Haryana

StateCommission

A/525/2016

BPTP LTD. - Complainant(s)

Versus

SUNIL BATT - Opp.Party(s)

HEMANT SAINI

26 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeals No: 525 & 775 of 2016

Date of Institution: 09.06.2016 & 24.08.2016

Date of Decision: 26.05.2017

Appeal No.525 of 2016

1.      Managing Director, M/s BPTP Limited, having its office at BPTP Crest, 15, Udyog Vihar, Phase IV, N.H. 8, Gurgaon, Haryana.

2.      M/s Countrywide Promoters Private Limited having its registered office at M-11, Middle Circle, Connaught Circus, Connaught Place, New Delhi-110001.

                                      Appellants-Opposite Parties No.1 & 2

                                                    Versus    

 

1.      Shri Sunil Bhatt s/o Sh. Banshi Dhar Bhatt

2.      Shri Banshi Dhar Bhatt son of late Sh. Bhawani Dutt Bhatt,

Both Residents of P-72/3, M.E.S. Colony, G.E. AFS, Tughlakabad, New Delhi-110062.  

                                      Respondents-Complainants

3.      LIC Housing Finance Limited, Lakshmi Insurance Building, Asaf Ali Road, New Delhi-110002.

Respondent-Opposite Party No.3

Appeal No.775 of 2016

 

1.      Shri Sunil Bhatt s/o Sh. Banshi Dhar Bhatt

2.      Shri Banshi Dhar Bhatt son of late Sh. Bhawani Dutt Bhatt,

Both Residents of P-72/3, M.E.S. Colony, G.E. AFS, Tughlakabad, New Delhi-110062.

                                      Appellants-Complainants

Versus

1.      BPTP Limited through its Managing Director/Authorised Person, Plot No.15, Udyog Vihar-IV, Gurgaon, Haryana-122015

          Also at: Sector 76, Parkland, Faridabad.  

2.      M/s Countrywide Promoters Private Limited, M-11, Middle Circle, Connaught Circus, New Delhi-110001.

3.      LIC Housing Finance Limited, Lakshmi Institute Building, Asaf Ali Road, New Delhi.  

                                      Respondents-Opposite Parties

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Hemant Saini, Advocate for BPTP Limited & M/s Countrywide Promoters Pvt. Ltd.

Shri Umesh Kumar Sinha, Advocate for Complainants.

None for LIC Housing Finance Limited (service dispensed with).

 

                                                   O R D E R

 

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This order shall dispose of afore-mentioned two appeals bearing No. 525 and 775 of 2016 having arisen out of common order dated April 11^th, 2016 passed by District Consumer Disputes Redressal Forum,  Faridabad (for short ‘the District Forum’), in complaint No.346 of 2012 filed by Sunil Bhatt and Banshi Dhar Bhatt-complainants.

2.                The complainants deposited an amount of Rs.2.00 lacs as advance payment vide receipt dated 24^th September, 2008 (Exhibit C-2) for allotment and purchase of a flat in Sector-76, Park Floors, Faridabad, a Project initiated by BPTP Limited-Opposite Party No.1. The complainants were assured that the possession of the flat would be delivered within a period of two years from the date of registration/advance payment. The complainants were told the basic sale price of the flat as Rs.20,80,000/- and total cost as Rs.23,80,000/-. As per proposal, the flat was to be allotted on third floor. Later on the complainants were told that the flat had been allotted on 2^nd floor instead of 3^rd floor as the draw regarding allotment of the flat was through computer and the basic sale price of the flat was fixed as Rs.23,48,580/-. Thereafter, Flat Buyer’s Agreement (Exhibit C-5) was executed on 19^th June, 2009 with the complainants regarding sale of Flat No.T-29-204, 2^nd Floor, Block No.T, Park Floors, Sector-76, Faridabad.  Complainants were told that possession of the flat would be delivered by the end of September, 2010. The complainants, thereafter, made payment of an amount of Rs.6,76,675/- to the opposite party No.1 and regarding payment of the remaining amount availed loan facility of an amount of Rs.14.00 lacs from LIC Housing Finance Limited-Opposite Party No.3. 

3.                After completing necessary formalities, a tripartite agreement (Exhibit C-6) was executed among the parties regarding loan amount, on 22^nd September, 2009. As per Clause No.1 of the agreement dated 22^nd, September, 2009, the loan amount was to be paid directly to the opposite parties No.1 and 2 by the opposite party No.3. Despite time and again requests by the complainants, the opposite parties No.1 and 2 did not collect the loan amount from the opposite party No.3 deliberately. On 10^th October, 2011, the opposite party No.1 without any reason, asked the complainants to obtain a fresh sanction letter from the opposite party No.3 regarding sanction of the loan amount. Thereafter, all of a sudden, the complainants were informed by the opposite party No.1 vide letter dated 14^th October, 2011 that allotment of the flat stood cancelled due to non-payment of the balance amount. The complainants were given offer for adjustment of the amount already deposited if the complainants wanted to invest the money in other projects of the opposite party No.1. As the opposite parties No.1 and 2 did not collect the balance sale price amount from the sanctioned loan amount, it is a clear case of deficiency in service on the part of the opposite parties. It is prayed that the opposite parties be directed to refund an amount of Rs.8,76,675/- already deposited with interest at the rate of 18% per annum; an amount of Rs.3.00 lacs as compensation on account of un-necessary harassment and mental agony and an amount of Rs.25,000/- towards litigation expenses.

