1.       The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Parties (OPs) as detailed above, inter alia praying for following directions:-

a.       To direct the Opposite Party No.1 and 2 to immediately stop and demolish the construction of 3^rd floor ( on top / roof of 2^nd floor on the plot comprising ground, first and second floor raised on plot no. A-121, Amstoria Project of the OPs, situated at Gurugram, Haryana which fact was withheld or never disclosed by the OPs prior to booking of the Residential ground floor flat on the same plot and even before starting construction of 3^rd floor ( on top/roof of 2^nd floor on the plot comprising ground, first and second floor, and / or

          In the alternative,

Direct the OPs to pay compensation of Rs.45,00,000/- to the complainants on account of proportionate land division to 4 allottees instead of 3 allottees, burdening the complainants with congestion w.r.t. parking, utilities and common space and part from the profit opposite parties are making by constructing additional floor, and

b.       Direct the OPs to pay interest @ 12% and to refund the excess GST amount paid.

c.       Direct the OPs to pay an amount of Rs.25,00,000/- alongwith interest @ 18% for hardship and injury, both physical and mentally.

d.       Direct the OPs not to charge any escalation on account of increased construction cost.

e.       Litigation cost of Rs.1,50,000/- is also prayed.

2.       Notice was issued to the Opposite Parties.  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit, Written Arguments/Synopsis and additional / amended written arguments as per details given below:

3.       Brief facts of the case, as emerged from the pleadings of the parties and other case records are that Complainants being approached by the sales representatives of the Opposite Parties regarding purchase of plot being developed and constructed by OP No.1 and 2 told the Complainants that limited number of low rising flats are left in the project named ‘Amstoria’ situated at Gurgaon and that they ( OPs) shall be developing only ground, first and second floor on the said plot.   They were also shown the location and the site brochures, in which details of all the units were mentioned.  It was assured to the complainants that project would be completed within 30 months from the date of booking.

4.       The complainants applied for a flat on plot no.A-121 on Ground floor with construction linked plan having built-up area admeasuring 3650 sq. ft.  The basic sale price was agreed as of Rs.2,01,99,996/- and opposite parties also charged preferential location charges for 24 meter wide road (5% of BSP), two side open plot (10% of BSP, park facing (5% of BSP) as well as club membership charges of Rs.2,00,000/-.  The Opposite Parties also charged development charges of Rs.8.67 lacs in lumpsum.  The complainants paid more than 10% of basic sale price i.e. Rs.20,90,871/-. 

5.       Prior to booking the said flat, the complainant inquired in respect of one High Tension pillar and cables lying on their plot i.e. A-121, on which the OPs assured the complainants that high tension pillar and cable is temporary and it shall be removed within 25-30 days.  On the said assurance of the OPs, complainant booked their unit in the said project of the OPs and they were also assured at the time of booking that OPs will execute the Builder Buyer Agreement ( BBA) at the earliest. 

6.       The Complainants got the terms and conditions for the provisional allotment after several days of booking and according to the complainants, the penalty clauses were very unfair and in case of cancellation, their advance amount of Rs.20,90,871/- could be forfeited.  Complainants requested the OPs to change the said clause, on which OPs assured the complainants they will change the same in BBA.

7.       The OPs sent allotment letter dated 16.08.2012 to the Complainants mentioning the booking details.  At the time of booking the Complainant paid the development charges within time.

8.       It is further the case of the Complainants that OPs sent a demand notice  in respect of second payment of Rs.20,82,417/- and gave the complainants only 15 days to make the payment i.e. till 10.10.2012 and it was mentioned in the notice that delayed payments will carry interest @ 18% p.a. for the period of delay.   The complainants in response to the said notice immediately visited the site and found the  HT Pillar still lying on the plot.  The Complainant wrote to the OP vide email and reminded them about their assurance to remove the HT Pillar within 25-30 days and on finding their reply unsatisfactory, issued another mail mentioning therein as to how the removal of HT Pillar was necessary for continuation with the booking and for timely completion of project.  The OPs vide their mail admitted their inability to dislocate the same and did not inform as to when the said pillar will be relocated.

