Delhi

StateCommission

CC/467/2015

DR. VISHAL GUPTA - Complainant(s)

Versus

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

20 Oct 2020

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:20.10.2020 

                                                                                                              

Date of Decision:24.11.2020

 

Complaint No.467/2015

 

IN THE MATTER OF

 

DR. VISHAL GUPTA

C/o BCIMS,

Chandiwala Estate,

•  

New Delhi-110019….Complainant

 

 

VERSUS

 

         

M/S BPTP LIMITED

M-11, Middle Circle,

Connaught Circus,

New Delhi-110001

 

M/S BPTP LIMITED

BPTP Crest, Plot-15,

Udyog Vihar, Phase-VI,

Gurgaon-122015                                               ....Opposite Parties

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER 

                          

1.   Whether reporters of local newspaper be allowed to see the judgment? Yes     

 2.   To be referred to the reporter or not?                                                        Yes

 

Present:       Sh. Arun P Nagrath, Counsel for the complainant

                   Sh. Pragyan Pradeep Sharma, Counsel for the OP with Ms. Bharti Singh

         

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed by Dr. Vishal Gupta, resident of New Delhi, for short complainant, against the M/s BPTP Limited, hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs they having not handed over the possession of the flat booked by him he having completed his obligation as contemplated under the agreement and praying for the relief as under:-

 

In the facts and circumstances of the case, it is most respectfully prayed that the Hon’ble Commission may be pleased to:

1. Direct the OP to hand over possession of flat No. M-101, ‘Park Floors’ Sector 77, Faridabad, Haryana to the complainant, immediately;
2. Direct the OP to pay interest on the total sum of Rs. 37,11,964.32 @ 12% p.a. from May, 2013 upto the date of execution of conveyance deed and further @ 18% p.a. thereafter, uptp the date of actual handing over of the physical possession;
3. Direct the OP to refund the sum of Rs. 58,902/- illegally recovered towards maintenance charges without handing over possession of the flat, with interest @ 12% p.a.;
4. Direct the OP to refund the amount of Rs. 2,32,034.00, paid towards enhanced EDC, with interest @ 12% p.a.;
5. Impose exemplary costs on the OP for their fraudulent conduct and causing acute mental agony to the complainant and
6. Pass any other order(s) as this Hon’ble Commission may deem fit in the facts and circumstances of the case.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The OP had floated a group housing project called ‘Park Floors’ in Sector-77, Faridabad, Haryana, in the year 2008, allegedly with at obtaining approval of the Government of Haryana to the building plans of the scheme. The plans were approved only in November, 2009. The complainant responding to the scheme had paid a sum of Rs. 16,64,387/-, out of the sale consideration of Rs. 27,44,574/-. The complainant was informed by e-mail dated 22.10.2009, that construction work had started and further, by e-mail dated 14.12.2009, it was confirmed that flat no. 203 in Tower No. 7 had been allotted to him.
4.           However vide e-mail dated 5^th September, 2011, the OP informed the complainant that they were unable to allot any flat to him, as they did not have availability in 1414 sq. ft. or 1275 sq. ft. 3-BHK flats and instead offered to refund the amount deposited with them with interest @ 9% p.a. This according to the complainant was an act of fraud and mischief.
5.           In these circumstances the complainant had filed a complaint before this Hon’ble Commission which complaint stood disposed of as settled, the OPs agreeing to hand over the possession of the flat booked number M-101, in ‘Park Floors-I’, Sector-77, Faridabad soonafter occupancy certificate would be issued.
6.           The occupancy certificate was received by the OP and thereafter the conveyance deed of the unit was executed between the parties on 27.06.2014 but unfortunately despite the conveyance deed having been executed, physical possession of the flat M-101 was not handed over to the complainant despite repeated assurances being given. The possession of the flat not having been handed over the OP has aggravated their misconduct raising the demand and recovering a sum of Rs. 2,32,034/- towards enhanced EDC and Rs. 58,902/- towards maintenance, which is not permissible to be done.
7.           The complainant has alleged that the sequence of events would establish deficiency of service on the part of the OPs. Infact the complainant has already paid a sum of Rs. 39,43,998.32 towards the cost of the flat as also further sum of Rs. 58,902/- towards maintenance, putting the complainant into continuing financial loss, mental agony and frustration.
8.           In these circumstances this complaint has been filed for the redressal of his grievances. OPs were noticed and in response thereto they have filed reply resisting the complaint both on technical ground and on merit stating inter alia that possession was offered to the complainant and he was accordingly asked to undergo certain formalities. but he did not do so and thus he is estopped from agitating the issue relating to delay in handing over possession. Infact the conveyance deed with respect to the flat has already been executed and the relevant portion of the deed is as under:-

