District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 532/2022.
Date of Institution: 29.09.2022.
Date of Order: 06.04.2023.
1. Brahma Nand Srivastava son of Shri Guru Keshri Singh.
2. Poonam Srivastava wife of Mr. Brahma Nand Srivastava both R/o super Tools, PN-3, Thakur Complex, Thani More, Mujessar, Faridabad.
…….Complainants……..
Versus
1. M/s. BPTP Ltd., M-11, Middle Circle, Connaught Circus, New Delhi – 100 001 (service be also effect at BPTP Limited Registered office: OT-14, 3rd floor, Next door, Parklands, Sector-76, Faridabad – 121004, Haryana.
2. M/s. Countrywide Promoters Pvt. Ltd., & Others, M/11, Middle Circle, Connaught Circus, New Delhi – 100 001.
…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. Vinod Kumar, counsel for the complainant.
Sh. Jay Shankar , AR on behalf of opposite parties Nos.1 and 2.
ORDER:
The facts in brief of the complaint are that on the inducement and allurement of the opposite parties, the complainants got booked two bed rooms flat in Group Housing Project “ park Elite Floors” situated at Parkland, Faridabad under their pre launch scheme and deposited a sum of Rs.2,00,000/- as booking amount, out of which Rs.1,50,000/- was deposited through cheque No. 633525 and Rs.50,000/- through cheque No. 633524 both drawn on Vijaya Bank on dated 06.06.2009. On 24.12.2009 the opposite parties issued an allotment letter to the complainant and allotted an independent flat/apartment bearing No. P7-12A on Second floor, super area measuring 876 sq. feet (81.416 sq. mtrs.), situated at Park Elite Floor, Parkland, Faridabad, Haryana. As per statement of account as on 10.09.2022 the complainants had deposited an amount of Rs.19,66,821.54/- to the opposite parties on various dates as demanded by the opposite parties from time to time. The opposite parties had assured to deliver possession of aforesaid independent floor to the complainants within 24 months (plus grace period of 06 months) from the date of sanction of building plan, whichever was later. It was submitted that the opposite parties had not disclosed the date of sanctioning of building plans for aforesaid flat till date. The opposite parties had to produce the sanctioned building plan in respect of building wherein aforesaid flat was situated, so that the opposite parties liability for delay in offer of possession might be assessed. Even otherwise, the complainants being the purchasers were entitled to have the copy of sanctioned building plan of the building wherein aforesaid independent floor was situated. Draft of agreement dated 30.04.2010 was prepared by the opposite parties. The opposite parties had put a clause in agreement dated 30.04.2010 i.e clause 4.3 which provides that in case of delay in offer of possession on the part of the opposite parties, they would pay penalty @ 5/- per square feet of super area of aforesaid flat to the complainants for the period
of delay. The amount of penalty mentioned in agreement was too low to compensate the complainants for the damages being suffered by the complainants for delay in offer of possession by the opposite parties. This penalty acts as a motivating factor for the opposite parties to keep delaying the construction because its quantum was extremely less than the rate of interest at which the opposite parties might borrow money from bank/financial institutions. In fact, this penalty was not a penalty for the opposite parties rather a reward for delay in offering possession. It was submitted that this clause 4.3 amongst other clauses of agreement dated 30.04.2010 were one sided in favour of the opposite parties and were highly unfair to buyers including the complainants. 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) immediately handover the possession of flat/apartment No. P7-12A on Second floor, super area measuring 876 sq. feet (81.416 sq. mtrs.) situated at Park Elite Floor, Parkland, Faridabad, Haryana to the complainants and get it registered with the registrar of assurances at an earliest.
b) refund the extra charges, which they had already been receive don account of different accounts as mentioned in statement of account dated 10.09.2022 alongwith interest @ 24% from the date of its payment till realization.
c) refund rs.15,525/- charged as club membership charges alongwith interest @ 24% p.a. from the date of its payment till realization.
d) refund Rs.1,94,564.74 charged as enhance external development
charges & ext. dev. Charges & infrastructure development charges and Rs.2,575/- on account of interest and Rs.15,221/- on account of VAT alongwith interest @ 24% p.a. from the date of its payment till realization.
e) pay Rs. 20,00,000/- as compensation for causing mental agony and harassment .
f) pay interest @ 24% p.a. on the amount paid by the complainants from the dte of payments till the date of handing over the possession of apartment/flat NO. P7-12A on Second floor, super area measuring 876 sq. feet (81.416 sq. mtrs) situated at Park Elite floor, Parkland, /Faridabad, Haryana to the complainant.
