District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.173/2022.
Date of Institution: 30.03.2022.
Date of Order: 06..03.2023
Vijay Pal son of Shri Ranbir Singh resident of House No. 1954, Sector-9, Faridabad, near Community Center, Faridabad, District Faridabad.
…….Complainant……..
Versus
M/s. BPTP Ltd., M-11, Middle Circle, Connaught Circus, New Delhi – 110 001 through its Director/Authorized person
…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. N.K.Singla, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite party.
ORDER:
The facts in brief of the complaint are that being colonizer the opposite party opened the scheme for developing residential project at Faridabad. The complainant paid a sum of Rs.3,00,000/- to the opposite party for independent floors, Park-81, Parklands Faridabad measuring 1402 sq. ft. After receiving the said earnest money the opposite party issued receipt for the same on 29.09.2009. The opposite party further demanded payment on 21.12.2009. On the demand of the opposite party, the complainant further paid an amount of Rs.3,00,000/- for which the opposite party issued receipt for the same on 5.1.2010 in favour of the complainant. After receiving the said amount the opposite party issued allotment letter for the independent floors bearing unit No. 81, AVE-63-SF in the project. The opposite party further demanded an amount of Rs.3,02,283/- as mentioned in the allotment letter. The said amount was also deposited by the complainant vide receipt dated30.03.2010. The complainant deposited amount of Rs.302290/-. The complainant applied for the loan in Punjab National Bank, NIT, Faridabad. Upon considering the request the opposite party issued mortgage permission vide letter dated 6.6.2012. The opposite party further demanded amount which was paid by the complainant, as per the demand of the opposite party. The complainant paid approximately 80% of the total amount in the account of the opposite party company. The complainant deposited total amount of Rs.32,37,172/- in the opposite party’s company on account of the above said property. The opposite party issued letter dated 14.6.2012 in respect of permission to mortgage. The opposite party mentioned in the said letter that total consideration of the property was Rs.41,07,740/-. As per the statement of account the basic sale price of the above said property was Rs.35,73,499/-. Out of which the complainant paid amount of Rs.32,37,172/-. As per the terms and conditions of the opposite party, the opposite party had to complete the project within 42 months i.e. three and half years. But due to delay practice and due to deficiency of services, the opposite parties had not completed the said project. Due date for delivering the possession comes to 12.12.2015. But the opposite party failed to hand over the possession of the said property till date. The complainant sent legal notice dated 29.11.2021
to the opposite party 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 physical possession of the property/floor bearing NO. 81, AVE-63-SF and to execute sale deed in favour of the complainant and necessary direction may be issued to the opposite party to pay penalty as agreed between the parties @ 5/- per sq. ft. per month for delayed period.
b) any other relief which this Hon’ble Court deems fit and proper also be awarded in favour of the complainant.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the present complaint was not maintainable being barred by law of limitation and hence, ought to be dismissed prima facie. It was stated that any cause of action (if any) accrued in favour of the complainant was on 22.08.2018 i.e termination of the unit in question due to non payment of the installments demanded by the opposite party strictly in ambit of FBA as well as payment plan opted by the complainant, hence the complainant had approached this Hon’ble Commission on 30.03.2022 i.e almost after 3.8 years which was clearly well beyond the limitation period of 2 years as prescribed under section-69(1) of the Consumer Protection act. 2019. The complainant had indulged in suppression, concealment and misrepresentation of true facts and documents which had a material bearing on the merits of the case and would clearly show that the complaint filed by the complainant s was absolutely false and baseless and the allegations raised were devoid of merits. Some instances of misstatement, suppression and concealment of material facts may be stated as under:
i) The complainant after making making thorough due diligence, through his broker ‘Sudha Associates” applied for a provisional registration of a unit in the project “Park-81” developed by opposite party, thus in said regard submitted booking application form and on his own will invested a sum of Rs.3,00,000/- against receipt dated 29.09.2009. Accordingly, opposite party on 16.03.2010 offered a unit bearing No.81AVE-63-SF in the project “Park-81” in favour of the complainant. It was pointed out that opposite party duly offered a broker discount of Rs.98,000/-.
