District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No.124/2022.
Date of Institution: 03.03.2022.
Date of Order: 19.09.2022.
Virender Singh Manral aged about 39 years son of Sh. Sukhbir Singh, Resident of P-9/14-D, Residency, Sector-88, Faridabad (Haryana). SRS Residency, sector-88, Faridabad (Haryana).
…….Complainant……..
Versus
1. M/s. BPTP Ltd; through its Managing Director, Registered Address: Door, Parklands, (Haryana)-121004 OT-14, 3rd Floor, Sector-76, Next Door, Parklands, sector76, Faridabad (Haryana) – 121004.
2nd Address:
M/s BPTP Ltd., through its Managing Director, M-11, Middle Circle, Connaught Circus, New M/s New Age Town Planners Ltd., through its Delhi 110001Authorized Signatory Registered Office:- M-11, Middle Circle, Connaught Circus, New-Delhi-110001.
…Opposite parties……
3 Vijender Singh son of Shri Sukhbir Singh resident of resident of P-9/14-D, SRS Residency, Sector-88, Faridabad (Haryana).
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Deepak Nagpal, counsel for the complainant.
Sh. Jai Shankar, AR, counsel for opposite parties Nos.1 to 3.
ORDER:
The facts in brief of the complaint are that being allured by the advertisements, promises and brochure of the OPS the complainant and his brother i.e. performa respondent No.3 Con 14/06/2009 agreed to purchase the Independent Floor bearing Unit No. PE-77- Ground Floor, Park Elite Floors, Sectors-77, Parklands Faridabad having super area measuring 1203 sq. ft. (111.761 sq. meter) Faridabad, on construction linked payment plan @ Rs. 1859.52p per square feet i.e. Rs. 22,07,003/ + EDC (External Development Charges) of Rs. 4031/- per sq. yd PLC Preferential Location Charges + Club Membership Charges of Rs. 50,000/- + IFMS of Rs. 20/- per sq. ft i.e. for the total sale price of Rs. 31,27,098/- as per Floor Buyers Agreement dated 03/04/2012. Later on, the Super Area has been increased to 1371 square feet (127.369 sq. meter),
On 06/10/2011, the respondent No. 1 and 2 issued a Re-allotment Letter in respect of Residential Independent Floor, No. PE-77 Ground Floor, Park Elite Floors, Parkland Sector-77, Faridabad having super built up area measuring 1371 square feet (127.369 sq. meter =229 sq. yards) in favour of the complainant and performa respondent No.3.
As per Clause 5.1 of the Floor Buyer'sAgreementstated03/04/2012,
The construction of the floor was to be completed of the within 24 months of with grace period of 6 months from date of execution of Floor Buyer Agreement dated 03/04/2012. As a matter of fact, the Respondent No. 1 and 2 assured the complainant and performa Respondent No.3 that the possession of the floor in question complete in all respects in a habitation position should be delivered to them very soon. The remaining terms and conditions are duly enumerated in the Floor Buyer's Agreement. The complainant has savings question. for invested his hard earned purchase of the floor in question. The complainant in all paid a sum of Rs.25,36,281.85paisethroughdifferentcheques vide different receipts as and when demanded by the Respondent for the purchase of the floor in question.
The Respondent No.1 and 2 have put a condition upon the complainant that in case there was a delay in making the payment of the instalments as per the payment schedule, the Respondent No.1 and 2 should claim interest @ 18% p.a. on the defaulted amount as per clause 2.19 of the Flat Buyer's Agreement. However, there was no fault of any kind on the part of the complainant in making the payments of the instalments towards the floor in the question is evident from the Statement of Account. Even as per the terms and conditions stipulated in the Floor Buyer's Agreement, the Respondent No.1 and 2 were liable to complete the construction in all respects till 02/10/2014 which includes the grace period of 6 months but there was only a bare structure of skeleton of the tower in existence and no development activities were going on despite the fact that the complainant had already paid the substantial amount of Rs. 25,36,281.85/ paise against the total price of Rs. 31,27,098/-. All the requests and reminders made by the complainant to the Respondent No. 1 and 2 had been ignored. As per Clause 6.1 of the Floor Buyer's Agreement, the Respondent No.1 and 2 agreed that in case to offer the delivery of the possession of the floor to the complainant within 30 months from the date of execution of Floor Buyer's Agreement, as envisaged under the agreement, then the complainant should be entitled to give notice for termination of the agreement to the Respondent No.1 and 2, within 90 days from the expiry of said period of 30 months from the date of execution of the Floor Buyer's Agreement. In that event the respondent 1 and 2 should be at liberty to sell or/and dispose off the floor to any other party at such price and upon such terms and conditions as the respondent No.1 and 2 may deem fit. Thereafter, the respondent No. 1 and 2 should, after sale of the floor, within 120 days from the date of full realization of the said sale price, refund to the complainant. This clause was arbitrary in nature and shows the malafide intention of the respondent No.1 and 2 and as such did not affect the rights of the complainant to claim the refund of the amount deposited by the complainant with the respondent against the floor in question.
