District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.319/2021.
Date of Institution: 06.07.2021.
Date of Order: 28.10.2022.
Mahender Singh son of Shri Dharam Singh, House No. E-43/01, GF, Sector-85, Near SRS Chowk, Faridabad.
…….Complainant……..
Versus
M/s. Countrywide Promoters Private Limited Regd. Office:OT-14,3rd floor, Next Door, Parklands, sEcator-76, Faridabad through its Marketing Manager/Director/MD.
Service also effected at:
M/s. Countrywide Promoters Private Limited, 28, ECE House, Ist floor, KG Marg, New Delhi – 110 001.
Site office:-
M/s.Countrywide Promoters Private Limited, Next Door, Sector-76, Faridabad, Haryana, through its Managing Director/Director/principal Officer.
…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. Narender Singh, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite party.
ORDER:
The facts in brief of the complaint are that under allurement of opposite party and big name “BPTP” in Real Estae Field, the complainant alongwith his wife Smt. Mamta, booked a plot bearing NO. A9, Block-C, BPTP District 1, Block C, Sector-81, Faridabad, customer code NO. BE 3/157304 in the proposed project of opposite party which comes to Rs.97,38,584/- plus IFMSD (Maintenance Security deposit) and the opposite party executed a plot Buyer’s Agreement in favour of the complainant and his wife with an assurance that the company should hand over the actual physical fully finished condition within 18 months of said agreement. The complainant had paid a sum of Rs.9,84,790/- out of the said settled/agreed sale consideration of the said plot as per payment schedule plan. The details of payment made by the complainant were as under:
Payment Description Amount Payment Date.
Booking amount Rs.3,00,000.00 19.10.2019.
Rs.1,00,000.00 16.10.2019
Rs.1,34,790.00 27.01.2020
Rs.4,50,000.00 27.01.2020
At the time of the agreement, the opposite party was to offer the possession of the said plot to the complainant upto 19.03.2021 but till date, the opposite party had not handed over possession of the plot to the complainant. The complainant uncounted visits at the offices as well as site of the opposite party and at offices with reminders to know the status of the development of the said project, but the officials always made false excuses that the company shall handover the possession fo the said plot shortly but till date the opposite party were not in position to hand over the physical possession of the plot to the complainant, as there were no development work at the site, but the opposite party keep on demanding the money from time to time on one pretext or the other. ON 05.03.2021 the complainant visited to the office of opposite party where the representative told the complainant that if he wants to enquiry any fact related to his plot and if did not want to cancel the agreement he had to pay Rs.15,000/- immediately. As per discussion with the representative of the opposite party, the complainant had transferred the amount of Rs.15,000/- to their account NO. 250000830050 at Indusind Bank, New Delhi through NEFT with description for unit NO. A9 Block C on dated 07.03.2021. As per the terms and conditions of the commitment of opposite party it was inter alia agreed that the opposite party would handover the possession of the said plot within stipulated time but the opposite party failed to deliver the possession of the said plot to the complainant 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) give possession of above said plot No. A9 Block C, BPTP, Sector-81, Faridabad.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 21,000 /-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 in the present matter the entire consideration of the unit amounts to Rs.98,99,657/- (exclusive other charges) and the 10% earnest money amounts to Rs.9,89,965.70/-. It was, therefore, submitted that the opposite party had acted well within the parameters of law laid down by HRERA in for in forfeiting the said amount.
