District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 424/2022.
Date of Institution:10.08.2022.
Date of Order: 06.04.2023
Yashpal Singh S/o Shkeer Pal Singh aged about 65 years, R/o 8/215, A-1, Engineers Colony, Bye Pass Road, District Agra, Uttar Pradesh.
…….Complainant……..
Versus
1. M/s. BPTP Ltd., having its registered office at M-11, Middle Circle, Connaught Circus, New Delhi through its authorized signatory Shri Chander Mohan Sharma.
2. M/s. BPTP Parkland Pride Limited, having its registered office at M-11, Middle Circle, Connaught Circus, New Delhi through its authorized Signatory Shri Chander Mohan Sharma.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Sukhbir Singh Verma, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite party.
ORDER:
The facts in brief of the complaint are that the complainant applied for an allotment of residential Independent Floor in the project of opposite party named Park Elite Floor at Parkland Faridabad. The opposite party had issued the consumer No. 48/1221 to the complainant. The opposite parties allotted floor unit NO. H2-24 on second floor on the basis of tentative layout plan in the project of the opposite parties and later on the opposite parties changed the floor on the request of the complainant from NO. H2-24SF to PE177-SF through the allotment letter. Opposite parties Nos.1 & 2 entered into an agreement of Floor Buyer’s Agreement with the complainant on 03.12.2012 at Gurugram pertaining the floor NO. PE-177-SF/122169. As per several demand notices of the opposite parties for making payment to the complainant and whereupon the complainant made the following payments on dated 09th May amounting Rs.3,00,000/- on dated 21.08.2009 amounting to Rs.1,16,950 on dated 21.08.2009 amount to rs.22,050/- on dated 21.08.2009, amounting to Rs.2,00,000/- on dated 21.10.2009 amounting to Rs.35,620/-, on dated 21.10.2009 amounting to Rs.80,000/-, on dated 21.10.2009 amounting to Rs.80,000/-, on dated 21.10.2009 amounting to Rs.92,780/- that on dated 26.12.2012 amounting to Rs.1,16,212/-, on dated 25.02.2013 amounting to Rs.3,50,075/-, on dated 04.09.2013 amounting to Rs.3,50,075/-, on dated 04.09.2013 amounting to Rs.3,83,800.86/-, on dated 15.10.2013 amounting to Rs.3,60,373.86/-, on dated 21.11.2013 amounting to Rs.3,46,050/-, on dated 29.04.2017 amounting to Rs.25,466/- on dated 18.11.2017 amounting to Rs.3,39,050/- and lastly made payment of Rs.1,55,630/-, total amounting to Rs.28,63,990/-. As per the terms and conditions of the agreement, the opposite parties were bound to complete construction and to deliver the possession of the floor to the complainant within thirty months from the date of agreement. The opposite parties had violated the terms and conditions of the agreement and failed to complete construction of the floor and failed to handover physical possession of the floor to the complainant. The complainant sent legal notice dated 14.07.2022 to the opposite parties but all in vain. 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) pay Rs.28,63,990/- (principal amount) alongwith interest @ 9% p.a. from the date of payment till its actual realization alongwith penalty/compensation amounting to Rs.4 lacs to the complainant.
