District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No.369/2022.
Date of Institution: 13.07.2022.
Date of Order:22.09.2022.
Sh. BheeshamDev Gupta S/o Shri Rahul Kumar Gupta R/o Chopad Bazar, Samthar Jhansi, Uttar Pradesh.
At present: Flat No. 503, Tower-9, RPS Savana, Sector-88, Faridabad, Haryana.
…….Complainant……..
Versus
1. M/s. BPTP Ltd., through its Director/M.D./Owner/Authorize Person(s) having office at: #M-11, Middle Circle, Connaught Circus, New Delhi - 110001.
Also at:
#BPTP Discovery Park, Sector-80, Faridabad, Haryana.
2. M/s. Countrywide Promoters Pvt. Ltd., through its Director/M.D./Owner/Authorize Person(s) having office at: M-11, Circle, Connaught Circus, New Delhi – 110 001.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member
PRESENT: Sh. Ravi Nagpal, counsel for the complainant.
Sh. Jai Shankar, AR on behalf of opposite party No.2.
ORDER:
The facts in brief of the complaint are that opposite parties had started/launched an Residential Project namely “Discovery Park” Parklands, situated in Sector-80, Village Badouli, Tehsil & District, Faridabad, Haryana and it was assured by opposite parties that opposite parties would provide all kind of facilities and would deliver the project within stipulated period of time. Accordingly being impressed by the assurances and facilities by opposite parties, complainant initially booked a unit and opposite parties issued allotment letter dated 16.08.2012, , in respect of Unit NO. G-1104, (3 BHK), Area 1380 sq. ft. in project “Discovery Park”, Faridabad, Haryana. Thereafter opposite parties without any prior intimation and information and even without the knowledge and permission of complainant changed the unit to G-1102, which was 2 BHK and opposite parties illegally and unlawfully allotted the above said unit i.e G-1104, to some other person. Opposite parties again changed the unit from G-1104 to Unit No. G-1105. In this regard complainant sent opposite parties an email thereby expressing his objections and complaint upon which opposite parties admitted their liability and offered alternate units to complainant. Left with no other options complainant was forced to choose another unit and change the unit. Later on opposite parties changed the booked unit No. G-1104 to unit No.B-1602, which was 2 BHK, Area 1120 sq. ft. (as complainant was forced to change the unit and his client left with no other option). Accordingly opposite parties issued another allotment letter in respect of the unit No. B-1602, vide letter dated 06.02.2014. Opposite parties entered into a Flat Buyer’s Agreement dated 07.03.2014 (hereinafter referred as “Agreement”) with complainant in respect in flat bearing NO. B-1602, floor Tower-B, having super area of 1120/- sq. ft. in project namely “Discovery Park” Parklands, situated in Sector-80, village Badouli, Tehsil & District Faridabad, Haryana, alongwith undivided proportionate share in the land underneath the said building/tower, for a net basic sale price (BSP) of Rs.37,26,800/-. As per the agreement the basic sale price (BSP) was fixed at Rs. 37,26,800/- and a sum of Rs.3,74,021/- was paid (which had been adjusted in the above said flat i.e B-1602). Till date complainant had paid an amount of Rs.18,96,298/- (including booking amount, EDC/IDC, Service Tax,VAT, additional charges etc.) to opposite parties on various dates as per the demands of the opposite parties, for which opposite parties had issued various separate receipts thereof and acknowledge the same. As per the clause 3.1 of the agreement opposite parties assured complainant to hand over the possession of the unit within 36 months with a grace period of 6 months, form the date of execution of the agreement i.e. by 07.09.2017. Opposite parties was supposed to complete the project and handover the possession of the unit. The agreement was executed on 07.03.2014, as per the agreement opposite parties was supposed to handover the possession of the unit by 07.09.2017 inclusive of the grace period.). Till today the project was delayed by 4 