Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 29.
Instituted on : 16.01.2023.
Decided on : 11.07.2023
- Ram Niwas Hooda s/o Sh. H.C.Hooda, Rs/o H.No.1/29, Chankyapuri, Rohtak.
- Azad Singh Malik s/o Sh. Amir Singh, Rs/o H.No.1662. Sector-3, Rohtak.
- Ajit Singh s/o Sh. Dilbag Singh Rs/o village Chamaria, District Rohtak.
………..Complainant.
Vs.
M/s BPTP Limited & M/s Country wide Promoters Pvt. Ltd. Haryana its registered office at M-11, Middle Circle, Connaught circus, New Delhi-1100.
……….Opposite party.
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.O.P.Parmar, Advocate for the complainant.
Sh. Arun Samota Advocate for opposite party(defence struck
off).
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case, as per the complainant are that the original owner booked a floor measuring 2229 Sq. feet in the project of the respondents for total sale consideration of Rs.1198223/- which includes BSP car parking, IFMS, Club Membership, PLC etc. on dated 21.05.2012 the complainant got endorsed the unit in their name. The complainant made payment of Rs.10092767 to the respondent vide different cheques and different dates. As per flat buyers agreement the respondents had allotted a unit/floor bearing no.156GF having super area of 2229 sq. ft to the complainant. As per para no.5.1of the agreement the respondent had agreed to deliver the possession of the flat within 24 months from the date of signing of the agreement or sanctioning of building plan whichever is later with an extended period of six months. The complainant regularly visited the site but was surprised to see that construction work is not in progress and no one was present at the site to address the issues of the complainant. Despite receiving 95% approximately payments in time for all the demands raised by respondent, for the said flat and despite repeated requests and reminders over phone calls and personal visits of the complainant, the respondents has failed to deliver the possession of the allotted floor to the complainant within stipulated period. As per clause 6 of the agreement it was agreed by the respondents that in case of any delay the respondents shall pay to complainant a compensation @ Rs.30 per sq. ft. per month to the complainant. Due to omission on the part of respondents, the complainant filed complaint before HRERA, in which it was held that due to non compliance of the mandate contained in Sec 11(4) (a) read with section 18(1) of the act on the part of the respondents are established. As such complainants are entitled to delay possession at prescribed rate of interest i.e. 9.3% w.e.f. 19.09.2014 till 07.04.2020 as per provisions of section 18(1) of the act read with 15 of the rules and section 19(10) of the act, the arrear of such interest accrued from 19.09.2014 till 07.04.2020 shall be paid by the promoters to the allottees within a period of 90 days from the date of this order as per rules 16(2) of the rules. The respondents have not complied the order dated 24.03.2022 till date insptie of repeated requests by the complainant through email and written requests. Lateron respondent and complainants mutually agreed for the settlement deed which was prepared by the respondents on dated 11.08.2022 and as per the settlement clause 2.3, the complainant has agreed to undertake that they shall pay amount nil to respondent as full and final amount towards the sale consideration of the unit and further it was settled as per clause 2.7 that respondents shall endeavour to handover the physical possession of the Unit as per buyer agreement within ninety days. Till date respondents have not complied the clause 2.7 of the settlement deed as no possession has been given till dated as the proposed unit is not liveable hazardous and incomplete. The act of opposite party is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party may kindly be directed to pay the amount of Rs.8 lacs with interest @ 12% from the date of violation of clauses of agreement and further to complete unit/project allotted to the complainants and also to pay an amount of one lac on account of mental agony harassment and Rs.20000/- as litigation expenses to the complainants.
2. After registration of complaint, notice was issued to the opposite party. Opposite party appeared but failed to file any reply despite availing sufficient opportunities and even after elapse of more than 45 days. As such defense of opposite party was struck off vide order dated 08.06.2023 of this Commission.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C4 and closed his evidence on dated 15.06.2023.
4. We have heard learned counsel for the parties and have gone through the written submissions filed by both the parties as well as 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 opposite parties failed to deliver the possession of the allotted floor to the complainant despite his repeated requests within stipulated period. As per clause 6 of the agreement it was agreed by the respondents that in case of any delay the respondents shall pay to complainant a compensation @ Rs.30 per sq. ft per month to the complainant. Due to omission on the part of respondents, the complainant filed compliant before HRERA and as per the order dated 24.03.2022 of HRERA(Haryana Real Estate Regulatory Authority) it was held that : “Due to non compliance of the mandate contained in Sec 11(4) (a) read with section 18(1) of the act on the part of the respondents are established. As such complainants are entitled to delay possession at prescribed rate of interest i.e. 9.3% w.e.f. 19.09.2014 till 07.04.2020 as per provisions of section 18(1) of the act read with 15 of the rules and section 19(10) of the act, the arrear of such interest accrued from 19.09.2014 till 07.04.2020 shall be paid by the promoters to the allottees within a period of 90 days from the date of this order as per rule 16(2) of the rules. Later on the respondents and complaints mutually agreed for the settlement deed which was prepared by the respondents on dated 11.08.2022, which is placed on record as Ex.C1. As per sub clause 2.3 of clause 2 of the alleged settlement deed Ex.C1, it was agreed that : “The customers hereby agree and undertake that they shall pay an amount of Rs.NIL(Rupees nil only) to BPTP as full and final amount towards the balance sale consideration of the Unit simultaneous to the execution of this deed with respect to the unit, without any delay, demur or protest”. Hence as per this clause no amount was payable by the complainant. As per clause No.2.4 of the agreement it was agreed that : “The company agrees that first transfer of the unit by the customers to any third party will not be chargeable”. As per clause 2.7, it was agreed that : “BPTP shall endeavour to hand over the physical possession of the unit as per the buyer agreement within 90 days from the fulfillment of all the obligations by the customers stipulated herein and the formalities mentioned in the OOP subject to clause 10 of the Deed”. As per clause 10, : “The customer further agrees to inform the Hon’ble Real Estate Regulatory Authority, Gurugram through email on New India Assurance Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. is not fully applicable on the facts and circumstances of the case.
6. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party to hand over the possession of flat/floor to the complainants within one month and also to pay interest @ 9% p.a. upon the amount deposited by the complainant i.e. Rs.13141157/- with the opposite party from the date of settlement deed i.e. 11.08.2022 till handing over the actual physical possession to the complainants. It is further directed to the opposite party to hand over the relevant documents required for sale i.e. to issue Permission to transfer letter and other required documents for sale, to the complainant within a week from the date of order. Opposite party is also directed to pay a sum of Rs.10000/-(Rupees ten thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainants. Remaining order shall be complied within one month from the date of decision.
7. 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:
11.07.2023
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Nagender Singh Kadian, President
………………………………..
Tripti Pannu, Member.
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Vijender Singh, Member.