b) pay Rs.2,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 1,00,000 /-as litigation expenses.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that in the year 2009, complainant after having conducted due diligence through his broker namely “Himalaya Realtors” applied for a booking of an independent residential floor in the project “Park Elite Floors” developed by opposite party No.1 at Faridabad and submitted the booking form and paid a sum of Rs.3,00,000/- against receipts dated 27.07.2009 issued by the opposite party No.1. Opposite party No.1 conducted allotments by draw of lots held on 11.12.2009 and vide allotment letter dated 24.12.2009 confirmed allotment of unit No. H2-24-SF tentatively admeasuring 1,418 sq. ft. in the name of the complainant. It was stated that due to unavoidable circumstances beyond the control of opposite party No.1 already allotted unit NO. H2-24-SF could not be offered. However, opposite eparty No.1 with an intent to secure booking rights of complainant, vide letter dated 12.06.2012 offered to re-allot unit bearing NO. PE-177-SF tentatively admeasuring 1,510 sq. ft in the project “Park Elite Floors, Parklands, Faridabad”. Even otherwise, opposite party No.1 also offered to the complainant that in the event said re-allotment was not acceptable to the complainant he might approach for the refund of the deposited amount alongwith interest @ 9% p.a. On receipt of the said re-allotment and refund option, the complainant submitted duly signed consent letter while opting for re-allotment option, duly received by opposite party No.1 on 09.07.2012 and also communicated his consent vide email dated 15.06.2012 subject to voluntarily and knowingly accepting re-allotment of unit NO. PE-177-SF and agreed to abide by the terms and conditions associated with the unit. It was submitted that Flat Buyer’s Agreement (FBA) dated 03.12.2012 was executed between the complainant and opposite parties subject to thorough reading, understanding, agreeing and accepting to abide the same without any demur or protest. Also Addendum to FBA dated 03.12.2012 was executed between complainant and opposite parties on 30.05.2013. All the representations made by opposite party No.1 including basic sale price & other payable charges, tentative timelines for possession and penalty payable by opposite party NO.1 in case of delay in offering possession were duly documented and presented vide FBA and Addendum of FBA. The complainant had wrongly alleged and misrepresented that opposite party No.1 was liable to pay Rs.28,63,990/- (principal amount) alongwith interest @ 9% p.a. to complainant. In said regard, it was pointed out that complainant had made a total payment of Rs.27,90,047.31/- and had availed a timely payment discount for an amount of Rs.73,942.69 towards demand paid by the complainant within stipulated time. The complainant had failed to disclose the fact that the complainant miserably failed to abide by agreed Clause 7.1 of FBA i.e. timely payment of each installment should be the essence of the agreement. It was pointed out that opposite party No.1 vide letter dated 28.12.2012 raised demand at the stage of “at the start of construction” to be paid by 12.01.2013, whereas complainant failed to clear said payment within stipulated time and opposite party No.1 issued reminder letters dated 18.01.2013 and 18.02.2013. Thus after expiry of stipulated time, said ending demand was paid by the complainant on 25.02.2013. It was submitted that while determining tentative time for delivery of possession of the unit the Hon’ble Commission shall appreciate the fact that the delay in construction was due to force majeure circumstances which were beyond the control of opposite party No.1. It was well settled law that “force majeure” indicate an event which was beyond the control of human being and prevents other party from performing its contractual obligations. In the present case, opposite party No.1 was entitled to claim under the exception of shelter force majeure events i.e. onset of the COVID-19 pandemic which continued for over one and a half years. Direct impacts ranging from a slowdown of available goods and labor due to suspensions and, in some instances, terminations of parties or entire projects. Issues such as: contract or project notifies for default, scheduling and adjustments; project suspension, termination and reinstatement, workplace safety compliance; workforce management; material, subcontractor and supply chain delays and impacts; risk management and insurance; claims avoidance or alternatively, claims management and the disputes process were covered as an excusable delay. 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– BPTP with the prayer to: a) pay Rs.28,63,990/- (principal amount) alongwith interest @ 9% p.a. from the date of payment till its actual realization alongwith penalty/compensation amounting to Rs.4 lacs to the complainant. b) pay Rs.2,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 1,00,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Yashpal Singh, Ex.C-1- Flat Buyer Agreement, Ex.C-2 – Details of amount paid to BPTP, Ex.C-3 to C-16 – receipts,, Ex.C-17 – legal notice, Ex.C-18 & 19 – postal receipts, Ex.C-20 – allotment letter.