9.       The BBA was sent to the Complainants for their signatures, who after reading the same found contradictions in the assurances of the OPs and commitments with the terms provided in the BBA and thus raised several concerns like PBIC charges Rs.1,50,000/- per KVA, which the same was initially agreed to be Rs.20,000/- per KVA.  Further, the complainants asked for the specific date of time of possession and asked the confirmation regarding no change in the unit allotted to them and also for amendment in the agreement, but the OPs did not send any reply to the mails sent by the complainants.

10.     The Complainants on the assurances of the OPs that the condition of PBIC shall be rectified, appended their signatures on the BBA dated 01.01.2013 and sent the same vide letter dated 01.01.2013 and requested them to send one copy of the same back to them but OPs did not send back or provided the signed copy of the BBA dated 01.01.2013.   The OPs without removing the HT Pillar and amending the BBA, compelled the complainants to pay for second instalment as well as interest on the delayed payment.  Finding no other option and believing upon the assurance of the OPs to relocate the HT Pillar soon, the complainants paid the second instalment as also the interest on the delayed amount i.e. Rs.70,565/-.   Complainants also signed the addendum agreement dated 20.05.2013 to the BBA.

11.     The OPs neither completed the project on time nor even provided the current status of the project inspite of follow-ups and several visits.  The OPs vide email dated 16.01.2016 informed the complainants that they are in the process of issuing possession letter within3-4 months.  However, till January 2016, the time of completion of project ( 30 months including grace period) was exhausted as project was supposed to be completed till December 2014 and even the grace period also expired. 

12.     The OPs further compelled the complainants to execute one affidavit and undertaking and then only the copy of the BBA shall be provided to them, which specifically mentioned that Complainants agree that OPs have tentatively allotted the floor to the complainants and its super built up area may change for any reason whatsoever and complainants shall not have any problem if the said change takes place due to modification in building plan during construction of the floors and complainants in that case shall have no objections.  It was also mentioned in the undertaking that complainant shall not hold the builder responsible for any delay in offer of possession due to any modification or change in building plan.

13.     The OPs compelled and pressurized the complainants to sign the same.  However, the complainants under protest signed the said affidavit and agreement just to secure the copy of BBA with them and sent the same back vide letter dated  17.01.2018. The OPs sent the BBA back to the complainants, however, date of execution was filled up as 11.01.2018, however, the BBA was already signed by the complainants way back on 01.01.2013. 

14.     The OPs raised huge demands for  two instalments together i.e. 4^th and 5^th jointly and 06^th and 07^th jointly, to be payable within 15 days. However, the complainants made the said  payments on time. Further, the complainants waited for the offer letter till December 2019 and when the complainants decided to visit the site to know the current status,  the complainants found that opposite party without the consent of the complainants, being ground floor allottees and having ownership on terrace for utilities services, water tank etc. and basement, the opposite parties constructed another 3^rd floor on the plot comprising ground, first and second floor in violation of building plan, BBA.  The complainants being annoyed on the said illegal construction sent his mail with the photographs of 3^rd floor construction on the concerned plot mentioning therein as to why the consent was not taken from the complainants before stating the construction on the third floor on the top / roof of 2^nd floor.  The complainants also raised the concern regarding how the OPs will share the already allotted space of parking, basement and roof now, as previously it was allotted between 3 floor residents and now it would  be shared between additional resident of 3^rd floor.  After raising many concerns with the OPs, the complainants showed their  willingness to cancel their booking done with 100% refund with interest. 

15.     The OPs, however, firstly denied or refused to build or construct any such additional third floor on top / roof of 2^nd floor.  However, on 24.12.2019, opposite parties on receipt of another email from the complainants, indirectly admitted the revision or modification in the building layout plan and mentioned the clause no.20.09 of the BBA that the builder may at any time without assigning any reason may change or modify the area  of the plot / flat.

16.     It is further the case of the complainants that even after lapse of almost 7 years, possession of flat has not been handed over to the Complainants nor any development in the said area has taken place and further third floor on the top /roof of 2^nd floor is constructed by the OPs, which information was withheld in the beginning or prior to booking of the unit and no information was given or consent was taken.  Being aggrieved by the said acts of the Opposite Parties, the Complainants filed CC before this Commission.

