District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 146/2023.
Date of Institution:28.02.2023.
Date of Order:23.05.2023.
1. Vandana Jindal w/o Prashant Rohatgi R/o H.No. 104. Sector-16, Faridabad.
2. Prashant Rohatgi r/o H.No. 104, Sector-16, Faridabad.
…….Complainants……..
Versus
M/s. BPTP Ltd., registered office M-11, Middle Circle, Connaught Circus, New Delhi – 110 001, through its Authorized Signatory Also at Sector-81, Faridabad, Haryana.
…Opposite party
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. Raj Kumar Maurya, 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
had booked a flat on G-101 dated 03.05.2011 at Group Housing Project “Princess Park” situated in SEctor-86, Faridabad of the opposite party on basic price of Rs.31,48,961/- and paid the booking amount of Rs.2,51,216/- to the opposite party vide receipt No. 2011/1400003347 dated 03.05.2011. On 06.5.2011, the opposite party had allotted a flat bearing flat No G-101, Tower NO. “G” Group Housing Project “Princess Park” situated in Sector-86, Faridabad, Haryana vide allotment cum demand letter dated 06.05.2011. Thereafter the opposite party had executed a flat buyer agreement with the complainant on 26.7.2011 at New Delhi. According to “Clause 2”:-
Possession: the seller/confirming party proposes to handover the possession of n the flat to the purchaser within 24 months from the date of execution of flat-buyer agreement. The purchaser agrees and understands that the seller/confirming party shall be entitled to a grace period of 180 (one hundred eighty) days after the expiry of 24 months, for applying and obtaining the occupation certificate in respect of the complex from the concerned authority. The seller/confirming party shall give notice of possession to the purchaser with regard to the handing over of possession, and in the event of purchaser fails to accept and take the possession of the said flat within 30 days of, the purchaser shall be deemed to be custodian of the said flat from the date indicated in the notice of possession and the said flat shall remain at the risk and cost of purchaser.”
After expiry of the above said time period when the opposite party did not handover the possession of the above said flat to the complainants, then the complainants many times visited at Faridabad’s office of opposite party as well as made several telephonic calls to the opposite parties whereby requested the complainant to handover the possession of the above said flat but it was the opposite party, who did not give any favourable response and always delayed the
matter on one pretext or the other and did not handover the possession of the aforesaid flat to the complainants till date. The opposite parties had not fulfilled the condition of Flat Buyer Agreement dated 26.7.2011 and had done the act of breach of trust with the complainants. Rather the complainants were ready to fulfil the conditions of the flat buyer agreement on their part. Towards the said act and conduct of the opposite parties, the complainants were entitled to get compensation from opposite parties as per “Clause 2.3” of the flat buyer agreement dated 26.07.2011. The complainant sent legal notice dated 17.01.2023 to the opposite party through registered post but all in vain. 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 flat No. G-101, Tower NO. “G” Group Housing Project “Princess Park” situated in Sector-86, Faridabad, Haryana to the complainant with immediate effect:.
b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 21,000 /-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 entire case of the complainants was premised on the ground that the opposite party had failed to honour the commitment under the duly execute of flat buyer agreement to handover possession of the flat NO. G-101, Princess Park, Sector-86, Faridabad to the complainant still date. However, the entire complaint was based on concealment, misrepresentation and suppression of material facts and
documents from this Hon’ble Commission and was was highly barred by limitation. In this regard, the following were noteworthy:-
a. The complainants after having conducting their own due diligence and being completely satisfied, approached the opposite party for booking a u it in the project Princess park of the opposite party by submitting duly signed Application for allotment alongwith payment of Rs.2,51,216/- (booking amount). The complainants consciously opted for down payment scheme as oppose to Construction linked payment plan also available to them The opposite party thereafter issued allotment cum demand letter dated 06.05.2011 thereby provisionally allotting unit G-101, Princess Park, in favour of the complainants and requesting the complainants to pay Rs.28,65,715/- towards completing 95% of the basic sale price and 100% allied charges in accordance with the agreed payment plan by or before 17.06.2011 i.e. within 45 days of booking. It was pertinent to point out that the opposite party vide the said communication made it was clear to the complainants that timely remittance of payment due was the essence of the transaction/agreement and if the complainants failed to honour the same, the opposite party would be entitled to withdraw the offer of allotment and cancel the registration without any further notice or reference to the complainants and in such eventuality, the complainants should not be left with any right, title or interest in the said unit. The opposite party thereafter promptly dispatched 2 copies of Flat Buyers Agreement alongwith list of documents required for execution of FBA alogwith list of documents required for execution of FBA under the cover of letter dated 13.05.2011. However, the complainants on the one hand delayed in signing the FBA and on the other hand did not remit the dues in accordance with the agreed payment plan. Instead of making payments, the complainants after more than 6 months of receipt of allotment cum demand, sent the loan sanction letter
