District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 313/2023.
Date of Institution:04.05.2023.
Date of Order:.21.08.2023.
Mr. Brijesh Prasad S/o Shri Awadhesh Prasad R/o A2-G 011, SLS Splendor Apartment, Behind Med Plus Pharmacy, Devarabisanahalli, Bellandur, Bangalore-560103, Karnataka, Mobile No. 8660593550 Email ID:brijeshpra@gmail.com.
…….Complainant……..
Versus
1. M/s. BPTP Limited through its Director(s)
a) Subhash Chander Setia
b) Kabul Chawla
c) Ashok Tyagi
d) Sudhanshu Tripathi
e) Chitra Menon
Address: OT-14, 3rd floor, next Door Parklands, Sector-76, Faridabad, Haryana – 121004.
Also at: M-11 Middle Circle, Connaught Circus, New Delhi- 110001.
2. M/s. Countrywide Promoters Private Limited through its Director Mr. Rakesh Roshan Address: OT-14, 3rd floor, Next Door Parklands, Sector-76, Faridabad-121004
…Opposite parties
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Anil Yadav, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite parties.
ORDER:
The facts in brief of the complaint are that in 2009, the complainant had purchased an independent Residential floor bearing unit NO. H4-03-FF on first floor, admeasuring 1022 sq. ft. Super Built up area in the Park Elite Floors in Parklands, Faridabad from the opposite parties. The opposite parties had allotted the project to the complainant vide allotment letter dated 24.12.2009. Subsequently, the complainant had entered into a floor Buyer’s Agreement with the opposite parties on 13.09.2010 whereby the opposite parties had agreed to develop and hand over the possession of the unit as per the terms and conditions of the said agreement. The complainant had been making regular payments towards the demand letters raised by the opposite parties in respect of the unit since 2009. All payments, considerations, documentary requirements and other requirements to get the possession of the unit had been fulfilled by the complainant. The unit was booked for an area of 1022 sq. ft. but opposite parties had increased the super built up ara by 1,170 sq. ft. in 2011 and demanded additional charges towards the same. The total consideration to the tune of Rs.23,11,527/- was paid by the complainant against the initial price of unit Rs.20,55,999/-. Not only subsequently the opposite parties had increased the sales price of the unit by imposing different kind of charges which were never disclosed at the time of allotment of the unit or at the time of execution of agreement. The opposite parties had further demanded illegal hidden charges alongwith unwarranted escalation charges, which the complainant was legally and contractually not liable to pay as the same had never been approved by any competent authority and the opposite parties had also not provided the details of the alleged charges including club membership charges,
service charges, VAT etc. The complainant had paid total consideration of Rs.23,11,527/- as demanded by the opposite parties from time to time, but it was a matter of utter surprise that despite of making payment of the huge amount i.e. the price of the unit, the complainant had been kept away from taking the possession till January 2023, when the complainant was informed for taking the possession of the unit on making the further payment of Rs.6,76,517/- vide letter dated 21.01.2023. The opposite parties had arbitrarily demanded hidden charges and cost escalation charges from the complainant and the opposite parties had also illegally demanded interest, service charges and VAT from the complainant. The opposite parties had further imposed maintenance and admin charges of Rs. 56,487/- on the complainant w.e.f. January 2023. As per the agreement, the complainant was entitled to get possession of the said unit latest by 13.03.2013, however, almost 10years had passed, but till date the opposite parties had not delivered the possession of the unit to the complainant. Not only to this the opposite parties had also not paid the delay compensation as per the terms of the agreement. 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) handover the physical possession of the unit in favour of the complainant and to execute all necessary and required documents in respect of the said unit in favour of the complainant.
b) pay a sum of Rs.6,90,300/- for delay in handing over the possession of the unit after March 2013 for the period of 118 months, deleting the grace period of 6 months.
c) award compensation equivalent to 18% p.a. on the date of making the payments.
d) pay the amount spent by the complainant on rent equivalent to approximately Rs.23,60,000/- (From March 2013 to March 2023).
e) pay Rs. 20,00,000/- as compensation for causing mental agony and harassment .
f) any other relief, which this Hon’ble Commission deem fit and proper may also be passed in favour of the complainant and against the opposite parties.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that the complaints were based on suppression, concealment and misrepresentation of material facts and documents. In this context, the true and complete facts were as follows:
i) In the year 2009, the complainant after having conducting his own due diligence and on his own volition, through his broker ‘Shree Estate, applied for a booking of a residential floor in the project Park Elite Floors’ developed by opposite party No.1 at Faridabad and submitted the application for allotment and paid a sum of Rs.2,50,000/- towards booking amount against receipt dated 08.06.2009.
ii) opposite party No.1 conducted allotments by draw of lots held on 11.12.2009 and vide allotment letter dated 24.12.2009 intimated the complainant regarding allotment of unit No. H4-03-FF, park Elite Floors in the name of the complainant.
