Delhi

New Delhi

CC/709/2013

PROMILA SHARMA - Complainant(s)

Versus

M/S. BPTP Ltd. - Opp.Party(s)

08 Mar 2019

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

        (DISTT. NEW DELHI),

 ‘M BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

                                            NEW DELHI-110001

 

 

           Case No.C.C./709/ 2013                                                                                            Dated:

           In the matter of:

           Mrs. Promila Sharma/Mr. Karan Sharma

           W/o Sh. Ashwani Sharma/ S/o. Sh. Ashwani Sharma

           R/o L- 109, Shastri Nagar

           Delhi- 110052                                                                                                …… Complainant

 

   Versus

M/s. BPTP Limited

(Through its Directors/ Authorised Signatory)

M-11, Middle Circle,

Connaught Circus

New Delhi-110001                                                                                                  …….Opposite Party

 

ARUN KUMAR ARYA-PRESIDENT

 

 

                                                            ORDER

 

        Complainant has filed this complaint before this Forum under Section 12 of the Consumer Protection Act 1986 (the Act) against the OP stating that he booked a flat in BPTP Park Elite Floors, Parklands Faridabad, Haryana Unit No.P9-09-FF in June, 2009 and paid booking amounts for Rs. 4,00,000/- through cheque.It was assured that the installments of the flat would start after 3 years from the date of booking but OP sent the demand note of Rs. 3,74,961/- in Sept, 2009.On contact, it was informed by the OP that the plan has been changed.The complainant somehow

managed and paid the said amount on 22.02.2009.Again in March, 2010 the amount of Rs. 1,72,960.98/- was paid through cheque on demand from the OP.The op then issued wrong flat buyers agreement in the name of some other person namely Karan Monga R/o East of Kailash which caused delay in flat buyer agreement.The complainant had to approach OP to get it corrected but the OP gave some unreasonable excuses.On constant and long persuasion, the OP finally gave the flat buyer agreement dated 10.08.2010 for the flat admeasuring 876 sq. feet.There after complainant received no communication, then visited office of OP inquiring for the flat.The OP started delaying the matter on one pretext or the other.On persuasion, it was informed by the OP that the payment has been freezed for entire project for some time and would communicate whenever the payment would be required.

The complainant then got sanctioned a loan of Rs. 9,50,000/- from PNB on 06.08.2011.A tri-partite-Agreement was required to be executed and the OP neglected the request to execute the same on the pretext that the payment plan for this project has been frozen.On smelling foul play on the part of OP, the complainant sent mails dated 21.08.2011and 25.08.2011 but no reply was received. Again emails dated 28.12.2011 and 30.12.2011 were sent, requesting the OP to intimate the full and final amount due for payment.On 02.01.2012, the OP replied that they are working on the complainant’s request.

The OP made the complainant to sign fresh agreement to cover up their own failings which the OP will cancel the flat.For about 1 year and 4 months there was no communication from the OP. Thereafter, on receipt of OP’s letter dated 24.05.2013 with heading “Termination cancellationintimation in respect of unit no. P9-09-FF, in project Park Elite Floor, Parklands”, the complainant sent email dated 30.05.2013 stating the OP’s act to be illegal, fraudulent and unjustified.

Complainant requested OP to intimate the outstanding dues for payment but no reply was received despite reminder mails dated 01.06.2013 and 04.06.2013.Thereafter, the OP replied on 07.06.2013 that they had sent ‘last and final opportunity’ letter dated 11.04.2013 via Speed post to remit the dues within 15 days from the date of the letter.It is stated by the complainant that said letter was never received by hand. The complainant has prayed as under:-

a) To direct the Opposite Parties to provide the possession of the flat booked and take the dues towards complainant.

b) Pay a sum of Rs. 50,000/- towards the physical strain and mental agony suffered by the complainant and his family members (compensation);

c) Pay a sum of Rs. 3,000/- towards the cost of petition (Cost);

d) To grant any other relief which honourableforummay deem fit and proper in circumstances of the case and may also be passed in favour of the complainant and against the opposite party. It is prayed accordingly.

OP filed written statement after service of notice.The allegations made in the complaint have been denied.It is stated that the complainant himself is guilty of non-payment of outstanding dues within stipulated period and violated clause 11 of the terms and conditions appended with the application for allotment and the time is essence of agreement.The complainant defaulted in making payment so last and final opportunity letter dated 11.04.2011 was issued followed by termination letter dated 24.05.2013.It is further objected that the complainant has not exhausted the other mode of settlement before approaching this Forum and has not adhered to clause 33 of the agreement whereby the settlement through arbitration was agreed upon by both the parties. The complainant has failed to abide by the terms and conditions of Flat Buyers Agreement and therefore, this complaint is liable to be dismissed.