17.     The OPs in their written statement stated that complaint filed by the Complainants lacks territorial jurisdiction as per clause 34 of the BBA dated 11.01.2018 and that Complaint was required to be referred to an Arbitrator vide clause 33 of the BBA.   Further, no cause of action exists in the Complaint.   It is further stated in the written statement that complaint raises complex questions of fact and interpretation of law and disputes regarding rights and obligations of the parties which would require elaborate evidence to be led, which should be decided by the Civil Courts.  Further, several issues raised by the complainants has been raised for the first time and therefore, complainants are estopped from raising such issues. OPs raised the demands as per the payment plan opted by the Complainants at the time of booking.   However, the complainants delayed in making payments towards the unit in question in regard to which reminder notices were sent to the complainants.  Further, the complainants have not complied with the requisite formalities as mentioned in the mail dated 30.01.2024 and same was only complied with by the complainants in the year 2017.

18.     OPs further stated in their written statement that vide clause 5.1 of Floor Buyer’s Agreement ( FBA), it was duly agreed that subject to force majeure and compliance of all the terms and conditions of the FBA by the complainants, the OPs propose to hand over possession of the unit within 24 months of date of sanctioning of building plan or execution of FBA, whichever is later with further grace period fo180 days.  It is further stated that OPs applied for approval of building plans with DTCP under the regular scheme, which was approved on 05.10.2012. OP s denied that complainants were told that OPs shall develop only ground, first and second floor on the plots. 

19.     OPs further stated in their written statement that as per the agreement, it was categorically mentioned that Force Majeure and timely payment is the essence of contract. OPs denied that they Complainants have any ownership over terrace and that OPs have compromised the building plan, buyer agreement and any commitments.  They further denied that they  have shared the basement of the tower with 3^rd floor resident rather the unit is unsold.   The OPs have constructed the 3^rd floor as per the norms of Haryana Building Code-2017 (HBC-2017) and as per the norms of HBC-2017, OPs are permitted to construct the residential buildings ‘ground plus three floors’ to the  maximum height of 15.0 meters. Therefore, they that are well within their rights as per HBC-2017 and clause 20.08 of the agreement. 

20.     OPs further stated that there was a miscommunication between the Project team, and the customer care team with respect to the construction of the 3^rd floor, which resulted into sending a wrong mail to the Complainants and the said mistake was rectified by the customer care team by mailing the complainants vide mail dated 19.12.2019.  The complainants had a detailed discussion with the customer care whereby complainants were informed about the construction work of 3^rd floor and about the permission given by the HBC-2017.  They reiterated that complainants have no locus to object the construction of 3^rd floor.  OPs also denied that there was delay in handing over of the possession.  OPs prayed for dismissal of the complaint.

21.     Complainants filed rejoinder to the reply filed by the Opposite Parties and stated that present complaint is maintainable and denied all the averments and allegations made by the Opposite Parties.

22.     Heard learned counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

i.        Learned counsel for the Complainants apart from repeating the points which have been stated in para nos. 3 to 16 argued that date of purchase of stamp papers of the BBA is mentioned as 25.10.2012, which shows that BBA was signed on 01.01.2013.  It is argued that payment plan as per the BBA and application form mentioned the demands in sequence manner so that buyer can get time to arrange the payment, but OP raised demands starting from 3^rd demand till 07^th demand in very short span of time. Accordingly, complainants made the payments after deducting applicable TDS @ 1%.   Further, the OPs at present without cancelling the allotted unit, without refunding the  money and even without having permission to demolish the entire sold structure from the concerned authorities, are demolishing the entire structure. 

ii.       It is further argued that the Opposite party has not completed the low rise floor of ground, first and second floor even after lapse of 10 years since the date of booking and opposite party has to be charged interest @ 18% p.a compounded yearly on the deposited money. The OPs never fulfilled its contractual obligations and commitments of completion of house which was  assured to be concluded within a span of 2 ½ year i.e. by December 2014 and by 22.06.2015 as per grace period of 180 days.  Further, OPs after huge delay of handing over of the possession, started constructing another extra floor without the consent of the complainants when almost 82% of the amount  has been paid by the complainants.  It is further argued that OPs have also charged GST @ 12% to 18% on PLCs, however, the GST authority has clearly held that they can charge GST @ 5% only. The OPs might have reduced the BSP and adjust the excess payment paid by the complainants.  The OPs have not even deposited the GST amount collected from the complainant which is evident from the statement of account dated 24.12.2019 issued by the OPs . 

