District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 285/2022.
Date of Institution:30.05.2022.
Date of Order: 06.04.2023.
M/s Creative Financial Services (Partnership firm) Office: 1-C1/5, DTI II Floor, Bata-hardware Road Opp. Bata Showroom NIT Faridabad-121001 through its Partner Sh. Manoj Kumar
………..Complainant………..
Versus
M/s Business Park Town Planner Ltd. (BPTP) Regd. Office: M-11, Middle Circle, Connaught Place, New Delhi-110001 Through its Marketing Manager/ Director/ MD.
Service is also effected at- Billing Address: NEXT DOOR Sector-76, Faridabad
BPTP Marketing Office:- Sector-81, Faridabad
…Opposite party……
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. Pardeep Parmar, counsel for the complainant.
Sh. Jay Shankar, counsel for opposite party
ORDER:
The facts in brief of the complaint are that complainant firm was a partnership firm and Manoj Kumar is one of the partners of the said firm and has been duly appointed/authorized by other partners Mr. Sanjay Jain, Mr. Ramandeep Mehta, as Manoj Kumar was fully conversant with the facts. The respondent induced and allured the common public by way of advertisement through newspaper, pamphlet, hoardings etc. that the respondent have conceived and in the process of Housing Projects known as "Parkland Villa, Sector-84, Faridabad", Greater Faridabad. One Mr. Dharmendar Kumar R/o Flat No. 129, First Floor, IP Colony, Sector30/33, Faridabad booked a Villa in the said project of the respondent and the respondent executed a Villa Buyer's Agreement in favour of said Sh. Dharmendar Kumar vide agreement dated 18-06-2008 in respect of Village No. F- 12-13 measuring 150 sq. yards (125.40 sq. meters) approx. with approximate built-up area of 964.45 sq. ft. (89.60 sq. meters) for a total sale consideration of Rs. 23,62,500/- (Rupees Twenty Three Lakhs Sixty Two Thousand Five Hundred) as Basic Sale Price (BSP) plus other charges. The said Mr. Dharmendar started making the payments to the respondent as per payment schedule. The respondent vide letter dated 20-11-2009 informed the said Sh. Dharmendar Kumar that due to change of layout plan, allotted Villa Number L9-21 measuring 150 sq. yards in lieu of Villa No. F12-13 and said had been duly accepted by Sh. Dharmendar Kumar. Accordingly, change of allotment of Villa bearing No. L9- 21 measuring 150 sq. yards in place of Villa No. F12-13, the respondent executed an Addendum to the agreement dated 10- 05-2011 in favour of said Sh. Dharmendar Kumar. The complainant entered into an agreement to sell/purchase with said Sh. Dharmandar to purchase the said Villa on 27-04-2011 and according to said agreement to sell/purchaser, the complainant had paid Rs. 12,83,475 to the said seller/Sh. Dharmendar and remaining balance sale
consideration of said Villa was payable by the complainant directly to the respondent. However, said Sh. Dharmender had already paid a total sum of Rs. 12,83,475/- to the Respondent/builder upto 27-04-2011 and this fact duly mentioned in the said agreement to sell/purchase dated 27-04- 2011. The name of the complainant duly incorporated in the records of respondent vide Addendum Buyer's dated 10-01-2014 as well as endorsement form dated 13-05- 2011. The said seller Sh. Dharmendar Kumar had paid a sum of Rs. 12,83,475/- upto 11-07-2008 to the respondent. From the date of agreement to sell/purchase, the complainant started making the payments to the respondent and had paid Rs. 12,33,568/- to the respondent upto 15-06- 2012. The complainant remained in touch with the respondent to know the progress of the project as well as for the balance payment and the officials of the respondent always assured that they would send the demand notice of the balance payment as per payment schedule. At last in the month of March 2021, the complainant again visited the office of the respondent to know the status of the project as well as to make the payment of balance sale consideration and the officials handed over payment request letter dated 18-02-2019 and told that said letter could not be served and hence, demanded the payment of Rs. 3,30,466.69 as mentioned in payment schedule and also demanded Rs. 15,163/- as interest for the delay payment from 18-02-2019 to March 2021, hence, the complainant issued two cheques bearing No. 000921 dated 16-03-2021 for Rs. 3,30,500/- (in lump-sum of demand payment) and Rs. 15,163/- as interest vide cheque No. 000922 dated 18-03-2021 both drawn on HDFC Bank Limited, to the respondent which has been duly received by the respondent acknowledging the same on its photocopies. The complainant checked his statement of account of bank and found that the respondent had not presented the above said both cheques and then he approached the respondent to know the reason, then the officials of respondent told that the booking of the complainant
has been cancelled without giving any justifiable reason. The complainant made uncounted visits at the offices of respondent as well as site and requested the respondent to withdraw the impugned cancellation and to allow them to deposit the balance sale consideration of the said Villa, but the respondent are adamant to usurp the hard earned money of the complainant and to cancel the said booking illegally 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 party to:
a) withdraw the impugned cancellation allegedly prepared with immediate effect.