years and 8 months, since no occupancy certificate, completion certificate had been ever obtained by opposite parties for the said tower/project and no possession had been offered by opposite parties till date. The opposite parties failed to give possession of the unit by 07.09.2017 (inclusive of the grace period) as promised under the agreement due to which the complainant had been visiting regularly to builder office as well as project construction site to pursue the progress of project form month on month however, opposite parties kept giving tentative dates for the handing over the possession of the project thus it was submitted that opposite parties failed to give any firm timelines for completion of the unit and handing over its procession, and lastly complainant visited the office of opposite parties on dated 28.05.2022, but opposite parties did not satisfactorily gave any response to complainant and failed to give the possession of the unit and even failed to return the hard earn money of complainant. Neither the possession of the unit had been handed over till yet to the complainant nor returned the money (which had been paid by the complainant to opposite parties). Since the project had already been delayed complainant was entitled to return of money alongwith penalty and alongwith interest as decided by catena of judgements by National Commissions and the Hon”ble Supreme Court. Despite such assurance, complainant was not given the possession of the unit booked. . The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) handover the possession of the actual unit which was initially booked by complainant i.e unit NO. G-1104, (3 BHK), Area 1380 sq. ft. in project “
Discovery Park”, Faridabad, Haryana or any unit in G- Tower having 3 BHK and moreover having obtained the occupancy certificate from the concerned authority and execute and register the necessary documents in respect of the above said unit in favour of the complainant or in the name of his nominee(s) and if it was not feasible in nearby future then direction may be given to the opposite parties for refund an amount of Rs.18,96,298/- alongwith interest @ 24% p.a. and other penalties, from the date of receipt of payments by complainant in respect of the unit allotted to the complainant.
b) pay the penalty/compensation as per the terms and conditions of the agreement, for the delayed period.
c) payRs. 5,00,000/- as compensation for causing mental agony and harassment .
d) Cost of the present proceedings;
2. The counsel for the complainant has filed an application for restraining the opposite parties from selling/alienating the unit(s) till the case is decided by the Hon’ble Commission stating that it has also to the knowledge of the complainant that opposite parties still have the following units:
i) Tower-F-G 04(1568 sq. ft.)
ii) Tower-F-G 06(1520 sq. ft.)
iii) Tower-K-1204 (1848 sq.ft.)
It has been prayed that till the final disposal of this case, this Hon;ble Commission may kindly be pleased to grant ad-interim injunction thereby restraining the opposite parties, their agents, assigns or any other person form selling or alienating one of the above said unit, in the interest of justice.
3. Heard.
4. The complaint was filed by the complainant on 13.07.2022. Notice was given to the opposite party for 15.07.2022 as connected more cases are pending in this Hon’ble Commission . Shri Jai Shankar, AR on behalf of opposite parties. Instead of giving reply to the application, Shri Jay Shankar, AR on behalf of opposite party has made a statement that “In the caption matter I have been served with the copy of documents before the court to reconcile the matter in dispute in terms of prayer made by the complainant today I have brought two cheques bearing No. 151941 dated 16.08.2022 for an amount of Rs.7,69,357/- drawn on IndusInd Bank, New Delhi and cheque No. 151940 dated 16.07.2022 for an amount of Rs.7,69,357/- drawn on IndusInd Bank, New Delhi in the name of the complainant towards principle amount deposited by the complainant.