iii) The complainant thereafter voluntarily and willingly executed floor Buyer Agreement with opposite party on 13.09.2010 after thorough reading, understanding and accepting all the clauses and/or recitals thereby agreeing and accepting to abide by the same by affixing his signatures on the same.
iv) The complainant finished an undertaking executed on 23.09.2010, a perusal of which clearly indicates that the complainant was well conversant with the fact that allotted unit was subject to allotment on the basis of the tentative layout/building plan and further undertook to accept such modification/changed super built up area at the location. The complainant also acknowledged to not to hold the opposite party No.1 herein responsible for any delay in the process of offering possession and, further undertook to indemnify and keep the opposite party No.1 indemnified and harmless from all claims, actions or liabilities arising in this regard; It was also submitted that the complainant also furnished an affidavit execute don 23.09.2010, and thereby vide Clause-4 of the said affidavit agreed and undertook that the opposite party was in process of developing the project in question in accordance with tentative and consolidated layout plan, as submitted before the statutory/competent authority for final approval. In this regard, the complainant duly consented that in case any changes in the said layout plan and/or drawing s were required, the same might be effected suitably.
v) Thereafter, vide letter dated 07.11.2011, opposite party No.1 informed the complainant that on measuring the dimensions of the unit at this construction stage, the super built up area stands revised from 1022 sq. ft. (94.95 sq. mtrs.) to 1,170 sq. ft.(108.70 sq. mtrs.) and accordingly raised demand giving option of making payment in one installment by 28.11.2011 and availing Timely Payment Discount (TPD) or alternatively to make payment in 43 equal interest free installment. The complainant willingly and voluntarily opted for making payment
in one installment and availed TPD. It was noteworthy that no objection was raised by the complainant and all the further payments were made by the complainant on the basis of super built up area of the floor being 1170 sq. ft.
The complainant vide the complaint under reply had referred to incomplete clauses and imported incorrect meaning to various incorporated clause of the duly execute FBA dated 13.09.2010 with a sole intent to misrepresent the clause/s qua proposed timelines. It was pertinent to point out that as per the terms and conditions of the FBA, apart from other terms and conditions, the opposite party No.1 proposed to offer the physical possession of the unit within a period of 24 months from the date of execution of the FBA or payment of 35% or BSP + 20% of EDC+IDC, whichever was later, with a further grace period of 6 months, subject to adherence to the other material terms and conditions of the FBA. The remedy in case of delay in offering possession of the unit was also agreed to between the parties as also extension of time for offering possession of the floors. In this context, the following clauses of the FBA were noteworthy:-
i) it was reiterated that the complainant vide his undertaking dated 29.09.2010 had undertaken to not to hold the opposite party No.1 responsible for any delay in offer of possession due to delay in construction/completion of unit in question.
ii) Upon entering the transaction with the opposite party No.1, the complainants became 1/3rd owner of the plot which was worth Rs.70 lacs. Approx. the complainant was yet to make payment of remaining total sale consideration for the unit in question.
iii) The construction of the unit was complete and the complainant had already been offered possession of the unit in question, which he had failed to take till date by making payment of the dues and completing documentary
requirements. It was submitted that the timelines for possession were subject to force majeure circumstances and for reasons beyond the control of the opposite party No.1, the tentative timelines stood diluted.. In the context, the following was noteworthy:-
a) In terms of the notification dated 16.03.2010 of Self Certification Scheme issued by the Town and Country Planning department, Government of Haryana whereby, any person could construct building in licensed colony by applying for approval of building plans by giving 15 days notice to the Director or Officers of the department delegted with the powers for approval of building plans intimating the date of start of construction and in case of non receipt of any objection, the construction could be started, the opposite party No.1 applied for approval of building plans under the self certification scheme. Although, no objection was received from the Department, however, to ensure that there were no problems later, the opposite party No.1 also applied for approval of building plans under the regular scheme.
b) The department vide public notice dated 08.01.2014 granted time of 90 days to submit requests for regularization of construction. The opposite party No.1 in order to expedite the approvals which were causing delay in relevant approvals as well as to avoid any composition penalty again submitted the building plans for approval under the said notice.
c) The department however still had the ambiguity as to whether the policy of self certification applies to individual plot owners or developers/colonizers as well. It was submitted that due to ambiguities in the various policies, the construction of the project was delayed time and again. The opposite party No.2 had, at all times, proactively raised and followed up with the department highlighting the said issues.
d) The department vide its order dated 08.07.2015 finally clarified that self-certification policy shall also apply to cases of approval of building plans submitted by colonizer/developer but did not formally released all the plan submitted by opposite party No.1 time to time in various building plan approval schemes.
e) In the meanwhile the opposite party No.1 continued the execution of Internal Development Works in the colony and laid roads, storm water line, water lines, sewerage network, street lighting, OHT and etc. which was an essential part and parcel of the development without which even already built up units could not be made habitable.
