District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No. 54/2023.

 Date of Institution:24.01.2023

Date of Order:16.05.2023.

Vinod Kumar S/o Sh. Dwarka Prasad Age about 64 years Adhar No. 8304 8577 5590, Resident of  A-122, Paryawaran Complex, IGNOU Road, New Delhi 110030, Mobile No. 9810264204         

                                                          …….Complainant……..

                                                Versus

1.                M/s. Business Park Town Planners Ltd., (BPTP)Regd. Office M-11, Middle Circle, Cannaught Circus, New Delhi-110001 Through its Managing Director/Director

2.                M/s Countrywide Promoters Private Limited M-11, Middle Circle, Cannaught Circus, New Delhi-110001 Through its M.D./Authorised Representative

3.                M/s. Business Park Town Planners Ltd., (BPTP) Site office Sector -76, Faridabad Through its MD/Director/Principal Office.

                                                                              …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.  Lalit  Bhateja   , counsel for the complainant.

                             Sh.  Jai Shankar, AR on behalf of opposite party.

ORDER:  

                   The facts in brief of the complaint are that  the complainant deposited an amount of Rs. 3,00,000/- vide cheque no. 043068 dated 08.04.2011 for buying a unit of floor tentatively admeasuring 1050 Sq. feet built up area in BPTP town ship project, Parklands Pride, Faridabad, Haryana, on the offer of office executive of the respondents vide application for the provisional allotment of a unit at first floor, at Parkland pride, Faridabad on dated 08.04.2011 Respondent executive assure complainant that the possession of above said flat will be given in three years from the date of deposit on provisional allotment payment.  Thereafter on respondent payment request vide letter dated 27.06.2011, complainant further deposited the Rs. 387075/- by cheque no. 093070 dated. 12.07.2011 and respondent duly received the above amount and issued the receipt of Rs. 387075/- dated 13.07.2011 vide receipt no. 2011/1400011458 against the above cheque and also gave the timely payment discount to the complainant. On dated 13.02.2012 respondent issue an allotment letter customer code BE 1/131641 dated 13.02.2012 to the complainant for allotment of floor against his booking in project Parklands Pride in Sector-77, Faridabad. The complainant received a payment request letter dated 16.02.2012 from respondent to deposit an amount of Rs. 3,72,710.85 against the current due of Rs. 376,235.55 after setting off the credit balance of Rs. 3524.70 on the payment deposit on or before 02.03.2012 and also request to deposit timely payment and get timely payment discount of Rs. 17,088.76 (5.00% of BSP). The complainant timely deposit the payment vide cheque no. 049244 dated 01.03.2012 drawn at Indian overseas bank, and in this regard respondent issued a payment receipt no. 2011/140000188 dated 02.03.2012.  Thereafter complainant received a payment request letter dated April, 13 of 2012 for Rs. 3,78,244.66 and also offer discount @0.5% on timely deposit on or before 28.04.2012 and the complainant timely deposit the same by deposited cheque no. 049246 dt. 28.04.2012 for Rs. 3,61,070/-.   The complainant again received the payment request letter dt. May, 23,2012 for Rs. 1,06,141.15 and same was also deposited in on 13.06.2012 vide Ch. No. 049247 dt. 13.06.2012. The complainant was also called to sign the contract of Builder Buyers Agreement by letter dated. Nov, 23, 2012 to sign the contract. The Complainant also signed the copy of Agreement/Addendum against the unit no. PB-127-FF in the Parklands Pride, Faridabad. That Complainant again received the Payment Request on dated Dec-06,2013 for Rs. 378434.70 and offer of Discount @0.5%, and complainant deposited the same by two cheques vide cheque no. 554117 dt. 11.12.13 for Rs. 2,00,000/- drawn on IOB (Wellco traders) and Cheques no. 049250 dt. 11.12.13 Rs. 161260/-drawn on IOB.  Thereafter whenever a payment request receive to the complainant he deposit the payment timely and also get the timely payment deposit benefit, The office statement of account of respondent as on December 14, 2013 against the unit no. PB- 127-FF, Parkland pride floor, Parklands Pride in Sector-77, Faridabad shows that an amount of Rs. 19,22,606-03 was demanded from respondent and the same amount of Rs. 19,22,606-03 was deposited by the complainant timely.  