b) hand over the physical vacant possession of the booked Villa to the complainant.
c) receive the actual balance amount of sale consideration.
d) execute necessary title deed (sale deed/conveyance deed) of the said Villa in favour of the complainant;
e) pay Rs.10,00,000/- as compensation for causing mental agony and harassment .
f) pay Rs.55,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the Complainant was a subsequent allottee and had purchased the unit in question from secondary open market, after conducting due diligence and on site inspection and being fully conversant with associated terms and conditions agreed and accepted by previous allottee vide Villa Buyer Agreement (VBA) dated 18.06.2008, Complainant approached OP to purchase the allotment rights from the previous allottee, which was confirmed by the OP vide nomination letter dated
13.05.2011. The complainant had knowingly failed to disclose the fact from this Hon'ble Commission that Complainant vide Clause-3.1 of duly endorsed read along Addendum to VBA dated 10.04.2021 agreed that timely payment of installments was the essence of this transaction and in the event Complainant did not comply with such terms. OP should be entitled to terminate/ cancel the allotment. The complainant failed to deposit overdue / outstanding amount towards demand raised within payment plan despite of reminder letter dated 29.03.2017, reminder email dated 30.03.2017 & 12.10.2017, reminder letters dated 13.03.2019, 17.08.2019, 10.12.2019, followed by final opportunity letter dated 31.10.2020 which clearly intimated to Complainant that clearance of outstanding should be no later than 15 days from the date of notice and further delay would lead to termination/cancellation of the allotment, in that case Complainant will only be entitled to seek refund of amount (if any) after forfeiture of earnest money and other charges in terms of VBA after completion of documentary formalities and return of original document. In the year 2005, one Mr. Dharmendar Kumar ("Previous Allottee") applied for a provisional registration of a unit in the project "Villa, Parklands" being developed by OP at Faridabad, submitted Booking Application Form and paid a sum of Rs.8,27,000/- towards registration amount against which receipts dated 02.02.2006 & 20.08.2006 were issued. Accordingly, OP on 12.05.2007 allotted unit no. F12-13 in the project "Villa Parklands" in favour of Previous Allottee. Villa Buyer's Agreement ("VBA") on 18.06.2008 was executed between the Previous Allottee and OP. In terms of Clause-2.4 of VBA, it was agreed between the Previous Allottee and OP that if there was any changes in layout plan then OP had the right to change the unit of the allottee. In this regard, it was submitted that due to changes in the layout plan, OP vide letter dated 20.11.2009 re-allotted unit no. L9-21 in lieu to previously allotted unit no. F12-13
which was duly accepted by the Previous Allottee without any demur and protest. In the year 2011, complainant after conducting due diligence and site inspection and being completely satisfied with each and every aspect related to concerned allotment including but not limited to construction status, force majeure circumstances and timely payment in accordance with clauses of VBA, voluntarily and willingly purchased unit in question from secondary market with open eyes and thus approached the OP along with Previous Allottee jointly while seeking transfer of allotment of unit in question in his favour. The Complainant after thoroughly reading and understanding submitted fresh Booking Application Form and, thus in said consideration VBA dated 18.06.2008 was duly endorsed in favour of the Complainant. The Complainant had concealed the fact that OP vide letter dated 29.05.2013 sent two copies of Addendum in furtherance to Buyer's Agreement for execution purpose and requested to submit the same within 21 days from the date thereof. It was stated that Complainant failed to do so within stipulated time and as a matter of record