As per clause No.2.4 of the Floor Buyer's Agreement dated 03/04/2012, the respondent No.1 and 2 claimed the excess amount of Rs. 95,000-64 paise from the complainant for the increased area of 168 sq. ft (1371 sq. ft- 1203 sq. ft.) of Independent Floor bearing Unit No. PE-77- Ground Floor, Park Elite Floors, Sector-77, Parklands, Faridabad, because initially the respondent No.1 and 2 sold the floor in question to the complainant at a Basic Sale Price of Rs. 1859.52 Paise per sq. ft for initial 1203 sq. ft and thereafter for increased area of 168 sq. ft, the respondent No.1 and 2 charged a some of Rs. 2425/- per sq. ft, which was arbitrary and illegal in nature and which proves the unfair and trade practices adopted by the respondent No.1 and 2.
The construction of the project in question was hanging fire as only a bare structure with no progression on the spot was existing and there was abnormal delay in handing over of the possession of the floor in question to the complainant on the part of Respondent No.1 and 2 because the Respondent No. 1 and 2 agreed deliver the complete completed floor/apartment in all respect on all before 02/10/2014 which includes the grace period of 6 months of the complainant, and as such there was an inordinate delay of more than 7 years in handing over the possession of the floor in question to the complainant by the respondent No. 1 and 2.
The site of the respondent No. 1 and 2 i.e. Park Elite Floors, Parkland, Sector 77, Faridabad reveals that the respondent 1 and 2 had constructed the tower and that 2 only incomplete structures in the shape of skeletons and on the other hand had collected several crores of rupees from the allottees without completing the flats/floors as a matter of fact, the construction work at the site was stopped for the last more than 7 years and there was very slow development. The enquiry further reveals that many allottees had filed several cases against the Respondent No.1 and 2 for the refund of their hard earned money which the allottees had already paid to the respondent.
It was worth to mention here that a family settlement deed was executed between the complainant and respondent No.3 Vijender Singh in respect of the apartment/independent floor in question and as per the said family settlement, complainant alone being the absolute owner of independent floor bearing Unit No. PE 77 Ground floor, Park Elite Floors, Sector-77, Parklands Faridabad should be having all rights, title and interest to claim possession or refund by filing any complaint, plaint, appeal, revision, review in respect of the said apartment/independent floors either before Hon'ble State Consumer Disputes Redressal Commission, Haryana at Panchkula or before the Hon'ble National Consumer Disputes Redressal Commission, Haryana at Panchkula or before the Hon'ble state Consumer DisputesRedressal Commission, Haryana or RERA, Gurugram/Panchkula; RERA Appellate Authority Haryana at Chandigarh; Hon'ble Punjab and Haryana High Court, Hon'ble supreme Court of India or before any other competent authority; police, SDM, Municipal Corporation, Revenue, Court upto the highest level and also to engage an Advocate to deal with the said apartment/Independent Floor in the manner the complainant so desire. The respondent no. 3 Vijender Singh Manral had No Objection and should not claim any right, title and interest in the said apartment/Independent floor in future for all time to come. Further, in case the complainant- Virender Singh Manral claims refund of his entire deposited amount from the respondent no.1 and no.2, in that case it would be complainant- Virender Singh Manral alone, who was entitled to get the entire amount refunded in his own name and the second party should also will not agitate this matter in future and shall never claim any amount, out of the amount being refunded by respondent either on their own or on the direction/orders of any of the competent authorities or Court to the complainant in respect of the apartment/independent floor in question. This family settlement deed was executed between the complainant and respondent no. 3, because it was the complainant who alone has invested the money in the apartment/ floor in question. The complainant requested the Respondent No.1 and 2 several times to provide the possession along with the amount already paid alongwith the delay interest on possession the deposited amount with penalty and interest but the Respondent always postponed the matter on one pretext or the other.
