District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No.489/2021.

 Date of Institution: 22.09.2021.

Date of Order: 25.07.2022.

1.                     Gajraj Singh aged about 48 years son of late Shri Mangal Ram.

2.                     Monika aged about 42 years wife of Shri Gajraj Singh.

Both residents of House No. 3636-GF, LIG, Housing Board colony, Pocket-2, Sector-3, Ballabgarh, District Faridabad, Haryana – 121004.

                                                                                    …….Complainants……..

                                                            Versus

1.                     M/s. Business Park Town Planner Ltd. (BPTP) Regd. Office: M-11, Middle Circle, Connaught Place, New Delhi – 110 001 through its Marketing Manager/Director/MD.

2.                     M/s. Designer Realtor Pvt. Ltd., (Sister Concern of BPTP Limited) Registered office: OT-14, 3^rd floor, next Door, Parklands, Sector-76, Faridabad through its Marketing Manager/Director.

3.                     M/s. Ridge Craft Home Pvt. Ltd., (Sister concern of BPTP Limited) Registered office:- BPTP, Sector-86, Faridabad through its Marketing Manager/Director.                   

                                                                                    …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.

PRESENT:                Sh. Chandan Kumar ,  counsel for the complainants.

                                    Sh.  Jay Shankar, AR on behalf of opposite parties Nos.1 to 3.

ORDER:  

                        The facts in brief of the complaint are that  the complainant approached the opposite party No.1 for purchase of affordable plot in the month of September,2019 and booked a plot in the project BPTP District, Sector-86, Faridabad through opposite party No.3 and deposited a sum of Rs.1,00,000/- vide demand draft and also issued a cheque of Rs.3,00,000/- bearing NO. 555588 and the opposite parties assured the complainants that on successful allotment of plot in the said project, the cheque of Rs.3,00,000/- should be used by opposite party No.3.  But the opposite parties in an illegal manner used the said cheque and got its presented in the bank account of opposite party No.3 without holding the draw of lots.  In this way, the opposite parties had tried to cause wrongful loss of Rs.4,00,000/- and did not allot any plot in favour of the complainants.  Thereafter, the complainants used to visit at the offices  of the opposite parties and demanded their above said money back but the opposite parties always made false assurances and at last assured that they would give a plot in the other project of BPTP in Sector-84, Faridabad i.e. BPTP District 5 BLK-B, Sector-84, Faridabad and also misguided that there was no development in Sector-86, Faridabad and also assured that the amount paid by the complainants should be adjusted in the property of Sector-84, Faridabad and the complainants had no option except to accept their proposal.  Accordingly, the complainants booked a plot bearing unit No. B-110, BPTP District 5 Block-B, Sector-84, Faridabad, customer code NO. 158892, @ Rs.41,000/- per sq. yards as BSP which comes to Rs.50,00,639.75 including other taxes and the complainants also submitted all requisite documents i.e bank passbook etc. with the opposite parties and also deposited other amount i.e. total amount of Rs.12,52,410/- i.e. in this way, the opposite parties had received 25% of the total BSP.  The opposite parties had issued allotment letter dated 19.10.2020 in favour of the complainants mentioning the total price as Rs.50,00,639.75 plus GST Rs.24,349/-.  For the balance payment the complainants had applied for housing loan with HDFC Bank Ltd. and the said bank approved the loan of Rs.32,00,000/- vide offer dated 18.01.2021 bearing file No. 658375483/I/TD.  The complainants used to request the opposite parties for the execution of Builder Buyer Agreement but they always avoided the matter on one pretext or the other and the opposite parties in an illegal manner sent a letter dated 16.02.2021 subject “Termination/cancellation intimation in respect of Unit No. B110 in project “BPTP District 5 BLK B” at Faridabad on false, flimsy and concocted story.  The complainants made uncounted visits at the offices of opposite parties as well as site and requested the opposite parties to withdraw the impugned notice of cancellation and to allow them to deposit the balance sale consideration of the said plot because, the housing loan had already been sanctioned, but the opposite parties were adamant to usurp the hard earned money of the complainants and to cancel the said booking illegal and unlawfully. 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)                     withdraw the impugned cancellation notice bearing letter dated 16.02.2021 with immediate effect.

b)                     handover the physical vacant possession of the booked plot/plot to the complainants.

c)                     receive the balance  amount of sale consideration.

d)                     execute necessary title deed (sale deed/conveyance deed) of the said plot/plot in favour of the complainants.

f)                      pay Rs.10,00,000/- as compensation for causing mental agony and harassment .