ii. Following the allotment, Flat Buyer’s agreement dated 12.06.2012 pertaining to the unit in question was executed between the complainant and opposite party without any demur or protest, subject to thorough reading, understanding, agreeing and accepting to abide by incorporated terms and conditions including but not limited to timeline for handing over possession, timely payment was the essence of this transaction, delay penalty compensation & associated conditions, termination/cancellation of the allotment.
iii. Complainant had deliberately concealed material facts and documents in regarding to him being chronic defaulter in making time payment since the beginning of transaction and being responsible for breach of agreement. It was stated that vide Clause 7.1 read alongwith Clause 12.1 of FBA, it was agreed that timely payment of the installments shall be the essence of the transaction and, vide Clause 7.2 of FBA read alongwith Clause 1.14 (definitions) and clause 2.7 & clause 12..2 it was agreed that in case complainant fails to pay due amount /installments within stipulated time. Opposite party should be entitled to terminate allotment and refund the balance amount after forfeiting amount paid upto earnest money, deduction of any interest amount due or payable and any other non refundable charges including brokerage charges.
Despite above agreed, complainant had knowingly concealed material facts that he failed to abide by the same in the said regard below was noteworthy:
a) In terms of payment plan, opposite party raised demand dated 17.04.2012 upon reaching milestone “start of construction work” which was payable by 02.05.2012 and also offered timely payment discount. Complainant failed to clear said demand, thus while said demand was still unpaid. Opposite party raised demand vide letter dated 17.05.2012 towards Enhanced External development Charges (EEDC) which was payable by 07.06.2012 alongwith reminder to clear previous outstanding dues with immediate effect. Complainant failed to pay any heed to these stated demands resulting in non payment of demands which constrained opposite party to issue reminder letter dated 31.05.2012. On receipt of reminder letter, complainant cleared the outstanding dues against receipts dated 25.06.2012,
b) In terms of payment plan, opposite party raised demand dated 07.11.2013 upon reaching milestone “On casting of first floor slab” which was payable by 22.11.2013. Complainant defaulted in making timely payment, in said regard opposite party issued reminder letters dated 25.11.2013 & 26.12.2013.
c) The demands were still unpaid, in terms of payment plan opposite party raised next demand vide letter dated 30.01.2014 upon reaching milestone “start of brickwork” which was payable by 14.02.2014 while offering TPD alongwith reminder to clear previous dues. Complainant failed to pay any heed towards clearance of outstanding dues despite of numerous opposite parties being offered by opposite party, hence due to long outstanding dues Opposite party issued last and final opportunity letter dated 12.03.2014 while informing that in the event complainant fails to strictly adhere to clear dues then in exercise of rights agreed and accepted under terms of FBA this letter would lead to automatic termination/cancellation of allotment in fault of the complainant.
d) At this stage, the complainant tendered a demand draft bearing No. 771044 dated 3103.2014 and a cheque bearing No. 347005 dated 08.04.2014 towards outstanding amount. Out of which demand draft bearing No. 771044 dated 31.03.2014 was cleared, against which receipt was issued dated 07.04.2014 by opposite party but cheque bearing No. 347005 dated 0804.2014 was dishonored which was intimated by opposite party to complainant vide letter dated 17.04.2013 requesting to clear said dues.
e) Opposite party under ambit of Amnesty scheme, via letter dated 05.11.2016 raised demand towards VAT which was payable by 25.11.2016 against which reminder emails dated 30.03.2017, 12.10.2017, 18.06.2018 was sent by opposite party.
f) Said demand and previous demands were still unpaid, thus in the meanwhile next demand became due accordingly opposite party vide letter dated 14.02.2017 raised demand upon reaching milestone “On Start of flooring” which was payable by 14.02.2014 while offering TPD and reminder to clear previous balance amount. Opposite party was constrained to issue reminder letters dated 11.12.2017, 20.02.2018, 09.04.2018 followed by last and final opportunity letter dated 04.07.2018 while clearing intimating to complainant that delay would lead to automatic termination/cancellation of the allotment
g) As a result, complainant failed to make any payment towards long outstanding balance amount, still as a goodwill gesture and to secure rights of complainant, opposite party issued offer of possession letter dated 07.08.2018(‘00P’_ while offering TPD and requesting to clear previous dues & complete outstanding dues to initiate process of registration of conveyance deed. Therefore, due to non payment even on receipt of last opportunity, in exercise of rights agreed and accepted under terms of GBA (Clause-7 & 12), opposite party vide letter dated 22.08.2018 confirmed termination/cancellation of allotment.