As a matter of fact, the complainant had purchased the floor in question for his smooth living in the N.C.R. area of Delhi for the betterment, better/good education of his children and good lifestyle of his family members, but respondent No. 1 and 2 caused a harassment grave mental agony and physical by not completing the construction within the stipulated period as mentioned in the Floor Buyer's Agreement despite receiving the substantial amount of Rs. 25,36,281-85 Paise against the totalprice of Rs. 31,27,098/- and because this inordinate delay the complainant was residing in Faridabad and was paying Rs.15,000/ per month as rent + society charges of his landlord.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) To handover the physical possession of the unit PE-77-Ground Floor, Park Elite Floors, Sector-77, Parklands, Faridabad to the complainant on completing repairs and renovations and being fit for living conditions immediately..
b) provide the interest/penalty on theamountalready deposited till its final/actual realization.
c) payRs.1,50,000/- as compensation for causing mental agony and harassment .
d) any other relief which this Hon’ble authority deems fit and proper in the facts and circumstances of the present complaint may also kindly be grant to the complainants.
2. Opposite parties Nos.1 to 3 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 to 3 refuted claim of the complainant and submitted that the Complainant in bad faith had concealed and misrepresented material facts from this Hon'ble Commission while raising incorrect and false allegations with an intent to be benefitted with favorable relief's or award's in his favour It was submitted that 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. In this context, the following are noteworthy-
(i) It was stated that in the year 2009, the Complainant along with his brother 'Mr. Vijender Singh' (Performa Respondent - No.3) after having conducting due diligence and out of their own volition approached OP through their broker namely 'Landtrade" applying for a booking of residential floor (tentatively measuring 1,203 sq. ft.) in the project Park Elite Floors' situated at Faridabad. The Complainant and OP No.3 on their own would invested a sum of Rs.2,50,000/- on 15.06.2009, against which the OP issued receipts dated 18.06.2009.
(ii) The OP vide its letter dated 08.10.2009 raised a demand for Rs.2,51,000/- (at the stage of within 150 days from date of booking) which was to be paid on or before 23.10.2009. The complainant was also offered timely payment discount (TPD'). It was stated that OP vide said demand letter duly informed the Complainant that "applicant who complete payment of due amount of 35% of BSP & 20% of EDC/IDC by due date (23/10/2009) should be allotted unit by draw of lost scheduled which was to be held in November 2009". It was further stated that Complainant failed to make timely payment in terms of the said demand and made only a partial payment. The receipts dated 21.10.2009, 20.11.2009 and 30.11.2009 and were issued by the OP. As a result of delay payment, the OP vide its letter dated 05.01.2010 duly informed that Complainants' name was not shortlisted in the draw of lots held on 11.12.2009. The OP also informed the Complainant & OP No.3 that the OP would be conducting a "second phase of allotment' in the next draw and their name would be considered in the second phase of allotment on account of submitting its consent for said participation. The OP also gave alternate option of refund of deposited amount, in case the Complainant & OP No.3 did not wish to wait/stay for the second phase of allotment.
(iii) That the answering OP as a goodwill gesture, vide its letters dated 03.07.2010 and 30.11.2010 informed that Complainant and OP no.3, that their names would be considered in second phase of allotment, however time frame for the same could not be confirmed. Alternatively, in case Complainant and OP No.3 did not wish to wait/stay for the second phase of allotment, answering OP was ready and willing to refund deposited amount along with 9% rate of interest.
(iv) That answering OP vide letter dated 09.07.2011 informed that second phase of allotment for Park Elite Floors (Sector-75 to 89) would be conducted by draw of lots on 30.08.2011, whereby it was also informed that for plot size 250 sq. yards (for which the Complainant and OP No.3 applied for at the stage of booking) tentative floor super built up area as offered in second phase of allotment would be upto 1,371 sq. ft. instead of 1,203 sq. ft. The basic sale price for increased area (difference between the superbuilt up area mentioned in your application form and the revised super built up area as mentioned hereinabove) was priced at Rs.2,425 per sq. ft. It was stated that answering OP, vide said letter also stated that in case the Complainant and OP No.3 were not satisfied with abovestated and chose not to participate in 2nd and final draw, in that event the answering OP was ready to refund deposited amount along with interest @9% p.a. till date.
