State Consumer Disputes Redressal Commission
Sunil Kr. Doodraj vs M/S Bptp Ltd & Anr. on 3 October, 2024
CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 12.05.2022
Date of hearing: 05.07.2024
Date of Decision: 03.10.2024
COMPLAINT CASE NO.- 71/2022
IN THE MATTER OF
MR. SUNIL KUMAR DOODRAJ,
S/O Sh. Maj S.S Nepali,
R/O: J-108, Freedom Park Life,
Sector -57, Gurugam, Haryana.
(Through: Mr. Sushil Kaushik
& Ms. Himanshi Singh Advocates)
...Complainant
VERSUS
1. M/S BPTP LTD.,
THROUGH ITS MANAGING DIRECTORS,
2. M/S COUNTRYWIDE PROMOTERS PVT. LTD.,
THROUGH ITS MANAGING DIRECTORS,
Both Having its Office at:
1st Floor, Dasnac Annexe I,
Ece House, 28, K.G. Marg,
Barakhamba, New Delhi-110001.
Also At:
M-11, Middle Circle,
Connaught Circus New Delhi - 110001.
[Through: Ms. Sargam Aggarwal
& Mr. Arun Parkash (Authorised Representative)]
...Opposite Party
ALLOWED PAGE 1 OF 13
CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Complainant.
Mr. Abhishek Kumar, counsel for the OP along with Mr. Arun
Parkash Authorized Representative.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present Consumer Complaint has been filed before this Commission under Section 47 of the Consumer Protection Act, 2019, by the Complainant alleging deficiency in service and Unfair Trade Practice on the part of Opposite Parties and has prayed for the following reliefs:
a) Direct the O.P. to refund the entire amount collected from the complainant towards the consideration, along with interest @18% p.a. on the amount paid by them from the date of collection of the amounts till it is actually return to the complainant.
b) Direct the OP to pay sum of Rs. 5,00,000/- (Rs. Five lakh only) towards the mental agony and harassment and towards cost of litigation to the complainant.
c) Any other order(s) as may be deemed fit and appropriate may also kindly passed.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant vide an application dated 21.04.2011 applied for the allotment of the Unit in the project of Opposite Parties namely 'Amstoria' situated at Sector 102, Gurgaon, Haryana. Further, the Opposite Party no. 1 vide Allotment letter dated 10.09.2012 allotted a Unit bearing no. A-171-GF ALLOWED PAGE 2 OF 13 CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024 in the abovementioned project and a Floor Buyer's Agreement dated 27.02.2012 was executed between the Complainant and the Opposite Parties. As per the clause 5.1 of the Floor Buyer's Agreement, the Opposite Parties were bound to give possession of the Unit to the Complainant within 24 months from the date of execution of the present agreement. However, the Opposite Parties arbitrarily revised the size of the allotted Unit from 1999 sq. ft. to 2229 sq ft. and also increased the total consideration price from Rs. 95,09,595/- to Rs. 1,10,15,008/-.
3. After a lapse of many months and despite repeated requests, on 08.06.2020, the Complainant received an offer of possession cum demand letter from the Opposite Parties and the Complainant immediately visited the construction site to make arrangements for the fit outs work of the Unit, however, the Complainant got shocked to see that the Unit was still under construction and was not ready as per the promises made by the Opposite Parties at the time of allotment like the flooring of the Unit was incomplete, the internal partition from one unit to another was also not complete, no electrical work was done and neither the wall painting and doors were placed in the Unit. The Complainant raised the request before the Opposite Parties to complete the Unit before offering the possession and to set off the delay compensation from the demand letter but was of no avail. Further, the allotment of the Unit was arbitrarily cancelled/terminated by the Opposite Parties vide letter dated 29.07.2021. Till date, the Complainant had paid an amount of Rs. 95,09,595/- for the aforesaid Unit as and when demanded by the Opposite Parties, however the Opposite Parties have failed to provide the possession of the Unit till date. Aggrieved by the aforesaid acts of the Opposite Parties, the Complainant has approached this Commission.
4. Notice of the present complaint was issued upon the Opposite Parties on 18.05.2022. Further, the written statement on behalf of the Opposite Parties ALLOWED PAGE 3 OF 13 CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024 were filed along with the Application for condonation of delay in filing the written statement which was dismissed by this Commission vide detailed order dated 29.05.2023, however, the order dated 29.05.2023 was set aside by the Hon'ble National Commission vide its order dated 11.07.2023 in First Appeal no. 690 of 2023.