The OP has stated that the complainant and her son Karan Sharma made application for allotment and paid Rs. 2,00,000/- as booking amount.The demand letter dated 09.08.2009 was issued for payment of Rs. 191901/- before 24.08.09.The complainant made the payment through cheques dated 24.08.2009.The said cheques were dishonored by the bank for insufficient funds.Another demand notice dated 08.10.2009 for payment of 10% of BSP as per payment schedule and as such the complainant was required to pay Rs. 1,81,000/ towards current dues on or before and Rs. 2,02,001/- as outstanding dues.The payment was made on 20.10. 2009.Subsequently, the allotment letter dated 24/12/2009 was issued followed by a demand letter dated 24/02/2010 for payment of Rs. 1,82,001/-on or before 20/03/2010 but the payment was made on 24/02/2010. Thereafter demand letters dated 11/06/2010, 23/07/2010 & 13/08/2010 were sent but the complainant failed to make the payment.

The OP then sent the Flat Buyer’s Agreement to the applicant to sign and return within 21 days, which was executed by the OP and sent to the complainant vide letter dated 06/10/10.The complainant was also issued demand letters dated 14/09/10, 15/11/10 24/12/10 11/04/11 .As the allotment stood terminated for default in making payment by complainant still the OP issued intimation letter dated 24.05.2013 communicating the termination of booking.The complainant kept onsending emails dated 30.05.2013 and 09.06.2013 which were responded vide email dated 07.06.2013 and 11.06.2013 informing that no further payment can be accepted owing to cancellation of booking.All allegations leveled by the complainant have been denied by the OP.

The complainant filed rejoinder to the written statement of OP and denied the contentions / resistance made by the OP to the complainant and reiterated the gist of the complaint.Both the parties filed their respective evidence by way of affidavit.The OP filed written arguments.Both the parties addressed oral arguments.The counsel for OP on request was given liberty to place the document on record showing the sanction by Government agency and the copy of occupancy certificate latest by 08.03.2019.Nothing has been filed on behalf of OP despite liberty.

We have perused the record and considered the arguments of the parties.

The AR of the complainant vehemently argued that the demands raised by the complainant were duly met with and having noticed that the further demand raised by the OP was not corresponding to the stage of construction/ development of the project.The OP also did not share and provide any document requested by the complainant with regard to the project and as such the act of the cancellation /termination of the booking was illegal and uncalled for.

The Ld Counsel for the OP denied all allegations of the complainant and stressed upon the terms and conditions of the allotment / builder buyer’s agreement and argued that the complainant persistently defaulted in making the payments within stipulated time.Further, during arguments

 

she sought liberty to place on record the relevant documents showing the development of the project during the relevant time.

From the forgoing facts and records and the arguments of the parties, it is not in dispute that the complainant made certain payments against the demand of the OP for the cost of the unit.The contention of the complainant that the OP issued the builders buyer’s agreement in the name of third person is also not denied by the OP.The OP’s letter dated 24.05.2013 filed with the written statement speaks of final demand cum intimation of cancellation of the unit dated 14.03.2012.It is pertinent to note that the OP has not placed on record the said letter, however has filed the letter dated 24.05.2013 for un-explained reasons.

We are of the considered view that no prudent person will accept the builder buyer’s agreement showing the name of the third person.The OP is silent on this issue and has not explained the period consumed for getting the same corrected mentioning the name of the complainant in the said agreement.Further, adverse inference has to be drawn against the OP as no document showing the approval of the Government authorities and the copy of occupancy certificate has been placed on record despite grant of liberty. It is not the case of the OP nor has been argued on behalf of OP that the unit under reference has been disposed off to some other person.In such facts and circumstances of the case, we are inclined to agree with the contentions in the complaint that the demands raised were not corresponding to the stage of development of the project. Thus, we hold that the cancellation of booking by the OP was unjust and arbitrarily set aside. We further, hold the OP to be deficient in service and direct as under:-

1) The OP shall issue demand letter of the balance amount against the cost of the unit i.e. total actual cost minus amount already paid by the complainant within 30 days from the date of receipt of this order.

2) The complainant shall pay the demanded amount i.e. total actual cost minus amount already paid within 30 days after receipt of the demand letter.

3) The OP shall pay a sum of Rs. 25,000/- as compensation for physical and mental agony caused to the complainant beside the litigation cost of Rs. 3000/-within 30 days from the date of receipt of this order.

The complaint is disposed off in above terms.

Copy of the order may be forwarded to the parties to the case free of cost as statutorily required. 

Announced in open Forum on 08.03.2019 

The orders be uploaded on www.confonet.nic.in.

File be consigned to record room.

,

 

  (ARUN KUMAR ARYA)

                         PRESIDENT

(NIPUR CHANDNA)                                                               (H M VYAS)

                  MEMBER                                                                           MEMBER