District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No.321/2022.
Date of Institution: 15.06.2022.
Date of Order: 20.01.2023.
1. Ravi Dutt Sharma son of Late ShriGurudutt Sharma
2. Ajay Dev Anchriya son of Shri Ravi Dutt Sharma
Both Residents of Village Jajru, P.O.Sangarpur, Tehsil Ballabgarh, District Faridabad.
...Complainants
Versus
1. BPTP Office, Sector-81, Faridabad through its Director GobindGulati
2. BPTP Office, Sector-81, Faridabad through its President Ashok Rastogi
3. BPTP Office, Sector-81, Faridabad through its Vice President/Accountant Sunil Gupta.
4. BPTP Office,Sector-81, Faridabad through its authorized person.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Hitesh Parashar, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite parties.
ORDER:
The facts in brief of the complaint are that initially the Plot No.T-1 23 in Block T admeasuring 303 sq. yards in Parklands, Sector-75, Faridabad was in the name of Neeraja Tyagi &Mr. Sameer Tyagi and the said persons Neeraja Tyagi &Mr.Sameer Tyagi had sold out the abovesaid plot through BPTP to the complainants. On the instance of Neeraja Tyagi &Mr. Sameer Tyagi had transferred the nomination of the plot and the said BPTP had allotted the said plot in the name of complainants and in this regard a nomination/ allotment booking/ agreement of Plot No.T-1 in Parklands Faridabad has been issued by the respondents in favour of the complainants on dated 05.10.2012 and thereafter the respondents had issued offer of possession on dated 19.12.2012. The complainant had paid the amount of Rs.48,20,231.00 to the respondents on 25.01.2013 including the stamp duty of the registration of the sale deed and the respondent had also issued the statement of account on dated 25.01.2013 and respondents assured to the complainants that the said sale deed would be definitely execute and registered in favour of the complainants within one month. Since from issuing of the offer of the possession letter in favour of the complainants the complainants several times requested to the respondents to execute and registered the sale deed in favour of the complainants but the respondents intentionally and knowingly demanded the excess amount from the complainants without any reason or rhyme. The respondents have no right, title and interest to demand the excess amount from the complainants. On dated 04.12.2014 the respondents intentionally and knowingly demanded the excess amount of Rs.1,35,181/- aswell as Rs.61,000/- from the said amount the respondents will execute and registered the sale Deed. Thereafter due to the illegal act and conduct of the respondents, the respondents made an application to the Commissioner of Police, Sector-21-C, Faridabad on the basis of the said application a compromise took place between the complainants and respondents in which the amount of Rs.1,35,181/- and Rs.61,000/- had been waived off by the respondent and also settled that the amount of Rs.73,439/- would be paid by the respondents to the complainants by issuing of the letter dated 08.07.2015. And thereafter the respondents executed a Sale Deed bearing document No.2788 dated 29.07.2015 registered in the Office of Sub Registrar, Tigaon, District Faridabad in favour of the complainants. After execution of the sale deed the complainants requested to the respondents to make the settled payment of Rs.73,439.00 which is still due against the respondents and also requested to the respondents to handover the peaceful possession of the plot in question but the respondents refused to accept the legitimate request of the complainants. Due to non-refunding the settled amount of Rs.73,439.00 and not handing over the peaceful possession of the plot in question and by delaying the execution and registration of the sale deed in favour of the complainants at the behest of the respondents without any reason and by charging the maintenance amount from the complainants w.e.f. 21.09.2013 i.e. Rs.13,278/- on 01.05.2014amount of Rs.13,277/-, 28.08.2015 for Rs.14,697/- which the respondents had no right to charge from the complainants. As such the respondents did not delivered the peaceful possession of the plot in question since issuing of the offer of the possession dated 19.12.2012. The complainants several times requested to the respondents to make the settled amount of Rs.73,439/- and also to refund the maintenance amount of Rs.41,252/- which was received by them without handover the peaceful possession of the plot in question, but the respondents on 18.10.2015 refused to accept the legitimate request of the complainants. 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) make the settled amount of Rs.73,439/- to the complainants on the
basis of settlement letter dated 08.07.2015.
b) refund the maintenance amount of Rs.41,252/- which was received by the respondents without handover the peaceful possession of the plot in question to the complainants.
c) pay Rs. 20,00,000/- as compensation for causing mental agony and harassment .