h) The complainant had wrongfully alleged that opposite party failed to handover the actual physical possession of the unit in question as there was no development in the said colony/project and that opposite party illegally and unlawfully demanding higher amount them agreed rate from the complainant. It was stated that opposite party issued 00P letter dated 07.08.2018 which stands terminated/cancelled due to faults of complainant, which had been deliberately concealed and misrepresented by the complainant before this Hon’ble Commission. It was further stated that vide Clause 5.1 timeline for handing over possession and other associated compliance of conditions were agreed, vide clause 5.3 subject to payment of all installments and adherence to terms and conditions including but not limited to timely payment of installments in such event opposite party should be liable to pay delay penalty compensation was agreed, vide clause 5.7 reasonable extension of time.
i) Complainant had wrongfully alleged that total consideration of the unit in question was Rs.41,07,740/- and the complainant paid amount of Rs.32,37,172/-.
Complainant has relied upon “permission to mortgage” letter dated 14.06.2012 issued by opposite party while misrepresenting the material fact. It was evident that said letter was issue don 14.06.2012 i.e. much prior to completion of construction, even otherwise it was pointed out that opposite party stated total sale consideration amounting to Rs.41,07,740/- under agreement dated 12.06.2012 in regard to unit No. 81AVE-63-SF tentatively admeasuring about 1,402 sq.ft. (At that time). Hence, as a matter of fact area of the unit in question stands enhanced at present stage in lieu to stated area in said letter, thus total sale consideration stands revised. The complainant had concealed all said material facts from this Hon’ble Commission which were significant in adjudicating issues raised by the complainant against opposite party which were based on frivolous and fictitious ground and intentions. It was pointed out that complainant till date had made a payment of Rs.32,12,250.66/- while availing TPD of Rs.42,730.30/- against receipts dated 29.09.2009, 05.01.2010, 30,.03.2010, 25.06.2012, 25.06.2012(4), 20.09.2013 and 07.04.2014, which counts approximately 61% payment towards demands raised in terms of payment plan. 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 parties– BPTP with the prayer to: a) handover the physical possession of the property/floor bearing NO. 81, AVE-63-SF and to execute sale deed in favour of the complainant and necessary direction may be issued to the opposite party to pay penalty as agreed between the parties @ 5/- per sq. ft. per month for delayed period. b) any other relief which this Hon’ble Court deems fit and proper also be awarded in favour of the complainant.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Vijay Pal,, Ex.C-1 to C-10 – receipts, Ex. C-11 – letter dated 21.12.2009 regarding demand notice against your booking/registration of independent floor in our project “Park-81, Parklands, Faridabad, Ex.C-12 – letter dated 16.03.2010 regarding allotment of a residential floor, Ex.C-13 – letter dated 17.4.2012 regarding payment request,, Ex.C-14 – letter dated 31.05.2012 regarding payment of outstanding balance against provisional booking, Ex.C-15 – letter dated May 17,2012 regarding enhancement of external development charges in Faridabad, Ex.C-18 – letter dated November 07,2013 regarding payment request,, Ex.C-19 & 20– letters regarding payment of outstanding balance against provisional Booking/registration of unit NO 81, AVE-63-SF in project “Park 81 Parklands, Ex.C-21 – letter dated 30.01.2014 regarding payment request, Ex.C-22 – letter dated 12.03.2014 regarding demand notice, Ex.C-23 – letter dated 17.04.2014 regarding intimation against non encashment of cheque dated 08.04.2014 bearing No. 347005 issued by you against No. 81 AVE-63-SF in our project Park -81, parklands in Faridabad, Ex.C-24 – letter dated 14.04.2014 – regarding payment of outstanding balance against provisional booking, Ex.C-25 & 26 – letter regarding final notice for payment of dues, Ex.C-27 - letter dated 18.08.2014 regarding demand notice for payment of outstanding amount for booking/allotment of unit No. 81 AVE 63-SF, Ex.C-28 - letter dated 14.05.2015 regarding statement of account, Ex.C-29 – letter dated 20.02.2018 regarding payment of dues/installment against provisional booking/registration, Ex.c-30 – letter dated 09.04.2018 regarding final notice for payment of dues/installment, Ex.C-31 – letter date d07.08.2018 regarding offer of possession of floor No. 81 AVE63-SF, in Park 81, Sector-81, Ex.C-32 – Statement of accounts cum invoice, Ex.C-33 – list of documents requirement for possession, Ex.C-34 – Indemnity-cum-undertaking for taking vacant physical possession of flat No. 81, AVE-63-SF, In Park-81, Parklands, Sector-81, Faridabad, Ex.C-35 – Charges for additional infrastructure, Ex.C-36 - Applicability of value added tax under Haryana Value Added Tax Act, 2003 on sale of constructed property be it as residential or commercial constructed property in pursuance of Amnesty scheme recently introduced by Haryana Government, Ex.C-37 – Tax invoice, Ex.C-38 – Permission to mortgage, Ex.C-39 – Potential Applicability of Value Added Tax on purchase of Real Estate,, Ex.C-40 – postal receipt, Ex.C-41 to C-43 –letter written by Vijay Pal to vice President, Ex.C-44 – email, Ex.C-45 to62 – photographs, Ex.C-63 – letter regarding discount to customer.