It was stated that the opposite party gave numerous opportunities to the complainant w.r.t. clearance of the outstanding dues and to secure his booking rights, but as a matter of fact the complainant did not pay any heed to the said request and resulted in termination/cancellation of the unit. The opposite party afterwards within its rights, sold the unit in question to third party namely ‘Adamya Moudgil and Sakshi Dhiman/CC 159963 vide allotment letter 18.05.2017. It was submitted that in the year 2019, the complainant and Ms. Mamta (co-allottee) after having conducting due diligence and out of their own volition approached the opposite party through their broker “karan Properties and Construciton’ and had applied for booking/allotment of a residential plot for tentative area ranging between 141 sq. yards to 180 sq. yards in the project namely “BPTP District, situated at Sector-81, Faridabad to be developed under the Deen Dayal Jan Awas Yojna Scheme. The complainant & co-allottee on their own will invested via tendering a Demand draft amounting to Rs.1,00,000/- on 16.10.2019 and a cheque amounting to Rs.3,00,000/- on 19.10.2019 in lieu to registration amount via receipts dated 21.11.2019, on account of agreeing and accepting to clauses documented in the Expression of interest. On completing the allotment eligibility criteria, the opposite party vide letter dated 08.11.2019 allotted residential plot NO. A9/Area 176.170 sq. yards (147.299 sq. mtrs.), in the project BPTP District 1 Block C situated at Sector-81, Faridabad, whereby the opposite party duly documented detailed description of total price to be paid in accordance with the payment plan. After allotment on 08.11.2019, in terms of payment plan the opposite party vide letter dated 25.11.2019 raised demand at the stage ‘within 5 days of draw results’ payable by 10.12.2019. The complainant & co-allottee defaulted in making payment towards said demand., in the meanwhile the next instalment became due and the opposite party vide letter dated 03.12.2019 raised demand at the stage ‘ on or before 15th December 2019 payable by 16.12.2019 alongwith reminder to clear previous outstanding dues immediately. While the said demand was still unpaid, the opposite party as constrained to issue reminder letter dated 08.01.2020. the complainant & co-allottee failed to deposit any payment, as a result the opposite party tried contacting the complainant & co-alotttee on their registered mobile number which was acknowledged by the opposite party vide email dated 24.01.2020 while requesting to make payment of the demand due. At this stage, the complainant only made payment towards demand 25.11.2019 via tendering two cheques dated 27.01.2020 amounting to Rs.5,84,790/- against which receipts dated 27.01.2020 was issued by the opposite party. While demand dated 03.12.2019 was still unpaid, the opposite party on 28.01.2020 again tried to contact the complainant & co-allottee in their registered mobile number with the opposite party but they did not attend the call, which was acknowledge by the opposite party vide email dated 28.01.2020, while requesting to make payment of the demand due. At the stage, the opposite party vide email dated 04.02.2020 with an intent to assist the complainant & co-allottee communicated that in case they wish to avail the loan facility, they can approach the dedicated representative of the HDFC Bank. The complainant & co-allottee did not clear outstanding/balance edues, thereby the opposite party 05.02.2020 again tried to contact the complainant & co-allottee in their registered mobile number with the opposite party but they did not attend the calls which was acknowledged by the opposite party vide email dated 05.02.2020 while requesting to make payment of the demand due. It was stated that the opposite party vide email dated 19.02.2020 issued a reminder w.r.t. clearance of outstanding/balance dues at the earliest and delayed penalty in making payment. In terms of payment plan, the next instalment was up and the opposite party vide letter dated 02.03.2020 raised demand at the stage ‘on or before 15th March 2020 or upon commencement of earth work(whichever was later) payable by 17.03.2020 alongwith reminder to clear previous dues. The complainant and co-allottee again failed to make a deposit towards demand and previous dues in lieu of said allotment which sums up to Rs.29,54,369/- (excluding delayed payment interest), which constrained the opposite party to issue reminder letter dated 16.04.2020. The opposite party on 25.04.2020 tried to contact the complainant & co-allotteee on their registered mobile number but could not reach them, which was acknowledged by the opposite party vide email dated 25.04.2020. Despite numerous and adequate opportunities offered to complainant & co-allottee, they deliberately and repeatedly failed to pay overdue/outstanding amounts and henceforth the opposite party vide letter dated 08.05.2020 informed the complainant and co-allottee that concerned allotment stands terminated/cancelled w.e.f from the date of reminders. Apart from termination/cancellation of allotment, the opposite party vide emails dated 11.05.2020, 12.5.2020 