(v) On receipt of said letter dated 09.07.2011, the Complainant & OP no.3 provided their consent to participate in second phase of allotment i.e., opted to continue with the booking. With reference to second phase of allotment, the answering OP on 01.09.2011 conducted next draw of lots. The OP vide its letter dated 06.10.2011 allotted unit no. PE-77-GF/Area (tentative) 1,371 sq. ft. whereby basic sale price @Rs.1,859.52/- per sq. ft. for an area 1,203 sq. ft. and @Rs.2,425/- per sq. ft. for an area 168 sq. ft. i.e., net BSP - Rs.26,44,399/-, EDC IDC Rs.3,07,700/-, Preferential Location Charges (PLC) Ground Floor - Rs.1,25,000/-, Club Membership Charges (CMC) - Rs.50,000/-, Interest Free Maintenance Security Deposit @Rs.20/- per sq. ft. and other charges namely any fresh incidence of tax, Electrification Charges, Utility Connection Charges.
(vi) On 03.04.2012 FBA was executed between the Complainant & OP no.3 and the answering OP. All the representations made by the answering OP including basic sale price, tentative timelines for possession and penalty payable by the answering OP in case of delay in offering possession were duly documented in the terms and conditions of the Booking Form which were reiterated in the FBA.
(vii) The Complainant & OP No.3 has concealed from this Hon'ble Commission that Complainant & OP No.3 had materially breachedthe terms and conditions of FBA by making huge defaults in making timely payment of the various installments called from them. In this regard, it is stated that vide Clause-7.1 read along with Clause-2.19, Clause-12.1 & Clause-12.3 of the FBA, the parties agreed and accepted that timely payment of each installment was a material condition of the transaction. Said clause is reproduced herein below for ready reference:
"Clause-7.1 of FBA The timely payment of each installment of the Total Sale Consideration i.e., Basic Sale Price and other charges as stated herein is the essence of this transaction / agreement. In case payment of any installment as may be specified is delayed, then the Purchaser(s) shall pay interest on the amount due @18% p.a compounded at the time of every succeeding installment or three months, whichever is earlier. However, if the Purchaser(s) neglects, omits, ignore or fails for any reason whatsoever to pay in time to the Seller any of the installments or other amounts and outstanding amount or if the Purchaser(s) in any other way fails to perform, comply or observe any of the terms and conditions on his/her part herein contained within the time stipulated or agreed to, the Seller/Confirming Party may at its sole option forfeit the amount of Earnest Money and other charges including late payment charges and interest deposited by the Purchaser(s), and any other amount of a non-refundable nature including incentive, brokerage charges paid by the Seller/Confirming Party to the broker in case the booking is done through a broker, etc. and in such an event the allotment shall stand cancelled and the Purchaser(s) shall be left with no right, lien or Interest on the said Floor and the Seller/Confirming Party shall have the right to sell the said Floor to any other person. Further the Seller/Confirming Party shall also be entitled to cancel/terminate the allotment of the Purchaser(s) in the event of default of any of the terms and conditions of this Agreement.
Clause-12.3 of FBA The Seller/Confirming Party shall also be entitled and reserves its right to cancel/terminate this Agreement in case (a) allotment has been obtained through misrepresentation and suppression of material facts, OR (b) Purchaser(s) violates any of directions issued rules and regulations framed by the Seller/Confirming Party or by any Authority, OR (c) Any default on part of the Purchaser(s) for breaching, violating the terms and conditions of registration/allotment as per this Agreement, Maintenance Agreement, affidavit, undertaking or any other agreement forfeiture of earnest money and other charges of non refundable nature. The consequences of termination and cancellation of the allotment of the Floor as mentioned in Clause 7.2 and 7.4 shall follow."
Despite having agreed to the said clauses, the Complainant & OPNo.3 started defaulting in making timely payments since thebeginning. In this regard, the following is noteworthy-
(a) In terms of payment plan, the OP vide letter dated 15.03.2012 raised demand upon reaching milestone at the start of construction to be paid on or before 30.03.2012 and offered TPD along with reminder to clear previous dues. Complainant & OP No.3 failed to make any payment towards said demand, thus answering OP issued reminder letter dated 31.05.2012 and 05.07.2012, and thus payment was made by Complainant against receipt dated 19.07.2012.
