Haryana

StateCommission

A/382/2015

BPTP LTD. - Complainant(s)

Versus

RAKESH KUMAR - Opp.Party(s)

GAGAN BAJAJ

05 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                               

                                      First Appeal No.382 of 2015

                                      Date of Institution:10.04.2015

                                      Date of Decision:05.05.2017

 

BPTP Ltd., M-11, Middle Circle, Connaught Circus, New Delhi-110001 through its Authorized Representative Mr.Vipin Saroha.

                                                …Appellant

 

Versus

 

Rakesh Kumar son of Sh. Kewal Krishnan, R/o H.No.789, Sector-14, Faridabad, (Haryana).

                                                …Respondent

 

CORAM:   Mr. R.K. Bishnoi, Judicial Member

                   Mrs. Urvashi Agnihotri, Member

 

Present:     Mr.Hemant Saini, Advocate for the appellant.

Mr. Bhupender Singh, Advocate for the respondent.

 

                                       O R D E R

 

MR.R.K.BISHNOI, JUDICIAL MEMBER

 

          As per complainant he booked a flat with opposite party (in short ‘OP’) in the project known as Parklands Pride measuring 1050 Sq. ft. at the rate of 2962 per sq.ft. and deposited Rs.3/- lacs on 03.05.2011. Vide letter dated 25.11.2011 a flat was allotted to him and payment schedule was construction linked. Second installment was payable within 90 days from booking. Vide letter dated 18.07.2011 OP demanded Rs.3,38,019.55P and he deposited Rs.3,38,020/- on 02.08.2011. In pursuance of letter dated 29.11.2011 he deposited Rs.3,15,688/- on 18.04.2012. Despite payment in time, he received letter dated 05.07.2012 from OP to deposit Rs.4,81,981.81P. He did not received any letter about payment in between. He deposited Rs.9,53,708/-, but despite that his allotment was cancelled which was altogether wrong. At the most OP could have claimed interest at the rate of 18% as per agreement.  OP be directed to refund the amount already deposited by him alongwith interest at the rate of 18% per annum besides compensation to the tune of Rs.1 lacs for mental harassment etc. and Rs.11,000/- as litigation expenses. 

2.      OP filed reply, controverting  his averments and alleged that complainant was directed time and again to pay the remaining installments vide letter dated 19.05.2012 and reminder dated 31.05.2012. Final opportunity  was afforded vide letter dated 05.07.2012. When he did not deposit the outstanding amount to the tune of Rs.6,56,396.73P his unit was cancelled w.e.f. 20.07.2012. As per terms and conditions Nos.17 & 19 amount was refunded to him vide cheque dated 19.07.2013. He was not entitled for any other relief. Objections about maintainability of complaint, territorial jurisdiction etc. were also raised and requested to dismiss complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Faridabad (in short ‘District Forum’) allowed complaint vide impugned order dated 10.03.2015 and ordered as under:-

“Opposite party is directed to pay Rs.9,53,708/- with interest @ 9% p.a. from the date of deposition till its realization within 30 (thirty) days from the date of receipt of this order. Opposite party is also directed to pay Rs.5500/- as compensation towards mental agony, harassment alongwith Rs.2200/- as litigation expenses to the complainant.”

4.      Feeling aggrieved therefrom, O.P. has preferred this appeal.

5.      Arguments heard. File perused.

6.      As per evidence available on the file complainant made deposits on following dates which are as under:-

                   1.      Rs.3,00,000/- dated 03.05.2011

                   2.      Rs.3,00,000/- dated 06.08.2011

                   3.      Rs.3,15,688/- dated 18.04.2012

Payment schedule was as under:-

         