5. Reply not filed by the opposite parties. On the other hand, counsel for the complainant agitated on this ground that the principle amount is approximate Rs.19,00,000/( (Rs.Nineteenlacs only) and the opposite parties has submitted cheques of Rs. Approx. Rs.15,00,000/- (Rs. Fifteen lacs only) without interest and without delayed possession penalty. Initially the opposite parties allotted unit No. G-1104 (3 BHK) area 1380 sq. ft. on 16.08.2012 and then opposite parties shifted the unit to G-1102 of 2 BHK and then suomoto they have changed the unit from G-1104 to Unit NO. G-1105 and finally they have changed my unit NO. 1602 which is 2 BHK , area 1120 sq. ft. on 06.02.2014 which was totally illegally. The counsel for the complainant argued at length and stated that at Bar that the opposite parties are playing fraud upon the complainant and also taking their money without reason. Opposite parties has to give the unit in G Block and they have changed the block (B) which is under construction and B block they have No Occupation Certificate. Opposite parties have to pay the penalty on the delayed possession @ Rs.5/- per sq. ft.Initially the unit was allotted to the complainant on 16.08.2012 of G-1104, (3BHK), Area 1380 sq. ft. It is almost 10 years from the date of allotment. Opposite parties have not paid any single panny to the complainant. As per the calculation it is already approx. 10 lacs of the delayed possession of the u it. Now opposite parties are selling the units of G-F & K Block to the open market @ Rs.5500/- per sq. ft. As per market survey 3 units are available.
Shri Ravi Nagpal, counsel for the complainant has suffered a separate statement that on their same Project Discovery park which is mentioned in the stay application allotted to the complainant. Complainant is ready to pay the difference amount. It is directed that till then opposite parties be restrained from alienating the unit bearing No. K-1204(1848 sq.ft.), in their Project Discovery Park. Opposite parties allotted Unit No. G-1104(3 BHK) area 1380 sq. ft. in project ”Discovery park, Faridabad to the complainant. It is approx. bigger 500 sq. ft.. The complainant is ready to pay Rs.3500/- + Rs.500/- i.e Rs.500/- is extra money for this. Opposite parties without any prior intimation and information and even without the knowledge and permission of complainant changed the unit of G-1102, which is 2 BHK and opposite parties illegally and unlawfully allotted the above said unit i.e. G-1104 (3 BHK) Area 1380 to the complainant @ Rs.3500/- is given to some other person. Now this is the bigger one. In the interest of justice, the complainant will pay @ Rs.4000/- for 500 sq.ft .out of the total area. Opposite
parties are also directed to restrain from alienation/transfer or handing over the possession of the abovesaid unit i.e K-1204 (1848 sq.ft.) to anyone. Hence, the application of interim relief is disposed off accordingly.
Now to come up for filing reply of the main complaint on 02.08.2022.
6. Instead of filing written statement Shri Jay Shankar, AR on behalf of opposite parties Nos.1 & 2 has made a statement on 22.08.2022 that “I tender cheque No.592453 dated 6.8.2022 for an amount of Rs.2,43,879/- drawn on IndusInd Bank, New Delhi, Cheque No. 592454 dated 6.9.2022 for an amount of Rs 2,43,879/- drawn on IndusInd Bank, New Delhi and chque No. 592455 dated 6.10.2022 for an amount of Rs,2,43,879 drawn on IndusInd Bank, New Delhi in favour of complainant Bheeshamdev Gupta. These cheques are for the interest amount. Principle amount already been depositedin this case.
On the other hand, ShriShri Ravi Nagpal, counsel for the complainant
has made a statement on 22.08.2022 that “I do not accept the cheques tendered by the opposite parties before this Commission. I want to take the possession of the allotted unit and if it is not available the unit NO. K1204 (1848 sq. ft.), in K block which is already stayed by the Hon’ble State Commission on the interim application vide order dated 18.07.2022 and also ready to pay the difference amount of the remaining area. Initially booked a unit and opposite parties issued allotment letter dated 16.08.2012 in respect of Unit No. G-1104, (3 BHK), area 1380 sq. ft. in Project “Discovery Park” , Faridabad, Haryana. The area of Unit No. K-1204 is 1848 sq. ft. I am ready to pay the difference of the remaining area. It is approx. bigger 500 sq. ft. The complainant is ready to pay Rs.3500/- + Rs.500/- i.e. Rs.500/- per sq. ft .additional money for this. It is also submitted that conveyance deed be issued in favour of the complainant.”
