District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 341/2022.
Date of Institution: 22.06.2022.
Date of Order: 11.01.2023.
Deepanshu Kohli s/o Shri Devender Kumar Kohli R/o H.No.-814 Sector-9, Faridabad.
….Complainant…..
Versus
M/S BPTP Ltd., BPTP Next door, IInd floor, Sector-76, Greater Faridabad through its Director/Principle Officer. Through its Director/principle Officer.
…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. Rajesh Khanna, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite party.
ORDER:
The facts in brief of the complaint are that the complainant named above was the permanent resident of the above mentioned address at Faridabad and allottee/transferee of residential unit bearing no. PE/88/SF, Sector- 77 Park Elite Floor Parklands Faridabad. Initially the father of the complainant Sh.D.K.Kohli (Devender Kumar Kohli) had been allotted the aforesaid residential unit vide Allotment cum Demand letter dated 06.10.2011 against his application for booking of the unit with initial booking amount of Rs. 2,00,000/- paid on 18.05.2009 along with the application form and father of the complainant was assigned customer code: BE74/120988.Later on the name of my above client was substituted in place of his father Sh. Devender Kumar Kohli after completion of necessary formalities and documentation vide Substitution letterd ated 20.12.2016. Initially the Floor buyer agreement was executed along with all the requisite documents as desired by the respondent / O.P in respect of the aforesaid residential unit vide offer letter dated 19.12.2011 and executed on 13.02.2012 consisting therein all the terms and conditions to be complied with by the initial allotee i.e father of the complainant as well as the respondent /O.P. The father of the complainant had always complied with the obligations on his part strictly and paid the periodical installments diligently as and when demanded by the respondent / O.P as the payment schedule was the Construction Linked plan and the payment made by the complainant has duly been acknowledged by the respondent / O.P against the periodical statements issued by the respondent / O.P from time to time. As per the statement of account as on January 17, 2017 in respect of the unit as provided by the respondent / O.P the total net cost of the residential unit was shown as Rs.22,04,182.25 against which the complainant had till date paid a substantial amount of Rs.19,53,187.55/- as demanded by the respondent / O.P from time to time and the complainant was required to pay the balance amount at the time of offer of possession as well as execution and registration of conveyance deed in favour of the complainant, which the complainant had ever been ready and willing to pay. The statement of account dated 17.01.2017 was the last correspondence received by the complainant from the respondent / O.P and thereafter the respondent / O.P have miserably failed to do the needful for making offer of possession or execution and registration of Conveyance Deed in favour of the complainant. Thereafter the respondent remained silent and slept over the entire issue, never cared at all to hand over the possession of the residential unit despite receiving more then 90% amount as per the agreement nor any correspondence in this regard was ever issued as to what was the fate of booking. The respondent in a most fraudulent manner made the complainant depositing the periodical installments and misappropriated the amount received from the complainant for the years together .Since then the matter had been hanging fire as no action was taken by the respondent/ to offer the possession or to execute and get registered the conveyance deed in favour of the complainant or to hand over the possession of the residential unit despite repeated requests and reminders. In the meantime the complainant had been running from pillar to post requesting for possession of the aforesaid residential unit, but of no use as on every such occasion met with the lame excuses and was put off on frivolous pretexts as the respondent/ OP have miserably failed to do the needful in this regard for the reasons best known to the respondent/O.P. It is pertinent to mention here that the complainant has always expressed his willingness to pay the remaining outstanding amount along with the requisite stamp duty and registration charges. The complainant sent legal notice dated 21.11.2021 to the opposite party 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 peaceful finished possession of the residential unit i.e PE/88/SF Sector-77 Park Elite Floor vide customer code BE74/120988 and to execute and get registered the conveyance deed in respect of the residential unit with immediate effect or in alternative thereof-
b. refund back the amount of Rs.19,53,187.55/-i.e the sum deposited by the complainant from time to time as demanded by the respondent along with up to date interest @ 18% per annum as charged by the respondent on delayed payment from the amount paid till realization of the amount.
c) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .
d) pay Rs. 1,00,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the complaint was based on suppression, concealment and misrepresentation of material facts and documents. In this context, the following were noteworthy-
(i) The one Mr. D.K. Kholi ("Original Allottee") in the year 2009, after having conducted due diligence, through his broker namely "U. Choudhary Estate Consultant Pvt. Ltd."applied for a booking of an independent residential floor in the project 'Park Elite Floors' developed by OP at Faridabad and thus, paid a sum of Rs. 2,00,000/- against receipt dated 17.06.2009. At this stage,Original Allottee was given discount on basic sale price amounting to Rs.57,000/-, which resulted in deduction of the basic sale price of the booking made.