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 opposite parties Nos.1 and 3 were not relevant and necessary party and had been wrongly impleaded as party to the complaint.  It was stated that opposite party No.2 (M/s. Designers Realtors Pvt. Ltd.) was a wholly and subsidiary of opposite party No.1 which was a renowned and reputed real estate developer, hence the project under which booking was made by the complainants was developed by opposite party No.2.  it was further stated that the complainants earlier made booking with opposite party No.3 which was later on request of the complainant were transferred to the booking with opposite party No.2, however, any payment received by oppose party NBo.2 stands transferred to opposite party No.2 and, with regard to opposite party No.1 no booking and/or payment was made by the complainants towards opposite party No.1, therefore no relationship exists with opposite parties Nos.1 & 2.  The complainants had exclusively interacted with opposite party No.2 qua allotment in question.   However, with a view to harass, opposite parties Nos.1 and 3 had been unnecessarily made a party to the complaint under reply.  Therefore, as a natural corollary, opposite parties Nos.1 & 3 ought to be deleted from the array of opposite parties.  Even otherwise, opposite party No.2 was a separate legal entity, capable and competent to sue and being sued in its independent capacity.  Furthermore, as no claim was made by the complainants against the opposite parties Nos.1and 3, they were liable to be deleted from the array of parties.  It was further submitted that  the complainants voluntarily and knowingly requested the opposite parties that due to certain reasons he desires to shift provisional  booking in the project at Sector-86, Faridabad to Sector-84, Faridabad and also requested to transfer deposited amount of Rs.4,00,000/- towards provisional booking in Sector-84, Faridabad.  Opposite parties being customer friendly organization considered said request made by the complainants, thereby on 06.10.2020.  Complainants filed a fresh application form while affixing their respective signatures on each and every page and submitted the same with  the opposite party No.2.  The deposited amount of Rs.4,00,000/- which was deposited by complainants in favour of opposite party No.3 were transferred/adjusted towards customer account with opposite party No.2 as booking/registration amount.  On completion of allotment eligibility criteria, the opposite party No.2 vide letter dated 19.10.2020 allotted residential plot No. B110/Area 118.31 sq. yards (98.920 sq. mters.) in the project BPTP District 5 Block B situated at Sector-84, Faridabad, whereby total net price amounts ot Rs.50,09,639.75 (excluding GST) which consists of basic sale price calculated @ Rs.41,000/- per sq. yards. Sums upto Rs.48,50,710/-, Preferential Location Charges (PLC) – Rs.1,21,267.75/- (excluding GST), Interest Free Maintenance Security Deposit – Rs.23,662/-, Administrative Charges  - Rs.14,000/- (excluding GST) and other incidental charges such as stamp duty charges, registration charges for execution of agreement to sell and conveyance deed respectively.  The notification issued by Haryana Real Estate Regulatory Authority bearing number 11/Rera GGM Regulation 2018 dated 05.12.2018 stated that forfeiture amount of earnest money shall not exceed more than10% of the consideration amount of the real estate in case of cancellation of apartment/plot/building.  It was stated that opposite party No.2 as a goodwill gesture and with bonafide intentions, chose to refund whole deposited amount with any deductions.  Opposite party No.2 tried to contact the complainants, inviting them to visit offices of opposite party and collect the said payment, but the complainants on one pretext r another kept n lingering the matter.  Finally, the opposite parties vide email dated 17.02.2021 informed the complainants that cheques had been delivered via courier (postal receipt No. ED975308700IN) at their registered address.  The said courier containing cheques were delivered by the complainant son 20.12.2021.   The details of said cheque are as under:-

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– Business Park Town Planner with the prayer to : a)  withdraw the impugned cancellation notice bearing letter dated 16.02.2021 with immediate effect. b) handover the physical vacant possession of the booked plot/plot to the complainants. c)       receive the balance  amount of sale consideration. d)            execute necessary title deed (sale deed/conveyance deed) of the said plot/plot in favour of the complainants. f)  pay Rs.10,00,000/- as compensation for causing mental agony and harassment . g)  pay Rs.55,000/ - as litigation expenses .

