District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No. 130/2021.

 Date of Institution:09.03.2021.

Date of Order:11.5.2023.

1.                Smt. Seema wife of Shri Anand Kumar Adhar No. 3885 6211 3776.

2.                Anand Kumar son of Shri Ram Ashre both residents of Main 100 ft. road, Opposite  Sector-55, Near Balaji Plywood, Jeewan Nagar Gaunchhi, Ballabgarh, District Faridabad.

                                                          …….Complainants……..

                                                Versus

1.                M/s. Business Park Town Planners Ltd. (BPTP), Registered office: M-11 Middle Circle, Connaught Circus, New Delhi – 110 001.

Corporate office at 5^th & 6^th floor, DCM Building, 16, Barakhamba Road, New Delhi – 110 001 through its Managing director/Director.

2.                M/s. Business Park Town Planners Ltd., Next door 3^rd floor, Sector-76, Faridabad Haryana through its Manager/Director Email: customercarebpms@bptp.com.

3.                Mr. Yashwant

4.                Deepti Mehra wife of Shri Yashwant through its Re-seller both residents of flat No. 403, Antriksha Aparment CGHC, Plot NO. 10, Sector-45, Gurugram Haryana.

5.                Om Prakash son of Shri Sanwal Ram R/o House No. 1584/1, Near Biradari Dharamshala Jawahar Colony, NIT, Faridabad.

                                                                              …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.  P.S.Tomar, counse for the complainant.

                             Sh.  Jay Shankar, AR on behalf of opposite parties Nos.1 & 2.

                             Opposite parties Nos.3 to 5 given up on 29.09.2022.

ORDER:  

                   The facts in brief of the complaint are that   the complainants  had purchased the flat NO. P/8/23, Ground Floor Park Elite Floors, Block-P, BPTP, Sector-75, Faridabad form the opposite parties Nos.3 & 4 (who were re-sellers). The opposite parties Nos.3 & 4 had purchased the said flat No.P/8/23 from the allotee i.e. the opposite party No.5 with the terms and conditions of opposite party No.5  with the terms and conditions of opposite parties Nos.1 & 2. The above said flat was allotted on 10.06.2009 in favour of opposite party No.5 and the possession of the said flat was handed over within the period of 3 years terms and conditions applicable of the opposites parties No.1 & 2.  All the terms and conditions were fulfilled by the allottee then the opposite parties Nos.1 & 2 issued the NOC and ID No. in favour of the allottee and the same as it was terms and conditions was fulfilled by opposite patiesNos.3 & 4 being the purchasers from opposite party No.5.  The complainants fulfilled all the terms and conditions in favour of opposite parties Nos.3 & 4 with the consent of the opposite parties Nos.1 & 2.  Opposite parties Nos. 3 to 5 had already transferred the name of the complainants in the records of opposite parties Nos.1 & 2and the opposite parties Nos.1 & 2  handed over the symbolic possession to the complainants with the consent of opposite  parties Nos. 3 to 5.  On 14.02.2013 the opposite parties Nos.1 & 2 had entered into Buyer Purchase Agreement in favour of the opposite party No.5 as per the payment schedule the grade period and handed over the possession of the said flat with the terms and conditions of MOU/agreement.  The opposite  parties Nos.1 & 2 entered into agreement with opposite parties Nos.3 & 4 with reference customer ID No. IBL/17-18/NOC/ELITE FLOORS/346 dated 04.05.2018 being the second owner vide agreement dated 09.05.2018 then the opposite parties Nos. 3 & 4 become owners with the terms and conditions of opposite parties Nos.1 & 2 which was fulfilled by opposite parties Nos.3 & 4.  Opposite parties Nos.1 & 2 entered into agreement with the complainants and issued the customer ID No. Ref. Code No 153167 dated 23.04.2019.  Opposite parties Nos.1 & 2 entered into Tri-party agreement dated 12.08.2019 in the name of the complainants. The complainants taken the loan amount of Rs. 17,38,688.30 from HDFC Bank  Finance Limited which was transferred into the accounts of opposite parties Nos.3 & 4 the remaining amount was payable at the completion of the flooring and handing over the possession as per the demand of the opposite parties Nos.1 & 2.  The complainants were residing in the rented house and paying monthly rent of Rs.9000/- per month.  The complainant No.2 was employed in the private company and having three children and total five persons in the family of the complainants. The installments @ Rs.18,340/-  per month was being paid by the complainants to the HDFC  Bank continuously till date.  The complainants had taken home loan of Rs.20,00,000/- on 01.02.2019 from HDFC out of which Rs.17,38,688.30 ps, had been transferred into the bank account of the opposite parties Nos.3 & 4 but the balance amount of Rs.2,61,311/- was still in the account of bank which had not been transferred by the said bank because the opposite parties Nos.1 & 2 had not handed over the  possession of the above said flat to the complainant as per the MOU and as per the commitment since the year 2009 to till date.  The complainants paying the monthly installments  of Rs.18,340/- per month to the said bank since 01.02.2019 to till date.  At the time of purchasing the above said flat the opposite parties Nos.1 & 2 had assured that they will hand over the possession of the above said flat to the complainants in the month of May/June  2019 but the opposite parties Nos.1 & 2 had not handed over the possession of the said flat to the complainants till date.   The complainants sent the complaint dated 03.09.2019 to the opposite parties Nos.1 & 2 through email ID No.