(b) OP vide letter dated 19.08.2013 raised demand upon reaching milestone 'on casting of 2nd floor slab' to be paid on or before 20.09.2013 and offered TPD. Complainant & OP no.3 made partial payment against receipt dated 21.09.2013. For remaining dues answering OP issued reminder letter dated 23.09.2013, thereby Complainant & OP no.3 against receipt dated 04.10.2013 cleared the dues.
(c) In view the Government Notification No. 19/STI/H.A.6/2003/S59A/2016 dated 12.09.2016 (VATAmnesty Scheme), the OP vide letter dated 10.11.2016 raised demand which was payable by 25.11.2016. On account of non payment by the Complainant & OP no.3, answering OP issued reminders via email dated 30.03.2017, 12.05.2017, 12.10.2017 and 17.06.2018.
(d) In meanwhile, next installment became due and answering OP vide letter dated 07.04.2017 raised demand upon reaching milestone 'on completion of brickwork' to be paid on or before 22.04.2017 and offered TPD along with reminder to clear previous dues. Complainant & OP no.3 chose not to make any payment, hence answering OP was constrained to issue reminder letters dated 25.04.2017, 22.06.2017, 11.12.2017, 20.02.2018, 09.04.2018 followed by last and final notice dated 31.07.2018 and 18.09.2018.
(e) Despite numerous reminders, Complainant & OP no.3 did not clear dues. In terms of payment plan, answering OP vide letter dated 25.10.2018 raised demand upon reaching milestone 'on completion of flooring' to be paid on or before 09.11.2018 along with TPD and reminder to clear previous dues at the earliest.
(f) At this stage, in compliance to abovementioned clause qua defaults in making payment by Complainant & OP no.3, answering OP vide letter dated 19.11.2018 informed about termination/cancellation of allotment in question. Therefore, as goodwill gesture and to secure booking rights of the Complainant & OP no.3, the answering OP vide letter dated 29.04.2019 once again gave last opportunity to clear dues to avoid termination of allotment, but as a result Complainant & OP no.3 failed to do so in lieu to which answering OP vide letter dated 17.08.2019 confirmed the termination/cancellation of the allotment.
H. The Complainant has alleged that the OP was to complete construction till 02.10.2014. In this context, it was submitted that the Complainant had deliberately misrepresented the material facts as well as terms of FBA qua the proposed timelines. The OP had raised demands only as per the terms of the FBA and Payment Plan opted by the Complainant and the delay was due to Force Majeure reasons, beyond the reasonable control of the OP and in terms of Clause 14 of the FBA the OP is exempted from any such liability. In this context it was submitted as follows:-
(a) Vide Memo. No. 2733-34 dated 27.3.2009, the Financial Commissioner and Principal Secretary to the Government Haryana, Town and Country Planning Department, issued detailed guidelines for registration of independent floors on residential plots of licensed colonies. In terms of said guidelines each 'Independent Floor was to be recognized as a distinct, identifiable property with a separate identification number, to which the owner shall have title along with proportionate rights in the declared common areas,
(b) In view of the said guidelines the OP accepted the booking from the Complainant. Subsequent to the allotment, the Complainant after having read, understood, agreed and accepted the terms and conditions of the FBA, duly entered into transaction. It is stated that vide Clause 5.1 of FBA, answering OP proposed to offer handing over physical possession of the unit within a period of 24 months from date of execution of Floor Buyer's Agreement, with a further grace period of 6 months, subject to adherence to the other material terms and conditionsof 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.
"Clause 5.1- Subject to Clause 13 herein or any other circumstances not anticipated and beyond the control of the Seller/Confirming Party or any restraints/restrictions from any courts/authorities but subject to the Purchaser(s) having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this Agreement including but not limited to timely payment of Total Sale Consideration and other charges and having complied with all provisions, formalities, documentations, etc., as prescribed by the Seller Confirming Party, the Seller/Confirming Party proposes to offer the handing over the physical possession of the Floor to the Purchaser(s) within a period of twenty four (24) months from the date of execution of the Floor Buyer's Agreement. The Purchaser(s) agrees and understands that the Seller/ Confirming Party shall be entitled to a grace period of (180) one hundred and eighty days, after the expiry of twenty four (24) months, for filing and pursuing the grant of an occupation certificate from the concerned authority with respect to the building consisting of the three independent residential floors including the Floor. The Seller/Confirming Party shall give a Notice of Possession to the Purchaser(s) wherein the Purchaser(s) will be granted 30 days period to complete the formalities and payment of amount demanded. The Purchaser(s) on completing the payment of the amount demanded shall become eligible for execution of the Conveyance Deed and taking over the possession of the Floor from the Seller. In the event the Purchaser(s) fails to make the complete payment of the amount demanded or fails to complete all the documentation and necessary formalities us informed vide Notice of Possession within 30 days of the date of such communication, the Purchaser(s) shall be deemed to be custodian of the Floor from the date indicated in the notice of possession (Deemed Possession) and the said Flour shall remain at the risks and costs of the Purchaser(s) thereafter.
