District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 304/2022.
Date of Institution:06.06.2022.
Date of Order:11.5.2023.
Vinod Kumari W/o Shri Desh Raj, resident of House No.1122, Sector-8, Faridabad, District Faridabad (Haryana).
…….Complainant……..
Versus
M/s. BPTP Limited Regd. Office OT-14,3rd floor, next door, Parklands, Sector-76, Faridabad – 121004, Haryana through its authorized person/Directors.
Head Office:-M/s, BPTP Limited, M-11, Middle Circle, Connaught Circus, New Delhi – 110 001.
…Opposite party
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. Bijender Sharma , counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite party.
ORDER:
The facts in brief of the complaint are that initially the opposite party had allotted a shop bearing No. L-09B admeasuring 82 sq. ft. to Ms. Madhuwala Tomar W/o Shri Pratap Tomar, resident of H. No. 906, Sector-10, H.B. colony, Faridabad for a total consideration i.e basic price of Rs.6435/- per sq. ft. which comes to Rs.5,27,670/-. Besides this, the purchaser was also liable to pay development charges of Rs.46,740/- and interest free maintenance of Rs.8200/- and Rs.3,00,000/- as parking charges. The entire amount in respect of the above shop was paid by allottee Ms. Madhuwala Tomar. The complainant had purchased the aforesaid shop form Ms. Madhuwala Tomar and the complainant had endorsed the above unit in her favour vide its letter having reference No. 61/147367 dated 11.10.2013. In the above said letter dated 11.10.2013 addressed to the complainant wherein the opposite party had confirmed the receipt of the entire sale consideration of the aforesaid unit. The complainant had paid full and final amount of the aforesaid shop to the opposite party and the opposite party had issued a letter dated 29.02.2022 in this regard. As per the terms and conditions of the builder buyer agreement dated 17.05.2013, the opposite party was required to hand over the possession of the aforesaid unit within 36 months from the date of execution of the said agreement with a grace period of six months and thus, after adding grace period also. The opposite party was required to hand over possession of the aforesaid unit to the complainant maximum by November 2016. Further as per the terms and conditions of the aforesaid agreement, in case of any delay on any account, the opposite party was liable to pay compensation of Rs.10/- per sq. ft. per month to the complainant for such delayed period, which was evident from clause 4.6 of the said agreement. Despite repeated requests and visits by the complainant to the office of the opposite party, the opposite party had failed to deliver the possession of the aforesaid unit till today. As per the terms and conditions of the aforesaid agreement, the delay in handing over the possession of the aforesaid unit upto May 2022 comes to 66 months and while calculating this delay of 66 months @ Rs.10/- per sq. ft. per month comes to Rs.54,120/-. The complainant had visited the office of the opposite party several times with a request to hand over the possession of the aforesaid unit without any further delay but to no avail. The complainant sent legal notice dated 30.04.2022 to the opposite party through registered post but all in vain. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) hand over the possession of the shop so allotted to the complainant without any further delay.
b) pay an amount of Rs.54,120/- for the delay in handing over the possession of the shop to the complainant, which was calculated upto May 2022 @ Rs. 10/- per sq. ft. per month.
c) pay delay amount for further delay after May 2022 in handing over the possession of the shop to the complainant.
d) pay interest @ 24% p.a. on the aforesaid amount of Rs.8,49,269/- i.e the total amount of consideration of the shop paid by the complainant to the opposite party.
e) pay Rs. 3,00,000/- as compensation for causing mental agony and harassment .
f) The Hon’ble Commission deems fit and proper in the facts and circumstances may also be granted in favour of the complainant.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that in the year 2012, Ms. Madhuwala Tomar through her broker ‘U. Choudhary estate Consultant Pvt. Ltd applied for a provisional registration of a unit in the project “Park Central” located at Sector-85, Faridabad, Haryana and after reading, understanding, agreeing and accepting the terms and conditions of Booking application, applied for booking a shop while opting for construction linked payment plan and on her own will invested a sum of Rs.3,09,270/- vide receipt dated 09.11.2012, Accordingly, opposite party on 26.11.2012 allotted unit NO. Sghop-L-09B in the project “Park Central” in favour of first allottee, The space Buyer’s agreement on 17.05.2013 was executed between the first allottee and opposite party. It was stated that first allottee voluntarily agreed and accepted to be bound and abide by the terms and conditions contained in the SBA. The complainant had also concealed from this Hon’ble Commission that the first allottee made huge defaults in making timely payment of the various installments called in accordance with the agreed payment plan. In this regard, it was submitted that vide clause-23 of application/booking form read alongwith Clause -5 of the SBA, the parties agreed and accepted that timely payment of each installment was a material condition of the transaction. It was submitted that as per the opted payment plan, demand were raised by the opposite party on dated 27.12.2012, 16.01.2013, 15.02.2013, 18.03.2013. it was stated that despite having agreed to the said clauses, first allottee started defaulting in making timely payment and, due to non payment by the first allottee, opposite party issued the reminder letters dated 18.01.2013, 18.02.2013, 20.03.2013 and 25.06.2013. it was submitted that after the said reminder letters first allottee failed to remit the dues and due to non-payment by the first allottee, opposite party issued the final demand notice dated 25.07.2013 to the first allottee with the intimation of termination of the unit in question. It was submitted that after the said final demand notice, first allottee made the payment in order to avoid the termination of the said allotment. In addition to the above stated, it was pertinent to mention that in the year 2013, complainant after conducting due diligence and site inspection, being completely satisfied with each and every aspect related to concerned allotment including but not limited to construction status, force majeure circumstances and delay in handing over possession in accordance with clauses of SBA, voluntarily and willingly purchased unit in question from secondary market with open eyes and thus approached the opposite party alongwith first allottee jointly while seeking transfer of allotment of unit in question in her favour. It was stated that after completion of all documentary formalities, already executed FBA dated 17.05.2013 was endorsed in favour of complainant and opposite party vide nomination letter dated 11.10.2013 confirmed the complainant as allottee of the unit in question. The complainant had misrepresented before this Hon’ble Commission pertaining to delay clause penalty @ Rs.10/- per sq. ft. of super area of unit in question. In this regard, it was submitted that prior to making booking in the Project Park Central, the complainant had read, understood, agreed and accepted the terms and conditions of booking application, one of them being that in case of delay in offering possession, the complainant would be paid compensation @ Rs.10/- per sq. ft. per month for the period of delay and that the same understanding was reiterated in the SBA. However, with a view to prejudice this Hon’ble Commission, the complainant had misrepresented the fact that the said clause was put in the SBA which was executed later. The complainant had also concealed from this Hon’ble Commission that vide email dated 01.06.2016, the opposite party had offered the complainant option of alternative unit in another commercial project of the opposite party i.e. “Next Door” at Sector-76, Faridabad which was already running and operational. It was submitted that the opposite party was still willing to offer alternate unit in the project Next Door which was ready and operational since last several years. Opposite party 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.
