District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.425/2021.
Date of Institution: 25.08.2021.
Date of Order: 20.07.2022.
Suresh Kumar son of Shri Ram Swarup, Resident of House NO. 3652, Gali NO.3, Jawahar Colony, NIT, Faridabad. Adhar card No. 4586 6623 1329.
…….Complainant……..
Versus
M/s. BPTP Limited, Regd. Office:OT-14, 3rd floor, Next Door, Parklands, Sector-76, Faridabad – 121004 through its Managing Director(s)/Principal Officer(s).
…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.
PRESENT: Sh. D.K.Yadav , counsel for the complainant.
Sh. Jay Shankar. AR on behalf of opposite parties.
ORDER:
The facts in brief of the complaint are that the opposite party allotted Unit No. P-04-FF situates at Parkelite Floors, Park Land, Sector-75, Faridabad having a super area of 1418 sq. feet to the complainant and the complainant deposited different amounts with the opposite party from time to time as per its directions. The complainant was ready to make the payment of actual due amount, subject to deliver the possession of allotted site to the complainant. As per mutual terms and conditions arrived at between the parties to this complaint, the opposite party was to deliver the possession of the allotted site to the complainant in the year 2013 but to the surprise of the complainant, the opposite party had failed to deliver the possession of the said flat to the complainant till date. The opposite party did not deliver the possession of the allotted flat to the complainant, resultantly the complainant had been residing in rented premises, for which the complainant had been making payment of monthly rent since January 2013 to July 2021 @ Rs.15,000/- per month, which comes to Rs.15,45,000/-. Whereas as per the commitment of the opposite party, they were to deliver the possession of the allotted flat to the complainant in January 2013. Thus it was clear that the opposite party was solely responsible to compensate the complainant by making the payment of rental amount @ Rs.15,000/- per month, total amounting to Rs.15,45,000/-. It was further submitted that since the date of submission of the application for allotment of flat, the complainant got financed with Dewan Housing fiancé Corporation Limited, Faridabad and for which the complainant had been making regular payment of the financed amount to them. There was ‘Floor Buyer’s Agreement’ which was duly executed between the parties to this complaint on 07th September 2010 and as per terms and conditions mentioned in the said agreement, the opposite party was legally bound in all respect. The complainant asked several times to the opposite party to deliver the possession of the allotted flat/site to the complainant and to allow the complainant to deposit the actual due amount, but the opposite party always avoided it on one pretext or the other. The complainant sent a legal notice dated 12.04.2021 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) deliver the possession of the allotted site i.e Unit No.P-04-FF, Parkelite Floors, Park Land, Sector-75, Faridabad to the complainant immediately and to pay Rs.15,45,000/- alongwith interest @ 18% p.a.
b) accept the balance payment, if any, from the complainant in respect of allotment of the flat in question to the complainant.
c) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
d) pay Rs.11,000/ - 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 complainant himself had committed defaults in making timely payments as and when demanded by the opposite party. Also, the complainant had been a defaulter in repayment of his sanctioned loan amount resulting in cancellation of his loan by the concerned bank. The complainant neglected all the payments demands raised by the opposite party and inspite of receiving various demand letters followed by numerous reminders, the complainant chose to be defaulter in clearing outstanding dues. It was further submitted that while determining tentative time for delivery of possession of the unit as per the agreement, the Hon’ble Commission shall appreciate the fact that the delay in construction was beyond the control of opposite party. It was well settled law that “force majeure” indicate an event which was beyond the control of human being and prevents other party from performing its contractual obligations. In the present case the opposite party was entitled to claim under the exception of shelter force majeure events, it was due to the delay in decisions taken by government agencies, the opposite party was incapacitated. The major causes of slow down were dollar price, decisions by National Green Tribunal, lack of construction material mining etc. There had been more than 50% increase in the price of U.S.Dollar from the time of the launch of the project, creating big turbulence in the financial equilibrium of the project. As a result of such increase resultant prices of construction materials, starting from sand and cement to reinforcement steel, structural steel, aluminum doors/windows, glass, bricks, stone, metal, mechanical-electrical-plumbing systems, lifts, paints , hardware items, titles, flooring items, pumps, labour rates and contractual/consultancy rates had shot up causing major jolt to the opposite party. On the other hand, the opposite party had not loaded even one percent of such charges to the customers. It was further submitted that with the stoppage of mining of coarse sand by Supreme Court, there was another jolt to the construction industry as the coarse sane was another lifeline of construction industry. Mining of coarse sand and fine sand from Yamuna river bed stretching from Dehradun to Delhi was also stopped due to one or the other reason. Hence, all these factors played major role in delaying the projects and shooting up the rates of construction activity items. All these factors amount to force majeure as being beyond the control of opposite parties had materially and adversely affected the project and time performance of obligations of the opposite party. Over and above the same, the opposite party was already paying delay penalty to the allottees without even revising the rates created by the aforesaid turbulences.
