State Consumer Disputes Redressal Commission
Saruchi Kanndil vs M/S Bptp Ltd. on 15 May, 2019
IN THE STA TE COMMISSION : DELHI
( Co n s t i t u t e d u n d e r S e c t i o n 9 o f t h e Co n s u m e r P r o t e c t i o n A c t , 1 9 8 6 )
Date of Decision : 15.05.2019
Complaint Case No.48 7/2013
1. Ms. Saruchi Kaundil
2. Shri Dinesh Kaundil
Both residents of
House No.A-703, 7th Floor,
Gaur Grandeur -2 Apartment,
Sector-119, Noida, Uttar Pradesh-201301. ...Complainants
Versus
M/s. BPTP Ltd.,
M-11, Middle Circle,
Connaught Place,
New Delhi - 110001. ....Opposite Party
CORAM
Justice Veena Birbal, President
Ms. Salma Noor, Member
1. W h e th e r r e p o r t e r s o f l o c a l n e ws p a p e r b e a l lo we d to s e e th e j u d g m e n t?
2. To b e r e f e r r e d t o th e r e p o r te r o r n o t?
Justice Veena Birbal, President
1. Complainants Ms. Saruchi Kaundil and Shri Dinesh Kaundil have filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (in short „the Act‟) stating therein that pursuant Page 1 of 17 to launching of a residential project by the OP, namely, M/s. BPTP Park Floor-I in Sector 77, Faridabad in the year 2008, they had booked a residential flat measuring 1414 Sq. ft. by paying booking amount of Rs.2,50,000/-. It is stated that subsequent to payment of another sum of Rs.2,50,000/- a flat bearing No. M-304, in Park Floors I vide allotment letter dated 30.05.2009 was allotted to the complainants. Subsequent to allotment OP had raised several demands from time to time upon complainants. The complainants had complied with the said demands also. In the year 2009 OP had called upon the complainants for execution of the Flat Buyer‟s Agreement, which was executed only on 30.05.2009 (in short, the "Agreement"). It was a construction linked plan. The complainants had availed home loan from LIC Housing Finance Limited. A Tripartite Agreement was also executed on 19.09.2009 in this regard. It is stated that since the building plans of project were approved only on 10.11.2009 as such the project was approved by LIC Housing Finance Ltd. only on 16.01.2010 and loan was disbursed thereafter. It is alleged that due to fault and misrepresentation of OP some demands of OP could not be paid by complainants by the due dates and OP levied interest despite having agreed and communication by OP that no interest would be charged till the time of disbursement of loan, as there was a delay on the part of OP in obtaining the approval of building plans.
Page 2 of 17
2. It is stated that as per Agreement OP was under an obligation to complete the construction of project and deliver the possession of the subject flat within 36 months from the date of building sanction plan i.e. 10.11.2009 i.e. the possession was to be delivered on or before 09.11.2012. However, no offer of possession was made by the stipulated date. It is stated that OP had sent a letter dated 30.05.2013 titled as "Demand-cum-Offer of Possession for fit outs" and not for actual habitation of complainants and their family members. It is stated that the aforesaid letter was issued in the absence of any completion/occupancy certificate from the concerned authorities in favour of OP. It is stated that even in the "Demand- cum-Offer of Possession for fit outs", illegal demands were raised by OP i.e. Rs.2,50,000/- towards basic sale price which was to be payable at the time of physical possession. The cost of Rs.1,43,088.12/- towards escalation was wrongly raised. Rs.40,000/- towards electricity connection charges and Rs.1,00,000/- towards power back up charges were also wrongly raised. It is alleged that Rs.2,20,584/- was demanded towards enhanced EDC charges though the same were stayed by the High Court of Punjab & Haryana in a writ petition filed by Apartment Owners Association of Greater Faridabad.
