State Consumer Disputes Redressal Commission
Kamal Kant Sharma vs Bptp Ltd. on 28 November, 2022
C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Admission: 27.04.2018
Date of hearing: 25.08.2022
Date of Decision: 28.11.2022
COMPLAINT CASE NO.- 442/2018
IN THE MATTER OF
MR. KAMAL KANT SHARMA,
R/O HOUSE NO.555,
SECTOR-46,
NEAR EICHER SCHOOL,
FARIDABAD.
(Through: KAMAL MEHTA & ASSOCIATES)
...Complainants
VERSUS
M/S BPTP LIMITED,
THROUGH ITS MANAGING DIRECTOR
M-11, MIDDLE CIRCLE
CONNAUGHT PLACE
NEW DELHI-110001.
(Through: Ms. Deepti Rajpal, Ms Pratibha Singh &
Mr. Rajeev Prasad Dubey, Advocate)
...Opposite Party
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, (JUDICIAL MEMBER)
ALLOWED PAGE 1 OF 16
C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022
Present: None for the parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
JUDGMENT
1. The present complaint has been returned from the from the District Forum vide order dated 13.03.2018 on the ground of pecuniary jurisdiction, filed by the Complainant before this commission alleging deficiency of service and unfair trade practice by the Opposite Party and has prayed the following reliefs:
a) Set aside the Demand-cum-Offer of Possession-for fit outs letter dated 22.05.2013;
b) Direct the Respondent Company to withdraw/refund the interest levied/charged on any delayed payment;
c) Direct the Respondent Company to withdraw cost escalation charges vide its letter dated 22.05.2013;
d) Direct the Respondent Company to withdraw electricity connection charges being levied vide its letter dated 22.05.2013.
e) Direct the Respondent Company to withdraw power backup charges being levied vide letter dated 22.05.2013;
f) Direct the Respondent Company to withdraw its demand of stamp duty charges and raise it afresh only at the time of offering physical possession of the Complainant flat for habitation with all approvals completion/occupancy certificate in place with a confirmed date for execution of conveyance deed/sale deed;
g) Direct the Respondent Company to provide detailed calculation of the increase in super area, to the satisfaction of the Complainant and in the event a detailed calculation Complainant cannot to the satisfaction of the be provided, withdraw the additional demand raised on account of alleged increase in Super Area;
h) Direct the Respondent Company to pay delayed possession penalty charges @ Rs.10 per square feet in terms of the Flat Buyers Agreement and Respondent Company's letter dated 20.05.2009 read with its letter dated 19-05-2009, from the date the possession fell due to the Complainant till the date the possession is actually delivered to the Complainant;
ALLOWED PAGE 2 OF 16
C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022
i) Direct the Respondent Company to withdraw the sale/transfer of open/common areas in the form of open car parking and refund the amount charged from various allotees in the name of sale of open car parking space;
j) Direct the Respondent Company to obtain No Objection Certificate from its bankers towards clearing of charge created by the Respondent Company on the Complainant's flat;
k) Direct the respondent company to give an undertaking to refund the amount charged to the complainant under this head if the said charges are ordered to be refunded by the Hon'ble High Court of Punjab & Haryana while disposing off a writ petition presently under adjudication in this regard
l) Award a compensation of Rs. 3,50,000.00 ( Rupees Three Lacs Fifty Thousand Only) towards mental agony, harassment and losses caused by the Respondent Company to the Complainant such as making false representation to the Complainant that the building plans were approved by the authorities whereas the same were approved more than a year later, delay in offering possession from the contractually agreed period, offering possession of flat without having an occupancy certificate from appropriate authorities and other such deficiencies and unfair trade practices adopted by the Respondent Company as enumerated herein above, in the present complaint;
m) Pass any other proper and further order(s) which this Hon'ble Forum deems fit in the peculiar circumstances of the present case.
2. Brief facts necessary for the adjudication of the present complaint are that on the Complainants booked a flat bearing no. P-301 with the Opposite Party in the project 'Park Floor-I' situated at sector 77, Faridabad. Thereafter, the Complainants avail a home loan from LIC Housing Finance Ltd towards the said flat and subsequently a tripartite agreement was executed between the parties on 19.09.2009, however, the said financial institution did not disburse ALLOWED PAGE 3 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022 any money against the said loan as the said project of the Opposite Party was not approved by the concerned authority. Thus, due to misrepresentation of the Opposite Party various demands could not be paid by the Complainants by the due dates. Further, Mr. Rajnish Dutt, an employee of the Opposite Party assured the Complainants vide email dated 20.04.2010 that no interest would be charged till the time of disbursal of loam from the said financial institution.
3. Furthermore, as per Clause 2.1 of the Flat Buyer Agreement dated 20.05.2009, the Opposite Party was to hand over the possession of the said flat within 36 months from the date of sanction of the building plans of the said colony i.e., on or before 09.11.2012. However, the Opposite Party offered fit-out possession vide letter 22.05.2013 with arbitrary and illegal demands. Thus, the offer of possession was for fit out and not for actual habitation and to collect more money from the Complainant in the absence of Occupation certificate. The Complainant over the time had paid 90% of the total cost of the said flat as per opted payment plan to the Opposite Party as and when demanded by it.
4. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that this commission does not have the territorial jurisdiction to try and entertain the present complaint as parties had mutually agreed to confer the jurisdiction exclusively to the courts at Faridabad and Punjab and Haryana High Court at Chandigarh alone. He further submitted that the Complainant has no cause of action to file the present complaint.
5. The counsel for the Opposite Party submitted that the present complaint involves complicated question of facts and law, which ALLOWED PAGE 4 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022 require detail evidence, examination and the same cannot be adjudicated in a summary procedure before this commission. He further submitted that the Complainant defaulted in making timely payments as per the payment schedule. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint be dismissed.
6. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
7. The Complainant has filed his written arguments, wherein, he relied upon following judgments:
A) Deepak kumar versus BPTP Limited in CC NO. 475 OF 3013. B) Deepak Kumar versus BPTP Limited in FA NO. 704 OF 2021. C) BPTP Limited versus Deepak Kumar SLP No. 9684-9685 of 2022
8. We have perused the material available on record and heard the counsel for the parties
9. The fact that the Complainant had booked a flat with the Opposite Party is evident from the Flat Buyer Agreement dated 20.05.2009 (Annexure on the 67 page of the complaint). Payment to the extent of Rs. 28,67,878 /- by the Complainant to the Opposite Party is evident from the demand letter dated 22.05.2013 issued by the Opposite Party (Annexure-4).
WHETHER THIS COMMISSION HAS THE TERRITORIAL JURISDICTION TO ADJUDICATE THIS COMPLAINT?
10.The counsel for the Opposite Party submitted that this commission has no territorial jurisdiction to decide the present complaint as ALLOWED PAGE 5 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022 parties had mutually agreed to confer the jurisdiction exclusively to the courts at Faridabad and Punjab and Haryana High Court at Chandigarh alone.
11.The jurisdiction of consumer commissions to entertain cases of this nature has been settled via array of judgments. We tend to rely on the dicta of Hon'ble Supreme Court in Narne Construction P. Ltd., etc. v. Union Of India and Ors. Etc., reported at AIR 2012 SC 2369, wherein it was held that "when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers".
12.The Hon'ble National Commission in the case of Rohit Srivastava v. Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, has held as under:
"Having heard learned Counsel for the parties at some length, we are of the opinion that the order cannot be sustained. It is not in dispute that the Registered Office of Opposite Party No. 1 Company is situated in Delhi, i.e., within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2)(a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose ALLOWED PAGE 6 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022 jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint. In the light of the said provision, in our view, it was open to the Complainant to choose the Forum to file the Complaint, which on the second occasion he decided to file before the State Commission at Delhi."
13. Relying on the above settled law, there is no iota of doubt that this commission has the jurisdiction to entertain the cases relating to allotment agreement including delay in handing over possession of the said flat, as compensation for delay in handing possession is sought due to the deficient services of the Opposite Party and not for any other reason. Moreover, the Opposite Party has a registered office at M-11, Middle Circle, Connaught Place, Delhi-110001, till which, the jurisdiction of this commission extends. Therefore, this commission is fully empowered to adjudicate the present consumer complaint and is not paralyzed due to the want of territorial jurisdiction.
14. The next question for adjudication before us is whether the Complainant has any cause of action to approach this commission. The facts reveal that the Flat Buyer Agreement was executed between the parties on 20.05.2009, wherein the possession of the said was to hand over by the Opposite Party within 36 months from date of the sanction of the building plans of the said colony. However, the possession of the said flat has not been handed over to the Complainants till date.
ALLOWED PAGE 7 OF 16
C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022
15. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. as reported in I (2020) CPJ 93 (NC), wherein the Hon'ble National Commission has held as under:
"It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
16. Applying the above settled law, it is clear that the Complainant is within their right to file the present complaint as the possession of the said flat has not been handed over to the Complainant; giving the Complainant a recurrent cause of action to file the present complaint.
17. Another question for consideration before us is whether the present complaint involves complicated questions of facts and law, which should be decided by the civil court. The Opposite Party also contended that the present complaint involves complicated question of facts and law, which require detail evidence, examination and the same cannot be adjudicated in a summary procedure before this commission. Moreover, the complicated question of facts and law which have been raised in the present complaint, which can only be decided before the Civil Court.
18. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are affected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
ALLOWED PAGE 8 OF 16
C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022
19. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:
"(2) (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 in pursuance of a contract or otherwise in relation to any service;"
20. Returning to the facts of the present complaint, it is clear that the Complainants avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to complete the said project, aggrieved by which, the Complainant has sought reliefs. Hence, the Complainant is entitled to file the present complaint before this commission since the Complainant is aggrieved by the deficient services of the Opposite Party i.e., the failure of the Opposite Party to handover the possession of the said flat within reasonable time and it is only due to this reason, that the said reliefs have been sought from the Opposite Party, which this Commission is authorised to adjudicate.