vide email dated 28.11.2011. The opposite party still accommodated the complainant son the bonafide belief that they would immediately make the requisite payments and accordingly, vide email dated 06.12.2011 informed the complainants that they were required to submit Tripartite Agreement (the format of the same was attached and also the details regarding the same were provided to the complainants). The complainants were also requested to immediately clear the dues in terms of allotment cum demand letter dated 06.05.2011. Since no payments were received from the complainants despite numerous opportunities being granted to them, Opposite party in view of the agreement between the parties, cancelled the allotment and forfeited the earnest money. Opposite party completed construction and applied for grant of Occupation Certificate before the competent authority which was duly granted on 28.12.2011 i.ewithin7 months of the booking made by the complainants. After more than 1 year of the receipt of OC by the opposite party, the complainants with malafide intentions , issued letter dated 23.02.2013 to opposite party falsely alleging that subsequent to the allotment and the execution of the Flat Buyer’s Agreement, no communication had been issued to them regarding the balance due while conveniently disregarding the payment plan that had been agreed by them as well as the allotment cum demand letter that had been issued to them. Opposite party vide email dated 25.03.2013 duly responded to the complainants intimating them that due to non-payment of dues, the booking/allotment already stood terminated. Despite being intimated about termination/cancellation, the complainants issued a false and frivolous legal notice to opposite party dated 13.06.2013 which was duly replied by the opposite party vide reply dated 01.10.2013, which was dispatched through speed post as well as registered AD (eh342553119in) and (wh463642510m). It was submitted that the complainants who were chronic defaulters, had approached this
Commission, after expiry of about 12 years from termination of booking/allotment of the flat in question while concealing that the last communication exchange took place between the parties in the year 2013 whereby the complainants were clearly informed that the booking/allotment stands terminated due to non-payment of dues and the booking amount paid stands forfeited. It was submitted that the cause of action (if any) accrued in favour of the complainants in the year 2013 when the last communication was exchanged between the parties confirming that the booking/allotment stands terminated. However, the complainants with malicious intent had filed the present complaint in the year 2023, i.e after 10 years of receipt of the said communication, which was well beyond the limitation period of 2 years as prescribed under Section 69(1) of Consumer Protect Act. 2019. 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 with the prayer to: a) handover the possession of flat No. G-101, Tower No. “G” Group Housing Project “Princess Park” situated in Sector-86, Faridabad, Haryana to the complainant with immediate effect. b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 21,000 /-as litigation expenses.
The complainant has made a statement that complaint already filed be
read as evidence on behalf of the complainant. Accordingly, evidence on behalf of the complainant has been closed.
Shri Jai Shankar, AR on behalf of the opposite party has orally stated that written statement already filed be read as evidence of opposite party. Accordingly, evidence on behalf of opposite party has been closed.
6. In this case, the complainant has booked a flat on G-101 dated 03.05.2011 at Group Housing Project “Princess Park” situated in Sector-86, Faridabad of the opposite party on basic price of Rs.31,48,961/- and paid the booking amount of Rs.2,51,216/- to the opposite party vide receipt No. 2011/1400003347 dated 03.05.2011 vide Annexure A. The opposite party had allotted a flat bearing flat No G-101, Tower NO. “G” Group Housing Project “Princess Park” situated in Sector-86, Faridabad, Haryana vide allotment cum demand letter dated 06.05.2011 vide Annexure C. The opposite party had executed a flat buyer agreement with the complainant on 26.7.2011 at New Delhi vide Annexure D. As per flat buyer agreement vide Annexure D, the possession of the flat was given to the complainant within 24 months from the date of execution of flat buyer agreement.
7. During the course of arguments, Shri Raj Kumar Maurya, counsel for the complainant has made a statement that “I am ready to take the principal amount @ 6% from the date of filing of the complaint.”
8. After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite parties because the Buyer’s Agreement was made to the complainant on 26.07.2011 vide Annexure D and he has waited for more than 12 years to see the project to be completed and the
offer of possession of flat was not given to him. The above said flat was allotted on 06.05.2021 vide Annexure C and the possession of the said flat was handed over within the period of 24 months from the date of execution of flat buyer agreement.
9 Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite party is directed to refund the principal amount only alongwith interest @ 6% p.a form the date of filing of complaint till its realization. Opposite party is also directed to pay Rs.3300/- as compensation for causing mental agony & harassment alognwith 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 this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 23.05.2023. (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.