g) pay Rs. 55,000 /-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, the complainants after having conducted due diligence, through their broker namely “Pramod Srivastava Reality Pvt. Ltd/” 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.2,00,000/- against receipts dated 06.06.2009 issued by opposite party No.1. Opposite party No.1 conducted allotments by draw of lots held on 11.12.2019 and vide allotment letter dated 24.12.2009 intimated the complainants regarding allotment of unit No. P7-12A-SF the name of complainants. Subsequently, thereafter, complainants, voluntarily executed Floor Buyer’s Agreement dated 30.04.2010. It was stated that on 01.09.2010 ‘Addendum to FBA dated 30.04.2010 was also executed between the complainants and the opposite party No.1 whereby the complainants voluntarily agreed and accepted to be bound and abide by the terms and conditions contained herein in addition to the FBA. All the representations made by the opposite party No.1
including basic sale price, tentative timelines for possession and penalty payable by opposite party No.1 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. Vide letter dated 08.07.2013, opposite party No.1 informed the complainants that on measuring the dimensions of the unit at this construction stage, the super built up area stands revised from 876 sq. ft. (81.38 sq. mtrs.) to 1,041 sq. ft. (96.71 sq. mtrs.) and accordingly raised demand giving option of making payment in one installment by 29.07.2013 and availing timely payment discount or alternatively to make payment in 4 equal interest free installment. The complainants had also concealed that they defaulted in making timely payments of various installments. In this regard, it was submitted that prior to entering into the transaction with the opposite parties, the complainants vide clause 11 of the booking application, which was later reiterated vide clause 7 of the duly executed FBA agreed and accepted that timely payment of each installment was a material condition of the transaction.
The complainants had misrepresented that they had paid an amount of Rs.19,66,821/- to the opposite parties. In said regard, it was pointed out that complainants had made a total payment of Rs.19,14,966/- and had availed a timely payment discount for an amount of Rs.51,855/- for the installments paid within stipulated time which was evident from receipts dated 06.06.2009(2), 27.08.2009, 28.08.2009, 23.10.2009(2), 25.03.2010*2), 06.06.2012, 21.06.2013(2), 10.7.2013, 29.0.07.2013, 04.10.2013, 02.11.2015, 10.06.2015, 23.11.2017.
The complainants had alleged that penalty @ Rs.5/- per sq. ft. was too low to compensate the complainants on account of delay and that the clause 4.3 of the agreement dated 30.04.2010 was one sided and in favour of opposite parties and it was unfair to complainants while concealing that the penalty clause was the
same in the booking application and only after reading, understanding, agreeing and accepting the same, the complainants had invested in the property in question. Further, while penalty for delay @ Rs.5/- per sq. ft. in case of a property worth a crore of rupees may seem inappropriate however or a property in the range of Rs.30 lacs to 40 lacs, compensation in this range was fair wherein the customer was also getting additional benefit of timely payment discount which further reduces the total payment actually made against a unit.
Upon entering the transaction with the opposite party No.1, the complainants became 1/3rd owner of the plot which was worth Rs.70 lacs approx. the complainant were yet to make payment of remaining total sale consideration for the unit in question. It was submitted that the civil construction of the unit NO. P7-12A-SF stands completed and as a matter of fact, the timelines for possession were subject to force majeure circumstances and for the reasons beyond the control of opposite party No.1, the tentative timelines stood diluted.