                        To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Gajraj Singh, Ex.C-1 –confirmation list of booking given by investors to BPTP for DD, Ex.C-2 – statement, Ex.C-3 – Application Form, Ex.C-4 – Receipt, Ex.C-5 – not readable, Ex.C-6 – payment receipt,, Ex.C-7 – allotment letter, Ex.C-8 -  approval letter, Ex.C-9 – termination/cancellation intimation, Ex.C10 & 11 – complaints, Ex.C-12 – legal notice, Ex.C-13 to 15 – postal 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 Shri Jai Shankar, Ex.R-1 – Resolution, Ex.R2 – letter written by Gajraj Singh to BPTP, Ex.R-3 – Application form, Ex.R4 – allotment letter,, Ex.R5 – payment request letter written by opposite party to complainant, Ex.R-6 –  Notification dated 05.12.2018.

6.                     As per Ex.R2 – the  complainant requested the opposite party No.3 that due to certain reasons he desires to shift provisional booking in the project at Sector-86, Faridabad to Sector-84, Faridabad i.e. opposite party No.2 and also requested to transfer deposited amount of Rs.4,00,000/- towards  provisional booking in Sector-84, Faridabad.

7.                     It is evident Ex.R3 the complainants filed  a fresh application form while affixing their respective signatures on each and every page and submitted the same with opposite party No.2.  He further alleged that the deposited amount of Rs.4,00,000/- which was deposited by the complainants in favour of opposite party NO.3 was transferred/adjusted towards customer’s account with opposite party No.2 as booking/registration amount.  As per payment schedule the complainant has to deposit the amount within 90 days from the date of booking but the complainant was failed to deposit this amount and also requested for the Builder Buyer’s Agreement. It means that the complainant does not have Builder Buyer Agreement. It is submitted that the alleged payment made by the complainants to opposite party No.3, the alleged transaction took place between the complainant and opposite party No.3 hence the  complainant is not a consumer as per section 2(1) d(ii) of the consumer Protection Act, 1986.

8                      During the course of arguments, counsel for the opposite party has placed on record receipt of complaints, projects and other correspondence at HRERA Panchkula Reception desk.  It is evident from email dated August 4,2021 regarding complaint status in which it has been mentioned uptdated Status : Scrutinized and rejected. The counsel for the opposite parties argued at length and stated that the complainant has filed the complaint before the HRERA and also given the receipt of the HRERA in which it has been mentioned Updated Status: Scrutinized and Rejected.  The counsel for the opposite party has also placed on record track consignment in which it has been mentioned on 20.12.2021 “Item Delivery Confirmed”.

9.                     It is evident from email dated 17.12.2021 vide Ex.R-5(colly) opposite party has sent a termination letter dated 16.02.2021 and the amount was forfeited by the opposite party as per  the terms & conditions of the agreement. On the other hand, opposite party has failed to establish their case,  There is no builder buyer agreement and no evidence led by the  opposite party on the agreement.  When there is no payment deposit and no agreement was executed between the parties, the question of alternative plot does not arise..  In the interest of justice, opposite party No.3 is directed to refund the total deposited amount alongwith interest @ 6% p.a. from the date of deposit  till its realization.  Hence, the complaint is allowed.

10.                   Opposite party No.3 is directed to :

a)                     refund the deposited amount alongwith interest @ 6% p.a. from the date of deposit till its realization.

 b)                    pay Rs.2200/- as compensation for causing mental agony and harassment.

c)                     pay Rs.2200/-   as litigation expenses.

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:  25.07.2022                                                   (Amit Arora)

                                                                                                     President

                         District Consumer Disputes

             Redressal  Commission, Faridabad.

                                                            (Mukesh Sharma)

                  Member

            District Consumer Disputes

                                                                                    Redressal Commission, Faridabad.