Payment Schedule
Unit No. & Project	PB-90SF & PARKLANDS PRIDE
Customer Name	Mr.Rakesh Kumar
Customer Code	131860
Area (Tentative)
Rate	2,961.91
Base Sale Price (BSP)	157.14
Development Charges	75,000.00
Club Membership Charges	50.00
Interest Free Maintenance Scheme	67,500.00
Fire Fittings & Power Backup INSTAL CHGS	3,470,002.50
Total Cost	Payment Plan
Booking Amount	Rs.300,000.00
Within 90 days of booking	Rs.297,121.00 Complete 20% BSP
Within 150 days of booking	Rs.331,559.95 10% of BSP + 20% of PLC + 20% DC
At the start of construction	Rs.331.559.95 10% of BSP+ 20% of PLC + 20% DC
On casting of ground floor roof slab	Rs.331.559.95 10% of BSP+ 20% of PLC + 20% DC
On casting of first floor roof slab	Rs.331.559.95 10% of BSP+ 20% of PLC + 20% DC
On casting of second floor roof slab	Rs.331.559.95 10% of BSP+ 20% of PLC + 20% DC
On completion of brick work	Rs.373.560.55 10% of BSP +CMC
On completion of internal flooring	Rs.298.560.55 10% of BSP
At the time of offer of possession	Rs.418.560.55 10% of BSP +IFMS+PBIC+Stamp Duty+Registration Charges & Administrative Charges

 

7.      Learned counsel for complainant vehemently argued that after receipt of letter dated 29.11.2011 he deposited Rs.3,15,688/-. Thereafter, he received letter only on 05.07.2012 to deposit Rs.4,81,981/-. When no notice was received, there was occasion for him to deposit remaining amount. Without affording proper opportunity OPs wrongly cancelled his allotment. As per agreement the possession was to be delivered within 30 months from the date of agreement, but the same was never offered.  So, they be directed to refund the amount  already deposited by him alongwith interest as mentioned above.

8.      On the other hand learned counsel for the OP/appellant vehemently argued that from the perusal of letters dated 15.12.2011, 12.03.2012, 15.03.2012, 17.04.2012 & 19.05.2012, it is clear that complainant was asked to deposit remaining amount. Even final opportunity was afforded to him vide letter dated 05.07.2012, but, even then he did not come forward. After cancellation, the amount was paid to him after deduction as per clauses 17 and 39 of agreement Ex.R-3 executed in between them. When he did not deposit the amount in time, he is not entitled for relief claimed.

9.      Neither the arguments of complainant nor of appellant can be accepted in toto. Complainant has failed to show that no letter was written to him after 29.11.2011 to make payment. From the perusal of letters dated 15.12.2011, 12.03.2012, 31.05.2012 and 05.07.2012 it is clear that complainant was asked to deposit the remaining amount, but he failed to do so. As per complainant he paid only two installments after booking of flat.  So, it can be alleged that the complainant was not asked to make payment.

10.    O.P. also failed to deliver possession within 30 months as per clause 24 of agreement Ex.R-3.  In this way there was also default on the part of OP. As per this agreement they were entitled to recover interest at the rate of 18% per annum. As a sequel of above discussion it is clear that both the parties are at fault. As per opinion of Hon’ble National Commission expressed in First appeal No.06 of 2014 titled as  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014 complainant cannot ask for interest when he is also at fault.  For ready reference Para No.10 of the said judgement is reproduced as under:-

“It is an admitted fact that both parties are at fault in this case.  As per above findings of the State Commission, admittedly the respondent had not developed the site and was not in a position to deliver the possession.  Be that as it may, the appellants also in this case were defaulters. When appellants themselves were the defaulters, therefore under such circumstances, they are not entitled for any interest.  On this issue, we are in full agreement with the reasonings given by the State Commission.”

11.   If the same analogy is applied in this case, then complainant is also not entitled for interest or litigation expenses etc.

12.    As a sequel to above discussion, impugned order is set aside and OP is directed to refund the amount deposited by complainant i.e. Rs.9,53,708/- without interest.  With these modifications appeal is disposed off accordingly.

13.    Statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

May 05^th, 2017             Urvashi Agnihotri                          R.K. Bishnoi

                                       Member                                           Judicial Member

                                       Addl. Bench                                 Addl. Bench   

R.K