and 13.05.2020 requested to clear the outstanding/balance dues alongwith applicable interest to secure the allotment. But the complainant & co-allottee did not pay any heed to the opportunities provided by the opposite party. The opposite party being customer centric organization and with an intent ot secure booking rights of the complainant & co-allottee pass over the termination and continued with the allotment under the name of the complainant & co-allottee. Accordingly, the opposite party vide letter dated 15.05.2020 raised demand ‘on or before 15th June 2020 or upon commencement of sewerage/storm water pipe laying (whichever was later) amounting to Rs.14,77,185.46/- payable by 15.06.2020 alongwith reminder to clear previous dues which sums up to Rs.29,54,368.04/- i.e. total payment to be made by the complainant and co-allottee sums up to Rs.44,31,553.50/-. In lieu to numerous reminders and adeque opportunities being given by the opposite party to the complainant & co-allottee, they had deliberately and repeatedly failed to pay the overdue/outstanding amounts and, thus con tenuous failure of the complainant and co-allottee, the opposite party vide letter dated 14.07.20220 finally terminated/cancelled the allotment as the opposite party had to invest funds from its resources and by taking loan to complete the development of the project so as to deliver the project within stipulated time. The complainant and the co-allottee further had also concealed and suppressed form this Hon;ble Commission that they miserably failed to sign and execute the agreement to sell with the opposite party within the timeline stipulated. The opposite party vide email dated 10.02.2020 and even telephonically communicated and requested the complainant & co-allottee to step forward for execution of ATS in order to obey the RERA compliances. It was stated that the complainant & co-allottee intentionally failed to submit the same with the opposite party. The opposite party within its rights and on account of evaluating losses faced by the opposite party, after giving a fair opportunity to the complainant & co-allottee to remit balance dues and to get the agreement to sell executed, they7 intentionally did not come forward, thus the opposite party was entitle dot forfeit an amount not exceeding 10% of total price. It was again reiterated that in terms of the notification issued by HRERA dated 05.12.2018, the opposite party was well within its right to forfeit 10% of the consideration amount. 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 – Countrywide Promoters Pvt. Ltd. with the prayer to: Ex.CW1/A – affidavit of Mahender Singh, Ex.C1 & C2 – photocopies of cheques, EX.C3 & C4 – receipts, Ex.C-5 – allotment letter,, Ex.C6 & C7– payment requests, Ex.C8 - Debit transaction status.
To establish his case the complainant has led in his evidence, Ex.RW1/A – affidavit of Jay Shankar, Authorized Representative of opposite party,, Ex.R/1 – resolution,, Ex.R/2 – Expression of interest, Ex.R/3 – receipt, Ex.R/4 – allotment letter,, Ex.R/5 (colly) – payment request,, Ex.R/6 - email, Ex.R/7 – order dated 06.01.2015 passed by the Hon’ble National Consumer Disputes Redressal Commission, Ex.R/8 (coilly) –HRERA, Gurugram notification dated 5th December 2018.
6. In this complaint, the complaint was filed by the complainant with the prayer to give possession of above plot No. A9 Block C, BPTP, Sector-81, Faridabad.
7. After going through the evidence led by both the parties, no doubt there is no Builder Buyer’s Agreement. The complainant has only paid 10% of the total amount and also violated the terms and conditions of the builder. During the course of arguments, counsel for the opposite party stated at Bar that they are ready to refund the money. Counsel for the opposite party also stated that the complainant is also at fault due to non payment. This is the reason opposite party has cancelled the plot in question and it was the violation of the T&C of the opposite party. On the other hand, counsel for the complainant agitated at length about the possession of the plot. Opposite party is playing fraud with the complainant because of the increase of the price in the market of the plot. Their cancellation is during Covid Time. The complainant is ready to pay the balance amount alongwith interest @ 8% p.a. to the opposite party. Counsel for the complainant has also argued that the Karan Properties & Construction Company is belongs to the opposite party franchise and notice of the cancellation was served the same. Copy of the same is Annexure X also.
8. After going through the evidence led by both the parties, the Commission is of the opinion that it is hard to allot the plot because opposite party has already sold the plot to other person. In the interest of justice, opposite party is directed to refund the deposited amount alongwith interest @ 8% p.a. from the date of respective dates of payment. The opposite party is also directed to pay Rs.2200/- as compensation on account of mental tension, agony and harassment alongwith Rs.2200/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 28.10.2022 (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.