23.     During the hearing on 05.02.2024, learned counsel for the OP stated that their client is willing to refund the entire amount paid by the complainants with 9% interest and further that they are intending to demolish the entire structure / units of the lane where the unit of the complainant in question A-121 is located as they have not still got the OC.

24.     OP admitted during the hearing on 05.02.2024, that there is no default in any payment from the complainant’s side.  The Commission, was therefore, of the view that complainants have right to get their floor allotted in a unit which have only those many floors which were earlier agreed to / committed and without the consent of the complainants, the OP was not entitled to construct additional floors.  It was further observed by the Commission that it is not known as to when the OPs had applied for the OC, whether it was for ground + two floors only or ground + 3 floors and what is the status of the OC application and whether the competent authority has raised any objections or not.   The OP was, therefore, directed to file on affidavit complete status position with respect to filing of the application for OC for the units in question where the unit of the complainant was located alongwith current status of their application, enclosing copies of the relevant correspondence with the competent authority including their first application. 

25.     In compliance of the order dated 05.02.2024, OP filed an affidavit dated 08.04.2024 and perusal of the affidavit showed that OPs are willing to refund the entire principal amount with 9% interest. Further, they offered two alternate units, which the complainant stated are of not similar size and location in terms of the floor of their existing units. The complainants stated that at present they have a ground floor unit of 3,560 sq. ft. covered area (which includes about 900 sq. ft. of the basement area rights) over a plot of 495 sq. yards. If the OPs give any alternate option which is broadly similar to their existing unit in terms of the size and being on ground floor etc, they may be willing to consider that favorably. Otherwise, the complainants insisted on refund with punitive damages to enable them to purchase a similar size/location unit at the prevailing market price.

26.     On 23.04.2024,  Learned counsel for the complainant stated that the OP have offered two alternate units, and they are willing to consider one option which is on a plot size i.e. 495 sq. yard with covered area 3106 sq. ft. but subject to the condition that the OP provides a functional lift, renovates the entire unit and do not make them charge anything beyond what they have already been paid i.e. Rs.2.09 crores only. The learned counsel for the complainant further stated that the covered area 3106 sq. ft. of the alternate unit offered includes a room on the terrace which is 213.5 sq. yard but this room does not have permanent RCC roof but only a tin roof, hence should not count for a covered area. However, the learned counsel for the OP stated that the conditions imposed by the complainant for accepting this offer that is (a) the provision of a functional lift, (b) renovation of the unit and (c) giving the unit at the total cost of Rs.2.05 crores was not acceptable. They have offered this unit on as is where is basis i.e. without lift, without further renovation and at a price, at of Rs.2.53 crores only. The learned counsel for the OP added that if the offer of the alternate unit is acceptable to the complainant at the price of Rs.2.53 crores without lift, they will have no objection in doing the final finishing to make it ready for occupation.      During the hearing, learned counsel for the OP reiterated its willingness to refund the entire amount paid by the complainant with 9% interest, stating that they are intending to demolish the entire structure / units of the lane where the units of the complainant in question is located as they have still not got the OC. At the same time, learned counsel for the complainant reiterated that the refund, if ordered by this Commission, should be not only with the interest, but with punitive damages to enable them to purchase a similar size/location unit at the prevailing market price.

