District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.391/2022.
Date of Institution: 26.07.2022.
Date of Order: 22.09.2022
1. Smt. Ritu Gupta W/o Shri Bheesham Dev Gupta, R/o Flat NO. 503, Tower-9, RPS Savana, Sector-88, Faridabad, Haryana.
2. Sh. Bheesham Dev Gupta S/o Shri Rahul Kumar Gupta R/o Flat No. 503, Tower-9, RPS Savana, Sector-88, Faridabad, Haryana. …….Complainants……..
Versus
1. M/s. Countrywide Promoters Pvt. Ltd., through its Director/M.D./Owner/Authorize Person(s) having office at: #M-11, Middle Circle, Connaught Circus, New Delhi – 110 001.
Also at:
#OT-14, 3rd floor, Next door, Parklands, Sector-76, Faridabad, Haryana – 121004.
2. M/s. Shalimar Town Planners Pvt. Ltd., through its Director/M.D./Owner/Authorize Person(s) having office at: #OT-15, 3rd floor, Next Door, Parklands, Sector-76, Faridabad, Haryana – 121004.
3. M/s. Perpetual Infracon Pvt. Ltd. Through its Director/M.D./Owner/Authorize Person(s) having office at: #OT-16, 3rd floor, Next Door, Parklands, Sector-76, Faridabad, Haryana – 121004.
…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. Ravi Nagpal, counsel for the complainant.
Sh. Jai Shankar, AR on behalf of opposite parties.
ORDER:
The facts in brief of the complaint are that the complainant booked a unit and opposite parties issued allotment letter dated 08.11.2019, in respect of Residential Plot bearing NO. A-22, Block-A, Sector-81, Area Admeasuring 146.5 sq, yds (122.492 sq. mtr.), in project namely “BPTP District-1m situated in Sector-81, Village Budena, Tehsil & District, Faridabad, Haryana. Pursuant to above, opposite parties entered into an agreement for sale dated 16.11.2020 with complainant in respect of residential plot bearing NO. A-22, Block-A, Sector-81, Area admeasuring 146.5 s. yds. (122.492 sq. mtr.), in project namely “BPTP District-1, situate din Sector-81, Village Budena, Tehsil & District Faridabad, Haryana for a net basic sale price (BSP) of Rs.73,25,000/- Till date complainant had paid an amount of Rs.23,13,258/- (including booking amount, EDC/IDC, service tax, VAT, Additional charges etc.) to opposite parties on various dates as per the demands of the opposite parties, for which opposite parties had issued various separate receipts thereof and acknowledged the same. Due to Covid 19 pandemic and the lockdown imposed by the Government of India, complainant were unable to pay the amount as per the demands of the opposite parties. Without the knowledge and permission of the complainant opposite parties cancels the above said plot/property (which was allotted in the name of the complainant) and e-allotted the same to another person, when complainant came to know about the same. Complainant approached the office of the opposite parties and then opposite parties threatened the complainant and pressurized the complainant to take back their money or else complainant would unnecessarily involved in multiple litigations. Being frightened by the opposite parties and even with past experience with the opposite parties the complainant left with no other option and even forced by the opposite parties, and transfer the cheque of Rs.7,97,639/-, the opposite parties even obtained the signatures of the complainant on some blank papers as well. 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) handover the possession of the Residential Plot bearing No. A-22, Block-A, Sector-81, Area admeasuring 146.5 sq. yds. (122.492 sq. mtr.), in project namely “BPTP District -1, situated in Sector-81, village Budena, Tehsil & District Faridabad, Haryana or any plot/unit in the same block and execute and register the necessary documents in respect of the above said unit in favour of the complainant or in the name of his/her/their nominee(s).
b) if it is not feasible in nearby future then direction may be given to the opposite parties to refund an amount of Rs.15,15,619/- alongwith interest @ 24% p.a. and other penalties, from the date of receipt of the payments by complainant in respect of the unit allotted to the complainant.
c) restraining the opposite parties, their agents, assigns or any other person from selling or alienating one of the above said un it i.e residential plot bearing No. A-22, Block-A, Sector-81, Area admeasuring 146.5 sq. yds. (122.492 sq. mtr.), in project namely “BPTP District-1, situated in Sector-81, village Budena, Tehsil & District Faridabad, Haryana or any other unit in the same area/block or in any other new project, in the interest of justice.
d) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
e) cost of the present proceedings:
2. The complainant has filed an application for restraining the opposite parties from selling/alienating the unit(s) till the case is decided by the Hon’ble Commission in which it has been prayed that till the final disposal of this case, theis Hon’ble Commission may kindly be pleased to grant ad-interim injunction thereby restraining the opposite parties, their agents, assigns or any other person from selling or alienating one of the above said unit i.e. Residential plot bearing NO. A-22, Block-A, Area Admeasuring 146.5 sq. yds. (122.492 sq. mtr.), in project namely “BPTP District-1, situated in Sector-81, Village Budena, Tehsil & District Faridabad, Haryana or any other unit in the same area/block or in any other new project, in the interest of justice.
3. Heard.
4. There is another connected case is pending titled Bhisham Dass Gupta Versus BPTP before this Commission and fixed for 2.8.2022. The counsel for the complainant argued at length that both the units were purchased by him for his family and his livelihood and the connected case is also pending and fixed for 2.8.2022. the counsel for the complainant has also placed on record citation passed by the Hon’ble Supreme Court in Likavati Kirtilal Mehra Medical Trust vs. Unique Shanti Developers & Ors., IV(2019) CPJ 65 (SC) has given certain parameters to examine whether a particular purchase or availment of a service will be treated as for commercial purpose. The Hon’ble Supreme Court has observed the following:
iv) If it is found that the dominant purpose behind purchasing the goods or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purchase of ‘generating livelihood by means of self-employment’ need not be looked into.”
The counsel for the complainant has also submitted the list of District 1 Block A- vacant inventory of opposite party. The complainant is admitted and the connected case is pending and fixed for 2.08.2022. Let notice to the above said complaint alongwith application be issued to opposite party for 2.8.2022 through registered posts etc. Dasti be given if so desired.
5. Shri Jai Shankar, AR of opposite parties appeared and filed an application for dismissal of the complaint filed before this Hon’ble Commisison.
6. Reply to application has been filed by the complainant.
7. In view of the facts and circumstances of the case, the application of interim application and dismissal of complaint will be decided at the time of final stage of arguments.
8. Shri Jai Shankar, AR on behalf of opposite parties Nos.1 & 2 has made a statement that “We have already refunded an amount of Rs.3,98,820/- in the name of Bheesham Dev Gupta and same amount Rs.3,98,819/- in the name of Ritu Gupta both cheques dated 14.12.2021 for settlement of matter in dispute. Company is ready to refund the total deposited amount i.e. Rs.17,62,500/- after deducting the already received amount i.e. Rs.7,97,639/-. Company is ready to pay interest @ 6% on already received amount i.e. Rs.7,97,639/- from the date of payment till realization of this amount. For balance amount Rs.9,64,861/- company is ready to refund this amount alongwith interest at the rate of 6%.:
9. On 22.08.2022 Shri Ravi Nagpal, counsel for the complainant has made a statement that the complainant had filed two cases before this Hon’ble Commission titled as Bheesham Vs. BPTP, CC/369/13.07.2022 and Ritu Gupta Vs. BPTP, CC NO. 391/26.07.2022, one in respect of Residential plot bearing NO. A-22, Block-a, Sector-81, Area admeasuring 146.5 sq. yards (122.492 sq. mtr.), in project namely “BPTP District-1, situated in Sector-81, village Budena, Tehsil & District Faridabad, Haryana and other in respect of flat bearing No. B-1602, floor, Tower-B, having super area of 1120 sq. ft. in project namely “Discovery Park” Parklands, situated in Sector-80, Village Badouli, Tehsil & District Faridabad, Haryana, this flat number was not allotted which is not my original unit number and opposite party has cancelled both the properties because delay in payment due to Covid. Learned Supreme Court has given the relaxation and now I am ready to pay the balance amount alongwith delayed interest and I am also ready to take refund as per my calculation alongwith 12% interest from the respective date of deposits which is Annexure-A. Complainant for his livelihood needs at least one of the property, and if the opposite parties agrees, complainant agrees to take the property and ready to make the balance payment and further the amount already given in other property and interest etc. thereupon, may kindly be adjusted in other property.”