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, Authorised Representative of the opposite party, Ex.R-1 – Resolution letter, Ex.R-2 – Allotment cum demand letter, Ex.R-3 – Floor Buyer’s Agreement , Ex.R-4 (colly) – letter regarding payment request, Ex.R-5 – Receipts,, Ex.R-6 (colly) – Offer of possession.
6. The complaint was filed by the complainant with the prayer to handover the physical possession of the property/floor bearing NO. 81, AVE-63-SF and to execute sale deed in favour of the complainant and necessary direction may be issued to the opposite party to pay penalty as agreed between the parties @ 5/- per sq. ft. per month for delayed period.
7. After going through the evidence led by the complainant, it shows that the basic sale price of the floor in question was Rs.42,50,498/- at the time of agreement. Almost 80% payment was paid by the complainant to the opposite parties since long. As per the agreement, possession of the floor was given to the complainant within 42 months. It has already been 13 years spent. Instead of giving the possession of the floor, opposite parties are terminating the floor in question and even opposite parties not paying the refund also. It shows the malafidy of the opposite parties. As per the receipts deposited by the complainant more than 80% of the payment has been deposited by the complainant and no delayed interest was paid to the complainant by the opposite parties. Opposite parties are terminating the floor in question and forfeiting the paid amount which is not justified. Evidence led by the opposite parties does not shown any correspondence by the opposite party between the complainant and the opposite parties. The opposite parties failed to prove their case. The Commission is looking forward the BPTP Company is playing hide and seek to their consumers. There are lots of complaints in this Commission about the opposite parties which shows that the opposite parties are not interested to deliver the possession to any one. Opposite parties always refund the amount alongwith interest to the consumers. The prices of the floor in question are very high from 2008 onwards.
8. Offer of possession was issued by the opposite parties to the complainant on 7.8.2018. There is no correspondence between the complainant and the opposite parties. There is no postal receipt, any proof or any email regarding the offer of possession and even the complainant has filed the complaint in March 2022 before this Commission. Ex.R6 shows the malafidy of the opposite parties that the offer of possession was issued on 07.08.2018.
9. 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 and the complainant has waited for more than 13 years to see the project to be completed and offer of possession of the allotted plot to him. The counsel for the complainant has placed on record authority in case titled Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him The complainant had been waiting for completion of the project in which allotted unit is located for more than 13 years. He cannot be asked to wait indefinitely to seek possession of his dream house.
10. After hearing the arguments and evidence led by the parties, the Commission is of the opinion that the complaint is allowed.
11. Opposite party is directed to :
a) give physical possession of the floor bearing No. 81 AVE-63-SF and to execute sale deed in favour of the complainant after taking the balance amount from the complainant within 30 days from the date of this order .
b) pay the delayed interest @ 9% p.a. to the complainant from the date of agreement till its realization.
c) pay penalty as agreed between the parties @ Rs.5/- per sq. ft. per month for delayed period.
d) pay Rs.22000/- as compensation for causing mental agony & harassment.
e) pay Rs.11000/- 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. File be consigned to the record room.
Announced on: 06.03.2023 (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.