3. It is further stated that even in the letter dated 30.05.2013, size of the unit was increased from 1414 Sq.ft. to 1458 Sq. ft. It is Page 3 of 17 stated that complainants have in all paid close to 90% of the original agreed cost of the flat. Despite that possession of the flat has not been offered. Alleging deficiency in service on the part of OP, present complaint is filed with a prayer for setting aside demands raised vide letter dated 30.05.2013 and seeking direction to OP to withdraw/refund the interest levied/charged or any delayed payment. Complainants have also prayed for award of delayed penalty till the physical possession is actually delivered to him. There is also a prayer for award of compensation and to obtain NOC from banks towards clearing of charges created by OP on the flat allotted to complainants.
4. The complaint is resisted by OP by filing a detail written statement, wherein a preliminary objection is raised that this Commission has no territorial jurisdiction to deal with the matter as per clause 34 of the Agreement. It is stated that as per aforesaid clause, parties have mutually agreed to confer the jurisdiction exclusively to the Courts at Faridabad and Punjab and Haryana High Court at Chandigarh alone, in all the matters arising out of or in connection with the Agreement.
5. On merits, it is stated that no cause of action has arisen in favour of complainants. OP has admitted having issued letter of allotment allotting the subject flat to complainants.
6. Though, OP has admitted the execution of the agreement between the parties however, OP has denied the execution of the said Page 4 of 17 Agreement dated 30.05.2009 and has stated that agreement dated 24.07.2009 was executed between complainants and OP. We have perused the material on record. Complainants have themselves filed a copy of the Agreement, which shows the date of execution of Agreement is 24.07.2009 and not 30.05.2009 as is alleged by complainants. OP has denied that complainants were forced to execute the Agreement. It is further denied that lots of clauses in the Agreement were one sided as is alleged.
7. It is admitted that OP had launched the aforesaid project and that complainants had paid Rs.2,50,000/- towards booking amount and Rs.2,50,000/- subsequent to booking. It is stated that subsequent demands were raised upon complainants in accordance with the Agreement between the parties. It is also admitted that construction linked plan was agreed between the parties and the building plan of the aforesaid project were approved on 10.11.2009. The payments made by the complainants as well as disbursement of sanctioned loan from LIC Housing Finance Ltd. are also admitted by the OP.
8. It is alleged that no specific Agreement was executed between the parties for non-levying of interest till disbursement of loan as is alleged. However, as a gesture of goodwill, OP had already waived the interest in accordance with bank loan criteria and requisite intimation in this regard was also sent to the complainants. Page 5 of 17
9. It is stated that clause 2.1 of the Agreement deals with the possession. It is stated that as per aforesaid clause subject to clause 9 or any other circumstances and subject to complainants having complied with terms and conditions of the Agreement and not being in default under any of the provisions of Agreement, OP had agreed to handover the possession within a period of 36 months from the date of sanction of building plan. A grace period of 180 days was also agreed after the expiry of 36 months for applying and obtaining occupation certificate. It is stated that though the Opposite Party had completed the construction of the flat in November 2012 but the possession could not be granted to the complainants as the occupation certificate was pending from the concerned authority. It is stated that the Opposite Party had also received the Occupation Certificate on 13.12.2013 from the Director of Town & Country Planning, Haryana (DTCP), subject to the condition that OP shall complete the finishing work of EWS Block within 2 months from the date of issuance of Completion Certificate as per its undertaking dated 12.11.2013 and shall intimate the Department for seeking of Occupation Certificate. As far as the completion of EWS Block is concerned, it is stated that the construction of EWS Block is at full swing and the Opposite Party is likely to complete the construction at the earliest and in fact the Opposite Party has already applied for the extension of time for completion of EWS Block with DTCP. Page 6 of 17
10. It is stated that since the possession was subject to clause 9, which is a Force Majeure clause and one of the force majeure condition which was accepted between the parties was the non- procurement of any approval from any government authority including delay in issuance of Occupation Certificate/Completion Certificate. It is alleged that in these circumstances, there is no delay on the part of Opposite Party as alleged by the complainants.