The delay in handing over of possession of the allotted unit occasioned due to inaction of the government or its agencies should be inferred to be caused due to force majeure circumstances beyond reasonable control of the opposite party. It was also submitted that during last few years, due to issue of pollution, major cause of slow-down/delay in the construction was that on the basis of the recommendations of the CPCB led task force, environment pollution (prevention and control) Commission, EPCA, previously and form time to time, directions were issued for complete ban on construction activities in Delhi-NCR. There had been at least 7-8 such episodes, however such disruptions were unfortunately not added to committed possession dates for the homebuyers. It was stated that even if construction work was officially stopped for just 10 days, builders lost out on approximately 60 days every year because of said ban – 30
days as work comes to a standstill and another 30 days to mobilize labour. It was further stated that timelines for completion of projects thus had been most impacted by the ban on construction activity in Delhi-NCR for past number of years, this unfortunately lead to a delay of at least two months and an increase in project cost by at least 2 to 3 percent for all builders. Hence, said circumstances impacted real estate industry as a whole and said fall back had resulted in severe effect on opposite party No.1 and continue to impact since bans on account of pollution were still continuing. Thus said force majeure circumstances were real cause in delay in handing over possession. The construction of the unit was going on in full swing and the opposite party was confident to hand over possession of the unit in question shortly. However, due to sudden outbreak of the Coronavirus (COVIF 19), the entire country went into lock down from march, 2020 which badly hit the entire economy of the country including the real estate sector because of which construction came to a standstill and it took some time to get the labour mobilized at the site. In fact, even the Hon’ble Supreme Court took cognizance of the said pandemic and accordingly, the period from 15,03,2020 to 28.02.2022 was exempted for the purpose of limitation. 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 Ltd. & Ors. with the prayer to: a) immediately handover the possession of flat/apartment No. P7-12A on Second floor, super area measuring 876 sq. feet (81.416 sq. mtrs.) situated at Park Elite Floor, Parkland, Faridabad,
Haryana to the complainants and get it registered with the registrar of assurances at an earliest. b) refund the extra charges, which they had already been receive don account of different accounts as mentioned in statement of account dated 10.09.2022 alongwith interest @ 24% from the date of its payment till realization. c) refund rs.15,525/- charged as club membership charges alongwith interest @ 24% p.a. from the date of its payment till realization. d) refund Rs.1,94,564.74 charged as enhance external development charges & ext. dev. Charges & infrastructure development charges and Rs.2,575/- on account of interest and Rs.15,221/- on account of VAT alongwith interest @ 24% p.a. from the date of its payment till realization. e) pay Rs. 20,00,000/- as compensation for causing mental agony and harassment . f)pay interest @ 24% p.a. on the amount paid by the complainants from the date of payments till the date of handing over the possession of apartment/flat NO. P7-12A on Second floor, super area measuring 876 sq. feet (81.416 sq. mtrs) situated at Park Elite floor, Parkland, /Faridabad, Haryana to the complainant. g) pay Rs. 55,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW/1- affidavit of Brahma Nand Srivastava, Ex.CW/2 – affidavit of Poonam Srivastava, Ex.CW/A - allotment letter,, Ex.CW/B – Flat Buyer Agreement, Ex.CW/C – legal notice, Ex.CW/D – postal receipts,, Ex.CW/E -/1 – No objection, Ex.CW/E/2 - letter dated 26.03.2010 regarding NOC for properties,, Ex.CW/E-3 – Park Elite Floors, Ex.CE/F – letter dated 10.9.2022 regarding statement of account, Ex.CW/G/1 to 16 (colly) – receipts.
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 Jay Shankar, Authorized Representative of opposite parties, Ex.R-1 (colly) - Resolution, Ex.R/2 (colly) – application for allotment by sale of a residential independent floor of Parklands, Faridabad, Ex.R/3 – allotment letter, Ex.R/4
(colly) – floor buyer’s agreement, Ex.R/5 – undertaking, Ex.R/7 (colly) – letter dated July, 08,2013 regarding payment request, Ex.R/8 (colly) - letter dated June 06,2013 regarding payment request, Ex.R/9(colly) – receipt, Ex.R/10(Colly) – photos, Ex. R/11 – letter dated 17.09.2020 regarding offer of possession, Ex.R/12 – Notification, Ex.R/13 – public notice, Ex.R/14 – order dated 01.07.2015, Ex.R/15 (colly) – order dated 17.11.2017, Ex.R-17 – email.
6. In this case, the complainants got booked two bed rooms flat in Group Housing Project “ park Elite Floors” situated at Parkland, Faridabad under their pre launch scheme and deposited a sum of Rs.2,00,000/- as booking amount, out of which Rs.1,50,000/- was deposited through cheque No. 633525 and Rs.50,000/- through cheque No. 633524 both drawn on Vijaya Bank on dated 06.06.2009. As per Ex.CW/A Opposite parties issued an allotment letter to the complainant and allotted an independent flat/apartment bearing No. P7-12A on Second floor, super area measuring 876 sq. feet (81.416 sq. mtrs.), situated at Park Elite Floor, Parkland, Faridabad, Haryana. As per Ex.CW/F i.e statement of account as on 10.09.2022 the complainants had deposited an amount of Rs.19,66,821.54/- to the opposite parties on various dates as demanded by the opposite parties from time to time. The opposite parties had assured to deliver possession of aforesaid independent floor to the complainants within 24 months (plus grace period of 06 months) from the date of sanction of building plan, whichever was later. The opposite parties had not disclosed the date of sanctioning of building plans for aforesaid flat till date. The opposite parties had to produce the sanctioned building plan in respect of building wherein aforesaid flat was situated, so that the opposite parties liability for delay in offer of possession might be assessed. Even otherwise, the complainants being the purchasers were entitled to have the copy of sanctioned building plan of the building wherein aforesaid independent floor was situated.