(ii) That OP conducted allotments by draw of lots held on 11.12.2009 and OP vide letter dated 31.12.2009 informed the Original Allottee that his name was not shortlisted in the draw of lots held for the purpose of allotment. The Original Allottee was also informed about the fact that OP would be conducting a 'second phase of allotment' in the next draw and his name would be considered in the second phase of allotment on account of submitting its consent for said participation. The OP also gave alternate option of refund of deposited amount, in case Original Allottee did not wish to wait/stay for the second phase of allotment on or before 25.01.2010 whereas in case allottee does not communicate so it would be presumed that he is interested in continuing with allotment Copy of Letter dated 31.12.2009 .
(iii) The OP vide letter dated 09.07.2011 informed Original Allottee that second phase of allotment for Park Elite Floors would be conducted vide draw of lots and, once again offered an alternate option of refund of deposited amount along with interest @9% p.a. in case Original Allottee does not wish to wait/stay for the second phase of allotment.
(iv) On receipt of letter dated 09.07.2011, Original Allottee on 31.08.2011 provided his consent to participate in second phase of allotment i.e., opted to continue with the booking. With reference to second phase of allotment, OP on 01.09.2011 conducted next draw of lots, accordingly vide letter dated 06.10.2011 OP confirmed allotment of unit no. PE-88-SF / Area (tentative) 1,025 sq. ft.
(v) Complainant had misrepresented the fact that Original allottee / father of Complainant complied with all obligations by making periodical installments as and when demanded. It was pointed out that Original Allottee failed inmaking timely payment of installments raised by OP in terms of payment plan opted. It was stated that OP vide letter dated 06.10.2011 raised demand which was to be paid by 27.10.2011 while offering timely payment discount (TPD). Original Allottee failed to make any payment towards said demand, thus OP issued reminder letter dated 01.11.2011. While said demand was still unpaid, next installment became due and OP vide letter dated 19.12.2011 raised demand at stage of "at the start of construction" which was to be paid by 03.01.2012 while offering TPD and reminder to clear previous outstanding dues. Original Allottee cleared said demands against receipts dated 23.12.2011 and 16.02.2012.
(vi) Subsequently, Floor Buyer's Agreement (FBA) was executed between Original Allottee and OP on 13.02.2012 on account of thorough reading and understanding of the incorporated terms and conditions while agreeing and accepting to abide by the same. All the representations made by OP including basic sale price, tentative timelines for possession and penalty payable by the OP in case of delay in offering possession were duly documented in the terms and conditions of the Booking Form which were reiterated in the FBA.
