Delhi

StateCommission

CC/514/2017

KISHORE KUMAR SAMAL & ANR. - Complainant(s)

Versus

M/S BPTP LTD. - Opp.Party(s)

K.D SAINI

09 Oct 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :09.10.2019

Date of Decision : 17.10.2019

COMPLAINT NO.514/2017

In the matter of:

                              

1. Kishore Kumar Samal,

S/o. Late Dhaneshwar Samal,

 

2. Krishna Kumar Swani,

W/o. Kishore Kumar Samal,

Both R/o. 61-B, D-Block,

Kanchanjunga Aptt., Sector-53,

Gautam Budh Nagar, Noida-201307.....Complainants

 

Versus

 

            M/.s BPTP Ltd.,

Having its Corproate Office at

M-11, Moddle Circle,

Nonnaght Coircus,

New Delhi-110001.                                                                         …..Opposite Party

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                       Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1. Initially the complainant filed a case alleging that they booked a flat in project ‘Park Elite Floors’ Parkland, Faridabad, Haryana and was allotted united no.P-4/60, First Floor measuring 876 sq. ft. in the same project. They paid Rs.2 lakhs vide two cheques of Rs.1 lakh each. They received demand letter in compliance of which they paid Rs.3,74,961/- by cheque. The second flat was of enhanced area from 876 sq. ft. to 1039 sq. ft.  Complainants gave consent vide letter dated 03.05.13. The OP raised demand of Rs.1,11,698/- which the complainant paid by cheque. OP further demanded Rs.4,46,000/- on 15.07.13. The complainant requested to provide NOC and PTM but OP failed to do so.  HDFC Bank was unable to disburse sanctioned amount for want of PTM and NOC. The complainant gave draft for Rs.11,07,195/- in pursuance of notice. OP again demanded Rs.2,13,695/- which was paid vide demand draft dated 0-3.0-9.14.
2. HDFC Bank sanctioned loan of Rs.15 lakhs out which it disbursed Rs.13,20,890/- to OP. Bank conveyance repayment plan to the complainant and EMI was Rs.14,288/- alongwith interest @10.15% payable from 01.10.14.
3. OP imposed penalty of Rs.2,15,435/- on account of alleged delay in payment, as per demand notice dated 15.07.12. The complainants were still residing in official accommodation and were not getting HRA. They were bearing loss of about Rs.20,000/- per month. OP declined to hand over possession. Rather it claimed penalty of Rs.2,15,435/- on delay in payment of Rs.13,20,000/- for one year. Hence this complaint for directing OP to pay Rs.95,78,549/- as damages and compensation alongwith interest @24% p.a. w.e.f. 13.08.14 till its refund. They also prayed for cost of proceedings.
4. OP put appearance on 19.09.17 and received copy of complaint. On 15.12.17 it stated that complainant has already invoked arbitration before filing the complaint. It filed copy of notice from arbitrator and stated that the  complainant was not appearing before arbitrator. The case was adjourned to 20.03.18 for awaited outcome of proceedings of arbitrator. On 20.03.18 the complainant moved an application under Order 1 Rule 10 CPC for impleading Countrywide Promoters (P) Ltd. as OP-2.  Since said company was a party to the agreement, the request was allowed. Notice was issued to OP-2.
5. Complainant moved  another application under Order 6 Rule 17 CPC for amendment of complaint. The complainants wanted to give breakup of the damage claimed by them. In the same application the complainants stated that OP sent letter dated 12.01.18 offering possession of the flat subject to certain payments. The complainants paid all amount except Rs. 2,25,305/- which was toward interest for delayed payment. The same was not payable as per OP’s own demand  containing detail dated 26.06.13 where as  it is mentioned that no delay interest would be charged from complainants. The complainants wanted to incorporate relief of handing over possession alongwith interest @18% p.a. on the amount paid to the OPs, for the delayed payments besides damages and compensation. In view the offer  of possession given by OP, it was directed to hand over possession within four weeks vide proceedings dated 28.08.18. On 27.11.18 complainants stated that they have received possession.
6. The OP has filed reply to application under Oder 6 Rule 17 CPC opposing the same.
7. In view of the act of the OP in handing over the possession, the controversy remains confined to the entitlement of complainants to receive penalty for delayed possession.
8. The counsel for complainant submitted that since OP was charging interest @24% p.a., it should pay interest at the same rate to the complainant.
9. On the other hand the counsel for the OP submitted that Clause 4.3 of the agreement at page 56 of the amended complaint recites that if the OP fails to offer possession within 30 months from date of execution of Floor Buyer Agreement, it was liable to pay compensation calculated @5/- per sq. ft of the total super built up area for the said floor every month for the delay. The parties agreed that they would have no other rights or claim whatsoever.
10. The counsel for OP submitted that Consumer Court cannot go beyond the agreement. He relied upon a recent decision of NC in CC no.2095/16 titled as Yash Manoj Handa vs. Parsvnath decided on 14.02.19 in which the NC awarded compensation at the agreed rate of Rs.5/- per sq. ft. In yet another decision of Hon’ble Apex Court in DLF Homes  Panchkula Pvt.  Ltd. Vs. B.S. Dhanda AIR 2019 SC 3218 held that once there is an agreement between the parties about consequences of failure, there has to be exceptionally strong reasons to deviate. This means that parties should be confined to agreed term of penalty.
11. In view of the above discussion the OP is directed to pay penalty @5/- per sq. ft per month from 22.11.15 till the date of handing over possession.
12. Copy of the order be sent to both the parties free of cost.
13. File be consigned to record room.

 

(O.P. GUPTA)                                                

MEMBER (JUDICIAL)