27.     The Complainants also filed the additional written arguments on 06.05.2024 ( as per direction of this Commission on 23.04.2024).  Learned counsel further argued that OPs admitted the construction of additional floor and further admitted to abandon the project completely.  Further,  the opposite party is liable to pay penalty @ 18% p.a. on the total amount paid by the complainants until physical possession is given. Learned counsel relied on the order of this Commission in CC No. 487of 2014 – Manoj Kumar Jha and Anr. Vs. M/s Unitech Ltd.   Learned counsel also relied on the judgment of this Commission in CC No. 1501 of 2018 – Ankur Kapoor Vs. BPTP Ltd. and Anr., in which it was held that no TDS is deductible on the amount of compensation which has been awarded in the form of interest in the case of refund or for any delayed penalty compensation.  It is further argued that during arguments before this Commission, opposite party in their affidavit filed on 08.04.2024 admitted that as construction of the building has not  been completed yet, therefore, they have not applied for  occupation certificate.   They further admitted in their affidavit that the Complainant has deposited an amount of Rs,2,09,040.97/- with them out of total sale consideration of Rs.2,56,51,974/- and as an alternative, willing to offer possession of one of the unit out of the two available units.

28.     It is further argued that this Commission has observed during the hearing on 09.04.2024 that OP is willing to refund the entire principal amount with interest @ 9% pa. and also ready to offer alternte possession. Learned counsel further argued that officials of OPs showed the alternate property to the complainants and therefore, complainants visited the alternate offered unit A-45, second floor, Amstoria, Gurgaon.  It is argued that complainants were willing to consider  the alternate property which should be broadly similar to their existing unit in terms of the size and being on the ground floor.   Arguing further, pursuant to the said willingness, the OPs showed them the alternate property. The complainants visited the alternate offered property i.e. A-45, second floor.  However, the conditions imposed by the complainants for accepting the property was not acceptable to the OPs. 

29.     Learned counsel for the Complainants relied on the judgment of the Hon’ble Supreme Court in Civil Appeal no. 8418 of 2022 titled Santosh Narasimha Murthy and Orss. Vs. M/s Mantri Castles Private Ltd, where possession was offered by the Builder.

30.     Learned counsel for the OPs apart from arguing the points which have been stated in the written statement filed by the OPs also filed written arguments on 06.05.2024 and argued that Complainants blatantly ignored completing the documentary formalities and execute the FBA.  Even from the email dated 30.1.2024 it is clear that complainants ignored to fulfil the requisite formalities, therefore, no FBA was executed.  It was only in year 2017 that complainants fulfilled the pre-requisite formalities for execution of the FBA.  OPs have complied with the requests made by the Complainants.  The issue raised by the Complainants for dislocation of high tension pillar in the year 2012 was dealt by the OPs and the same issue stands settled.

31.     It is further argued that possession was subject to the terms of FBA and Complainants have breached the FBA either by not making the timely payment or by not executing the FBA in the year 2012.  As per clause 5.1 of the FBA, possession was subject to force majeure and timely compliance by the Complainants of allthe terms and conditions of the FBA. It is also argued that Complainants executed the FBA only on 11.01.2018 after almost 6 years from the date when the FBA was initially sent to the complainants for execution in the year 2012 itself.  Therefore, there has been no delay on the part of the OPs.

32.     Learned counsel further argued that for the mandatory approval of the building plans asper the terms of the policy of DTCP, Haryana, the OPs applied for approval of building plans under regular scheme but the same was withheld by the authorities for a considerable period of time and was approved on 05.10.2012.  Further, complainants had a detailed discussion with the customer care team of the OPs wherein they were made aware of the construction of the 3^rd floor and the permissions granted by HBC-2017.  Further, complainants have no right of ownership over the terrace.  The OPs have constructed the subject floor in consonance with clauses 15 16 and 17 of the application for allotment, clauses 2.13, 3.1, 3.3., 3.4., 7.3., 7.4., 20.8 of the FBA. Learned counsel relied upon the following judgments of the Hon’ble Supreme Court :

1. Suneja Towers Private Limited and Anr. Vs. Anita Merchant – 2023 9 SCC  194 – para 41.

2. Nexgen Infracon Pvt. Ltd. Vs. Manish Kumar Sinha – Civil Appeal No. 62 of 2021. – para 6 and 11

33.     The plea of OP(s) that delay was due to force majeure circumstances is not valid. Possession of flat has still not been given and  OC has not been obtained yet. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure.   Plea of the OP(s) for Arbitration as per conditions in the Agreement is also not accepted as the remedies under the Consumer Protection Act were in addition to the remedies available under special statue.  In Emaar MGF Land Ltd Vs Aftab Singh (2019) 1 CPJ 5  (SC), Hon’ble Supreme Court held "Arbitration Clause does not exclude the jurisdiction of Consumer Fora".