Clause 5.3-Subject to the remittance and adherence to the terms and conditions of this Agreement by the Purchaser(s) and subject to clause 13 herein, if, the Seller/Confirming Party fails to offer the possession of the Floor within a period of 30 months from the date of execution of the Floor Buyer's Agreement, it shall be liable to pay to the Purchaser(s): compensation calculated @ Rs. 5/- (Rupees Five only) per sq. ft. on the Super Built-Up Area of the Floor for every month of delay thereafter until the actual date fixed by the Seller/Confirming Party for offering the handing over the possession, to which both the Parties agree is a reasonable estimate of the damages that the Purchaser(s) may suffer and the Purchaser(s) agrees that it shall have no other rights or claims whatsoever. It is clarified that the timely payment of the installments is the essence of the Agreement and the Purchaser(s) agrees and acknowledges that only in the event that the Purchaser(s) makes all its payments on time as per the terms of the Agreement, only in that event the Purchaser(s) shall be entitled to seek compensation for delay in offering the possession of the Floor. In the event the Purchaser(s) delays in making payment of any installment as agreed herein, irrespective of the fact that such delay has been condoned and payment is accepted along with interest by the Seller, the Purchaser(s) agrees to forego his entitlement of seeking the compensation amount from the Seller for any delay in offering the possession of the Floor to the purchaser(s), as stated in clause -5.1. The adjustment of such compensation shall be done only at the time of making the payment of the final installment as communicated alongwith the letter offering the possession of the floor. The purchaser(s) shall not be entitled to any other compensation for direct or indirect losses, interest etc. or delay in handling over the possession by the seller.
Clause 5.6 – If the Seller/confirming party fails to complete the construction of the floor within the period as mentioned in this agreement due to force majeure circumstances or for any other reason as stated in the agreement or for any other circumstances beyond the control of the Seller/Confirming Party, then the Purchaser(s) agrees that the Seller/Confirming Party shall be entitled to reasonable extension of time for delivery of possession of Floor.
Clause 14 Force Majeure: The compliance hereof, by the Seller/Confirming Party, of the terms and conditions of this Agreement shall be subject to force majeure circumstances, such as act of God, fire, flood, civil commotion, war, riot, explosion, terrorist acts, sabotage, or general shortage of energy, labour, equipment, facilities, material or supplies, failure of transportation, strike, lock-outs, action of labour union, change of Law, any act of Government or intervention of statutory authorities like DGTCP or for any other cause not within and beyond the reasonable control of the Seller/Confirming Party"
(c) In terms of the Notification dated 16.03.2010 of Self Certification Scheme issued by the Town and Country Planning Department, Government of Haryana (hereinafter referred to as "the Department") 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 delegated with the powers for approval of building plans intimating the date of start of construction and in case of non-receipt of any objection within 15 days thereof, the construction could be started, the OP applied for approval of building plans under the Self Certification Scheme. Although, no objection was received from the Department, however, to ensure that there are no problems later, the OP also applied for approval of building plans under the regular scheme.
(d) While in few cases, approval under the regular scheme was received from the Department, but neither approval nor non approval of the Department was received against the Application under Self Certification Scheme, thus, the OP continued the Internal Development Works and simultaneously raised the construction on the plots which was in consonance with the prevailing Building Bylaws considering plans are deemed approved. Moreover, the plans adopted were more or less similar to the plans which were approved earlier for the remaining colonies as well as of some of the units in Faridabad.
(e) There was no clarity in the policy of self-certification to the effect whether the same is applicable to individual plot owners only and excludes the developers / colonizers or whether the same is applicable to the developers/ colonizers as well.