4.                Notice of the complaint was given to the opposite parties. The opposite parties No.1 and 2 appeared and contested the complaint. The opposite party No.3 did not appear despite service and was proceeded against ex parte on dated 03^rd October, 2012.  

5.                The opposite parties No.1 and 2 in their written version have taken plea that the complaint is not maintainable as the complainants do not fall within the definition of consumer and they themselves are responsible regarding cancellation of their booking/allotment of the flat as they did not make payment of the remaining sale price amount despite issuance of demand letters. The complainants were given last opportunity to clear their outstanding dues vide letter dated 28^th May, 2011 as well as email dated 9^th June, 2011. As the complainants could not clear the dues, the allotment of flat in favour of the complainants stood cancelled. As per Clause 10 of the Flat Buyer’s Agreement dated 19^th June, 2009, the opposite parties were entitled to cancel allotment of the flat if the complainants failed to pay instalments or other charges in time. The complainants committed breach of terms of the agreement and allotment of the flat was rightly cancelled. The complainants vide email dated 15^th January, 2012 specifically stated that they agreed with forfeiture clause of the agreement and requested for refund of the amount already deposited. Again vide email letter dated 27^th June, 2011, the complainants requested for more time to get renewed sanction of the loan amount. Request of the complainants was declined by the opposite party No.3 as earlier cheques given by the complainants to the opposite party No3 had been dishonoured. It is denied that the tripartite agreement was validly executed. In fact, the agreement dated 16^th September, 2009 was not validly executed as the same could not be signed by the opposite party No.3. It is prayed that the complaint filed by the complainants be dismissed.

6.                The parties led evidence in support of their respective claims.

7.      After hearing arguments, vide impugned order dated 11^th April, 2016, complaint filed by the complainants was allowed.  The opposite parties No.1 and 2 were directed to refund, jointly and severally, an amount of Rs.6,42,117/- (after deducting 10% of the basic sale price) along with interest at the rate of 9% per annum from the date of filing of the complaint till the date of its realization in equal share to the complainants; to pay an amount of Rs.5500/- as compensation on account of mental agony/harassment and Rs.2200/- as costs of litigation.

8.                Aggrieved with the impugned order dated 11^th April, 2016 passed by the learned District Forum, the opposite parties No.1 and 2 have filed First Appeal No.525 of 2016 with a prayer to modify the impugned order dated 11^th April, 2016 and to allow the appellants-opposite parties No.1 and 2 to forfeit the amount equal to 25% of the total sale consideration as earnest money along with interest and also not to burden the appellants-opposite parties to pay interest.

9.                The complainants have filed First Appeal No.775 of 2016 with a prayer to set aside the impugned order passed by the learned District Forum and to grant the relief claimed by the complainants directing the opposite parties to pay an amount of Rs.8,76,675/- with interest at the rate of 18% per annum. 

10.              We have heard learned counsel for the parties and perused the case files.

11.              It is an admitted fact that Flat        No.No.T-29-204, 2^nd Floor, Block No.T, Park Floors, Sector-76, Faridabad, was allotted to the complainants after depositing an amount of Rs.2.00 lacs, required for registration/booking of the flat. It is also an admitted fact that Flat Buyer’s Agreement was executed on 19^th June, 2009 in between the complainants and the opposite parties No.1 and 2.  In the beginning, two rooms flat was to be allotted on 3^rd floor and basic sale price of the flat was settled as Rs.23,48,580/-.  It is also admitted fact that as the allotment of the flat was with the use of computer system, the flat was allotted to the complainants on 2^nd floor of the building. It is also admitted fact that later on the complainants deposited an amount of Rs.6,76,675/-.  In this way, the total amount deposited by the complainants was Rs.8,76,675/-.  Regarding allotment of the flat,  vide letter dated 18.12.2008 (Exhibit CY) and execution of the Flat Buyer’s Agreement (Exhibit C-5) dated 19^th June, 2009 there is no dispute of any type.

12.              The controversy arose in between the complainants and the opposite parties as after making payment of an amount of Rs.8,76,675/-, the complainants could not make payment of the remaining sale price amount as per demand. In fact, the complainants could not make payment of the amount despite last opportunity granted vide letters dated 28^th May, 2011 and 9^th June, 2011.  What happened, for making payment of the remaining sale price, a tripartite agreement was to be executed among the complainants, opposite parties No.1 and 2 as well as opposite party No.3 - LIC Housing Finance Limited, regarding advancement of an amount of Rs.14.00 lacs as loan. The complainants have taken plea that the opposite party No.3 had given approval of the loan amount vide letter dated 3^rd July, 2009 after receipt of an amount of Rs.1800/- from the complainants towards process charges. 

