District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.572/2021.
Date of Institution: 02.11.2021.
Date of Order: 11.01.2023.
1. Har Gobind Bhatia (Aged 70 years) son of late Shri Loku Ram Bhatia.
2. Rachna Bhatia (aged 69 years) W/o Shri H.G.Bhatia.
…….Complainants……..
Versus
M/s. BPTP Ltd., through its CMD, Regd. Office: 28, ECE House, Ist floor, K.G.Marg, New Delhi – 110 001.
Also at:
Site Office: Next Door, 3rd floor, Sector-76, Faridabad (Haryana) Pin – 121007.
…Opposite parties……
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.
Indira Bhadana………….Member.
PRESENT: Sh. Sagar Bhatia, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite party.
ORDER:
The facts in brief of the complaint are that the complainants, after having come to know of the said project, had applied to the opposite party for
an Independent floor in joint names vide application dated 25.09.2009 and the opposite party with reference to that application dated 25.09.2009 and the opposite party with reference to that application allotted a floor unit NO. GL-11/FF vide allotment letter dated 16.3.2010 against customer ID No. BE-49/122804. Thereafter the opposite party executed the requisite buyer’s agreement containing terms and conditions of allotment on 7th day of September, 2010. The complainants continued making payment as per Construction Linked Plan agreed and appended with the agreement and as per demand raised by the opposite party from time to time alongwith other additional charges. Opposite party offered possession of the allotted floor unit in question vide letter dated 18.04.2016 thereby also making final demand. On finding certain discrepancies in the said demand letter, the complainants wrote a letter to the opposite party on 16.05.2016 pointing out the adjustment of excess amount deposited due to calculation error besides the amounts charged wrongly under various heads. The complainants thus made payment as due well within the time and completed all formalities for execution of conveyance deed and taking over the possession of the floor allotted. On receipt of message from the opposite party, the complainant reached the office of the sub registrar, Faridabad, on 06.10.2016 where the executed conveyance deed of the unit was registered. On not hearing anything from the opposite party for collection of the conveyance deed from their corporate office at Gurgaon, the complainants contacted the local office of opposite party and managed to collect the conveyance deed from Tehsildar office and requested the opposite by sending a copy thereof to issue NOC for further action to handover possession. NOC for possession was issued on 02.02.2017 by the opposite party. The Project Office gave time for 28.02.2017 to the complainant for taking possession of the floor. The possession of the floor was handed over by the Project Office of the opposite party finally on 14.03.2017 after completing all paper formalities on its part and
carrying out the remaining works. In Continuation of the letter dated 16.05.2016 written by the complainants with regard to payment of delayed possession as per terms of agreement besides giving credit of other due amount(s) and to settle the issues raised in the same, the opposite party confirmed vide email communication dated 05.10.2016 that delayed possession compensation stood updated/credited in the account but no amount was indicated. A sum of Rs.2,54,229/- was shown credited on 05.10.2016 by the opposite party on this account as reflected in the statement of accounts received personally by the complainant NO.1 on 15.03.2018 from the office of opposite party at Delhi. The complainant No.1 pointed out towards lesser amount credited on account of delayed possession and other discrepancies, the representative Mr. Sumit heard the complainant and also assured to remove the discrepancies in the statement and also to give credit of other amounts due as per record. After a lapse of six months, the opposite party did not carry out any correction and gave the same statement of account son 18.09.2018.
As per clause 5.5 of the Buyer’s agreement the opposite party had to make adjustment of amount calculated @ Rs.5/- per sq. feet built up super area on account of delayed possession. The possession was required to be offered on 07th march 2013, but was offered on 18.04.2016 and finally handed over to the complainant No.1 on 14.03.2017 after getting the conveyance deed executed and completing other formalities on the part of the opposite party.