21. Our view is further fortified by the dicta of Hon'ble Supreme Court in Narne Construction P. Ltd., etc. v. Union Of India and Ors. Etc., reported at AIR 2012 SC 2369, wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act and any deficiency or defect in such service would ALLOWED PAGE 9 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022 make it accountable before the competent consumer forum at the instance of consumers.
22. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties. Consequently, we are of the view that the present complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the refund of amount deposited with the Opposite Party.
23. Having discussed the preliminary objections raised on behalf of the Opposite Party, the main issue which arises is whether the Opposite Party is actually deficient in providing its services to the Complainants. 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 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 ALLOWED PAGE 10 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022 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.
24. At this stage, we deem it appropriate to refer to clause 2.1 of the Flat Buyer agreement dated 20.05.2009 entered into by both the contesting parties. It reflects that the Opposite Party was bound to hand over the possession of the said flat within 36 months from the date of sanction of the building plans of the said colony i.e., on or before 09.11.2012. However, till date the actual possession of the said flat has not been handed over to the Complainant. More so, it is clear from the records that the possession which was offered to the Complainant was for fit out and not for habitation of the Complainant. The Opposite Party also failed to show current status of the occupation certificate.
25. At this stage we deem it appropiat we refer First Appeal no. 2082 of 2018 titled as M/S. A.R.G Housing Pvt. Ltd. vs Amit Kumar & Anr. decided on 02.03.2019, wherein the Hon'ble National Commission has held as under:
ALLOWED PAGE 11 OF 16
C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022
"More importantly, the possession of the house could not have been and cannot be offered to the Complainant without obtaining the requisite Occupancy Certificate. During the course of hearing, I specifically asked the learned counsel for the appellant as to whether the appellant had obtained the requisite Occupancy Certificate in respect of the villa allotted to the Complainant. The learned counsel, on instructions states that no Occupancy Certificate is required for the individual unit. However, I am unable to accept the said contention. No house can be allowed to be occupied without obtaining the requisite Occupancy Certificate. Therefore, the appellant ought to have obtained the requisite Occupancy Certificate before it could offer possession of the allotted villa to the Complainant"
26. We further deem it appropriate to refer to M/S Treaty Construction vs M/S Ruby Tower Co Op Hsg. Society reported in AIR 2019 SC 3676, wherein the Apex court has held as under:
"3. As the OP has given possession to the members of the Society without obtaining Occupancy Certificate, the possession of allottees has become illegal. As the purchasers have paid full consideration of the flats, they are entitled to have legal possession and legal right and title. It is also seen from the observation of the State Commission that the appellants/opposite parties have not replied to the queries raised by the Municipal Corporation and therefore, they themselves were negligent and deficient in taking steps for getting the Occupancy Certificate. As complaint has been filed by the society, it is essential that the possession ALLOWED PAGE 12 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022 of its members is regularized and title of the members as well as of the Society is legalized. This can only be legalized if OP obtains Occupancy Certificate. Therefore, it is necessary to direct the OP to obtain the Occupancy Certificate in a time bound manner."
27. It is clear from the above dicta that the builder cannot offer the possession of the flat without obtaining the requisite occupation certificate and no house can be allowed to be occupied without obtaining Occupancy Certificate from the concerned authority. Returning to facts of the present case, the Opposite Party has fairly accepted the fact that the DTCP issued Occupation certificate to the Opposite Party with a condition to complete EWS flats. However, the said condition was not fulfilled by the Opposite Party, therefore, the DTCP issued revocation of Occupation certificate on 28.09.2015. In these circumstances, that the Opposite Party cannot legally offer the possession of the said flat to the Complainants.
28. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainant as the Opposite Party had given false assurance to the Complainant with respect to the time for completing the construction of the said flat and kept the hard-earned money of the Complainant for inordinate time.
29. Now, we have to decide whether refund can be awarded in the present case as the complainant had prayed for possession of the said flat. On this point, we deem it appropriate to refer to Parsvnath Exotica Resident Association Vs Parsvnath Developers Ltd. & Ors. reported in IV (2016) CPJ 328 (NC), wherein the Hon'ble National Commission has held as under:-
ALLOWED PAGE 13 OF 16
C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022
"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 file 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 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."
30. Relying on the above settled law, it is clear that this commission, even in absence of specific prayer, can grant a relief which is justified and warranted in the facts and circumstances of the case. On perusal of record before us, we find that the Opposite Party failed to hand over the possession of the said flat even after receiving the amount of Rs. 28,67,878/-. In these circumstances, it appears that the Opposite Party is not in a position to handover the flat in question to the Complainant. Therefore, as per the facts and circumstances of ALLOWED PAGE 14 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022 the present case, we are of the view that it is justified to refund the amount already paid by the Complainant.
31. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainants i.e., Rs. 28,67,878/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 28.11.2022 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 28.01.2023;
C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 28.01.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
32. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of A. Rs. 1,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
33. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
ALLOWED PAGE 15 OF 16 C. NO. 442/2018 MR. KAMAL KANT SHARMA VS. M/S BPTP LTD. D.O.D.: 28.11.2022
34. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
35. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
28.11.2022 ALLOWED PAGE 16 OF 16