That thereafter the complainant again deposited the amount of Rs. 278244.56 vide cheque. No. 049251 dated 17.01.2014 drawn at Indian Overseas Bank and Rs. 1,00,000/- vide ch. No. 018852 drawn at Indian overseas bank to respondent and got the received from respondent on dated 18.01.2014 vide receipt no. 2013/1400000396 and receipt no. 2013/1400000395 dated 18.01.2014 against the above said amount.  As per account statement of respondent the complainant has already been deposited Rs. 23,00,850.55 in respondent all the payment has been deposited timely and also got the benefit of timely deposit.he complainant also got signed the Agreement Floor Buyer's Agreement dated  23.01.2013 on Non Judicial Stamp Paper of Rs. 50, sent by respondent.  The complainant further made a payment of 330,000/-  and Rs.31,070/- through cheque No.018853 dated 18.02.2014 and cheque No. 017525 dated 18.02.2014 both drawn at Indian Overseas Bank and opposite party also issued the payment receipt dated 18.02.2014 2013/1400000411 and 2013/1400000412 in this regard. Applicant approached the office of the respondent several times and asked them about the progress of the best but they failed to give any satisfactory reply on all occasions and kept on putting off applicant on the pretext that some litigation was going on as such no construction can be carried out. In the year 2018 applicant visited the a site and found that the construction work was still not completed and complainant again approached the office of the respondent and asked them about the flat which applicant had booked in the project and paid more then Rupees Twenty Seven lacs. But the respondent did not gave any satisfactory reply to the complainant about the completion of project and asked wait for some mare time.  That respondent has failed to abide by the commitment to handover the flat to applicant within the promised  period of 36 months and now they were making excuses for usurping of applicant arbitrarily. It was unfortunate to mention that when ever opposite party demanded the money, the complainant deposited the same and when complainant visited the actual site of work to see his flat he got very surprised that he had deposited the more than 70% of the total amount of the flat but there was no such development seen on the site of the flat.  But opposite party was still demanded the more money from the complainant.  The complainant  deposited the payment as and when respondent sent the payment request and he was and was still ready to make the balance payment as per actual dues. But respondent cheated the complainant as per contract respondent had to furnish the above flat within three years of the contract and have to handover the flat to the complainant, But even after of long time respondent had not offer the possession of the flat to the complainant and also received his hard earned money and when he saw no development on the site he felt very frustrated and afraid that his life time saving he deposited to respondent and in return he got nothing till date. Respondent delayed the project year after year and even though the complainant keep silently waiting for the possession and make the payment timely.  According to the terms and conditions of the floor buyer's agreement dated 23 January 2013, vide its clause no. 6.1, respondent were required to hand over the peaceful possession of the floor within three years from the date of execution of floor buyer's agreement dated 23.01.2013. The respondents had thus committed a breach of trust punishable u/s 406 of IPC and also an offence of cheated the complainant on false assurance and commitment.  At the time of entering into agreement on 23.01.2013 the respondents were legally bound to deliver the possession within the period of 30 months and grace period for 6 months it means total period for delivery of possession of  36 months had already been completed on 23.01.2016. The respondents had already failed to comply with the terms and condition of Agreement by not delivering the possession of the said unit to the complainant The site work of Sector 77, Faridabad of the respondents had been stopped due to the reason best to known to the respondents. Whenever the complainant visited the said unit then the complainant came to know that the respondents had not completed the construction and the respondents were unable to deliver the possession of the said unit to the complainant timely The respondents had already failed to deliver the possession within the stipulated period.   The complainant sent legal notice  dated 01.11.22 to the opposite party  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)                to handover the possession of unit. No. PB-127-FF, Parkland pride floor, Parklands Pride in Sector-77, Faridabad, to the complainant and to get registered the sale deed registered in favour of complainant .