d) pay Rs. 31,000 /-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 under reply was barred by limitation. It was submitted that without prejudice to the fact that the Complainants had no case and that the Complaint is liable to be dismissed outrightly, even as per the own case of the Complainants, the final cause of action accrued to them on 18.10.2015 where after, the Complainants filed Consumer Complaint bearing no. 494/2015 on 16.12.2015, which was dismissed for want of pecuniary jurisdiction vide order dated 18.12.2017. The Complaint under reply had been filed on 15.06.2022 which was well beyond the limitation period of 2 years as prescribed under Section-69 (1) of the Consumer Protection Act, 2019 and also is in contravention to the various judgments of the Apex Court. Thus, even after giving benefit of the time spent in the earlier litigation, the timelines for filing a fresh Complaint had expired much before the period of 15.03.2020 to 28.02.2022 granted by the Apex Court as limitation free period. The Conveyance Deed qua the plot in question had already been executed on 29.07.2015 in favour of the Complainants. The Complainants also executed various documents and more particularly Indemnity-Cum- Undertaking dated 29.01.2013. Further NOC for giving possession was issued 10.08.2015 and the actual physical possession was taken by the Complainants on 27.10.2015 specifically stating that they had no claim against the company of any nature whatsoever. It was submitted that all the averments/allegations made in the Complaint under reply were nothing but an afterthought in order to entangle the OP in a frivolous litigation. It was further submitted the transaction and /or relation between the parties as Customer and Service Provider immediately ceased and stood culminated upon the said transfer and conveyance of the Plot in favour of the Complainants. It was further submitted that the execution and Registration of the Conveyance Deed/ Sale Deed is the final determination of the rights and liabilities of the parties against each other. Thus, subsequent thereto, agitating and/ or raising any issues with regard to the same was not only uncalled for but also redundant. It was submitted that the crux of the Complaint was that the Complainants had not been paid settlement amount of Rs. 73,439/-, physical possession of the plot has not been handed over and that a sum of Rs. 41, 252/- received by OP be refunded. None of the allegations were maintainable which is evident from the following-
(a) With respect to surplus of Rs. 73,439/-, it was submitted that before execution of conveyance deed, the Complainants had raised various issues pursuant to which, various e-mail communications were exchanged between the parties for rectification of Account and all the issues were duly settled. It was further pertinent to point out that in view of the reconciliation of accounts; there was a surplus balance of Rs. 73,439/- which was agreed to be refunded post execution of conveyance deed. However, subsequently, on the instructions of the Complainants as evident from Emails dated 16.7.2015 and 08.04.2016 issued by the Complainants instructing transfer of funds to M/s. Business Park Maintenance Service Pvt., Limited. (BPMS) against the dues pending, funds were transferred while the balance amount of Rs. 44,920/- was paid to the Complainants vide cheques dated 09.09.2016 for Rs. 22,460/- each, which were accepted by the Complainants on 15.09.2016 in the earlier Consumer Complaint and duly encashed. Hence, no amount is due and payable by the OP to the Complainants.
(b) With respect to the allegation that the physical possession of the plot has not been handed over, it is submitted that the allegation is a blatant lie. It was reiterated that NOC for giving possession was issued on 10.08.2015 and the actual physical possession of the plot was taken by the Complainants on 27.10.2015 which was evident from the letter dated 27.10.2015 wherein the Complainants specifically accepted to have taken possession of the plot on 27.10.2015. In fact, in the order dated 18.12.2017 in Consumer Complaint no. 494/2015, it is specifically noted that the Complainants had pleaded that during the pendency of the Complaint, the OP had given peaceful possession of the plot. Despite having admitted to have received possession, the Complainants have indulged in such blatant lies before this Hon'ble Commission.
(c) With respect to the allegation that a sum of Rs. 41,252/- received by OP be refunded, it was specifically denied that any amount of Rs. 41,252/- had been received by the OP. In this regard, it was submitted that a sum of Rs.41,252/- was paid by the Complainants to BPMS and not to OP which was a separate company looking after maintenance of the Project. The Complainants have signed and executed maintenance agreement dated 06.02.2013 separately with the BPMS to which, the OP is not a party. The Complainant has failed to make BPMS a party to the Complaint and attempted to blackmail the OP by raising false and frivolous issues.
