already made the payment as demanded by the respondent time to time. Moreover the agreement of the unit took place on dated 28.12.2010 and as per agreement the unit should be handed over to the complainant by the respondent within 36 months plus 6 months grace period (after 42 months) i.e. upto 28.06.2014 but the respondent failed to hand over the possession to the complainant. After expiry of the prescribed period of 42 months, the complainant is waiting for the possession since 8 years. Complainant cannot wait for the indefinite period. Hence there is deficiency in service on the part of opposite parties and opposite party No.1 is liable to compensate the complainant As such there is deficiency in service on the part of opposite parties. Hence opposite parties are liable to pay interest @ 12% p.a. on Rs.1881674/-(Rs.1629464/- basic sale price, Rs.153400/- covered parking charges and Rs.98810/- ground floor charges). However the complainant is not entitled for the interest on remaining amount i.e. Rs.271024/- charged on account of enhanced external development charges and Rs.137364/- charged on account of external development charges.
9. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.1 to 3 to hand over the possession of flat to the complainant within one month and also to pay interest @ 12% p.a. upon the amount of Rs.1881674/- deposited by the complainant with the opposite parties after 42 months of allotment i.e. from 20.03.2015 till the offer of actual physical possession of flat after deducting the amount of Rs.77628/- payable by the complainant. Opposite parties are further directed to pay a sum of Rs.50000/-(Rupees fifty thousand only) as compensation on account of deficiency in service and Rs.10000/-(Rupees ten thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision.
10.. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
10.08.2023.
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Nagender Singh Kadian, President
………………………………..
Tripti Pannu, Member.
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Vijender Singh, Member.