(f) The Department vide public notice dated 08.01.2014 granted time of 90 days to submit requests for regularization of construction. The OP 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.
(g) 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 still existed. It was submitted that due to ambiguities in the various policies, the construction of the project was delayed time and again. The OP had, at all times, proactively raised and followed up with the Department highlighting the said issues.
(h) Since there was ambiguity, inter alia, with regard to approval of building plans submitted by colonizer/developer being covered under Self-certification policy, therefore, 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, however, did not formally release the plans submitted by the OP from time to time in various building plan approval schemes.
(i) The construction was further marred by the status quo order obtained by one M/s DD Global Capital Pvt. Ltd. on false and frivolous grounds on license No. 30/2010 governing the Project in question from the Additional Chief Secretary-cum-Financial Commissioner, Department of Town and Country Planning, Haryana on 14.08.2015 and a Public Notice was issued to the effect that any person dealing with the above project shall be doing so at his own risk, costs and consequences. On account of said developments and stoppage of work, the contractors left the work midway.
(j) In the meanwhile the OP 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 is an essential part and parcel of development without which even already built up units could not be made habitable.
(k) It was only on 05.02.2016, after the true and correct facts were brought to the notice by the OP, that the Additional Chief Secretary-cum Financial Commissioner, Department of Town and Country Planning. Haryana, dismissed the appeal filed by M/s DD Global Capital Pvt. Ltd.
(i) The project in question is a vast residential complex and due to high default rate by various customers/allottees, the wheels for delivery was automatically pushed backwards.
1. That the Complainant has approached this Hon'ble Commission with unclean hands. The Apex Court has always stated that the courts/commissions/authorities of law are meant for imparting justice between the parties. One who comes to court must come with clean hands. Reference is invited to the judgments passed by Supreme Court of India that if there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim, in the case of K.D. Sharma Vs. Steel. Authority of India and others (2008) 12 SCC 481 and G. Jayshree and others Vs. Bhagwandas S. Patel and others (2009) 3 SCC 141. It has been stated on numerous occasions without hesitation that a person whose case is based on falsehood has no right to approach the court, reference is invited to judgment 'S.P. Chengalvaraya Naidu (dead) by L.R's Vs. Jagannath (dead) by L.R's AIR 1994 SC 853'. He can be summarily thrown out at any stage of the litigation. A litigant who approaches the court is bound to produce true, correct and actual facts of the case which are relevant to the litigation. If he withholds a vital information in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. Moreover, the Complainant has miserably failed to produce any strict proofin support of their allegation/s, which had been cleverly drafted to mislead the Hon'ble Commission. 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.
5. In this case the complaint was filed by the complainant against opposite parties– M/s. BPTP Ltd. &Ors with the prayer to:a) To handover the physical possession of the unit PE-77-Ground Floor, Park Elite Floors, Sector-77, Parklands, Faridabad to the complainant on completing repairs and renovations and being fit for living conditions immediately. b)provide the interest/penalty on the amount already deposited till its final/actual realization. c) payRs.1,50,000/- as compensation for causing mental agony and harassment .d) any other relief which this Hon’ble authority deems fit and proper in the facts and circumstances of the present complaint may also kindly be grant to the complainants.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Virender Singh Manral, Ex.C-1 – Application for allotment by sale of a residential Independent floor at Parklands, Faridabad, Haryana, Ex.C-2 – Allotment cum Demand letter, ex.C-3 – Floor Buyer’s Agreement dated 3rd April 2012, Ex.C-4 (colly) – receipts,, ex.C-5 – letterdated13.1.2020 regarding statement of account as on 13.1.2020,, ex.c-6 – Family Settlement Deed.
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, A.R of opposite parties, Ex.R-1 – Resolution letter, Ex.R/2 (colly) - receipts,Ex.R/3(colly) – letter dated 08.10.2009 regarding demand cum
final opportunity for payment, Ex.R/4 – letter dated 05.01.2010 regarding allotment in our project “Park elite floors”, Parklands, Faridabad ,Ex.R/6 (colly) letter date d09.07.2011 , Ex.R/7 – allotment cum demand letter dated06.10.2011, Ex.R-8(colly) – floor Buyer’s agreement,, Ex.R/9(colly) - letter dated15.03.2012 regarding payment request,
6. In this case, the complainant has prayed in his prayer clause seeking possession alongwith interest/penalty on the deposited amount .