5. In this case the complaint was filed by the complainant against opposite party–M/s. BPTP Ltd. with the prayer to: a) hand over the possession of the shop so allotted to the complainant without any further delay. b) pay an amount of Rs.54,120/- for the delay in handing over the possession of the shop to the complainant, which was calculated upto May 2022 @ Rs. 10/- per sq. ft. per month. c )pay delay amount for further delay after May 2022 in handing over the possession of the shop to the complainant. d) pay interest @ 24% p.a. on the aforesaid amount of Rs.8,49,269/- i.e the total amount of consideration of the shop paid by the complainant to the opposite party. e) pay Rs. 3,00,000/- as compensation for causing mental agony and harassment . f) The Hon’ble Commission deems fit and proper in the facts and circumstances may also be granted in favour of the complainant.
On 22.02.2023 the case was fixed for filing evidence on behalf of the complainant. After availing 12th effective opportunities, counsel for the complainant failed to file the evidence on behalf of the complainant. Therefore, evidence on behalf of the complainant was hereby closed by court order vide order dated 22.02.2023. The complainant has filed the photocopies of documents alongwith the complaint such as, Space Buyer’s Agreement,, Endorsement form,, letter dated 11.10.2013 regarding nomination respect of unit No. SHOP-L-09B in project “Park Central, letter dated 29.02.2020 regarding statement of account, legal notice, postal receipt.
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Shri Jay Shankar, Authorized Representative of opposite party, Ex.R-1 – Resolution Ex.R-2 - Application for allotment of Shop/Space at Park Central, Sector-85, Parklands, Faridabad,, Ex.R-3 – receipt,, Ex.R-4 – allotment letter, Ex.R-5 – Space Buyer’s Agreement, Ex.R-6 (colly) – payment request, Ex.R-7 – letter to BPTP regarding application for allotment, Ex.R-8 – Endorsement form,, Ex.R-9 – letter dated 11.10.2013 regarding nomination n respect of Unit No. Shop-L-09B in Project “Park Central” situated at Sector-85, Faridabad, Ex. R-10 – email dated 03.06.2016.
6. In this case, initially the opposite party had allotted a shop bearing No. L-09B admeasuring 82 sq. ft. to Ms. Madhuwala Tomar W/o Shri Pratap Tomar, resident of H. No. 906, Sector-10, H.B. colony, Faridabad for a total consideration i.e basic price of Rs.6435/- per sq. ft. which comes to Rs.5,27,670/-. Besides this, the purchaser was also liable to pay development charges of Rs.46,740/- and interest free maintenance of Rs.8200/- and Rs.3,00,000/- as parking charges. The entire amount in respect of the above shop was paid by allottee Ms. Madhuwala Tomar. The complainant had purchased the aforesaid shop form Ms. Madhuwala Tomar and the complainant had endorsed the above unit in her favour vide its letter having reference No. 61/147367 dated 11.10.2013. The complainant had paid full and final amount of the aforesaid shop to the opposite party and the opposite party had issued a letter dated 29.02.2022 in this regard. As per the terms and conditions of the builder buyer agreement dated 17.05.2013, the opposite party was required to hand over the possession of the aforesaid unit within 36 months from the date of execution of the said agreement with a grace period of six months and thus, after adding grace period also.
7. After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite parties because the Buyer’s Agreement was made to the complainant on 17.05.2013 vide Ex.R-5 and he has waited for more than 9 years to see the project to be completed and the offer of possession of flat was not given to him. The counsel for the complainant has placed on record authority in case titled Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him The complainant had been waiting for completion of the project in which allotted unit is located for more than 8 years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the refund of the amount deposited with the opposite parties besides interest and compensation.
6 Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite party is directed to refund the deposited amount to the complainant with compensation in the form of simple interest @ 9% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 11.05.2023 (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.