b)                to pay the amount of Rs. 2706432.13 along with interest @ 24% per annum from the date of payment till the date of realization of the said amount to the complainant.

 c)                pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .

d)                 pay Rs. 100,000 /-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  the complainant had no cause of action against the opposite party for filing the complaint under reply.  The complainant defaulted in making payment of various installments which constrained the opposite party to terminate the booking/allotment vide letter dated 22.03.2021, which letter was admittedly, received by the complainant.  Even after receiving the said notice of termination, the complainant did not approach the opposite party for revoking termination by payment of dues.  However, after about 2 years from the date of termination, the complainant  had filed a false and frivolous complaint against the opposite party.

 The Complaint under reply had been filed by the Complainant seeking possession of Unit No. PB-127-FF, booked by him in the OP's Project "Parklands Pride" situated in Faridabad, Haryana, while concealing from this Hon'ble Commission that the Complainant defaulted in making payment of the installment called vide letter dated 22.08.2017 at the stage of "completion of brickwork". While the said demand was unpaid, the OP issued letter dated 19.09.2019 intimating the Complainants about the interest that had accrued due to delays in payment and thereafter, issued Offer of Possession (hereinafter referred to as the "OOP") to the Complainant vide letter dated 25.09.2019 after completion of construction of the said Unit. However, the Complainant failed to clear the dues and complete documentary formalities to enable the OP to take steps to handover physical possession of the unit in question, where after the OP tried to reach out to the Complainant on his registered mobile and on failing to connect with him on mobile, also issued emails dated 04.01.2020 and 06.02.2020 requesting him to contact the OP but the Complainant on the one hand ignored the said request of the OP and on the other hand did not clear outstanding dues and complete documentary formalities which constrained the OP to terminate/ cancel the booking/ allotment vide notice of termination dated 22.03.2021 which was admittedly received by the Complainant and had been filed along with the Complaint. Therefore, the present Complaint was not only misleading but has been filed in order to take undue advantage of the benevolent provisions of the Consumer Protection Act.  The Complaint under reply seeking possession of Unit no. PB-127- FF, Parkland Pride was even otherwise infructuous since the unit in question had already been sold to a third party and even conveyance deed had been executed qua Unit no. PE 144 FF, Parkland Pride. The Complainant had indulged in suppression, concealment and misrepresentation of true facts and documents which have material bearing on the present case. It is further submitted that the Complainant has approached this Hon'ble Commission with unclean hands. It is a well settled law that one who approaches the court of law with unclean hands, deserves no indulgence from the Hon'ble Courts. In this context, the following facts are noteworthy:

(a)                         The Complainant had concealed and suppressed from this Hon'ble Commission that in the year 2012, the Complainant after conducting thorough due diligence and being completely satisfied, out of his own volition approached the OP through his broker City Realty Services' and applied for a booking/registration of a unit(tentative area 1,050 sq. ft.) in the project “Parklands Pride, Sector-77, Faridabad by submitting duly signed application for Provisional Allotment dated 08.04.2011 alongwith booking amount of Rs.3 lacs.  It was submitted that the complainant had invested in the project in question after through reading, understanding and accepting the terms and conditions of the booking form.

b)                The Complainant had concealed that at the time of booking the OP  had offered an inaugural discount of Rs. 3 lacs on the Basic  sale price of the unit to the complainant and further that the opposite party offered additional benefits to the complainant in the form of Timely Payment Discounts and as such the complainant earned additional benefits/incentives to the tune of Rs.85,787/-, thereby substantially reducing the cost of the unit in question.