d. The Complainants, with a view to prejudice this Hon'ble Commission have falsely alleged that the OP had illegally raised demand for excess amount. In this regard, it is submitted that the amounts demanded from the Complainants at the stage of offering possession were in accordance with the terms of the Plot Buyers Agreement (PBA) dated 19.03.2007 duly endorsed in favour of the Complainants on 05.10.2012. However, subsequent to the receipt of payment from the Complainants when the OP was in the process of purchasing stamp paper, the stamp duty rates were revised/ increased firstly in April 2013 which caused the OP to raise additional demand for Rs.30000 /- on 19.07.2013 and while the differential amount was still not paid by the Complainants, another notification was issued by the Government in April 2014 thereby further revising/ increasing the amounts payable towards stamp duty, due to which, a further amount of Rs.31000/- along with previous outstanding of Rs. 30,000/- totalling to Rs. 61,000/- towards Stamp Duty became due. Further, during the said period, in view of the clarifications issued by the Government, the OP reduced the rate of EC & STP from Rs. 995/- per sq. yd. to Rs. 895/- per sq. yd., and adjusted a surplus of Rs. 30,300/-. However, thereafter, the Government issued notification in the month of April 2015, whereby there was a reduction in the stamp duty rates and hence, surplus was generated on account of Stamp Duty already received. In view of the said developments, when the accounts were again reconciled, a sum of Rs. 73,439/- was found to be surplus which was communicated to the Complainants by means of issuance of statement of account dated 08.07.2015. However, upon the request made by the Complainants an amount of Rs. 14,697/- was transferred from OP to BPMS account on 28.8.2015 and thereafter Rs. 13,530/- on 22.06.2016. Thereafter, 2 cheques for Rs. 22,460/- each in favour of Complainants were issued which were duly accepted by the Complainants on 15.09.2016. 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.
5. In this case the complaint was filed by the complainant against opposite parties–BPTP with the prayer to:a) make the settled amount of Rs.73,439/- to the complainants on the basis of settlement letter dated 08.07.2015.b)refund the maintenance amount of Rs.41,252/- which was received by the respondents without handover the peaceful possession of the plot in question to the complainants. c) pay Rs. 20,00,000/- as compensation for causing mental agony and harassment. d) pay Rs. 31,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Annx.C-1 – Receipt, Annx.C-2 – site plan, Annx.C-3 – letter dated 05.10.2012, Annx.C-4 – letter dated 19.12.2012 regarding offer of possession, Annx.C-5 – letter dated 25.01.2013 regarding Statement of account, Annx.C-6 – letter dated 04.12.2014 regarding offer of possession, Annx.C-7 – application filed by the complainant to Police Commissioner, Annx.C-8 – order dated 18.12.2017 passed by the Hon’ble Consumer Disputes Redressal Forum, Faridabad,
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 Jay Shankar,Authorized Representative , M-11, Middle Circle, Connaught Circus, New Delhi, Ex.R-1 – Resolution, Ex.R-2 – order dated 18.12.2017 passed by the District Consumer Disputes Redressal Forum, Faridabad, Ex.R-3 - NOC for fit outs dated 27.10.2015, Ex.R-4 (colly)– email dated 16.7.2015, 08.04.2016.
6. The complaint was filed by the complainant with the prayer to (a) make the settled amount of Rs.73,439/- to the complainants on the basis of settlement letter dated 08.07.2015. b) refund the maintenance amount of Rs.41,252/- which was received by the respondents without handover the peaceful possession of the plot in question to the complainants. c) pay Rs. 20,00,000/- as compensation for causing mental agony and harassment. d) pay Rs. 31,000 /-as litigation expenses.
7. In this case, the counsel for opposite party has tendered their evidence Ex.RW1/A and Ex.R-1 to R-4(colly). After going through the evidence led by the opposite party, the conveyance deed was issued in the year 2015 and the possession was given to the complainant . As per emails, two cheques were given to the complainant already. Earlier this complaint was withdrawn due to pecuniary jurisdiction, copy of the same is Ex.R-2. As per email dated 20.07.2015, 27.07.2015 and 8.4.2016, the complainant has requested opposite parties to adjust Rs.14,697/- & Rs.13,530/- towards BPMS and maintenance charges.
8. After going through the evidence led by the parties, the Commission is of the opinion that there is no deficiency in service on the part of opposite parties. The conveyance deed was issued and money as prayed was adjusted as per the documents of the opposite parties, Hence, the complaint is dismissed. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 20.01.2023 (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.