                   The complainants personally met with the opposite party No.2 but he told that there was no any order from Senior officials of Gurugram and Delhi of the opposite party No.1. Company.  However Covid-19 period was going on.  When the complainant told the opposite party No.2 that they had given possession of Block P-8, P-10 & P-6 then he advised that they were sitting after filing the case or had approached to the Senior officers of the opposite party No.1 company.  Then officer of opposite party No.2 demanded the documents regarding handing over the possession of Block P then the complainants replied that after some time they would handover the documents and they see/inspect the physically of P-6, P-8 & P-21 floors then the sitting officer came in angerness and said as, HAM BPTP KE EMPLOYEES HAIN NAA KI TERE JYADA KAREGA TO TUJHE GUARD SE KAKHAR DHAKKE MAAR KAR BAHAR NIKALWA DUNGA.  Hearing this statement the complainants was surprised and came to know that the opposite parties Nos.1 & 2 were harassing physically, mentally, economically to the complainants as well as other poor and middle class persons.  The complainants moved the complaint to Chief Minister of Haryana, SHO, P.S. BPTP Faridabad on 22.12.2020 against the opposite parties Nos.1 & 2 to other senior police officers but the police had not taken any action against opposite parties Nos.1& 2 till date.  The aforesaid act of opposite party amounts to deficiency of service and hence the complaint.  The complainant has prayed for directions to the opposite party to:

a)                handover the vacant physical possession of flat NO. P/8/23, ground floor park Elite Floors, Block-P, BPTP Sector-75, Faridabad to the complainants forthwith immediately.

b)                pay the rental charges @ rs.9000/- per month since Ist Febrary, 2019 till the date of handing over the possession of the said flat to the complainant jointly & severally.

c)                pay interest over the balance amount of Rs.2,61,311/- which was still in the account of  HDFC Housing Limited which had not been transferred by the said bank because the opposite parties 1 & 2 had not handed over the possession of the above said flat to the complainant as per the MOU and as per the commitment since the year 2009 to till date.

d)                 pay Rs. 4,00,000/- as compensation for causing mental agony and harassment .

e)                 pay Rs. 20,000 /-as litigation expenses.

2.                Opposite parties Nos.1 & 2 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 & 2 refuted claim of the complainant and submitted that  the complaint was 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 were noteworthy:

i)                 In the year 2009, one Mr. Mahender Singh Yadav (first allottee) applied for a provisional registration of a nflat/unit in the project “Park Elite Floors” for a tentative area 876 sq. ft. having basic sale rice @ Rs.1,400/- per sq. ft and other charges as and when demanded and deposited Rs.2,00,000/- as registration amount vide receipt dated 10.06.2009.  The answering opposite party vide letter dated 24.12.2009 allotted unit bearing No. P8-23-GF/Area (tentative) 876 sq. ft. (81.38 sq. mtrs.) in the project “Park Elite Floors”.

ii)                In January 2010 Mr. Om Prakash Sharma (second allottee/OP No.5) desired to apply for a booking/allotment in the project of opposite party No1. And accordingly, the first allottee and the second allottees jointly approached the answering opposite party for transfer of booking/allotment in favour of the opposite party No.5.  It was stated  that on account of completion of documentary formalities and requisite payment by opposite party No.5, the answering opposite party via nomination letter dated 16.01.2010 confirmed the opposite party No.5 as allottee towards unit in question.  Evidently, opposite party No.5 on thorough reading and understanding of the clauses and recitals incorporated in the Flat Buyer’s Agreement dated 14.02.2013 agreed and accepted to abide by the same, accordingly submitted the same with the answering opposite party after affixing his respective signature as a token of acceptance.  It was stated that clause 1.2 and 1.4 read alongwith clause 2 of FBA, answering opposite party vide letter dated 23.04.2023 informed the opposite party No.5 that tentative unit super built up area as offered stands revised to 1,043 sq. ft (96.90 sq. mtrs) instead of 876 sq. ft. and the basic sale price for increased area (difference between allotted super built up area and the revised super built up area) was priced at Rs.2,424/- per sq. ft. thereby basic sale price @ Rs.1,400/- per sq. ft. – Rs.20,12,978.12/-, EDC IDC – Rs.1,20,299.65/-, preferential location charges (ground floor) – Rs.1,25,000/-, enhanced EDC – Rs.70,440-, club membership charges -  Rs.50,000/- i.e. net sale consideration – rs.23,78,717.77/-.  The final area and total sale consideration was subject to be finalized at the stage of offer of possession and completion of construction.