c)                The complainant had misrepresented that he deposited Rs,2,78,244.56/ vile cheque no. 049251 dated 17.01.2014 drawn onIndian Overseas Bank while the said cheque was for Rs. 2, 61,070/-and the Complainant had availed TPD of Re 17,174.577 and thus, the receipt for Rs. 2,78,244.30/- was issued. The complainant had tried to mislead the Hon'ble authority by showing the discounted amount as their amount paid.

d)                The Complainant further concealed from this Hon'ble Commission that the Complainant defaulted in making payments of the installment called vide letter dated 22.08.2017 at the stage of completion of brickwork as well as interest for the  delayed payments communicated to him vide letter dated 19.09 2019 and further failed to pay as well as complete documentary formalities as at the stage of offering possession of the unit vide letter dated 25.00 2019.

e)                The Complainant had also concealed that vide Clause-26 of Booking Form, the parties haut clearly agreed as follows " the event of the failure of the Applicants to take the possession of the Floor upon being intimated about the same by the Company and in the manner as specifically described in the Buyers Agreement,  the company shall have the option to cancer the allotment and avail of the remedies as stipulated in the Buyers Agreement or the company may, without prejudice to its rights under any of the clauses of the Buyer's Agreement, and at its sole discretion, decide to condone the delay by the Applicants) in taking over the Floor in the manner as stated in that clause on the condition that the Applicant(s) shall pay to the Company holding charges at the rate mentioned below for the Built Up Floor and to withhold conveyance or handing over for occupation and use of the Floor till the holding charges with applicable overdue interest, if any, are fully paid. It is made clear and the Applicant understands that the holding charges as stipulated in this case shall be a distinct charge not related to and shall be in addition to maintenance charges or any other outgoing cess, taxes levies etc, which shall be separately payable at the risk, responsibility and cost of the Applicant."

In view of the fact that the complainant failed to comply with the terms of the offer of possession letter dated 25.09.2019, in terms of the agreement between the parties, the OP cancelled/ terminated the booking/ allotment of the said unit vide notice of Termination dated 22.03.2021.Thus, it was evident from the facts and circumstances that the entire Complaint was based on gross misrepresentation, concealment and misrepresentation of facts and documents and based on false and fictitious grounds.

f.       The Complaint under reply is also liable to be dismissed in as much as there is no deficiency in services by the OP and the Complainant has falsely alleged that the Complainant approached the OP several times asking about the progress of the project and never got a satisfactory reply and further that the OP failed to abide by the commitment to handover possession of the unit within 36 months. In this context it is submitted that the Complainant vide Clause 5.1, 5.6, 13.1 and 14 of the duly executed FBA had agreed that the proposed timelines for handover of the possession being within 30 months from the date of execution of the FBA along with 180 days of grace period was subject to force majeure circumstances, timely payments by the complainant along with other factors. Thus, upon reading of the FBA as a whole, it would clearly reflect that there was no delay at the end of OP in offering possession of the unit in question. The parties vide Clause 5.1 of the FBA, had mutually agreed that subject to force majeure or any other circumstances beyond the control of the OP, proposed timeline to handover possession of the unit was within 30 months from the date  of execution of FBA.  It might not be out of place to point out that the delivery of the project was subject to timely payments by the complainant and vide Clause 7.1 of the duly executed FBA, the parties had agreed that timely payment was the essence of the agreement.  However, the complainant despite selecting the payment plan of his own choice and convenience, failed in making the timely payments of various installments as detailed above including the demand raised alongwith “offer of possession” dated 25.09.2019 which was payable by 25.10.2019, which constrained the opposite party to terminate the booking/allotment vide notice of termination dated 22.03.2021. Notwithstanding the submissions made herein, it was submitted that opposite party had always been fully committed to honour the terms and conditions of FBA.  The project “Parklands Pride’ was delayed due to reasons beyond the control of the opposite party.