7. During the course of arguments, Shri Deepak Nagpal, counsel for the complainant has made a statement that “I do not want the refund. I want the physical possession of the unit PE-77, Ground Floor, Park Elite Floors, Sector-77, parklands, Faridabad.”
On the other hand , the counsel for opposite party has argued that the complaint is barred by limitation. Opposite parties further argued that the complainant and opposite party No.3 could not be allotted a unit initially due to their own fault since they failed to make complete payment against the demand raised vide letter ate d08.10.2009 despite the fact that was clearly stated in the said demand letter that “applicant who complete payment of due amount of 35% of BSP & 20% of EDC/IDC by due date (23.10.2009) shall be allotted unit by draw of lost scheduled which was to be held in November 2009”. The complainant and opposite party No.3 were immediately thereafter given the refund option vide letter dated 5.1.2010 if they did not wish to wait for 2nd phase of allotment and that they voluntarily chose to opt for allotment. On 06.10.2011, opposite parties issued re-allotment letter to the complainant and opposite party No.3 while the fact that vide the said letter, they were allotted a unit for the first time. Ity had also been concealed that prior to the said allotment, opposite party vide letter dated 09.07.2011 informed complainant and opposite party No.3 that second phase of allotment for Park Elite Floor (Sectr-75 to 89) would be conducted by draw of lots on 30.08.2011, whereby it was also informed that for plot size 250 sq. yards (for which the complainant and opposite party No.3 applied for at the stage of booking) tentative floor super built up area as offered in second phase of allotment would be upto 1,371 sq. ft. instead of 1,203 sq. ft.. The basic sale price for increased area (difference between the super built up area mentioned in the application form and the revised super built up area as mentioned herein above) is priced at Rs.2425/- per sq. ft. and in case the complainant and opposite party No.3 are not satisfied with the same and chose not to participate in 2nd and final draw, in that event the opposite party is ready to refund deposited amount along with interest.
On 03.04.2022, FBA was willing executed between the complainant and opposite party No.3 and the opposite parties wherein, all the representation made by the opposite parties including basic sake price, tentative timelines of possession and penalty payable by the opposite parties in case of delay in offering possession were duly documented in the terms and conditions of the booking form which were reiterated in the FBA. It has been misrepresented that the complainant and opposite party No.3 have paid a total sum of Rs.25,36,281.85/- against the said booking/allotment while the true fact is that that they paid a total sum of Rs.24,73,878.32 and has availed timely Payment Discount benefit (TPD) for an amount of Rs.27,261.08/- towards sale consideration of allotted unit. The complainant and opposite party No.3 the complainant have misrepresented that they had duly paid all demands raised by the opposite party while the fact is that on account of non-payment, issued termination/cancellation intimation dated 19.11.2018. However, thereafter, the opposite parties granted another opportunity to the complainant and opposite party No.3 to clear the dues vide letter dated 29.04.2019 but they failed to avail the opportunity and thus, the opposite party issued final termination/cancellation dated 17.08.2019.
8. During the course of arguments, Shri Jay Shankar, Authorized Representative of opposite parties has made a statement that “We do not have the occupation certificate. One year time may kindly be granted to handover the physical possession of the unit in question to the complainant.”
9. After going through the evidence led by the parties as well as the statement of Shri Jay Shankar, Representative of opposite parties, the Commission is the opinion that As we all now in the year 2020 to 2021 the diseases Covid-19 was spreading and the government of India have declared the Lockdown in the Country and everything was getting closed. The builders are also sufferer.
The Hon’ble Supreme Court of India took Suo Motu Cognizance in SMWP 3 of 2020 of the situation arising out of the challenge faced by the country on account of Covid-19. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
10. In the interest of justice, complaint is allowed with the direction to the opposite parties to hand over the physical possession of unit in question to the complainant within one year from the date of this order. Opposite parties are also directed to apply the occupation certificate to the concerned department.
OR
the complainant is at liberty to take the refund amount after giving the surrender application to the opposite parties. Opposite parties are also directed to pay interest @ 9% p.a. except deduction to interest of the COVID 19 period in due course of law as per the agreement and the delayed interest will be settled at the time of final delivery of possession of unit in question. Opposite parties are also directed to pay Rs.5500/- as compensation for causing mental agony and harassment alongwith Rs.5500/- 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: 19.09.2022 (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.