iii)               In the year 2018, Mr. Yashwant Mehra & Mrs. Dipti Mehra (Third Alottees/OP Nos.3 & 4) after conducting due diligence alongwith OP No.5 (second allottee) approached answering opposite party seeking transfer of allotment of  it in question in their respective favours.  On completion  of documentary formalities and clearance of dues, answering opposite party via nomination letter dated 24.04.2018 confirmed opposite parties Nos.3 & 4 as allottees of allotment, hence answering opposite party had received a total amount of Rs.20,40,330.21/- (TPD offered Rs.77,076/-) till date towards allotment in question.  It was stated that the opposite parties Nos.3 & 4 furnished a undertaking dated 13.02.2018 whereby via clause (ii) voluntarily agreed to waiver of their right to claim delay compensation from answering opposite party for delay in making offer of possession as agreed in the FBA and via clause (iv) ensured that in case of transfer of said booking/allotment to any other person then in such event such other person shall also be bound by this undertaking.

iv)                         The complainants voluntarily furnished “Indemnity cum Undertaking” dated 23.04.20-19 whereby vide Clause 7 of said, the complainants confirmed and acknowledged that they had physically inspected the project and were aware about the development status of the said project vis-à-vis the said unit. Also, furnished “Undertaking” dated 23.04.2019 whereby Clause (ii) voluntarily agreed to waiver of their right to claim delay compensation from answering opposite party for delay n making offer of possession as agreed in the FBA.

 Opposite parties Nos.1 & 2 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)        handover the vacant physical possession of flat NO. P/8/23, ground floor park Elite Floors, Block-P, BPTP Sector-75, Faridabad to the complainants forthwith immediately. b)         pay the rental charges @ rs.9000/- per month since Ist February, 2019 till the date of handing over the possession of the said flat to the complainant jointly & severally. c) pay interest over the balance amount of Rs.2,61,311/- which was still in the account of  HDFC Housing Limited which had not been transferred by the said bank because the opposite parties 1 & 2 had not handed over the possession of the above said flat to the complainant as per the MOU and as per the commitment since the year 2009 to till date. d) pay Rs. 4,00,000/- as compensation for causing mental agony and harassment . e) pay Rs. 20,000 /-as litigation expenses.

                   Despite availing several opportunities evidence on behalf of the complainant has not been filed. Hence, the evidence of the complainant has been closed by court order  vide order dated 20.03.2023.

                   On the other hand counsel for the opposite parties Nos.1 & 2 strongly agitated and opposed.  As per the evidence of the opposite parties Nos.1 & 2 Ex.RW1/A – affidavit of Jan Shankar, Authorised Representative of opposite parties, Ex.R-1 – Resolution, Ex.R-2 – letter dated 24.12.2009 regarding allotment of residential independent floor, Ex.R/3 (colly) – letter dated 16.01.2010 regarding nomination in respect of Resident Independent floor NO. P8-23-GF in project “Park Elite floors “,, Annexure A/2 (colly) – Buyer’s agreement,  Annx.A/3(colly) – payment request letter dated April 23,2013, Annx.R-4(colly) – letter dated 24.04.2018,, Ex.R/5 – letter dated 14.5.2019 regarding nomination in respect of floors bearing NO. P8-23-GF measuring 1043, FT2 on Ground floor , Ex.R/6 (colly) – Indemnity cum undertaking by transferee/nominee

6.                In this case, the complainants  had purchased the flat No. P/8/23, Ground Floor Park Elite Floors, Block-P, BPTP, Sector-75, Faridabad form the opposite parties Nos.3 & 4 (who were re-sellers). The opposite parties Nos.3 & 4 had purchased the said flat No. P/8/23 from the allotee i.e. the opposite party No.5 with the terms and conditions of opposite party No.5  with the terms and conditions of opposite parties Nos.1 & 2. The above said flat was allotted on 10.06.2009 in favour of opposite party No.5 and the possession of the said flat was handed over within the period of 3 years terms and conditions applicable of the opposites parties No.1 & 2.

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 Buyer’s Agreement was made to the complainant on 14.2.2013 vide Annexure A/2 (colly)  and he has waited for more than 8 years to see the project to be completed and the offer of possession of flat was not given to him.  The above said flat was allotted on 10.06.2009 in favour of opposite party No.5 and the possession of the said flat was handed over within the period of 3 years terms and conditions applicable of the opposites parties No.1 & 2.  The counsel for the complainant has placed on record authority in case titled Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others  Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him   The complainant had been waiting for completion of the project in which allotted unit is located for more than 8 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 parties 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 Nos.1 & 2  jointly & severally, are directed to  refund the deposited amount   to the complainant with compensation in the  form of simple interest @ 9% 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:  11.05.2023                                          (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.