State Consumer Disputes Redressal Commission
Ram Mohan Baslas vs M/S Bptp 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.457/2013
1. Shri Ramohan Baslas,
2. Smt. Anita Mohan
Both residents of
H-137, 2nd Floor,
Residency Greens,
Greenwood City, Sector -46,
Gurgaon, Haryana. ...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 Shri Ramohan Baslas and Smt. Anita Mohan have filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (in short „the Act‟) stating therein that pursuant to launching of a residential project by the OP, namely, M/s. BPTP Page 1 of 16 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 the booking another sum of Rs.2,50,000/- was paid to OP and thereupon a flat bearing No.K-G002, Tower-K vide allotment letter dated 06.12.2008 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 and in all complainants have paid Rs.38,41,902.27/-. A Flat Buyer‟s Agreement (in short, the "Agreement") was executed between the parties on 09.04.2013. It was a construction linked plan. It is stated that building plans of aforesaid project were approved only on 10.11.2009. It is stated that as per the 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 plans. However, no offer of possession was made by the stipulated date. It is stated that OP had sent a letter dated 22.05.2013 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 alleged that even in the "Demand-cum-Offer of Page 2 of 16 Possession for fit outs", illegal demands were raised by OP i.e. Rs.3,59,861/- towards basic sale price which was to be payable at the time of physical possession. The OP had raised a demand of Rs.1,43,088.12/- towards cost escalation, Rs.40,000/- towards electricity connection charges and Rs.1,00,000/- towards power back up charges. It is alleged that there is no mention of aforesaid charges in the payment plan under the Agreement. 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.
2. It is further stated that even in aforesaid letter size of the unit was increased from 1414 Sq. ft. to 1458 Sq. ft. It is 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 22.05.2013 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 them. There is also a prayer for award of Page 3 of 16 compensation and to obtain NOC from banks towards clearing of charges created by OP on the flat allotted to complainants.
3. 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.
4. On merits, it is stated that no cause of action has arisen in favour of complainant. OP has admitted having issued letter of allotment dated 06.12.2008 allotting the subject flat to complainants, the details of which are given above. It is stated that OP called upon the complainants to execute the Agreement in the year 2009 but complainants had executed the same on 09.04.2013 only. It is admitted that OP had launched the aforesaid project and that complainant 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 plans of Page 4 of 16 the aforesaid project were approved on 10.11.2009. The payments made by complainants are also admitted. It is alleged that complainants had paid Rs.6,99,587/- towards interest on outstanding amount without any protest and in term of Agreement can‟t ask for its refund.
5. 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 plans. 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 Page 5 of 16 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.
6. 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.
7. It is denied that arbitrary demands were raised vide letter dated 22.05.2013 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.
Page 6 of 16
8. 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 22.05.2013 and have to make the payments.
9. Rejoinder is filed by the complainants wherein the stand of OP is controverted and complainants have reiterated the facts of the complaint case.
10. Both the parties have filed evidence by way of affidavits.
11. 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 Flat Buyer Agreement dated 09.04.2013 Ex-CW1/1; copy of Demand-cum-Offer of Possession for fit outs dated 22.05.2013 Ex-CW1/2; copy of RTI reply dated 27.03.2014 confirming that OP cannot offer possession of the flats in absence of an OC Ex.CW1/3; copy of RTI reply from Director, Town and Country Planning, Ex-CW1/4; copy of RTI reply received from the electricity department dated 05.02.2014 and 01.07.2014 Ex- CW1/5; copy of RTI reply dated 19.09.2013 from Department of Town and Country Planning confirming that OP has not deposited enhanced EDC, Ex-CW1/6 and copy of various letters and e-mails written by complainants to OP, Ex-CW1/7.
Page 7 of 16
12. 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 allotment along with its terms and conditions Ex-R/3; copy of Flat Buyer‟s Agreement dated 09.04.2013, Ex-R/4; copy of demand letters and reminders sent by OP on various dates, Ex-R/5; copy of demand letter dated 28.05.2011 Ex. R/6; Copy of payment acknowledgment receipt dated 25.01.2013 Ex. R/7, copy of e-mail dated 21.06.2013 sent by OP to complainant explaining complainants about various charges leveled by OP Ex-R/8 and copy of e-mails dated 21.06.2013 and 02.07.2013 sent by OP to complainants Ex-R/9 (colly).
13. We have heard Counsel for the parties and perused the material on record.
14. 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 - 1/1. 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. The Agreement Ex. CW -1/1 between the parties was executed at Delhi. Even the registered office of OP is at Delhi. Page 8 of 16 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 Infosystem Pvt. Ltd. & Others v. D. Adhilakshmi & Anr. 1(2013) CPJ 169 (NC).
15. On merits, it is admitted position that complainants were allotted flat bearing No.K-G002, Tower-K. It is also not disputed that the Agreement was executed between the parties on 09.04.2013 Ex- CW1/1.
16. It is also not disputed that as per Agreement Ex. CW -1/1 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 22.05.2013, 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 9 of 16 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 letters was to collect more money which is an unfair trade practice.
17. 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. As per material on record, 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 Page 10 of 16 not to deliver possession to the allottees. The net result is that flat was booked in the year 2008 and till date OP is not having Occupancy Certificate as the same has been withdrawn by the concerned authorities.
18. 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 22.05.2013 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, complainant is 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 Page 11 of 16 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 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.
19. 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.
20. 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 Page 12 of 16 Occupation Certificate issued on 13.12.2013 is withdrawn by DTCP. In these circumstances, OP cannot legally offer possession to complainants. Reliance is placed on the judgment of National Commission in Shailender Singh & Ors. v. Parsvnath Developers IV 2018 CPJ 85 NC.
21. 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 Page 13 of 16 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 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."
22. 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.
23. 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.
24. 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 caused is denial of service.
25. 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 Page 14 of 16 to him, and is entitled to seek refund of the amount paid by him, along with compensation.
26. It has been held by the National Commission in number of the cases that when possession of the allotted flat is not delivered 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.
27. 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 that no loan is availed by complainants, we award compensation in the form of interest @ 10% p.a. from date of deposit till realization. Page 15 of 16
28. 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.38,41,902.27/- along with compensation in the form of interest @ 10% 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.
29. 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 16 of 16