vi) The bonafide of the opposite party were established from the fact that the opposite party No.1 from time to time had been updating the complainants with respect to the progress being made in the project, same was evident from various emails dated 21.06.2017, 28.07.2017, 18.08.2017, 09.12.2017, 10.04.2018, 11.05.2018, 10.09.2018, 11,09.2018, 04.11.2018, 21.12.2018, 24.01.2019, 23.02.2019, 19.04.2019, copy of emails dated 21.06.2017, 28.07.2017, 18.08.2017, 09.12.2017, 10.04.2018, 11.05.2018, 17.06.2018, 10.09.2018, 11.09.2018, 04.11.2018, 21.12.2018, 24.01.2019. 23.02.2019, 19.4.2019.
vii) It was also submitted that during last few years, due to issue of pollution, major cause of slown-down/delay in the construction was that on the basis of the recommendations of the CPCB led Task Force, Enviornment Pollution commission EPCA previously and from time to time, directions were issued for complete ban on construction activities in Delhi NCR. There had been at least 7-8 such episodes, however such disruption were unfortunately not added to committed possession dates for the homebuyers. It was stated that even if construction work was officially stopped for just 10 days, builders lost out on
approximately 60 days every year because of said ban was cumulatively for 30 days, work comes to a standstill for another 30 days to mobilize labor. It was further stated that timelines for completion of projects thus had been most impacted by the ban on construction activity in Delhi NCR for pat number of years, this unfortunately lead to a delay of atleast two months and an increase in project cost by atleast 2 to 3 percent for all builders. Hence, the said circumstances impacted real estate industry as a whole and said fall back had resulted in severe effect on opposite party No.1 and continue to impact since bans on account of pollution were still continuing. Thus said force majeure circumstances were real cause in delay in handing over possession. Opposite parties 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.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Brijesh Prasad, Ex.C-1 – allotment letter dated 24.12.2009, Ex.C-2 floor Buyer’s Agreement, Ex.C-3 - statement of account,Ex.C-5 – email, Ex.C-6- legal notice, Ex.C-7 – postal receipt.
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, Authorized representative of the opposite parties, Ex.R/1 (colly) – resolution, Ex.R-2 – Floor Buyer’s Agreement, Ex.R-3 (colly) - affidavit, Ex.R-4- letter dated 10.11.2016, Ex.R/5 – Notification dated 16.03.2010, Ex.R-6 – Public notice, Ex.R-7 order dated 01.07.2015 passed by Director general Town and Country Planning, Ex.R-8 (colly)- email, Ex.R-9 – original application No. 21/2014,, Ex.R-10(colly) – order dated 10.01.2022 passed by the Hon’ble Supreme Court of India.
5. In this case, the complainant filed the complaint with the prayer to handover the physical possession of the unit in favour of the complainant and to execute all necessary and required documents in respect of the said unit in favour of the complainant.
5. As per Ex.C-1, the complainant had purchased an independent Residential floor bearing unit NO. H4-03-FF on first floor, admeasuring 1022 sq. ft. Super Built up area in the Park Elite Floors in Parklands, Faridabad from the opposite parties. The opposite parties had allotted the project to the complainant vide allotment letter dated 24.12.2009. As per Ex.C-2 Floor Buyer’s agreement dated 13.09.2020 the complainant entered into a Floor Buyer’s Agreement with the opposite parties on 13.09.2010 whereby the opposite parties had agreed to develop and handover the possession of the unit as per the terms & conditions of the said agreement. It is evident from demand as well as receipts vide Ex.C-3(colly). The total consideration to the tune of Rs.23,11,527/- was paid by the complainant against the initial price of unit Rs.20,55,999/-. The complainant raised various concerns through emails and also served the opposite parties with a legal notice dated 16.2.2023 whereby the complainant requested the opposite party to offer the possession of the unit and waive off the above stated amount as the opposite party is not entitled to receive the same and to pay the delay compensation of 118 months which the opposite parties are liable to pay to the complainant vide Ex.C-5 & 6.
6. During the course of arguments, Authorized Representative of the opposite parties has stated at Bar that opposite party cannot give the possession because the opposite parties don’t have occupation certificate till date.
7. In this case, application has been filed by the opposite party for pecuniary jurisdiction. After going through the contents of the application as well as the evidence led by the parties, the Commission is of the opinion that the complaint of the complainant cannot be dismissed on this ground and counsel for opposite party has already stated at Bar that opposite parties are ready to refund the money because opposite parties do not have occupation certificate till date. In the interest of justice, the complaint is allowed. Opposite parties are directed to refund the paid amount alongwith interest @ 9% p.a. from the date of deposits till its realization. Opposite parties are also directed to pay Rs.11,000/- as compensation for causing mental agony and harassment alongwith Rs.11,000/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties free of costs and file be consigned to the record room.
Announced on: 21.08.2023 (Amit Arora)
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.