5. Therefore, in compliance of the order dated 11.07.2023, we have considered the written statement filed by the Opposite Parties wherein they have contended that the Complainant is not "Consumer" as defined under the Consumer Protection Act, 2019 as the said Unit has been purchased for investment purpose in order to earn profit and the Complainant has no cause of action to approach this Commission.
6. The counsel for the Opposite Parties submitted that the Complainant himself defaulted in timely payments to the Opposite Parties. It is further submitted by the counsel for the Opposite Parties that the possession of the said Unit was already offered to the Complainant on 08.06.2020 but he failed to make the payment of the outstanding amount, therefore the Opposite Parties left with no other option had eventually cancelled the allotment of the aforesaid Unit vide Termination letter dated 29.07.2021. Pressing the aforesaid preliminary objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint should be dismissed.
7. The Complainant has filed the Evidence by way of Affidavit in order to prove his averments on record and also filed the written synopsis wherein the Complainant has relied upon the judgment passed by the Hon'ble National Commission in CC/835/2020 titled as "Raghbir Singh Vs. M/s BPTP Ltd". Further, the written synopsis on behalf of the Opposite Parties is also on record wherein the Opposite Parties has reiterated the submissions made by them in their written statement.
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8. We have perused the material available on record and heard the arguments of both the parties.
9. The fact that the Complainant had booked a Unit flat with the Opposite Parties is not in dispute from the Floor Buyer's Agreement dated 27.02.2012 (Annexure-A of the complaint). Payment to the extent of Rs.95,54,880/- by the Complainant to the Opposite Parties is also evident from the statement of account issued by the Opposite Parties vide letter dated 08.06.2020 (Annexure-C of the complaint).
10. Before delving into the merits of the case, we deem it appropriate to adjudicate the preliminary objections raised on behalf of the Opposite Parties.
11. The primary question for consideration before us is whether the Complainant falls within the definition of 'Consumer' as defined under the Consumer Protection Act, 1986 as the Opposite Parties contended that the said Unit was purchased for investment i.e. for commercial purposes.
12. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Units were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(1)(d) of the Act."
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13. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Parties to prove that the Unit purchased was for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainant.
14. In the present case, the Opposite Parties have merely made a statement that the Complainant has purchased the Unit for commercial purpose and has one other residence in the other project of the Opposite Parties. However, on perusal of the record before us, we fail to find any material which shows that the Complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such flats. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Parties is answered in the negative.
15. Having discussed the preliminary objections raised on behalf of the Opposite Parties, the next issue which arises is whether the Opposite Parties are actually deficient in providing its services to the Complainant.
16. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person ALLOWED PAGE 6 OF 13 CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024 in pursuance of a contract or otherwise in relation to any service.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation."
17. At this stage, we deem it appropriate to refer to clause 5.1 of the Floor Buyer's Agreement dated 27.02.2012 entered into by both the contesting parties. Clause 5.1 of the Floor Buyer's Agreement, which has been brought on record by the Complainant and has not been disputed by the Opposite Parties reflects that the Opposite Parties were bound to deliver the ALLOWED PAGE 7 OF 13 CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024 possession of the said Unit within a period of 24 months from the date of sanctioning of the Building Plan or the execution of the Floor Buyer's Agreement, whichever is later. Further, the Opposite Parties were also entitled for a grace period of 180 days after the expiry of the said committed period. Therefore, the Opposite Parties in the present case were bound to deliver the possession of the said Unit by August, 2014 [as admitted by the Opposite Parties in Para J(vi)(a) of the written statement]. However, the Opposite Parties failed to comply with the same within the prescribed time period.
18. Moreover, the Opposite Parties claim that the delay in handing over possession of the Unit was caused by force majeure circumstances is entirely untenable. Since, they failed to provide any documentary evidence to support that the project was impacted by such events. Apart from mentioning delays in obtaining Service Estimates approved by Competent Authorities, incorporating changes in plans, issues with adjoining sector roads and NPR Road by HUDA, and revisions due to changes in Community site locations--none of which can reasonably be considered "force majeure events", therefore, in our considered view, the submission made by the Opposite Parties in regard to the force majeure circumstances holds no merit.