Addendum to VBA was executed between the parties on 10.01.2014. The Complainant had wrongly alleged and misrepresented the fact that booking of the Complainant had been cancelled without giving any justifiable reason. It was stated that the Complainant maliciously failed to disclose the relevant fact that vide Clause-3 of duly endorsed VBA read along with Addendum to VBA dated 10.04.2021 agreed that timely payment of installments is the essence of this transaction and in the event the Complainant does not comply with such terms, OP should be entitled to terminate/cancel the allotment. The Complainant ad further wrongly alleged and misrepresented the fact that in the month of March' 2021 when Complainant visited office of OP, officials handed over payment request letter dated 18.02.2019 and told that said letter could not be served. It was pointed out that as per Clause-13.1 of duly endorsed VBA, it was mutually agreed between the parties that
Complainant should get his complete address with the OP at the time of execution of this agreement and it should be his responsibility to keep OP informed by registered A.D. letter about change of address and its incorporation in the records of the OP, failing which all demands would be deemed to have been received by complainant or served on him and complainant would be fully liable for any default in payment and/or other consequences that might accrue therefrom. It was stated that the complainant at the time of purchasing the allotment rights duly got its communication address registered as R/o No.4, first floor, Block-R, Govind Bhawan, NH-5, NIT, Faridabad, Haryana, India” (which was evident from annexed booking application form, endorsement form, nomination letter as well as partnership deed dated 01.04.2009 & demand letters dated 0902.2012, 15.11.2011 annexed by complainant). hence, in said regard OP had been making all communication on said address. Even otherwise, if in case complainant was alleging that they did not receive any of such demand and reminder letters, complainant was duly informed and contacted vide email written at the registered email address provided at the time of booking. Opposite party 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 party– BPTP with the prayer to: a) withdraw the impugned cancellation allegedly prepared with immediate effect. b) hand over the physical vacant possession of the booked Villa to the complainant. c) receive the actual balance amount of sale consideration. d) execute necessary title deed (sale
deed/conveyance deed) of the said Villa in favour of the complainant. e) pay Rs.10,00,000/- as compensation for causing mental agony and harassment . f) pay Rs.55,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.C-1 – authority letter, Ex.C-2 – Villa Buyers Agreement, Ex.C-3- letter dated 20.11.2009 Ex.C-5 – agreement to sell/purchase, Ex.C-6 - Addendium Buyer’s Agreement, Ex.C-7 – Endorsement form, Ex.-C8 to C13– Registration receipt, Ex.C-14 to 17 – receipts, Ex.C-18 – letter dated 26.5.2012 regarding enhancement of external development charges,Ex.C-19 – letter dated 18.02.2019 regarding payment request,Ex.C-20 – cheque dated 16.03.2021 for Rs.3,30,500/-, Ex.C-21 – Cheque dated 18.03.2021 for Rs.15,163/-, Ex.C-22 – Partnership deed.
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 Jay Shankar, Authorized Representative of opposite party, Ex.R-1 – resolution, Ex.R-2 – letter dated 12.05.2007 regarding letter of allotment of villa No. F-12-13, Ex.R-3 – Villa Buyer Agreement dated 18.06.2008, Ex.R-4 letter dated 20.11.2009, Ex.R-5 – application for allotment by sale of residential villa in residential colony, Ex.R-6 – letter dated 13.05.011 regarding nomination in respect of villa No. L9-21 in our project “Parklands, Faridabad, Ex.R-7 – letter dated29.05.2013 regarding Addendum to Buyers Agreement for Unit No. L9-21, Ex.R-8 (colly) - letter dated November 15,2011 regarding request for payment of basic sale price and allied charges for Unit No. L9-21,Ex/R-9 (Colly)- letter dated 05.11.2016.