34.     We have carefully gone through the entire facts and circumstances of the case, evidence / documents placed on record and rival contentions of the parties.  Possession of the unit in question has not been handed over and  Occupation Certificate ( OC) of the unit in question has not been obtained yet.  It was held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”.  In Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr. (2021) 3 SCC 241, Hon’ble Supreme Court held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them”.  In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra- (2020) 18 SCC 613, Hon’ble Supreme Court observed that “A buyer can be expected to wait for possession for a reasonable period.” It was held by Hon’ble Supreme Court in Banglore Development authority Vs Syndicate Bank (2007) 6 SCC 442 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422 "Home buyers cannot be made to wait for position of the flat for indefinite period". In Abhishek Khanna (supra) (2021) 3 SCC 241, Hon’ble Supreme Court held "Developer cannot compel apartment buyers to be bound by one-sided contractual terms contained in apartment buyers agreement".

35.     In the present case, the OPs have admitted that there was a miscommunication between the project team and the customer care team with respect to the construction of the 3^rd floor, which resulted into sending of a wrong mail to the complainants, although they contended that the said mistake was rectified by the customer care team vide mail dated 19.12.2019.  This gives credence to the contentions of the Complainants that at the time of booking, they were assured that unit / project in question will have only ground, first and second floor on the said plot.  Construction of an additional floor, without the express consent of complainants, seriously affect their ( complainant’s) rights in terms of sharing of common facilities, their proportionate share in the land ownership etc.  If OPs initially promised the Complainants that the unit in question will have only basement and ground plus 2 floors only, later on, without the consent of the complainants, they cannot add additional floor citing the HBC 2017, which permitted them to construct upto a height of 15 meters. Further, the contentions of OPs that clause 20.08 of the agreement permitted them to do such changes is also not tenable. Clause 20.08 of the agreement, which is reproduced below, cannot be used to the extent of altogether putting an additional floor in the unit, and amounts to a major change / deviation in the appended plan.

“20.8. The Seller / Confirming Party may modify, repair or otherwise make improvement to the project in accordance with specifications and in accordance with good industry practice, applicable Indian laws and directives and shall for that purpose do all such acts, deeds and things necessary and expedient.”

 Such action on the part of OP is a clear case of deficiency in service on the part of OPs and also amounts to unfair trade practice.  Willingness of OPs to refund the entire principle amount with interest @ 9% is not sufficient to take care of such gross violations / deficiency in service on the part of the OPs and it calls for imposition of punitive damages on the OPs.  In Wg. Cdr. Arifur Rahman Khan (supra), the Hon’ble Supreme Court held that the word "compensation" has a broad connotation, including actual or expected loss and extending to compensation for physical, mental, or emotional suffering, insult, injury, or loss. The provisions of the Consumer Protection Act (CPA) enable a consumer to claim compensation and empower the commission to redress any injustice done. In Charan Singh v. Healing Touch Hospital (2000) 7 SCC 668, the Hon’ble Supreme Court held that Consumer Forums, while quantifying damages, must strive to serve justice by awarding compensation that not only compensates the individual but also aims to change the service provider's attitude. The calculation of damages depends on the specific facts and circumstances of each case, and no universal rule can be applied. Compensation must be assessed based on legal principles and moderation, with the Consumer Forum determining what is reasonable and fair. Additionally, the quality of the respondent’s conduct in cases of proven negligence is crucial. The National Consumer Forum can award compensation without pecuniary limits, unlike the District Forum and State Commission……. In Suneja Towers (P) Ltd. v. Anita Merchant, (2023) 9 SCC 194, the Hon’ble Supreme Court held that the quantum of compensation and punitive damages depends on the facts and circumstances of each case.