11. It is denied that arbitrary demands were raised vide letter dated 30.5.2013 as is alleged. It is alleged that demands raised upon complainants are legal and are in consonance with the duly executed Agreement and terms and conditions of application for allotment. It is alleged that complainants were aware about the Power Back up charges, Electrification Charges, cost escalation in case of increase in prices in the raw materials or any other cost and charges. OP has relied upon clause 6, 7 and 26 of the Terms and Conditions of Allotment.
12. It is denied that there is any deficiency in service on the part of OP. OP has alleged that relief prayed by complainants cannot be granted as complainants have to comply with demands raised vide letter dated 30.5.2013 and have to make payments and interest towards delayed payments.
Page 7 of 17
13. Rejoinder is filed by the complainants wherein the stand of OP is controverted and complainants have reiterated the facts of the complaint case.
14. Both the parties have filed evidence by way of affidavits.
15. The complainants have filed their own affidavits wherein averments made in the complaint case are reiterated on oath. Complainants have proved on record copy of Tripartite Agreement dated 19.09.2009 between complainants, OP and LIC Housing Finance Ltd., Ex-CW1/1; copy of Demand-cum-Offer of Possession for fit outs dated 30.05.2013 Ex-CW1/2; copy of Flat Buyer Agreement Ex-CW1/3; copies of various e-mails written by complainants to OP, Ex-CW1/4; copy of RTI response dated 10.11.2009 from Director, Town and Country Planning, Ex-CW1/5; copy of RTI reply dated 05.02.2014 received from the electricity department confirming that no electricity connection for the said complex has been applied by OP Ex-CW-1/6; copy of RTI reply dated 19.09.2013 from Department of Town and Country Planning confirming that OP has not deposited enhanced EDC, Ex-CW-1/7/
16. OP has filed evidence by way of affidavit of Shri Rahul Dahiya, its Authorized Representative who has reiterated contents of written statement on oath. OP has exhibited authorization letter dated 03.07.2012 whereby he is authorized to depose on behalf of OP, Ex- R/1; written statement is exhibited as Ex-R/2; copy of application for Page 8 of 17 allotment along with its terms and conditions Ex-R/3; copy of Flat Buyer‟s Agreement dated 24.07.2009, Ex-R/4; copy of demand letters and reminders sent by OP on various dates Ex-R/5 (Colly); copy of cheque received from LIC Housing Finance alongwith Tripartite agreement Ex. R/6 (Colly); Copy of application for grant of occupation certificate dated 01.05.20`2 and the occupation certificate dated 13.12.2013 Ex. R/7 (Colly), copies of e-mail dated 17.06.2013 and 12.09.2013 Ex-R/8 (colly).
17. We have heard Counsel for the parties and perused the material on record.
18. A preliminary objection raised by the OP that this Commission has no territorial jurisdiction to deal with the present complaint as per Clause 34 of the Agreement Ex. CW - 1/3. It is contended that only courts at Faridabad and Punjab and Haryana High Court at Chandigarh alone have the jurisdiction. The objection raised is baseless. We have perused the Agreement Ex. CW -1/1, the same was executed between the parties at Delhi. The OP works for profit and gain having its registered office at Delhi. Under Section 17 (2) of the Act, this Commission has territorial jurisdiction to deal with the present complaint. It has been held by National Commission in number of judgments that restriction of jurisdiction to a particular court need not be given any importance in the facts and circumstances of the case. Reliance is placed upon Radiant Page 9 of 17 Infosystem Pvt. Ltd. & Others v. D. Adhilakshmi & Anr. 1(2013) CPJ 169 (NC).
19. On merits, it is admitted position that complainants were allotted flat bearing No. M-304 in Park Floors I. It is also not disputed that the Agreement Ex. CW-1/3 was executed between the parties. There is a controversy about date of execution of Agreement Ex. CW - 1/3. The copy of Agreement Ex. CW-1/3 filed by complainants shows that the same was executed on 24.07.2009. OP is therefore right about date of execution of Agreement Ex. CW -1/3. It is also not disputed that a Tripartite Agreement was executed also between the complainants, OP and LIC Housing Finance Ltd on 19.09.2009 Ex. CW -1/1.