The said amount of refund includes the amount of Rs.1,18,345.07 deposited by the complainants in the first instance on account of EEDC, but not payable being stayed by the Hon’ble High Court. In lieu of the said liability, if any, arises later on, the opposite party asked the complainant to deposit FD/BG for an amount of Rs.1,18345.97 duly lien of the opposite party company marked on the same. The said FD was given at the time of final demand. To the utter
Astonishment, the said amount adjusted in final demand nor refunded till to date inspite of several visits to local/Delhi office of opposite party except assurances on the same plea that payment of amount at credit was under process. The site office personnel always stated that message had been passed had been passed pm tp the HO for the needful. Besides the refund of amount of Rs.5,04,112/- as worked out and shown in the statement referred in para 4 above, after satisfying the account, the opposite party has to refund the amount charged illegally and under its monopolistic position. The complainant after taking over the possession of the floor notices that the clearance between floor and roof was not in consonance with the norms contained in National Building Code. The roof of the building had been laid at the height of approximately 9 feet whereas this clearance should have been 10 feet, which was the standard norm. The complainant had been requesting the opposite party company to provide a copy of sanctioned building plan as approved by the Director General, Town and Country Planning, Haryana, Chandigarh so as to verify the construction norms at site with those approved by the competent authority. But the opposite party company did not respond approprietly. The Director General Town &Country Planning, Haryana, Chandigarh had also not given any reply to the communication in this regard. 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) refund of the amount of Rs.5,04,112/- as shown in the statement attached as Annexure C-10 & referred to in para 4 above, which was being withheld illegally by the opposite party under its monopolistic position.
b) refund the amount of Rs.1,49,730/- & Rs.1,81,376/- deposited on account of Escalation and PLC respectively as these charges had been illegally got
deposited under compelling circumstances and accordingly never became payable.
c) refund of Rs.51,859/- deposited on account of Club Membership being not payable.
d) Interest on all the amounts stated above in sub paras (a) to (c) @ 18% part annum from the due date till payment.
e) payment of compensation of Rs.15,00,000/- on account of defective construction, not laying the roof of the floor at a proper height as per norms of NBC; & for passing through the middle of the roof the sewer/water drain pipes of second floor distorting the condition of the bath rooms and kitchen of the complainant’s floor.
f) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
g) pay Rs. 50,000 /-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 was liable to be dismissed as the complaint was barred by limitation and had been filed beyond the statutory period of 2 years. The complainant s had not filed any application to explain the delay in filing the present complaint beyond the statutory period of 2 years and had filed he present complaint without an appropriate application for condonation of delay and therefore was liable to be dismissed. It was submitted that he complainants after complete satisfaction had already taken possession of the unit and conveyance deed was also duly executed in favour of the complainants and after taking the possession the complainants herein were no more consumers and had filed the
present complaint with a view to gain at the expense of the opposite party. The complainants were handed over physical possession by the opposite party on 14.03.2017 and the conveyance deed had already been executed in favour of the complainants. It was submitted that the execution of the conveyance deed was the final determination of all the rights and claims and hence the complainants be stopped from raising any issue with the opposite party. The complaint was further liable to be dismissed on the ground that the complaint was based on suppression, concealment and misrepresentation of material facts and documents and that the complainants had approached this Hon’ble Commission with unclean hands.
i) It was stated that on 26.09.2009, the complainants approached the opposite
party through their broker ‘BMR Real Estate’ and applied for booking/allotment of a unit in the project ‘Park-81’, Faridabad. Accordingly, the opposite party on 16.3.2010 allotted unit NO. GL-11-FF/Area (tentative) 1,402 sq.ft. (130.249 sq. mtrs.) whereby basic sale price @ Rs.2,192.59/- sums upto Rs.30,74,012/-. It was further submitted that the opposite party had already provided credit for an amount of Rs.80,650/- towards the complainants account as discount in the basic sale price of the unit i.e. after adjustment of said amount, net basic sale price of the unit sums upto Rs.29,93,362/-. It was further submitted vide clause 2.3(a) of the FBA, the complainants unconditionally agreed and undertook that in case there was an increase in the Super Built Up Area of the Unit for any reason whatsoever, beyond the already allotted area, to pay an additional basic sale price @ Rs.2500/- per sq. ft. for only increased area. Accordingly, it was submitted that the opposite party had already credited broker discount amounting to Rs.80,650/- into the accounts of the complainants, which was evident from the contents of OOP letter dated
18.4.2016. For easy and ready reference, calculation of basic sale price and broke adjustment was as follows:
Sr.No. | Description | Amount (in rupees) |
1. | BSP @ Rs.2,192.59/- Area – 1402 sq. ft. (at the stage of booking) | 30,74,011.18 |
2. | BSP @ Rs.2,500/- / Area – 43 sq. ft. (increased area) | 1,07,500/- |
3. | Broker discount | 80,650.00 |
| Total basic sale price (1+2+3) | 31,00,861.18 |
It was submitted that the complainants had deposited a total sum of Rs.39,73,670/- towards demands/installments raised in terms of the FBA and payment plan opted and had availed a timely payment discount amounting to Rs.1,43,301/- towards unit in question. The complainant had concealed and misrepresented from this Hon;ble Commission that the opposite party asked the complainants to deposit BG/FD for an amount of Rs.1,18,345.97/- and that said amount of EEDC had neither been adjusted in final demand nor refunded till date. It was stated that the opposite party raised demand towards EEDC vide letter dated 10.05.2012 and the same was deposited by the complainants on 30.05.2012 against which receipt was issued on 31.05.2012. It was stated that the opposite party issued offer of possession on 18.04.2016 whereby opposite party raised demand for Rs.10,10,876.35/- payable on or before 18.05.2016 and offered TPD amounting to Rs.21,226.67/-. It was stared that the complainants tendered two cheques against said demands, cheque NO. 453420 amounting to Rs.6,08,540/- and cheque No. 097000 amounting to Rs.2,61,000/- against which receipts were issued dated 17.05.2016 and 18.05.2016 i.e. payment of Rs.8,69,540/- was made and availed TPD amounting to Rs.21,226.35/-. At this stage, the opposite party adjusted
already deposited EEDC amount of Rs.1,18,259.38/- towards balance amount which was not paid by the complainants in lieu to OOP demand thereby towards final demand of Rs.9,89,649.68/- , the complainants deposited only Rs. 8,69,540/- and Rs.1,18,259.38/- stood adjusted. It was also stated that allegation towards refund of EEDC in lieu of FD given was frivolous and baseless as in terms of the stay granted by the Hon’ble High Court, the complainants on their own will and volition approached the opposite party and deposited the amount towards EEDC in form of bank guarantee/FDR on 17.05.2016 without any protest and demur. It was stated that amount deposited by the complainants against EEDC before submission of FD was adjusted in the basic sale price of the unit in question at the time of payment made towards OOPP (as stated above). It was further stated that on 17.05.2021 the said FD had reached to its maturity date, accordingly the complainants were entitled to submit the renewed FD for the said amount with the opposite party at the earliest. It was stated that in accordance to final orders of the Hon’ble Court w.r.t. stay, the opposite party shall en-cash or return the bank guarantee (in part or full). It was further stated that the complainants were not entitled for any refund as stated by the complainants. It was also stated that the only motive of the complainants herein was to extract money from the opposite party through various means. 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– M/s. BPTP Ltd. with the prayer to: a) refund of the amount of Rs.5,04,112/- as shown in the statement attached as Annexure C-10 & referred to
in para 4 above, which was being withheld illegally by the opposite party under its monopolistic position. b) refund the amount of Rs.1,49,730/- & Rs.1,81,376/- deposited on account of Escalation and PLC respectively as these charges had been illegally got deposited under compelling circumstances and accordingly never became payable. c) refund of Rs.51,859/- deposited on account of Club Membership being not payable. d) Interest on all the amounts stated above in sub paras (a) to (c) @ 18% part annum from the due date till payment. e)payment of compensation of Rs.15,00,000/- on account of defective construction, not laying the roof of the floor at a proper height as per norms of NBC; & for passing through the middle of the roof the sewer/water drain pipes of second floor distorting the condition of the bath rooms and kitchen of the complainant’s floor. f) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment . g) pay Rs. 50,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW-1/A - affidavit of Shri Har Gobind Bhatia, Ex.C-1 – letter dated 16.3.2010,, Ex.C-2 – Floor Buyer’s Agreement, Ex.C-3 – letter dated 18.04.2016, Ex.C-4 – letter dated 16.05.2016 regarding offer of possession, Ex.C-5 – letter dated 24.01.2017 regarding handing over conveyance deed and possession of floor, Ex. C-6 – letter dated 02.02.2017, Ex.C-7- letter dated March 15, 2018 regarding statement of account, Ex.C-8 - letter dated 18.09.2018, Ex.C-9 to 9 H– emails, Ex.C-9/1 – letter dated 08.01.2019, Ex.C-10 – details of payment due & made at final stage, Ex.C-11 – letter dated 7th December 2015 regarding waiver/withdrawal of PLC, Ex.C-12 – letter dated 25.04.2017 regarding floor NO. GL-11-FF in Park 81, Sector-81, Faridabad, Ex. C-13 – email, Ex.C-14 – letter dated 03.05.2017 regarding supply of sanctioned building plain in respect of floors Park-81 floor GL-11/FF, Customer Code 122804, Ex.C-15 – letter dated 22.7.2018, Ex.C-16 – order dated 26.02.2021 passed by the Hon’ble State Commission, Panchkula,
Ex.C-17 – letter dated 26.10.2021 regarding malafide conduct on the part f the company with regard to refund of long outstanding amount relating to Unit NO. GL-11/FRF, Parklands, Sector-81, Faridabad, Ex.C-18 – email dated 27.10.2021, Ex.C-19 – email dated 28.10.2021
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.R-1 – Resolution, Ex.R-2 – Indemnity-cum-undertaking for issuance of NOC for Fitout/Registration of Sale Deed of flat No. GL-11-FF, in Park-81, Parklands, Sector-81, Faridabad. Ex.R-3 – Conveyance Deed, Ex.R-4 – Floor Buyer’s Agreement.