36.     A perusal of the brochure of the project in question shows that for 495 sq.yds plan, it contains floor plans for ground floor, typical floor plan for Ist and 2^nd floor, basement floor plan and terrace floor plan.  There is no floor plan for 3^rd floor.  Further, the basement plan shows a division between 3 parts only, Hall-1 for ground floor, Hall-2 for first floor and Hall-3 for second floor.  There is no hall earmarked for 3^rd floor.  The terrace, also has 2 parts only, Terrace-1 for first floor and Terrace -2 second floor.  There is no terrace earmarked for 3^rd floor.  This shows that as per brochure, there was no 3^rd floor planned, hence the version of Complainants that they were told that unit will have only basement, ground, Ist and 2^nd floor only, appears correct.  Even the payment plan in the application form has only ground floor, Ist floor and 2^nd floor plan, none for 3^rd floor.  Complainant’s allegations of non-removal of high tension wire also appears true as is evident from mails dated 22.10.2012 and 07.11.2012 from the OP and a few other mails exchanged between the parties.  Communications exchanged between the parties about OP not having sent the signed copy of buyer agreement also support complainant’s assertions.  We have also perused the affidavit and undertaking, both dated 17.01.2017, signed by the Complainants, conveying its no objection to the OP changing the layout / building plan etc.  The stamp papers on which Floor Buyer’s Agreement has been signed is dated 25.10.2012, while date of execution of agreement is shown as 11.01.2018, which clearly supports the contentions of Complainants that this date was put later on and he signed the agreement much earlier.  This copy of agreement bears the signature of OPs only and not of complainants.  

37.     On 09.12.2019, the Complainants wrote mail to the OPs raising the following queries:

From : Pramod Kumar Sent : 09.12.2019 1.04 PM

To : Subject : RE BPTP-56-AMSTORIA Cust_Code : 142476

Attachments              A-121.pdf

Importance                High

Dear Sir / Madam,

We visited the site on 7th December 2019 and noted many points which are contradicted to what is offered to us while we booked the apartment. Please answer pointwise for the followings:-

1. We are offered GF out a 3 floor unit in the year 2012 and delivery is supposed to be given 2013-15. It is already delayed by 5 years.

2. Now you have constructed 4 unit without our consent and compromised the luxury of low rise and destroyed the breath taking view. Please inform the reason for doing so and send copy of approval from relevant Government department for doing so.

3. How would you share already allotted space w.r.t. basement, roof and parking now?

4. Do you have taken consent of other buyer of the same unit types before doping so?

5.  Please share contact numbers of other buyer as above us to verify.

6.  Since we are offer a unit where total 3 floors ( 3 owners) and now there shall be 4 owners, what would the price decrease / compensation for us being property is further divided ?

7.  We opted for a low rise i.e. 3 floors and now that you have built extract floor, which is not suitable and felt like burden on our like of living, what are the ways you offer to opt-out with 100% payment with interest?

            Your reply is required per return e-mail by today evening and fix an appointment for us to meet you personally tomorrow (10^th December 2019) morning for further face to face discussions.

You may kindly note that your incomplete, diplomatic answers and delay in reply will compel us to go LEGAL for remedy and / or refund our money with interest and penalties.

Above is issued without prejudice to our rights under applicable terms and conditions of our contract.

Best Regards

Shweta Singhal and Pramod Kukmar

38.     On 18.12.2019, the OPs sent the following email to the Complainants:

From : Customer Care ( mail to Sent : 18 December , 2019 6.06 PM

To : Subject : RE:BPTP-56-AMSTORIA Cust_Code : 142476

Dear Ms. Shweta Singhal

Refer to you below email, we would like to inform you that we are not constructing any floor as confirmed from our concern team.

If  you require any assistance, please free to call at +91-11-4957 ( 2787) or write in to us at customercare@bptp.com .  Please mention your customer code and project name in the subject line.

Thanks & Regards

BPTP Team Office Phone : +91-11-4957-BPTP (2787)

39.     On the same day in response to the above e-mail,  the Complainants wrote Email to the OPs which is reproduced as under :

From : pramodkumar Sent                18 December, 2019 10: 08 PM

To                   Subject           Re : BPTP-56-AMSTORIA Cust_Code 142476

Yours is a false statement. We already attached proof of a clicked picture of our unit A 121.