20. It is also not disputed that as per Agreement Ex. CW -1/3 executed between the parties, the possession was agreed to be delivered by OP within a period of 36 months from the date of sanction of building plan. The date of sanction of building plan is 10.11.2009. A grace period of 180 days was also allowed after 36 months for applying and obtaining OC. It is also admitted that no possession was offered even after lapse of 42 months from 10.11.2009 or even thereafter. It is also not disputed that vide letter dated 30.05.2013, OP had offered possession for fit outs only. It is also admitted position that 90% agreed cost has already been received by OP. The remaining 10% of agreed cost was to be paid only at the time Page 10 of 17 of possession. OP has also raised additional demands vide the aforesaid letter. Complainants have alleged that additional demands are not legitimate. Without going into said controversy, when OP was not having OC, in such circumstances, OP was not justified in raising further demands. The purpose of aforesaid letter was to collect more money which is an unfair trade practice.
21. OP has alleged that possession was subject to clause 9 of Agreement which deals with Force Majeure circumstances. It is contended that delay in issuance of Occupation Certificate is one of Force Majeure conditions as such no delay can be attributed on the part of OP. The contention raised has no force. The delay is on the part of OP in obtaining Occupation Certificate. There is no governmental delay in the grant of Occupancy Certificate as such OP cannot claim benefit of clause (9) of the Agreement as is contended. The Occupation Certificate was granted to OP on 13.12.2013 by the Director of Town and Country Planning (DTCP) with the condition to complete EWS Block within 2 months from the issuance of said certificate. The said Block has not been constructed by OP till date. The Occupancy Certificate is withdrawn by DTCP vide letter dated 29.09.2015. By the said letter, the authority has informed the OP that Occupation Certificate granted on 13.12.2013 has become null and void and direction is issued to OP not to deliver possession to the allottees. The net result is that flat was booked in the year 2008 and Page 11 of 17 till date OP is not having Occupancy Certificate as the same has been withdrawn by the concerned authorities.
22. Ld. Counsel for complainants have submitted that though the prayer in the complaint is made for setting aside the demands raised by OP vide letter dated 30.05.2013 and for the grant of possession, however, keeping in mind the factual position discussed above i.e. OP is still not having the Occupation Certificate, complainants are not interested in the reliefs prayed in the complaint case. It is submitted that OC granted on 13.12.2013 by the authority i.e. DTCP was conditional. It is submitted that OP had to construct EWS Block and the same has not been constructed so far. Even extension of time given by DTCP has lapsed and OC has already been withdrawn on 29.09.2015. It is submitted that during the pendency of complaint, complainants have awaited for sufficient time so that OP can get clear OC but till date there is no OC with OP as such complainants are interested for refund of amount with 18% interest along with compensation and litigation cost. It is submitted that complainants have paid 90% of the agreed cost and despite that has been deprived of the possession of the flat due to non-fulfillment of conditions attached to the OC by OP. It is submitted that OP has used the money and enjoyed the benefit arising out of huge payment made by the complainants. It is submitted inordinate delay in obtaining OC is deficiency in service on the part of OP. It is submitted Page 12 of 17 that OP has failed to fulfill its contractual obligation of obtaining the OC as such complainants cannot be compelled to wait further to enable the OP to offer possession.
23. On the other hand, Ld. Counsel for OP has argued that OP is still willing to offer the flat with delay compensation. It is stated that as per clause 2 (3) of Agreement, OP has agreed to compensate for delay in handing over the possession @ Rs.5/- per sq. ft. It is stated that subsequently vide letter dated 19.05.2009, OP has revised the same to Rs.10/- per sq. ft. per month from the date possession fell due to the complainants till the date the physical possession is actually delivered to the complainants. It is further submitted that refund of money is a substantive relief. It is submitted that the same cannot be allowed without there being specific prayer in this regard in complaint case. It is contended that subject to payment of balance amount, OP is ready to offer the possession with compensation @ Rs.10/- per sq. ft. per month for the delay period.