6. In this case, various issues were raised by the Complainants after receipt of offer of possession demand dated 18.04.2016, it is apparent from the communication exchange between the parties that prior to execution of Conveyance Deed, the accounts were reconciled and thus, a revised statement of account dated 05.10.2016 was issued to the Complainants by the OP reflecting surplus of Rs. 1,36,383/- after giving benefit of the delay penalty compensation of Rs. 2,54,229/-. However, even from the said surplus amount of Rs. 1,36,383/-, an amount of Rs. 28, 720/- towards VAT demand, leaving a surplus of Rs. 1,07,663/- in the account of the Complainants. Further, prior to filing the present Complaint, in the previous complaint filed by the Complainants against M/s Business Park Maintenance Services Pvt. Ltd. (BPMS), the maintenance agency, in terms of the mutual compromise arrived at between the parties, on 07.05.2019 an amount of Rs.7,161/- was transferred from excess amount lying into BPTP a/c to BPMS a/c of Complainants towards demand of Common Area Maintenance Charges (CAM); on 30.12.2019 an amount of Rs.44,642/- was transferred from excess amount lying into BPTP a/c to BPMS a/c of Complainants towards demand of Common Area Maintenance Charges (CAM) and an amount of Rs.1,381/- was transferred towards demand of electricity i.e., total amount of Rs.53,184/- was transferred from excess amount of Rs.1,07,663/- lying into BPTP a/c to BPMS demands. Hence, balance excess amount left in the BPTP a/c after said adjustments is only Rs.54,479/-. It was however pointed out by the OPs that an amount of Rs.16,530/- is presently outstanding towards Common Area Maintenance (payable to BPMS) and Rs. 795/- is outstanding towards electricity charges i.e. total outstanding dues of Rs. 17,325/- and after adjusting the said amount, only a sum of Rs. 37,154/- would be surplus. It was further requested by the OPs that since the Complainants are liable to pay charges to BPMS on regular basis, the said surplus amount could be credited to BPMS amount for further adjustments.
7. At this stage, we also deem fit to clarify the issue regarding payment towards enhanced EDC (EEDC). It has been clarified by the OP that at the stage of offering possession vide letter dated 18.04.2016, the total amount demanded from the Complainants (including stamp duty charges) was Rs. 10,10,876.35/-. Against the said demand, the Complainants only paid a sum of Rs. 8,69,540/-, thereby leaving an outstanding of Rs. 1,41,336.35/- from which, EEDC amount of Rs. 1,18,345.97/- was also deducted and interest waiver of Rs. 1764/- timely payment discount of Rs. 21,226.38/- was given to the Complainants and accordingly, the account was reconciled. In fact, it was pointed that that the FD submitted by the Complainants in lieu of adjustment of EEDC amount has already expired and the Complainants have not extended the same till date.
8. After going through the evidence led by both the parties, the Commission is of the opinion that the complaint is allowed, Opposite party is directed to overhaul the account of the complainant and calculate the refund money as per letter Ex.C-9 to 9H , subject to getting the NOC from B.P.M.S who is not impleaded as a party in this case. The opposite party is directed to pay Rs.2200/-
as compensation on account of mental tension, agony and harassment alongwith
Rs.2200/- 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 concerned free of costs and file be consigned to record room.
Announced on: 11.01.2023 (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.