7. The parties led evidence in support of their respective versions.
8. We have heard learned counsel for the parties and have gone through the record on the file.
9. In this case the complaint was filed by the complainant against opposite parties– BPTP Ltd. with the prayer to:a) handover the possession of the actual unit which was initially booked by complainant i.e unit NO. G-1104, (3 BHK), Area 1380 sq. ft. in project “Discovery Park”, Faridabad, Haryana or any unit in G- Tower having 3 BHK and moreover having obtained the occupancy certificate from the concerned authority and execute and register the necessary documents in respect of the above said unit in favour of the complainant or in the name of his nominee(s) and if it was not feasible in nearby future then direction may be given to the opposite parties fo refund an amount of Rs.18,96,298/- alongwith interest @ 24% p.a. and other penalties, from the date of receipt of payments by complainant in respect of the unit allotted to the complainant. b)pay the penalty/compensation as per the terms and conditions of the agreement, for the delayed period. c) payRs. 5,00,000/- as compensation for causing mental agony and harassment .d) Cost of the present proceedings;
To establish his case the complainant has led in his evidence, Ex.CW-1/A – affidavit of ShriBheeshamDev Gupta, Ex.C-1- allotment letter, Ex.C-2 – Payment request, Ex.C-3 (colly) – emails, Ex.C-4 – Allotment letter, Ex.C-5 – Buyer’s agreement, Ex.C-6 (colly) – receipts, Ex.C-7 – legal notice. Ex.C-8 – postal receipts.
On the other hand counsel for the opposite parties strongly agitated
and opposed. As per the evidence of the opposite parties Ex.RW1/A – affidavit of Shri Jay Shankar, Ex.R/1 (colly) – Resolution, , Ex.R/2 – Allotment letter, Ex.R/3 – Termination letter,, Ex.R/4 – email dated 14.3.2016,, Ex.R/5 (colly) – allotment letter, Ex.R/6 – email dated 18.09.2012, Ex.R/7 – email dated 26.11.2013,, Ex.R/8 (colly) – email dated 13.01.2014,, Ex.R/9 – FlatBuyer’s Agreement, EX.R-10(colly) letter dated 19.08.2012 regarding payment request, Ex.R-11(colly) – email dated 3.04.2017.
10. During the course of arguments, counsel for the complainant also given the calculation of the deposited amount alongwith interest videAnnx. X. The amount deposited by the complainant is Rs,15,38,714/- and interest part was Rs. 12,13,227/-.
11. On the other hand, opposite parties tendered cheque No. 151941 dated 16.08.2022 for an amount of Rs.7,69,357/- drawn on IndusInd Bank, New Delhi and cheque No. 151940 dated 16.07.2022 for an amount of Rs.7,69,357/- drawn on IndusInd Bank, New Delhi, cheque No.592453 dated 6.8.2022 for an amount of Rs.2,43,879/- drawn on IndusInd Bank, New Delhi, Cheque No. 592454 dated 6.9.2022 for an amount of Rs 2,43,879/- drawn on IndusInd Bank, New Delhi and chque No. 592455 dated 6.10.2022 for an amount of Rs,2,43,879 drawn on IndusInd Bank, New Delhi in favour of complainant Bheeshamdev Gupta. The details of the same are as under:
DETAILS:
Paid amount as per the calculations : Rs. 27,51,300/-
Of the complainant @ 9%
Deposited amount paid by the i) Ch..No. 151941 dated 16.08.2022.|
opposite party@ 6% of Rs.7,69,357/- |
ii)Ch. No. 151940 dated 16.07.2022 |
of Rs.7,69,357/- | Rs.22,70,351/-
iii) ch. No.592453 dated 6.8.2022 |
of Rs.2,43,879/- |
iv) Ch. No. 592454 dated 6.9.2022 |
of Rs.2,43,879/ - |
v) Ch. No. 592455 dated 6.10.2022 |
of Rs,2,43,879/- |
Balance Amount : Rs.4,80.949/-
12. Shri Ravi Nagpal, counsel for the complainant has made a statement on 22.08.2022 that “I do not accept the cheques tendered by the opposite parties before this Commission. I want to take the possession of the allotted unit and if it is not available the unit NO. K1204 (1848 sq. ft.), in K block which is already stayed by the Hon’ble District Commission on the interim application vide order dated 18.07.2022 and also ready to pay the difference amount of the remaining area. Initially booked a unit and opposite parties issued allotment letter dated 16.08.2012 in respect of Unit No. G-1104, (3 BHK), area 1380 sq. ft. in Project “Discovery Park” , Faridabad, Haryana. The area of Unit No. K-1204 is 1848 sq. ft. I am ready to pay the difference of the remaining area. It is approx. bigger 500 sq. ft. The complainant is ready to pay Rs.3500/- + Rs.500/- i.e. Rs.500/- per sq. ft. additional area and charge Rs.500/- sq. ft on the additional area. It is also submitted that conveyance deed be issued in favour of the complainant after getting the balance amount and opposite party is also directed and give permission to mortgage the above noted unit for the loan purpose.”