On the other hand counsel for the opposite parties strongly agitated and opposed. As per the evidence of the opposite parties Eax.RW1/A – affidavit of Shri Jay Shankar, Authorized Representative of opposite parties, Ex. R/1 (colly) – resolution, Ex.R-2 – application for allotment by sale of a residential independent floor of parklands, Faridabad,, Ex.R-3 – receipt, Ex.R-4 – allotment letter, Ex.R/5(colly) – letter dated 12.06.2012 regarding re-allotment of the unit H2-24-SF “Park Elite Floor” Parklands, Ex.R-6(colly) – Floor Buyer’s agreement, Ex.R-7(colly) – letter dated December 28,2012 regarding payment request, Ex. R/8 (colly) – receipt, Ex. R/9 – notification dated 16.03.2010, Ex.R-10 – Public notice, Ex.R-11 – order dated 01.07.2015 passed by the Director General, Town and Country Planning, Haryana, Chandigarh, Ex.R-12 – letter No. 6631 dated 4.4.2016, Ex.R-13 (Colly) - email dated 23.08.2017, Ex.R-14 (colly) - order dated 6th January, 2023 regarding implementation of Actions under Stage-III (‘Severe’ Air Quality) of Revised Graded Response Action Plan in Delhi-NCR steps to be taken, Ex.R-15 - order dated 10.01.2022 passed by the Hon’ble Supreme Court of India in Miscellaneous application No. 21 of 22.
6. In this case, the complainant applied for an allotment of residential Independent Floor in the project of opposite party named Park Elite Floor at Parkland Faridabad. The opposite parties allotted floor unit No. H2-24 on second floor on the basis of tentative layout plan in the project of the opposite parties and later on the opposite parties changed the floor on the request of the complainant from No. H2-24SF to PE177-SF through the allotment letter. Opposite parties Nos.1 & 2 entered into an agreement of Floor Buyer’s Agreement with the complainant on 03.12.2012 at Gurugram pertaining the floor No. PE-177-SF/122169 vide Ex.C-1. As per details of amount paid to BPTP vide Ex.C2 the complainant made the following payments on May amounting Rs.3,00,000/- on dated 21.08.2009 amounting to Rs.1,16,950 on dated 21.08.2009 amount to Rs.22,050/- on dated 21.08.2009, amounting to Rs.2,00,000/- on dated 21.10.2009 amounting to Rs.35,620/-, on dated 21.10.2009 amounting to Rs.80,000/-, on dated 21.10.2009 amounting to Rs.80,000/-, on dated 21.10.2009 amounting to Rs.92,780/- that on dated 26.12.2012 amounting to Rs.1,16,212/-, on dated 25.02.2013 amounting to Rs.3,50,075/-, on dated 04.09.2013 amounting to Rs.3,50,075/-, on dated 04.09.2013 amounting to Rs.3,83,800.86/-, on dated 15.10.2013 amounting to Rs.3,60,373.86/-, on dated 21.11.2013 amounting to Rs.3,46,050/-, on dated 29.04.2017 amounting to Rs.25,466/- on dated 18.11.2017 amounting to Rs.3,39,050/- and lastly made payment of Rs.1,55,630/-, total amounting to Rs.28,63,990/-. As per the terms and conditions of the agreement vide Ex.C-1, the opposite parties were bound to complete construction and to deliver the possession of the floor to the complainant within thirty months from the date of agreement. The opposite parties had violated the terms and conditions of the agreement and failed to complete construction of the floor and failed to handover physical possession of the floor to the complainant.
7. 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 allotment of the unit in question in the year 2012 and he has waited for more than 11 years to see the project to be completed and offer of possession of the allotted unit to him. So that unilateral clause about the cancellation by the allottee debar him from seeking refund is not binding in view of the ratio of laid down in the following cases:
1) Ram Vilas “Sharma & 23 others Vs. M/s. Gold Souk Infrastructures Private Ltd. in consumer case No. 421 of 2018 passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi referred the authority passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II(2019) CPJ 29 (SC)……….In the circumstances, we are of the view that the orders passed by the SCDRC and by NCDRC for refund of moneys were justified.”
ii) 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 and is entitled to seek refund of the amount paid by him alongwith compensation. The complainant had been waiting for completion of the project in which allotted unit is located for more than six years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the refund of the amount deposited with the opposite party besides interest and compensation.
8. Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite parties jointly & severally, are directed to refund the deposited amount to the complainant with compensation in the form of simple interest @ 7% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- 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: 06.04.2023 (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.
