Delhi

StateCommission

CC/806/2016

MR. MOHIT BEOTRA - Complainant(s)

Versus

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

MONISH PANDA

13 Mar 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments : 13.03.2019

Date of Decision : 19.03.2019

COMPLAINT NO.806/2016

In the matter of:

 

Mr. Mohit Beotra,

S/o. Shri Yash pal Beotra,

R/o. J-403, Som Vihar,

R.K. Puram,

New Delhi-110022.………Complaint

 

Versus

 

M/s. BPTP Ltd.,

Registered Office at:

M-11, Middle Circus,

Connaught Circus,

New Delhi-110001.……..Opposite Parties

 

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. The case of the complainant is that he booked a plot in Parkland in Phase I Faridabad with OP by paying booking confirmation amount of Rs.2,79,375/-. OP sent demand letter dated 05.11.06 for payment of EDC, IDC and preferential location charges for plot measuring 250 sq. yards. OP allotted plot no.Z21-01 and further demanded Rs.13,69,212/- vide letter dated 09.07.08. On 08.10.08 plot buyers agreement was entered into. The clause in the said agreement are primafacie, one sided and heavily loaded in favour of the OP. Clause 12 of the agreement provided that if complainant fails to make  timely payment of instalments, he was liable to pay late payment charges alongwith interest @18% per annum compounded at the time of every succeeding instalments. Clause 22.3 provided that if OP failed to deliver possession within stipulated time, it was liable to pay a meagre amount of Rs.6/- sq. meter per month for  the period of delay.
2. The complainant was supposed to pay Rs.7,450/- per sq yard. Total amount came to Rs.19,96,600/-. He made  payment of Rs.26,65,438/- details of which are given in para-11 of the complaint. The handing over of possession by OP has been delayed by almost 11 years. He sent mail dated 06.04.15 that OP has started giving possession to other persons in the same project. OP replied by mail dated 15.05.15 copy of which is Annexure C-11 that it was not in a position to offer possession to the complainant in any future. Complainant sent notice dated 22.06.15 to which no reply was sent. Another legal notice dated 18.05.16 was sent asking OP to hand over possession, execute sale deed and pay interest @18% per annum but to no use. OP was supposed to deliver possession within 24 months of getting service plans sanctioned. Hence this complaint for directing the OP to allott plot or refund the principal amount of Rs.26,65,438/- alongwith interest @18% per annum from date of first payment. He also sought litigation expenses, Rs.20 lakhs  as compensation for harassment, mental agony and inconvenience.
3. OP filed WS raising preliminary objections regarding arbitration clause. It stated that the complainant agreed that plot was tentative and was subject to change. A portion of the plot was encroachment by some criminal elements of society resulting in decrease of area from 268 sq. yards to 233 sq. yards. A revenue rasta which is part of licensed colony was missed out  in the lay out plan which has  now been assimilated in 12 meter vide road due to which plot is now facing North rather than South. The same made the plot more premium being vastu compliant. Change in the area and direction of plot was within agreed terms. Complainant being permanent resident of R. K. Puram, new Delhi has failed to establish that plot was booked for residential use by him. On merits the OP took  the same defence.
4. The complainant filed rejoinder reaffirming his own case and controverting the case of the OP. Complainant filed his own affidavit in evidence.
5. On the other hand the OP filed affidavit of Shri Inderjit, AR. Both the parties have filed the written arguments.
6. I have gone through the material on record and heard the arguments. The counsel for OP  drew my attention toward clause 7 of the agreement which recites that OP  was in process of developing Parkland in accordance with tentative and consolidated lay out plan for the entire colony, as submitted to statutory/ competent authority for final approval. It has been explained to the purchaser that if  any change in the lay out plan and / or are required by any other statutory authority, the same may be affected suitably to which purchaser agreed and gave his sanction. So according to him the change in the direction of the plot or change in area of the plot was implied.
7. Counsel for complainant refuted the aforesaid argument by submitting that said clause deals with change at the instance of statutory authority. It does not deal with act of encroachment by a criminal. According to him the act of encroachment by few persons has resulted in plot loosing its preferential location of being a corner plot. The arguments appear to be convincing.
8. Counsel for OP urged that proviso to clause 7 of the agreement lays down if there is any change in location, preferential location, boundaries or area of the plot, OP s liable only to refund without interest, extra charges paid by purchaser for preferential location.
9. I have considered the argument in depth and feel that the same is not tenable. Word `there is’ in the opening lines of proviso refers to the act mentioned in main clause 7’. As discussed above main clause 7 deals with changes at the instance of statutory authority. So proviso to clause 7 does not help the OP.
10. Counsel for complainant submitted that since OP was entitled to charge interest @18% per annum as mentioned in clause 12 of the agreement, complainant should get the same interest. In doing so he placed reliance on decision of National Commission in Punit Malhotra vs. Parveen Kumar II (2015) CPJ 18 in which it was held that penalty @5 per sq ft per month was meagre. The OP should pay interest at the same rate at which it charges interest from allottee. In Kavita Ahuja vs. Shipra Estate I (2016) CPJ 531 National Commission allowed interest @18% per annum.
11. The rates of interest are going down day by day. In the present scenario,  I do not find any justification for granting interest more than 12% per annum. That would take care of harassment and cost of litigation also.
12. In view of the above discussion the complaint is allowed, OP is directed refund Rs.26,65,438/- alongwith interest @12% per annum  from the date of respective payments till the date of refund. OP to comply with the order within 45 days from receipt of copy of this order.
13. Copy of the order be sent to both the parties free of cost.
14. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)