19. Further, at this stage, we deem it appropriate to refer to the recent case dealt by the Hon'ble National Commission in Consumer Complaint no. 835 of 2020 titled as "Raghbir Singh vs. BPTP Limited" decided on 11.11.2021, has observed as follows:
"15. The BPTP, as per terms of the Agreement, was required to hand over the possession of the booked Floor to the Complainant latest by September 2014. However the construction was not completed within the stipulated time. In response to the queries of the Complainant regarding the exact date of delivery of possession, the BPTP through its emails dated 02.11.2016 to ALLOWED PAGE 8 OF 13 CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024 17.05.2019, has given a stereo type reply that "it is essential for us to once again convey that the Organization is committed to meet customer expectations. We are striving to get the work completed on a high priority. It means that even after lapse of a period of five years from the committed date of possession, they were not sure when they will be able to deliver the possession to the Complainant. The Complainant had invested his hard earned money with the BPTP but till today the possession has not been handed over to the Complainant which has scattered his dream to have his own house. The Complainant has lost his trust in the BPTP as still today the BPTP is unable to give an exact date of delivery of possession. Moreover, no material has been produced by the BPTP to prove that the completion of construction and offer of possession has been delayed on account of reasons beyond its control; there is no justification for the said delay. Keeping in view the judgment of this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [MANU/CF/0317/2015 :
II(2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant's right to seek for refund of the principal amount with interest and compensation as construction is still not complete. We are of the opinion that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the BPTP in relying on force majeure clause while retaining the amounts deposited by the Complainant, is not only an act of deficiency of service but also amounts to Unfair Trade Practice, especially in light of the view ALLOWED PAGE 9 OF 13 CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024 of the fact that the BPTP charges interest @ 18% p.a. for any delay in the payments made by the flat purchasers, but at the same time, offers compensation of Rs. 10/- OR Rs. 20/- OR Rs. 30/- per sq. ft. per month for the delayed possession. In our view such terms in Clauses are extremely unfair and one sided and fall within the definition of 'Unfair Trade Practice' as defined under Section 2(r) of the Act.
16. At this juncture, we find it a fit case to place reliance on the recent judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II(2009) CPJ 34 (SC), wherein the Apex Court has observed as follows:
"6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Unit Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-
Builder cannot seek to bind the Respondent with such one- sided contractual terms."
For all the aforenoted reasons, this judgments squarely applies to the facts and circumstances of this case.
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17. We further place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, MANU/SC/0429/2019 : II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder:
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
18. In the case in hand also the Complainant cannot be made to wait indefinitely for possession of the allotted Unit, as the construction is yet to be completed. Therefore, we are of the considered view that the Complainant is entitled for refund of the principal amount with reasonable interest.
19. Now, we address ourselves to the percentage of interest that has to be awarded to meet the ends of justice.
20. In the light of the observations of the Hon'ble Supreme Court in a catena of judgments awarding interest keeping in ALLOWED PAGE 11 OF 13 CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024 view the current market situation and that the Banks have lowered the interest rates and considering the recent downtrend in the rates of interest and the erosion in the values of real estate in the market, we are of the opinion that the Complainant is entitled to the refund of the amount deposited by him with interest @ 9% p.a. from the respective dates of deposits till the date of realization."
20. Returning the facts of the present case, in the present case also, the Opposite Parties were bound to handover the physical possession of the Unit to the Complainant before August 2014, however, the Opposite Parties make excuses for delaying the process of handing over the possession to the Complainant in regard to the queries made by him through various communications.
21. Therefore, in view of the abovementioned dicta, we hold that the Opposite Parties are deficient in providing its services to the Complainant since they have failed to handover the possession of the Unit within prescribed time and arbitrarily cancelled the allotment of the Complainant, therefore, the Complainant is entitled for the refund the money deposited by him to the Opposite Parties.
22. Further, the Complainant is entitled to the reasonable simple interest on the amount deposited. In the similar project case referred above, the Hon'ble National Commission has directed the Opposite Parties to refund the amount deposited by the Complainant alongwith an interest @ 9% p.a. from the date of deposit of amount by the Complainant.
23. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Parties to refund the entire amount paid by the Complainant i.e. Rs. 95,54,880/- along with the simple interest @ 9 % p.a. calculated from the date on which each installment/payment was received by the Opposite Parties till 03.10.2024 (being the date of the ALLOWED PAGE 12 OF 13 CC/71/2022 MR. SUNIL KUMAR DOODRAJ VS. M/S BPTP LTD. D.O.D.: 03.10.2024 present judgment). If the Opposite Parties have failed to comply with the order within 30 days from the date of receiving of this Judgment, the Complainant may approach this Commission under section 71 of the Consumer Protection Act, 2019.
24. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Parties are directed to pay a sum of:
A. Rs. 4,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
25. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
26. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties
27. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
03.10.2024 LR-AJ ALLOWED PAGE 13 OF 13