40.     The Complainants on 19.12.2019 wrote an email to the OPs requesting for certain answers from the OPs, which is reproduced below:

From : Pramod Kumar

Sent : 19 December, 2019 11.33 AM

To : ‘customercare@bptp.com’

Cc : ‘Ajay Nandan Gupta’

Subject : RE : BPTP-56-AMSTORIA Cust_Code 142476

Importance : High

Dear Sir / Madam,

We already wrote you to not send incomplete, diplomatic answers. It is surprising that either you are un-aware that we had attached picture as proof (attached once again now) clearly showing 4th unit already built instead of total 3 as promised while we booked our unit or you are deliberately making false statement keeping some thing in mind to disclose at a later date. We are not agree with you and once again request you to answer all point by point which are mention once again as below:-

1. We are offered GF out a total 3 floor unit (GF, 1^st  and 2^nd ) in the year 2012 and delivery is supposed to be given 2013-15. It is already delayed by 5 years.

2. Now you have constructed 4th (3d Floor) unit without our consent and compromised the luxury of low rise and destroyed the breath taking view. Please inform the reason for doing so and send copy of approval from relevant Government department for doing so.

3. How would you share already allotted space w.r.t. basement, roof and residents and guests parking now?

4. Confirm BM space, lawn area and parking of 2 cars as the entry gate shall not be altered.

5. Do you have taken consent of other buyer of the same unit types before doping so?

6. Please share contact numbers of other buyer as above for us to verify.

7. Since we are offer a unit where total 3 floors (3 owners) and now there shall be 4 owners, what would the price decrease/ compensation for us being property is further divided?

We opted for a low rise i.e. 3 floors and now that you have built extra floor, which is not suitable and felt like burden on our like of living, what are the ways you offer to compensate with interest, per square foot delay compensation as per BBA, compensation on account of land rights divided to 4 instead 3 when we are offered our unit at GF, GST refund as you charged higher amount and promised to settle at a later date?

Your reply is required per return e-mail by today evening.

Best Regards

Shweta Singhal and Pramod Kumar

41.     The OPs on 24.12.2019 wrote an email to the complainants, extract of which is reproduced as under :

From: Customer Care Sent                24 December 2019 7.20 PM

To                   Subject           RE-BPTP-AMSTORIA Cust-Code_142476

Dear Ms. Shweta Singhal

Greetings from BPTP

This is to acknowledge your below mail,requesting you to please refer the clause no.20.9 in your builder buyer agreement

20.9    The size and location of the Floors are tentative and may change during the construction and development of the project. The Seller /Confirming Party reserves the right to change the location, size, offered in the project, ‘Amstoria Floors’.

Should  you require any assistance, please free to call at +91-11-4957 ( 2787) or write in to us at customercare@bptp.com .  Please mention your customer code and project name in the subject line.

Thanks & Regards

BPTP Team Office Phone : +91-11-4957-BPTP (2787)

42.     In the instant case, there is an inordinate delay in handing over the possession of flat by the OP(s) as per the promised specifications.  OC has still not been obtained.  The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP(s).

43.     For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

 (i) The  OP(s)  shall   refund   the   entire   principal   amount    of    Rs.2,09,76,040/- ( Rupees Two Crore Nine Lacs Seventy Six Thousand and Forty )  to the complainant, alongwith simple interest @ 12% per annum from the date of each payment till the date of refund and compensation of Rs.15 lacs on account of not  constructing the unit as per promised specifications, doing major changes without the consent of the  complainants, not obtaining the OC and not delivering the possession as per committed timeline,  which constitutes serious deficiency in service on the part of OPs, who have indulged into unfair trade practice, and which has caused harassment and mental agony to the Complainants as well as financial loss and even calls for imposition of punitive damages.  Cost of acquiring a similarly situated property  now will be much higher. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

(ii)      The OP(s) shall also pay a sum of Rs.1,00,000/- ( Rupees One Lakh) as cost of litigation to the   complainants.                 

          (iii)    The liability of the OP(s) shall be joint as well as several.

(iv) The payment in terms of this order shall be paid within three months from today.

(v) In case the complainant(s) has/have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OPs four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly. In case no loan has been taken and / or no such loan is pending, the Complainants shall submit a requisite affidavit in this regard to the OPs within four weeks.

44.     The pending IAs in the case, if any, also stand disposed off.