13.              Version of the complainants is that the remaining sale price amount was to be paid to the opposite parties No.1 and 2 by the opposite party No.3 as per terms and conditions stipulated in the tripartite agreement Exhibit C-6.  It was the duty of the opposite parties No.1 and 2 to collect the loan amount from the opposite party No.3.  As per version of the complainants, the opposite parties No.1 and 2 did not collect the loan amount from the opposite party No.3 deliberately and on 14^th October, 2011 allotment of the flat was cancelled due to non-payment of the remaining sale price amount. Version of the opposite parties No.1 and 2 is that in fact tripartite agreement dated 22^nd September, 2009 (Exhibit C-6) was not validly executed. This document does not bear signatures of any authorised person on behalf of opposite party No.3. As tripartite agreement (Exhibit C-6) was not signed by the opposite party No.3, the same cannot be held binding upon the opposite party No.3.  As signatures of opposite party No.3 were not obtained on tripartite agreement, the opposite party No.3 was not bound to make payment of the alleged sanctioned loan amount of Rs.14.00 lacs. During the course of arguments, there was no controversy on this point also and it is evident from Exhibit C-6 also that the tripartite agreement dated 22^nd September, 2009 was not signed by the opposite party No.3. In this way, the root cause of this controversy is that the opposite party No.3 did not make payment of the remaining sale price amount as the opposite party No.3 did not agree to sanction loan amount of Rs.14.00 lacs. Anyhow, when tripartite agreement was not signed by the opposite party No.3, findings cannot be given that it was the responsibility and liability of the opposite parties No.1 and 2 to receive payment of the loan amount from the opposite party No.3 or that it was the responsibility of the opposite party No.3 to make payment of the amount.

14.              Anyhow, sanction of the loan could not be possible and the complainants could not make other arrangements for payment of the remaining sale price amount. In this situation, number of letters were issued to the complainants by the opposite party No.1 to make payment of the amount and ultimately last opportunity was also granted vide letter dated 18^th December, 2008 (Exhibit R-6) and letter dated 22^nd December, 2008 (Exhibit R-7). Despite last opportunity, the complainants could not make arrangements regarding payment of the remaining sale price amount. Prayer of the complainants for sanction of the loan amount again from the opposite party No.3also could not be successful as the cheques issued by the complainants in favour of the opposite party No.3 earlier had been dishonoured. In these circumstances, findings can be safely given that the decision of the opposite parties No.1 and 2 to cancel the allotment of the plot in the name of the complainants was valid and justified. As per Clause 1.15 of the Flat Buyer’s Agreement (Exhibit C-5), findings of the learned District Forum on this point of controversy stands affirmed.

15.              As per version of the complainants, they are entitled to receive the total amount of Rs.8,76,675/- deposited by them. learned District Forum gave direction to the opposite parties No.1 and 2 to make payment of an amount of Rs.6,42,117/- only holding that the opposite parties are entitled to forfeit only an amount of Rs.2,34,858/- being 10% of the total sale price amount. On the other hand, version of the opposite parties No.1 and 2 is that as per Clause 1.15 of the Flat Buyer’s Agreement (Exhibit C-5), the opposite parties No.1 and 2 are entitled to forfeit 25% of the total sale price amount.

16.              We are not much impressed with the contention of the learned counsel for the opposite parties No.1 and 2 that as per Clause 1.15 of the Flat Buyer’s Agreement (Exhibit C-5), the opposite parties No.1 and 2 are entitled to forfeit 25% of the total sale price amount as per view of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Shri Harjinder S. Kang versus M/s Emaar MGF Land Limited, Consumer Case No.482 of 2014 decided on July 4^th, 2016.

17.              We have closely perused the above cited case law Shri Harjinder S. Kang versus M/s Emaar MGF Land Limited (Supra). It was held by the Hon’ble National Commission that amount exceeding 10% of the total sale price of the property cannot be forfeited unless the opposite party can show that it has suffered loss to the extent of the amount actually forfeited by it.  Facts and circumstances of the case in hand are similar to the facts and circumstances of the cited case law above. In the present case, the basic sale price of the flat was Rs.23,48,580/- and the learned District Forum has rightly given directions for refund of an amount of Rs.6,42,117/- after deducting 10% of the basic sale price, alongwith interest at the rate of 9% per annum from the date of filing of the complaint. The findings of the learned District Forum regarding awarding an amount of Rs.5500/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.2200/- as litigation expenses is also justified.

18.              As a result, as per discussions above in detail, findings of the learned District Forum stand affirmed. Prayer of the opposite parties, in First Appeal No.525 of 2016, to allow 25% forfeiture of the basic sale price as earnest money as well as prayer of the complainants in First Appeal No.775 of 2016 to direct the opposite parties to pay an amount of Rs.8,76,675/- with interest is declined.  We find no illegality or invalidity in the order passed by the District Forum.   Resultantly, both these appeals stand dismissed.

19.              The statutory amount of Rs.25,000/- deposited at the time of filing appeal No.525 of 2016 be refunded to the complainants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 26.05.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL