District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No. 254/2023.

 Date of Institution:13.04.2023.

Date of Order : 07.06.2023.

1.                Smt. Saroj Bala W/o Sh. Ravinder Kumar R/o IV/7, GSI Colony, Near Jaipuria School, Nagar Nagar, Jaipur, Rajasthan – 302018.

At present:

House No. 119, Sector-9, Faridabad, Haryana.

                                                          …….Complainant……..

                                                Versus

1.                M/s. BPTP ltd. Through its Director/M.D./Owner/Authorize persons having office at: #M-11, Middle Circle, Connaught Circus, New Delhi – 110 001.

2.                M/s. Countrywide Promoters Pvt. Ltd. Through its Director/M.d./Owner/Authorize person(s) having office at: #M-11, Middle Circle, Connaught Circus, New Delhi – 110 001.

                                                                              …Opposite parties

BEFORE:            Amit Arora……………..President

Mukesh Sharma…………Member.

Indira Bhadana………….Member.

PRESENT:                   Sh.  Ravi Nagpal , counsel for the complainant.

                             Sh. Jai Shankar, AR on behalf of opposite party.

 ORDER:

                             The facts in brief of the complaint are that the complainant booked/purchased residential villa bearing No. S-11, area Admeasuring 303 Sq. yards (253.34 sq. mtr.) in project namely “Villa Parklands” Faridabad, Tehsil & District, Faridabad, Haryana and opposite parties issued allotment letter dated 12.3.2013.  At the time of booking/purchasing/allotment/agreement opposite parties assured the complainant that the necessary sanctioned building plans and permissions had been granted in respect of the above said project, by the concerned authorities.    Earlier also opposite parties cheated with the complainant, complainant purchased the unit/villa No. F7-41 in the year 2007, but opposite parties  did not offer the possession of the same and thereafter changed the unit with S-11 and adjusted the amount received in the previous unit. The opposite parties entered into  a Villa Buyer’s agreement dated 30.04.2023 with complainant in respect  of Residential Villa bearing No. S-11., Area admeasuring 303 sq. yds. (253.34 sq. mtr.) in project namely “Villa Parklands”, Faridabad, tehsil & District Faridabad, Haryana, for a net basic sale price (BSP) of Rs.44,72,280/-. Till date complainant had paid an amount of Rs.47,53,583/- (including booking amount, EDC/IDC, Service tax, VAT, Additional charges etc), to opposite parties on various dates a sper the demands of opposite parties, for which opposite parties had issued various separate receipts thereof and acknowledge the same.   As per clause 8.1 of the agreement opposite parties assured the complainant to hand over the possession of the villa within 36 months, from the date of sanction of the building plan, opposite parties was supposed to complete the project and handover the possession of the villa.  The agreement was executed on 30.04.2013, as per the agreement opposite parties was supposed to handover the possession of the villa by 30.04.2016.  Till today the project was delayed by 7 years and since then no possession had been offered by opposite parties till date.  Opposite parties failed to give possession of the vial by 30.04.2016 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 from month on month, however, opposite parties keep 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 possession, and lastly complainant visited the office of opposite parties on dated 05.04.2023, but opposite parties did not satisfactorily gave any response to the complainant and failed to give the possession of the villa.  The possession of the unit had not been handed over till date to the complainant.   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 possession of the residential villa bearing NO. S-11, Area admeasuring 303 sq. yds. (253.24 sq. mtr.), in Project namely “Villa Parklands”, Faridabad, Tehsil & District Faridabad, Haryana or any villa/unit in the same block 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/her nominee(s).

b)                pay the penalty/interest/delayed amount of Rs.24/-  per sq. mtr. Per month for the delayed period, alongwith interest @ 24% p.a.

c)                restraining the opposite parties, their agents, assigns or any other person from selling or alienating one of the above said unit i.e Residential Villa bearing No. S-11, Area admeasuring 303 sq. yds. (253.34 sq/ mtr.), in project namely “Villa Parklands” Faridabad, Tehsil & District Faridabad, Haryana or any other unit in the same area/block or in any other new project, in the interest of justice.

d)                 pay Rs. 5,0,000/- as compensation for causing mental agony and harassment .

e)                 cost of present proceedings.

2.                Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that  the opposite parties had failed ot honour their commitment under the duly executed VBA and handover possession of the villa NO. S-11, parklands, Faridabad to the complainant till date.  However, the entire complaint was based on misrepresentation and suppression of material facts and documents and was hugely barred by limitation, which was evident from the following:

i)                 The complainant had concealed from the Hon’ble Commission that in breach of Clause 3.1 of the duly executed VBA dated 30.04.2013, in terms whereof, the parties agreed and accepted that timely payment of each instalment was a material condition of the transaction, the complainant made huge default sin making timely payment of the various installments called in accordance with the agreed payment plan.  In this regard, it was submitted that the complainant had concealed from this Hon’ble Commission that against the demand raised on the complainant vide letter dated 15.11.2013, upon receipt of payment, reminder letters dated 02.12.2013,  and 07.01.2014 were issued to the complainant, where after the complainant made payment of only paltry amount on 27.01.2014.

ii)                The complainant had also concealed from this Hon’ble Commission that since huge amount was outstanding against demand dated 15.11.2013, the opposite party again issued reminder letter  dated 06.02.2014 wherafter the complainant again made payment of only platry amount on 14.2.2014.  however, even the said cheque was dishonoured where after, the said part payment was made only on 24.02.2014 after receipt of intimation dated 19.02.2014 from the opposite party regarding non encashment of cheque.

iii)               The complainant had further concealed from this Hon’ble Commission since the complainant defaulted in clearing the entire amount as

 demanded vide letter dated 15.11.2013, the opposite party was constrained to issue final demand notice dated 12.03.2014 to the complainant clearly apprising the complainant that if the dues with interest were not cleared within 15 days, the booking/allotment shall stand automatically cancelled without any further notice or intimation to the complainant.

iv)               The complainant had also concealed from this Hon’ble Commission that after receipt of letter dated 12.03.2014, the complainant approached the opposite party vide email dated 26.03.2014 and requested for extension of time by 1 month to clear the dues and that in response thereto, opposite party vide email dated 02.04.2014 granted extension till 15.4.2014 to clear the dues while specifying that if the dues were not cleared by 15.04.2014, the terms of final notice dated 12.03.2014 shall stand valid.

v)                The complainant had also concealed from this Hon’ble Commission that since the complainant failed to honour her commitment, in terms of final notice dated 12.03.2014 and even the extended opportunities granted to the complainant on her request, the booking/allotment made in favour of complainant stood terminated and a formal notice of termination dated 05.05.2014 was issued to the complainant.

vi)               The complainant had also concealed from this Hon’ble Commission that despite issuance of the notice of termination, opposite party being a customer friendly organization, on the request made by the complainant, granted her extension till 24.5.2014 to clear the dues while making it clear that if the payment was not cleared by 24.05.2014, no further extension would be granted that the terms of final demand notice and notice of termination would be

valid and applicable.  However, since the complainant yet again failed to clear the dues, the termination of booking/allotment became final and vide email dated 30.05.2014. The complaint under reply was liable to be dismissed being barred by law of limitation, since complainant was aware at least since 2014 that the allotment made in her favour had been cancelled/terminated and admittedly, the present complaint had been filed in the year 2023 i.e. after expiry of about 9 years after from termination of the booking/allotment of the villa in question. 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 & Ors. with the prayer to: a)  handover the possession of the residential villa bearing NO. S-11, Area admeasuring 303 sq. yds. (253.24 sq. mtr.), in Project namely “Villa Parklands”, Faridabad, Tehsil & District Faridabad, Haryana or any villa/unit in the same block 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/her nominee(s). b)pay the penalty/interest/delayed amount of Rs.24/-  per sq. mtr. Per month for the delayed period, alongwith interest @ 24% p.a. c)         restraining the opposite parties, their agents, assigns or an y other person from selling or alienating one of the above said unit i.e Residential Villa bearing No. S-11, Area admeasuring 303 sq. yds. (253.34 sq/ mtr.), in project namely “Villa Parklands” Faridabad, Tehsil & District Faridabad, Haryana or any other unit in the same area/block or in any other new project, in the interest of justice. d)         pay Rs. 5,0,000/- as compensation for causing mental agony and harassment . e)  cost of present proceedings.

                   To establish his case the complainant  has led in his evidence,           

 Ex.CW-1/A Affidavit of Saroj Bala, Ex.C-1 – allotment letter, Ex.C-2 – Villa Buyer’s agreement, Ex.C-3 – letter dated 23.02.2010, Ex.C-4 – Specifications of villa, Ex.C-5 – payment plan, Ex.C-6 – Basic cost and other charges, Ex.C-7 (colly) – receipts.

                    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 Jay Shankar, Authorized representative of opposite party Ex.R-1 (colly), - resolution, Ex.R/2 – Villa Buyer’s agreement, Ex.R/3 – payment request, Ex.R/4 (colly) – letter dated 06.02.2014,, Ex.R/5 – letter dated 12.03.2014 regarding final demand notice for payment of outstanding amount for booking/allotment of unit NO. S-11, in Project Villa, Parklands at Faridabad,, Ex.R-6(colly) – email dated 26.3.2014. Ex.R/7 – letter dated 05.05.2014 regarding termination/cancellation intimation in respect of unit NO. S-11 in Project “Villa Parklands” at Faridabad, Ex.R/8 – email dated 30.05.2014, Ex.R/9(colly) email dated 06.01.2016, Ex.R/10 – allotment letter,

6.                In this complaint, the villa was booked by the qualified person in the name of his wife Saroj Bala and the complainant has paid almost more than Rs.50,00,000/- (Rs. Fifty lacs only) to the opposite party. The details are as under:

BPTP payment as made: since 2005 till 2014 or till 2023

7.                Counsel for the complainant argued that they are ready to take raw structure of the villa with the full payment as per agreement.

8.                On the other hand, counsel for the opposite party argued at length

and stated at Bat they opposite party cannot deliver the villa in question.   Opposite party has started to construct the villa in question in 2017 and not in

2010.  Opposite party have already sent  a letter dated 23.02.2010  to the complainant to charge 9% interest from the respective dates of deposit vide Ex.C-3.  Construction of the villa of this project area  had not been  constructed till date and this villa are under construction.    In this case opposite party had already terminated/cancellation the villa in question to the complainant vide letter dated 05.05.2014 (Ex.R/7). In rebuttal emails of the complainant are already on the file and admitted this fact by the complainant that the villa in question had already been cancelled by email dated 28.07.2016 vide Ex.R/9(colly).  Counsel for the opposite party stated at Bar that they can not allot the villa in question to the complainant .

                   On the other hand, counsel for the hand, counsel for the complainant argued at length and stated at Bar that they can not deliver the villa in question.  Opposite party have to refund the deposited amount alongwith inerest from the respective dates of deposit @ 12% p.a. as per the law settled by the Hon’ble Supreme Court of India titled DCM Enclave & Anr. Vs. Naresh Batham being reivion petition NO. 2984 of 2013relying on the findings of the Hon’ble Supreme Court in the case of Meerut Development Authority vs. Mukesh Kumar”.

                   The counsel for the complainant has placed on record order passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled Mohinder Singh & anr. Vs. Swatantra Land & Finance Pvt Ltd. In  Revision Petition No. 3206 of 2012 decided on 22.01.2020  in which it has been held that Hon’ble Supreme Court has held in various judgement that where the sale deed is required to be executed and the possession is required to be handed over and if that is not done, the cause of action continues till the needful is done.  The Commission, in the case of DLM Enclave & anr. Vs. Naresh Batham being revision petition NO. 2984 of 2013 relying on the findings of the Hon’ble Supreme Court in the case of Meerut Development Authority  Vs. Mukesh Kumar has clearly held that even if the complaint has been filed with a delay of twelve years from the date of agreement and nine years from the last payment, if the possession is not given and sale deed is not executed the cause of action is a continuing one.”

9.                After going through the evidence led by the  parties, the Commission is of the opinion that  It is evident from Ex.R/10 a  allotment letter was issued in the name of Utsav Realtors Private Limited, Bara Khamba road, New Delhi. It seems that above said villa in question was sold to Ussav Realtors Private Limited for Rs.15,000.000.00.  Opposite party is making benefit of their own fault.  The complainant is suffering since 2005.  It is almost 20 years and the opposite party is selling the villa in question without refunding the money to the complainant which is almost  more than Rs.50,00,000/- which is 90% of the total cost..  It shows the malafidy of the opposite party.  Now opposite party is making profit  of it without refunding the deposited amount of the villa. Hence, the complaint is allowed.

10.              Opposite parties are directed to refund the deposited amount alongwith inetrest @ 10% p.a. from the respective dates of deposits.  As per calculation  vide Ex.CW1/A, opposite parties are directed to deduct the TDS @ 10%p.a only from the interest part.  No other hidden charges or brokerage charges should be deducted.Opposite parties are also directed to pay Rs.22,000/- as compensation for causing mental agony and harassment alongwith Rs.22,000/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of  receipt of copy of order. Failing which the opposite party will pay Rs.1,00,000/- as compensation to the complainant. Otherwise opposite parties are directed to deliver the possession of the villa in question to the complainant. Copy of this order be given to the parties free of costs and file be consigned to the record room.

Announced on:  07.06.2023                                  (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