 

Delay in handing possession entitles the complainant to be compensated by payment of interest w.e.f.May, 2013 till the date actual physical possession was handed over. An amount of Rs. 58,902/- levied on the complainant towards maintenance charge since not proper has to be refunded with interest w.e.f. 30.01.2014 till the amount is actually refunded. Reliance is placed on the law laid down by the Hon’ble National Consumer Disputes Redressal Commission in the matter of Satish Kumar Pandey & anr. versus M/s Unitech Limited (CC-427/2014).

  

9.           Secondly the complainant has been a defaulter and if that be the case he is estopped from raising the allegation of delay in handing over possession. Thirdly, charging maintenance etc. are in pursuance of the agreement with which both the complainant and the OPs are bound. In these circumstances OPs have prayed for the dismissal of the complaint, no case having been made out for the relief claimed.
10. The complainant has thereafter filed rejoinder rebutting the contentions raised and reiterating the averments contained in the complaint. Both sides have filed evidence by way of affidavit in support of their pleadings. Written arguments are also on record.
11. This matter was listed before this Commission for final hearing on 20.10.2020 when the counsel for both sides appeared and advanced their arguments in support of their pleadings. I have perused the records of the case and given a thoughtful consideration to the subject matter.
12. Short question for adjudication in this complaint is whether the complainant is entitled for the relief. This leads to examination whether the OPs were deficient in discharge of their obligation under the agreement.
13. It is trite law that the delay in handing possession entitles the complainant to be compensated by payment of interest w.e.f.  May, 2013 till the date actual physical possession was handed over. An amount of Rs. 58,902/- levied on the complainant towards maintenance charge since not proper has to be refunded with interest w.e.f. 30.01.2014 till the amount is actually refunded. Reliance is placed on the law laid down by the Hon’ble National Consumer Disputes Redressal Commission in the matter of Satish Kumar Pandey & anr. versus M/s Unitech Limited (CC-427/2014). In the said case, the Hon’ble National Commission, while referring to the clause providing for compensation at the nominal rate of Rs. 5/- per sq/ ft. of the super area, which is akin to clause 2.9 in the instant case, it was held that instead of paying nominal compensation of Rs. 5/- per sq. ft. of the super area, the OP should pay adequate compensation to the complainants which would not only take care of the additional financial burden on them on account of delay, but will also give some compensation to them for harassment and mental agony which they have suffered. Keeping these facts into account, the Hon’ble National Commission had directed the OP to deliver possession by the stipulated date and pay compensation in the form of simple interest 18% p.a. for each day of delay beyond the stipulated date. Having regard to the operative part of the said order, the petitioner becomes entitled to payment of interest from May, 2013, upto the date of execution of the conveyance deed and further interest till the date of actual possession.
14. The Hon’ble NCDRC in yet another matter, in the matter of Gagan Deep Sing Kohli versus Ajay Enterprises Pvt. Ltd. as reported in II [2016] CPJ 635 (NC) is pleased to hold that in the event of delay in handing over possession demand of holding charges from the complainant cannot be justified and, secondly, the complainant in that case is entitled to the compensation. Similar view was taken by the Hon’ble NCDRC in the matter of Sushil Kumar Srivastava versus Lucknow Development Authority as reported in III [2012] CPJ 58 (NC).
15. Having regard to the discussion done and the legal position explained I am of the considered view that the complainant is entitled to the compensation for the delayed period. Accordingly following directions are issued to the OPs, namely,  

 

1. OPs to pay interest on the total sum of Rs. 37,11,964.32 @ 7% from May 2013 till the possession was handed over;
2. OPs to refund the amount recovered from the complainant towards maintenance charges and towards EDC for the period prior to handing over of the possession of the flat with interest for the relevant period at the rate of 5%.

 

16. Ordered accordingly leaving the parties to bear the cost. Directions be complied with within a period of three months from the date of receipt of this order.
17. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

 

 

 

(ANIL SRIVASTAVA)

MEMBER

                       

PRONOUNCED ON

24.11.2020

 

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