6. In this case Mr. Dharmendar Kumar R/o Flat No. 129, First Floor, IP Colony, Sector30/33, Faridabad booked a Villa in the said project of the respondent and the respondent executed a Villa Buyer's Agreement in favour of said Sh. Dharmendar Kumar vide agreement dated 18-06-2008 vide Annexure C-2
in respect of Village No. F- 12-13 measuring 150 sq. yards (125.40 sq. meters) approx. with approximate built-up area of 964.45 sq. ft. (89.60 sq. meters) for a total sale consideration of Rs. 23,62,500/- (Rupees Twenty Three Lakhs Sixty Two Thousand Five Hundred) as Basic Sale Price (BSP) plus other charges. As per Annexure C-3 vide letter dated 20-11-2009 informed the said Sh. Dharmendar Kumar that due to change of layout plan, allotted Villa Number L9-21 measuring 150 sq. yards in lieu of Villa No. F12-13 and said had been duly accepted by Sh. Dharmendar Kumar. Accordingly, change of allotment of Villa bearing No. L9- 21 measuring 150 sq. yards in place of Villa No. F12-13, the respondent executed an Addendum to the agreement dated 10- 05-2011 in favour of said Sh. Dharmendar Kumar vide Annexure C-4. It is evident from agreement to sell/purchase vide Annexure C-5, the complainant had paid Rs. 12,83,475 to the said seller/Sh. Dharmendar and remaining balance sale consideration of said Villa was payable by the complainant directly to the respondent. However, said Sh. Dharmender had already paid a total sum of Rs. 12,83,475/- to the Respondent/builder upto 27-04-2011 and this fact duly mentioned in the said agreement to sell/purchase dated 27-04- 2011. As per Annexure C-8 to C-13 ,Dharmendar Kumar had paid a sum of Rs. 12,83,475/- upto 11-07-2008 to the respondent. As per letter dated 18.02.2019 vide Annexure C-19 opposite party demanded the payment of Rs. 3,30,466.69 as mentioned in payment schedule and also demanded Rs. 15,163/- as interest for the delay payment from 18-02-2019 to March 2021.As per Annexure C-20 & C-21 the complainant issued two cheques bearing No. 000921 dated 16-03-2021 for Rs. 3,30,500/- (in lump-sum of demand payment) and Rs. 15,163/- as interest vide cheque No. 000922 dated 18-03-2021 both drawn on HDFC Bank Limited, to the respondent which has been duly received by the respondent acknowledging the same on its photocopies.
On the other hand, opposite party under ambit of Amnesty Scheme, vide letter dated 05.11.2016 vide Ex.R-9 (Colly) raised demand of VAT which was payable by 20.11.2016. Complainant failed to make any payment, despite reminders dated 29.03.2017 & email dated 12.10.2017 by opposite party at registered address available with the opposite party. While said demand was unpaid, in terms of payment plan next installment became due and opposite party vide letter dated 18.02.2019 raised demand at the stage of “at the start of externalplaster’ payable by 05.03.2019 alongwith reminder to clear previous dues. The complainant failed to clear the dues, thus opposite party issued reminder letters dated 13.03.2019, 17.08.2019 and 10.12.2019. The demands were still unpaid, opposite party being a customer centric organization and with a motive to secure allotment rights, tried to contact the complainant telephonically followed by emails dated 02.04.2020, 08.04.20, 22.04.2020 & 01.05.2020 but no response was ever received from the complainant. The opposite party issued final opportunity letter dated 31.10.2020 informing that in the event complainants failed to strictly adhere to clear dues no later than 15 days from the letter then in exercise of rights agreed and accepted under terms of endorsed VBA (clause-3) this letter would lead to automatic termination/cancellation of allotment for fault of the complainant and in that case complainant will only be entitled to seek refund of amount (if any) after forfeiture of earnest money and other charges in terms of VBA after completion of documentary formalities and return of original documents.
7. Keeping in view of the above submissions , the Commission is of the opinion that despite getting the final opportunity letter dated 31.10.2020 issued by the opposite party to the complainant, the complainant has not bothered about the above said letter. After a span of 25 months approx. more than 2 years, the complainant has delivered two cheques bearing No. 000921 dated 16-03-2021 for Rs. 3,30,500/- (in lump-sum of demand payment) and Rs. 15,163/- as interest vide cheque No. 000922 dated 18-03-2021 both drawn on HDFC Bank Limited to the company after cancellation of the villa 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.