(vii) In the meanwhile, Complainant and Original Allottee jointly approached OP with a request seeking name substitution qua unit in question. Whereas, in said regard OP vide letter dated 20.12.2016 confirmed name of Complainant as allottee towards allotment of unit in question subject to submission of fresh Booking Application Form by Complainant while agreeing and accepting to abide by the same and, accordingly FBA dated 13.02.2012 was duly endorsed in favour of the Complainant. It was pertinent to mention here that till this stage, OP received an amount of Rs.18,88,275.54/- (exclusive of timely payment discount availed by Original Allottee amounting to Rs.56,787/-), It was important to point out that Complainant had deliberately misrepresented and concealed material facts and documents from this Hon'ble Commission and has also failed to disclose agreed and accepted terms and conditions of clauses of duly endorsed FBA qua proposed timelines. It was further stated that while determining tentative time for delivery of possession of the Unit the Hon'ble Commission shall appreciate the fact that the delay in construction was due to force majeure circumstances which were beyond the control of OP. It wass well settled law that "force majeure" indicate an event which is beyond the control of human being and prevents other party from performing its contractual obligations. In the present case OP was entitled to claim under the exception of shelter force majeure events, i.e. onset of the COVID-19 pandemic which continued for over one-and-a-half years. Direct impacts ranging from a slowdown of available goods and labor through to suspensions and, in some instances, terminations of parties or entire projects. Issues such as: contract or project notices for default, scheduling and adjustments; project suspension, termination and reinstatement; workplace safety compliance; work force management; material, subcontractor and supply chain delays and impacts; risk management and insurance; claims avoidance or, alternatively, claims management; and the disputes process, are covered as an excusable delay.Despite the fact, civil structure of the unit in question stood completed and OPhad been putting its effective efforts in completion of the construction of theunit in question at the earliest. The Complainant had wrongly alleged that statement of account dated 17.01.2018 was the last correspondence received by him from OP. It was stated that OP being a customer centric organization, regularly interacted with the Complainant and apprised him of the status of the Project vide numerous emails dated 21.06.2017, 23.08.2017, 09.12.2017, 10.04.2018, 11.05.2018, 17.06.2018, 10.09.2018, 11.09.2018, 05.11.2018, 22.03.2019, 16.05.2019, 19.11.2019. Copy of the emails dated 21.06.2017, 23.08.2017, 09.12.2017, 10.04.2018, 11.05.2018, 17.06.2018, 10.09.2018. 11.09.2018, 05.11.2018, 22.03.2019, 16.05.2019, 19.11.2019. The reason for delay in delivery had already been put on record, whereas an undeniable fact is that OP has already handed over large number of units in the project 'Park Elite Floors' to its respective allottees and is committed to handover the remaining units at the earliest in a phased manner, despite bad economic situation and other circumstances that are not under its control.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 parties– /s. BPTP Ltd. with the prayer to:a. hand over the peaceful finished possession of the residential unit i.e PE/88/SF Sector-77 Park Elite Floor vide customer code BE74/120988 and to execute and get registered the conveyance deed in respect of the residential unit with immediate effect or in alternative thereof. b. refund back the amount of Rs.19,53,187.55/-i.e the sum deposited by the complainant from time to time as demanded by the respondent along with up to date interest @ 18% per annum as charged by the respondent on delayed payment from the amount paid till realization of the amount.c) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .d) pay Rs. 1,00,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Deepanshu Kohli, Ex.C-1 – allotment cum demand letter, Ex.C2 – letter dated 09.07.2011,Ex.C-3- letter dated 20.12.2016, Ex.C-4 & 5– letters dated 17 January 2017, ex. C-6- letter dated20.12.2016, ex.c-7 – Addendum to (Plot/Flat/Villa/floor/Space/Shop) Buyer’s Agreement, Ex.C-8 – letter regarding request for addition/deletion/substation of the name of Shri D.K.Kohli son of late sh. R.K. Kohli in the records of the plot/flat/shop/floor NO. PE-88-SF, under the project name “Park elite floor-II” and customer code 120988, in Parklands, Faridabad, Ex.C-9 – Affidavit of D.K.Kohli, Ex.C-10 – Indemnity cum undertaking, Ex.C-11 – Affidavit of Deepanshu Kohli, Ex.C-12 – Indemnity cum undertaking, Ex.C-13 – application for allotment by sale of a residential independent floor at Parklands, Faridabad, Haryana, ExC-14 – Addendum to (plot/flat/villa/floor/space/shop) Buyer’s agreement, Ex.C-15 – receipt, Ex.C-16 signature verification, Ex.C-17 – legal notice, Ex.C-18 – postal receipt.
6. During the course of arguments, complainant has filed an application for withdrawl of the above captioned complaint pending before this Hon’ble Commission in which he has stated that the complainant does not wish to pursue the present complaint against the opposite party and out of his own free will, consent and without any undue influence hereby wishes to withdraw all the claims, issues, disputes, grievances, whatsoever raised against the opposite party in respect to booking/registration/allotment of the unit NO. PE-88-SF in the project “Park Elite Floors”, being developed by BPTP at Haryana in complete satisfaction of all his claims.
Shri Rajesh Khanna, counsel for the complainant has made a statement that the matter has been settled between the parties. As per my request, litigation charges may be given to me.
7. Keeping in view of the above application for withdrawal of the complainant as well as statement of counsel for the complainant, the Commission is of the opinion that the complaint is disposed off with the direction to pay Rs.11,000/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 11.01.2023 (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.