10. The parties led evidence in support of their respective versions.
11. We have heard learned counsel for the parties and have gone through the record on the file.
12. In this case the complaint was filed by the complainant against opposite parties– Countrywide Promoters Pvt. Ltd. & Ors. with the prayer to: a) handover the possession of the Residential Plot bearing No. A-22, Block-A, Sector-81, Area admeasuring 146.5 sq. yds. (122.492 sq. mtr.), in project namely “BPTP District -1, situated in Sector-81, village Budena, Tehsil & District Faridabad, Haryana or any plot/unit in the same block and execute and register the necessary documents in respect of the above said unit in favour of the complainant or in the name of his/her/their nominee(s). b) if it is not feasible in nearby future then direction may be given to the opposite parties to refund an amount of Rs.15,15,619/- alongwith interest @ 24% p.a. and other penalties, from the date of receipt of the payments by complainant in respect of the unit allotted to the complainant. c) restraining the opposite parties, their agents, assigns or any other person from selling or alienating one of the above said un it i.e residential plot bearing No. A-22, Block-A, Sector-81, Area admeasuring 146.5 sq. yds. (122.492 sq. mtr.), in project namely “BPTP District-1, situated in Sector-81, village Budena, Tehsil & District Faridabad, Haryana or any other unit in the same area/block or in any other new project, in the interest of justice. d) pay Rs. 50,000/- as compensation for causing mental agony and harassment . e) cost of the present proceedings:
To establish his case the complainant has led in his evidence, Ex.CW-1/A – affidavit of Smt. Ritu Gupta,, Ex.C-1 – Allotment letter,, Ex.C-2 - Agreement for Sale,, Ex.C-3 (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 – allotment letter,, Ex.R/3 - allotment letter, Ex.R/4 (colly) – letter dated 25.11.2019 regarding payment request, Ex.R/5 (colly) – letter dated 08.01.2020, Ex.R/6(colly) – letter dated March 02,2020, Ex.R/7 (colly) – letter dated 15 May, 2020,Ex.R/8 (colly) – letter dated 14.07.2020, Ex.R/9 (colly) – photocopy of cheque of Rs.3,98,820/-, Ex.R/10 – Receipt dated 12.12.2019.
13.. During the course of arguments, counsel for the complainant also given the calculation of the deposited amount alongwith interest vide Annx. Y
. The amount deposited by the complainant is Rs,17,62,500/- and interest part was Rs. 3,70,230/-.
14. On the other hand, Shri Jay Shankar, AR on behalf of opposite parties Nos.1 & 2 has made a statement on 22.08.2022 that “We have already refunded an amount of Rs.3,98,820/- in the name of Bheesham Dev Gupta and same amount Rs.3,98,819/- in the name of Ritu Gupta both cheques dated 14.12.2021 for settlement of matter in dispute. Company is ready to refund the total deposited amount i.e. Rs.17,62,500/- after deducting the already received amount i.e. Rs.7,97,639/-. Company is ready to pay interest @ 6% on already received amount i.e. Rs.7,97,639/- from the date of payment till realization of this amount. For balance amount Rs.9,64,861/- company is ready to refund this amount alongwith interest at the rate of 6%.:
15. Shri Jai Shankar, AR on behalf of opposite parties Nos.1 &2 has made a statement on 30.08.2022 that “I tender cheque No. 597694 dated 29.08.2022 for an amount of Rs.4,82,430/- drawn on IndusInd Bank in the name of Ritu Gupta, Cheque No. 223598 dated 29.08.2022 for an amount of Rs.1,03,352/- drawn on IndusInd Bank in the name of Ritu Gupta, Cheque No. 223597 dated 29.08.2022 for an amount of Rs.1,03,352/- drawn on IndusInd Bank in the name of Bheesham Dev Gupta and cheque No. 597693 dated 29.08.2022 for an amount of Rs.4,82,431/- dawn on IndusInd Bank in the name of Bheesham Dev Gupta.”
DETAILS:
Paid amount as per the calculations : Rs. 17,62,500/- (Deposited Rs.21,32,370/- @9 %
Of the complainant @ 9%(Annx.A) amount +Rs.3,70,230/- interest)
Deposited amount Ch. No. 223598 dt 29.08.2022 of Rs.1,03,352/- |
paid by the Opposite party.