As per Flat Buyer Agreement vide Ex.CW/3 i.e clause 4.3 which provides that in case of delay in offer of possession on the part of the opposite parties, they would pay penalty @ 5/- per square feet of super area of aforesaid flat to the complainants for the period of delay. As per Flat Buyer’s agreement dated 30.04.2010, the opposite parties agreed to sell independent flat/apartment bearing NO. P7-12A on Second floor, super area measuring 876 sq. ft. (81.416 sq. mtrs.) situated at Park Elite Floor, Parkland, Faridabad, Haryana to the complainants for basic sale price of Rs.16,08,004/- plus club membership charges of Rs.50,000/-, plus enhanced external development charges and Ext. infrastructure development & infrastructure Dev. Charges of Rs.1,01,003/- i.e. totaling of Rs.17,59,007/-. Cost of the aforesaid independent floor was payable in accordance with construction linked payment schedule. The complainants several times requested to the opposite parties to desist their illegal design and motive and to handover the possession of the flat in question and to receive the balance payment and to adjust the penalty amount @ 5% per sq. feet for delay period and to get registered the same with Sub Registrar but the opposite parties refused to hand over the possession of the flat in question to the complainants.
On the other hand, as per letter dated 08.07.2013 vide Ex.R7(colly) opposite party No.1 informed the complainants that on measuring the dimensions of the unit at this construction stage, the super built up area stands revised from 876 sq. ft.(81.38 sq. mts.) to 1,041 sq. ft. (96.71 sq. mtrs.) and accordingly raised demand giving option of making payment in one installment by 29.07.2013 and availing timely payment discount or alternatively to make payment in 4 equal interest free installment. The complainants willingly and voluntarily opted for making payment in one installment and availed TPD. Opposite party also stated in the above said letter that “you have already been granted a final opportunity by way of a final opportunity letter sent to you and the stipulated time given therein
for making the outstanding payments has expired, then you kindly ignore the present communication and treat your booking/registration/allotment as cancelled/terminated as per the terms of the booking/agreement. However, if the time stipulated in the final opportunity letter is still available to you to make the outstanding payment then on your failure to make the payment as per the final opportunity letter, the booking/registration/allotment shall stand terminated/cancelled automatically without any further reference/notice to you. In both such events, the terms of the final opportunity letter shall prevail over the present communication and the present communication shall not be treated as reinstatement of your booking/registration/allotment.” As per letter dated 06.06.2013 vide Ex.R8 (colly) opposite party No.1 raised demand at the stage of “On casting of ground floor slab” to be paid by 21.06.2013, whereas the complainants failed to clear the complete said payment within stipulated time and opposite party No.1 issued reminder letter dated 26.096.2013. On the other hand, opposite party No.1 vide letter dated 10.11.2016 raised demand for VAT to be paid by 25.11.2016 whereas complainants failed to clear the said payment within stipulated time and opposite party No.1 issued reminder emails dated 30.03.2017, 12.5.2017, 12.10.2017. Thus after expiry of stipulated time, said pending demand was paid by the complainant on 23.11.2017. The complainants had misrepresented that they had paid an amount of Rs.19,66,821/- to the opposite parties. In said regard, the complainant ad made a total payment of Rs.19,14,966/- and had availed a timely payment discount for an amount of Rs.51,855/- for the installments paid within stipulated time which was evident form receipts dated 06.06.2009(2), 27.08.2009, 28.08.2009, 23.10.2009(2), 25.03.2010(2), 06.06.2012, 21.06.2013(2), 10.07.2013, 29.07.2013, 04.10.2013, 02.11.2015, 10.6.2015, 23.11.2017 vide R-9(colly).
7. Keeping in view of the above submissions , the Commission is of the opinion that despite getting the payment request letter dated July 08,2013 issued by the opposite party to the complainant, the complainant has not bothered about the above said letter. After a span of more than 4years, the complainant pad Rs.16,700/- on 23.11.2017 to the company after cancellation of the flat in question. It is settled law by the Apex Court that builder can not hold the property for ever. Hence, In the interest of justice, the complaint is disposed off with the direction to opposite parties to refund the deposited amount to the complainant alongwith interest @ 7% p.a. from the date of respective dates of deposit. Opposite party is also directed to pay Rs.3300/- as compensation for mental tension and agony and also to pay Rs.2200/- as litigation expenses to the complainants. Compliance of this order be made within 30 days from the date 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.