g). That the Complaint filed in the year 2023 is nothing but an attempt to reap benefit of the increase in prices of properties. It was submitted that when the Real Estate was not appreciating and the Complainant was unable to trade the property in secondary market, he deliberately stopped making payments resulting in termination/ cancellation of the booking/ allotment. However, recently when the market started appreciating, the Complainant had approached this Hon'ble Commission for the relief of possession of unit. It was submitted that after allotment, the "Risk and Reward" of the allotted unit passes on to the allottee. It was further submitted that it was also a matter of fact and record that the OP did not guarantee or represents that the Complainant may have such financial gains as it was in the business of developing real estate including, plots and floors, and is not seeking financial investments, however, if this Hon'ble Commission permits the present complaint it would result in abuse of the process of court and resultantly make the transaction between the Complainant and the Respondent a financial transaction with minimum guaranteed return and accordingly, in complete contravention of the Act. Opposite parties denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.

3.                We have heard learned counsel for the parties and have gone through the record on the file.

                   To establish his case the complainant  has led in his evidence, affidavit of Vinod Kumar, Ex.C-1 – application for the provisional allotment of Unit i.e floor at Parklands, Faridabad, Ex.C-2 – payment request,, Ex.C-3 – allotment letter, Ex.C-4  & 5– letter regarding payment request, Ex.C-6 -  letter dated 23.05.20212 regarding enhancement of external development charges in Faridabad, by the Government of Haryana vide Memo No. HUDA.CCF.ACCTT-1-2011/17903 dated May 25,2011 and memo No. HUDA.CCF, ACCTT-2012/8211 dated March 5,2012, Ex.C-7 – letter dated 23.11.2012 regarding Buyer’s agreement of unit No. PB-127-FF in Parklands pride situated at Faridabad, Ex.C-8 – letter dated 11.02.2013, Ex.C-9 letter dated 06.12.2013 regarding payment request, Ex.C-10 – letter dated December 14,2013 regarding statement of account as on December 14,2013, Ex.C-11 -  letter dated January 06,2014 regarding payment request, Ex.C-12 – letter dated 18.2.2014 regarding statement of account as on Feb. 18,2014, Ex.C-13 – Floor Buyer’s Agreement, Ex.C-14 – letter dated Feb. 06,2014 regarding payment request, Esx.C-15 – letter dated December 02,2016 regarding statement of account as on December 02,2016, Ex.C-16 – letter regarding payment (VAT), Ex.C-17 – letter dated 22.03.2021 regarding termination/cancellation intimation in request of unit NO. PB-127-FF in project “Parkland Pride Floor at Faridabad, Haryana. Ex.C-18 – legal notice, Ex.C-19 & 20 – postal receipt,

          On the other hand counsel for the opposite party strongly agitated and opposed.  As per the evidence of the opposite party   Ex.RW1/A - affidavit of Shri Jay Shankaer, Authorized Representative of opposite party, Ex.R1 (colly) – Resolution, Ex.R-2(colly) – letter dated August 22,2017 regarding payment request, Ex.R/3 – letter dated 08.04.2011 regarding application for the provisional allotment of unit i.e floor at Parklands Pride, Faridabad, Haryana, Ex.R/4 – Receipt, Ex.R/5 – Notification dated 16^th March 2010, Ex.R-6 – Public notice, Ex.R-7 – order passed by Director General, Town and Country Planning, Haryana, Chandigarh, Ex.R/8 (colly) -  email message dated 2.3.2017, Ex.R-9 – Photos, Ex.R/10 – Buyer’s Agreement, Ex.R/11 – letter dated 22.03.2021 regarding termination/cancellation intimation in respect of unit No. PB-127-FF in Project “Parkland  Pride Floor” at Faridabad

4.                In this complaint, the complaint was filed by the complainant with the prayer to  to handover the possession of unit. No. PB-127-FF, Parkland pride floor, Parklands Pride in Sector-77, Faridabad, to the complainant and to get registered the sale deed registered in favour of complainant .