Paid by opposite party @ 6% Ch. No. 223597 dt. 29.08.2022 of Rs.1,03,352/- | Rs.11,71,566/-
Ch. No. 597693 dt.29.08.2022 of Rs.4,82,431/- |
Ch. No. 597694 dt.29.08.2022 of Rs.4,82,431/- |
Ch. Dt.14.12.2021 of Rs.3,98,819/- |
Balance Amount : Rs.9,60,804/-
16. On 30.08.2022, Shri Ravi Nagpal, counsel for the complainant has made a statement that he is not going to take these refund cheques. He wants an alternative plot. The list submitted by the counsel for the complainant of the inventory of the plot of opposite parties of the same size in the same project vide Annx.X. The case was fixed for 7.09.202 for the consideration on the statement of both the parties. After denial of the complainant, the written statement on behalf of opposite party filed on7.9.2022 and the case was adjourned to 12.09.2022. On 12.09.2022 the complainant has tendered his evidence affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-3 and closed the evidence of the complainant and the case was adjourned to 15.09.2022 for filing evidence on behalf of opposite parties, On 15.09.2022 the opposite parties have tendered his evidence affidavit Ex.RW1/A alongwith documents Ex.R1 to R10 and closed the evidence of the opposite parties and the case was adjourned for 22.9.2022 for arguments.
17. After going through the evidence led by both the parties, the Commission is of the opinion that no doubt the complainant was allotted the plot bearing NO. A-22, Block-A, Sector-81 Area Admeasuring 146.5 sq. yds. (122.492 sq. mtr.) and due to delay in payment due to Covid period, this allotment was cancelled during the Covid time and allotted to some other person. As per Annexure Y, the payment was deposited regularly till 29.07.2020, the details are as under:
Sr. No. Amount Date of Deposit
- Rs.2,00,000/- 21.11.2019.
- Rs.1,00,000/- 21.11.2019
- Rs.1,00,000/- 21.11.2019
- Rs.3,32,500/- 23.12.2019
- Rs.1,60,000/- 16.01.2020
- Rs.80,000/- 16.01.2020
- Rs.2,90,000/- 13.02.2020
- Rs.5,00,000/- 29.07.2020
The complainant is paying payment of the plot regularly. Even on 29.07.2020 he has paid the payment in the Covid-19.. Cancellation of the plot is due to non payment of the plot.
As we all now in the year 2020 to 2021 the diseases Covid-19 was spreading and the government of India have declared the Lockdown in the Country and everything was getting closed. The builders are also sufferer.
The Hon’ble Supreme Court of India took Suo Motu Cognizance in SMWP 3 of 2020 of the situation arising out of the challenge faced by the country on account of Covid-19.
The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
18. The counsel for the complainant argued at length that the cancellation of the plot No. A-22 is not feasible and the cancellation done by the opposite party with the malafide intention because the price are high now a days in the market and the cancellation was done during the Covid period. A registered document can be cancelled by way of the registered cancellation. The opposite party does not apply the Rera Rules during the cancellation the above unit.
19. After going through the evidence led by the parties as well as the above fact, the Commission is of the opinion that the complaint is allowed. Opposite party is directed to allot alternative plot to the complainant if the allotted plot transferred to some other person i.e plot NO. A-22 as per the inventory list of opposite party. Opposite party is directed to allot plot No.A-3 not to create any third party interest, alienate/transfer within 30 days from the date of order. Opposite parties did not adopt Rera rules on the calculations of the disputed unit. The agreement between the parties are the registered one can not be cancelled merely with the cancellation letter. A registered agreement should be cancelled with the registration documents. Opposite party is at liberty to charge delayed interest on the balance amount @ 12% p.a.. Opposite party is also at liberty to take back the deposited cheque from the court file. Opposite parties are also directed to issue demand notice and after taking the balance amount from the complainant issue the allotment letter and then conveyance deed. Opposite parties are also directed to give permission to mortgage the above noted unit for the loan purpose to the complainant, if required. Compliance of this order be made within 30 days from the date of receipt of the copy of this order. In case of non compliance after 30 days, a compensation of Rs.2,00,000/- be given to the complainant by the opposite parties for harassment and litigation charges. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 22.09.2022 (AmitArora)
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.