13. After going through the statements of both the parties, the Commission is of the opinion that opposite parties have no occupation certificate of unit No.1602 of B Block. Opposite parties have already received occupation certificate of K block. As per complainant this inventory belongs to opposite partiesi.e Unit NO. K-1204 (1848 sq. ft) in K block.Opposite parties allotted Unit No. G-1104(3 BHK) area 1380 sq. ft. in project ”Discovery park, Faridabad to the complainant. It is approx. bigger 500 sq. ft.. The complainant is ready to pay Rs.3500/- + Rs.500/- i.e Rs.500/- is extra money for this on additional area only.
14. In this complaint, the opposite parties without any prior intimation and information and even without the knowledge and permission of complainant changed the unit of G-1102, which is 2 BHK and opposite parties illegally and unlawfully allotted the above said unit i.e. G-1104 (3 BHK) Area 1380 sq. ft. to the complainant @ Rs.3500/- is given to some other person and suomoto they have changed the unit with the B Block bearing unit No. 1602 which is 2 BHK and the area was lessor.
15. Keeping in view of the above and admission done by the opposite parties by submitting the cheques it is not fair to change the unit without any prior consent or without any reasoning and the facts for changing the unit in different tower is not fair. This is unfair trade practice of the builder. In this case the opposite parties have also their benefit ulterior motive to grab the money from the complainant. They have changed the unit without giving the reason. This shows the deficiency in service on the part of the opposite parties and it is also unfair trade practice to do so.
16. After going through the evidence led by the parties, the Commission is of the opinion that the interim application filed by the complainant which was stayed by the District Commission vide order dated 18.07.2022. The appeal was filed by the opposite parties before the Hon’ble State Commission, Panchkula on the interim application which was decided by the District Commission vide order dated 18.07.2022. No stay was granted by the Superior court/Hon’ble State Commission. Opposite parties are changing the tower and number of the unit without any reason and without the consent of the complainant. Opposite parties have failed to establish their case. Hence the complaint is allowed.
17. Opposite parties are directed to allot the unit No. K1204 measuring 1848 sq. ft after charging the balance amount from the complainant and adjust the deposited amount alongwith interest @ 9% p.a., from the respective dates of the deposit and issue the demand notice to allot the disputed unit in question i.e. K-1204. Opposite parties are also directed to give permission to mortgage the above noted unit for the loan purpose to the complainant, if required. opposite party was directed not to alienate, transfer or allot the allotted plot No.K-1204 measuring 1848 sq. ft and not create any third party interest thereon . Opposite parties did not adopt Rere rules on the claculations of the disputed unit. The agreement between the parties are the registered one can not be cancelled merely with the cancellation letter. A registered agreement should
be cancelled with the registration documents.Compliance of this order be made within 30 days from the date of receipt of the copy of this order. In case of non compliance after 30 days, a compensation of Rs.2,00,000/- be given to the complainant by the opposite parties for harassment and litigation charges. File be consigned to the record room.
Announced on: 22.09.2022 (AmitArora)
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.