24. During arguments, ld. Counsel for OP has fairly admitted that as on today OP is not having the Occupation Certificate and construction work of EWS Block has not been completed till date and Occupation Certificate issued on 13.12.2013 is withdrawn by DTCP. In these circumstances, OP can‟t legally offer possession to complainants. Reliance is placed on the judgment of National Page 13 of 17 Commission in Shailender Singh & Ors. v. Parsvnath Developers IV 2018 CPJ 85 NC.
25. As noted above, complainants are not interested in possession of the flat as OP is not having Occupation Certificate. The question for consideration is whether in these circumstances, the relief for the refund of amount with interest can be awarded in favour of complainants when there is no specific prayer in this regard. The aforesaid question has been dealt by the National Commission in Parsvnath Exotica Resident Association Vs Parsvnath Developers Ltd. & Ors. Devidayal Aluminum Industries (P) Ltd. IV (2016) CPJ 328 (NC) wherein it is held that even in the absence of specific prayer, it is always open to grant relief which is justified and warranted in the facts and circumstances of the case. The relevant portion of the judgment is as under:
"Though, in Consumer Complaint No.45 of 2015, the main prayer made by the complainant is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the tile deed in their favour, when this matter came up for hearing on 27.4.2016, the learned counsel for the complainant stated on instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them. The learned counsel for the opposite party submitted in this regard that no prayer for refund has been made in Consumer Complaint No.45 Page 14 of 17 of 2015. In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief which is justified and warranted in the facts and circumstances of the case."
26. In view of above discussion, even in the absence of specific prayer, keeping in mind the facts and circumstances discussed above, the relief for refund with appropriate compensation can be considered in favour of complainants.
27. As discussed above, the complainants have made out a clear case of deficiency of service on the part of the OP. The complainants cannot be compelled to wait for indefinite period for the possession of flat allotted to them, whenever it is offered by the OP.
28. In Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, Hon‟ble Supreme Court has held that when possession of property is not delivered within the stipulated period, the delay so called is denial of service.
29. In Fortune Infrastructure & Anr. v. Trevor D'Lima & Ors., (2018) 5 SCC 442, it is held by Hon‟ble Supreme Court that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
30. It has been held by the National Commission in number of the cases that when possession of the allotted flat is not delivered Page 15 of 17 within the specified time, the allottee is entitled to refund of amount paid, with reasonable interest thereon from the date of payment till the date of refund. Reliance is placed on the judgments of National Commission titled Subodh Pawar v. M/s Ireo Grace Realtech Pvt. Ltd. & 4 Ors. dated 24.09.2018 in CC No.1998/2016 and Amit Arora v. M/s Ireo Grace Realtech Pvt. Ltd. dated 27.03.2019 in CC No.696/2017.
31. Present is a clear case of deficiency in service on the part of OP. Complainants are legally entitled to seek refund of the money deposited by them with OP along with appropriate compensation. The complainants have prayed for award of interest @ 18% p.a. Ld. Counsel has opposed the award of interest by contending that same is on very higher side. In the present case, facts are peculiar. OC was once granted but subsequently withdrawn due to non construction of EWS Block by OP. Keeping in mind the facts and circumstances and the fact that loan is availed by complainants, we award compensation in the form of interest @ 12% p.a. from date of deposit till realization.
32. The aforementioned complaint stands disposed of with the following directions:
1) The Opposite Party is directed to refund the amount deposited by the complainants with the OP i.e. Rs.30,18,780/- along with compensation in the form of Page 16 of 17 interest @ 12% p.a. from the date of each deposit till realization.
2) The Opposite Party shall also pay a sum of Rs.50,000/-
towards cost of litigation to complainants.
33. A copy of this order as per statutory requirements be sent to the parties free of cost. Thereafter the file be consigned to record room.
File be consigned to Record Room.
(Justice Veena Birbal) President (Salma Noor) Member Tri Page 17 of 17