It was submitted that in the year 2009 Ms. Uma Budhiraja (Erstwhile Allottee) had applied for booking of a residential floor tentatively admeasuring 1,418 sq. ft. in project namely ‘Park Elite floors’ situated at Faridabad. The Erstwhile Allottee on her own would invested a sum of Rs.3,00,000/- via tendering two cheques on 28.05.2009 and 30.05.2009. On account of completing allotment eligibility criteria, the opposite party on the basis of tentative layout plan vide letter dated 2.12.2009 allotted unit NO. P-04-First floor/Area 1418 sq. ft. at the rate of Rs.1802.54/- per sq. ft. i.e basic sale price Rs.25,56,002/-. As a goodwill gesture, the opposite party offered a discount of Rs.76,680/- resulting in net Basic Sale Price Rs.24,79,322/-. Subsequently, Flat Buyer’s Agreement dated 07.09.2010 was executed between the parties i.e. Erstwhile Allottee and the opposite party. It was stated that in the year 2013, the complainant after conducting his own due diligence and being completely satisfied, approached the Erstwhile Allottee for purchase of booking/allotment of unit bearing NO. P-04-FF and thereafter the Erstwhile Allottee and the complainant jointly approached the opposite party for transfer of said allotment in favour of the complainant. The complainant being extensively conversant with the development work and other related aspects with regard to allotte dunit, voluntarily stepped into the shoes of the allottees and hence willingly submitted fresh booking application alongwith said, after rading, understanding, agareeing and accepting the terms and conditions of the FBA which had alrady been executed with the Erstwhile Allottee entered into the transaction. The opposie party vide letter dated 21.10.2013 transferred the allotted unit and nominated the complainant name with regard to allotment as well as executed FBA. It was evident from the contents of the nomination letter, that before and at the time of transfer of u it in favour of the ocmplainant, the Erstwhile Allottee had submitted a total amount of Rs.13,61,323/- towards demand raised at the stage of booking amount, on completion of 90 days of booking, within 150 days of booking, at the start of construction & EEDC demand and had availed timely payment discounse (TPD) amounting to Rs.40,785/- towards unit in question. In the meanwhile, the complainant sub mitted loan sanction letter dated 04.07.2013 offered by Dewan Housing Finance Corporation Limited Bank for an amount of Rs.37,20,756/-. After a passage of more than a month, the complainant submitted another loan saction letter dated 27.08.2013 by DHFL bank for an revised sanctioned amount of Rs.31,96,756/-. Accordingly, Tripartite Agreement dated 24.10.2013 was executed amongst the complainant DHFL Bank and the opposite party. The complainant had deliberately concealed from this Hon’ble Commission that said TPA was revoked/cancelled by the DHFL Bank because the complainant failed ot abide by the terms and conditions of the TPA and had consistently defaulted in repayment of EMI’s depsite repeated requests and reminders to the complainant by DHFL Bank. Therefore, in line with the terms and conditions of the TPA, the bank vide letter dated 13.03.2014 informed the opposite party that they were revoking the said TPA with immediate effect. The complainant had concealed from this Hon’ble Commission that the complainant had materially breached the terms and conditions of duly endorsed FBA by making huge defaults in making timely payment of the various installments called from him. In this rgard, it was submitted that vide Clause 11.1 of the duly endorsed FBA, the complainant agreed and accepted that timely payment of each instlalment was a material condition of the transaciton. The complainant had alleged that the opposite party was to deliver the possession of the allotted unit to the complainant in January 2013, In this context, it was submitted that the complainant had deliberately misrepresenteda the material facts as well as terms of endorsed FBA qua the propsoed timelines. The opposite party had raised demands only as per the terms of the FBA and payment plan opted by the complainant and the delay was due to Force Majeure Reasons, beyond the reasonable control of the opposite party and in terms of Clause 13 of FBA the opposite party was exempt from any such liability. 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 party – BPTP with the prayer to : a) deliver the possession of the allotted site i.e Unit No.P-04-FF, Parkelite Floors, Park Land, Sector-75, Faridabad to the complainant immediately and to pay Rs.15,45,000/- alongwith interest @ 18% p.a. b) accept the balance payment, if any, from the complainant in respect of allotment of the flat in question to the complainant. c) pay Rs.1,00,000/- as compensation for causing mental agony and harassment. d) pay Rs.11,000/ - as litigation expenses .
To establish his case the complainant has led in his evidence Ex. CW1/A – affdiavit of Shri Suresh Kumar,, Ex.C-1 – letter dated 21.10.2013 regarding nomination in respect of Unit No. P-04-FF in Project Park, Elite Floor, Parklands, situated at Parklands Faridabad, Annx.C-2 – Agreement to sell, Ex.C-2 to C-6 – receipts, Ex.C-7 – Rent agreement, Ex.C-8 – Receipt,, Ex.C-9 – Flat Buyer Agreemnt, Ex. C-20 – legal notice, Ex.C-11 – postal receipt, Ex.C-12 – letter dated 18.01.2022 regarding cunter offer of one time settlement, Ex.C-13 – letter dated 18.04.2022 regarding closure of loan account.
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 Shri Jay Shankar, Authorized Representative of opposite party, Ex.R-1 – resolution, Ex.R-2(colly) – receipt, Ex.R-3 – allotment letter, Ex.R-4 – Flat Buyer Agreement, Ex.R-5 – letter dated 21.10.2013 regarding nomination in respect of unit NO. P-04-FF in Project “Park Elite Floors, Parklands”, Ex.R-6(colly) – loan offer letter,, Ex.R-7 – Tripartite Agreement, Ex.R-8 – letter dated 13.03.2014, Ex.R-9(colly) – letter dated May 11,2016 regarding payment request, Ex,R-10 (colly) – letter dated 10.11.2016, Ex.R-11(colly) – email.
6. During the course of arguments, counsel for the opposite party has tendered statement of account of Shri Suresh Kumar for the unit in dispute vide Annx. A. As per the statement of account vide Annx. A the balance payment is Rs.16,84,833.07. One more statement of account has also tendered by the opposite party vide Annx.B. As per the statement of account vide Annx.A & B, the balance amount is Rs.16,84,833.07 plus Rs.8,82,474.84. On the other hand, counsel for the complainant argued at length that he has deposited the approximate amount of Rs.15,45,000/- i.e 50% of the unit price since 2013-14. As per clause 4.3 of the Flat Buyer’s Seller Agreement i.e.”if the seller/confirming party fails to offer possession of the said floor within a period of 30 months from the date of execution of the Floor Buyer’s Agreement OR on completion of payment of 35% of the Basic Sale Price with 20% of EDC and IDC by the purchaser(s), whichever is later, it shall be liable to pay to the purchaser(s) compensation calculated @ Rs.5% per sq. ft. on the total super built up area of the said floor for every month of delay thereafter until the actual date fixed by the seller/confirming party for handing over the possession.”
7. During the course of arguments, Shri Suresh Kumar complainant has made a separate statement on 29.06.2022 stating that “I am ready to deposit the balance amount to the developer after adjusting delayed possession payment as per clause 4.3 of the floor buyer agreement and also give me atleast six months time for making the balance payment and for taking the possession/conveyance deed of the unit.”
8. After going through the evidence led by the parties and the statement of the complainant, the Commission is of the opinion that the opposite party has allotted Unit No. P-04-FF situated at Parkelite Floors, Park Land, Sector-75, Faridabad having a super area of 1418 sq. feet to the complainant and the complainant deposited different amounts with the opposite party from time to time as per its directions. No doubt, the opposite party has to pay the delay interest on the deposited amount @ Rs.5/- per sq. ft.. But the counsel for the complainant has not made any efforts to correspondence with opposite party since 2013. In the interest of justice, the complaint is allowed and opposite party is directed to pay the delay interest on the deposited amount @ Rs. 2.50/-per sq. ft. It means the complainant and the opposite party both are on their fault equal. In the interest of justice, opposite party is directed to pay Rs.2.50/- per sq. ft.-.The details are as under:
DETAILS:
Total amount of the unit price : Rs.30,67,496.10
As per the complainant
Paid by the complainant : (Rs. 15,45,000.00)
to the Opposite party.
As per the statement of opposite party : - Rs.14,02,107.15
Dated May 30,2022 received amount.
Balance : Rs.16,65,000.00
As per Annx.A & B demand of O.P. : Rs.25,67,307.00
Annx. A & B Rs.16,84,833.07
Rs. 8,82,474.84
Rs. 25,67,307.00
Total : Rs.25,67,307.00
Balance amount paid to the opposite party Rs.25,67,307.00
by the complainant within 90 days from the
date of order i.e 20.07.2022 in 3 equal
monthly installment.
9. Opposite party is directed to give physical possession of the unit after taking the balance amount of Rs,. Rs.25,67,307/- within 90 days from the date of order i.e 20.07.2022 in 3 equal monthly installment. There are no order as to costs. Opposite party is also directed not to charge interest till 90 days from the date of this order. Compliance of this order be made within 30 days from the
date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on:20.07.2022 (Amit Arora) President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
