State Consumer Disputes Redressal Commission
Subhash Chander & Anr. vs Bptp Ltd. & Anr. on 27 May, 2024
CC. NO. 1079/2019 D.O.D.: 27.05.2024
MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 06.12.2019
Date of Hearing: 15.02.2024
Date of Decision: 27.05.2024
COMPLAINT CASE NO.- 1079/2019
IN THE MATTER OF
1. MR. SUBHASH CHANDER.,
S/O MR. SUMER SINGH,
R/O HOUSE NO. 1375, SECTOR-3,
ROHTAK, HARYANA.
2. MR. OM VIR SINGH,
S/O MR. BHUP SINGH,
R/O VPO GMASOLA, TEHSIL CHARKI DADRI,
BHIWANI, HARYANA - 127306.
(Through: Mr. Rahul Sinha, Advocate)
...Complainants
VERSUS
1. M/S BPTP LIMITED,
THROUGH ITS DIRECTOR,
AT: M-11, MIDDLE CIRCLE,
CONNAUGHT CIRCUS,
NEW DELHI - 110001.
2. COUNTRY PROMOTERS PVT. LTD.,
AT: M-11, MIDDLE CIRCLE,
CONNAUGHT CIRCUS,
ALLOWED PAGE 1 OF 13
CC. NO. 1079/2019 D.O.D.: 27.05.2024
MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
NEW DELHI - 110001.
(Through: Mr. Manish Mishra, Advocate)
...Opposite parties
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MR. J.P. AGRAWAL, MEMBER (JUDICIAL)
Present: Mr. Rahul Sinha (Email id - [email protected]),
counsel for complainant.
Mr. Manish Mishra, counsel for Opposite Party
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainants before this commission alleging deficiency of service and delay in handing over of possession by the Opposite Parties and has prayed the following reliefs:
"(a) Pass an order directing the opposite parties to deduct the unjustified demands as enumerated in para 22 of the complaint while offering the possession of the said flat;
b) pass an order directing the opposite parties to provide the benefit of clause 6 of the said agreement for penalty for delayed possession as enumerated in para 24 of the above complaint with interest @ 24% p.a. from the due date till the date of payment, along with further penalty till the offer of possession after completion of construction of incomplete said flat as per the terms of the said agreement;
c) Pass an order directing the Opposite Parties to handover ALLOWED PAGE 2 OF 13 CC. NO. 1079/2019 D.O.D.: 27.05.2024 MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
possession of the said Flat bearing no. D-148-GF admeasuring 1770 sq. ft super built up area in the project 'Amstoria, Gurgaon' after duly completing the construction of the same as per the terms of the said agreement in a time bound manner;
d) award compensation in favour of complainants of Rs.5,00,000/- for the mental torture, pain, and agony caused to the complainants by the opposite parties.
e) To direct the Opposite Parties to pay Rs. 50,000/- as litigation charges.
f) Pass any other further orders) and relief (s) which the Hon'ble Commission any deem fit and proper in favor of the complainant and against the Opposite Parties, in the interest of justice."
2. Brief facts necessary for the adjudication of the present complaint are that the Complainants booked a unit bearing no. D-148-GF, admeasuring 1770 sq. ft., for a basic sale price of Rs. 73,99,999/- in the project "Amstoria" of the Opposite Parties, situated in Gurgaon, Haryana. The Complainants opted for a self-funding payment plan for the payment of the said unit, according to which they were required to pay 35% of the total amount at the time of booking, 15% within 2 months of booking, and the remaining 50% along with the IFMS, stamp duty, registration charges, and administrative charges at the time of possession. Subsequently, the Complainants paid 35% to the Opposite Parties and requested them to execute a builder- buyer agreement. However, the Opposite Party deliberately delayed executing the said agreement to delay their liability of delivering possession of the said unit. After the passage of more than one year, the Floor Buyer Agreement was executed between the parties on 23.04.2012. As per clause 5 of the said agreement, the Opposite Parties were to hand over the possession of the said unit within 24 months from the date of the aforementioned agreement. However, ALLOWED PAGE 3 OF 13 CC. NO. 1079/2019 D.O.D.: 27.05.2024 MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
till date, the Opposite Parties have failed to hand over possession of the said unit despite receiving an amount of Rs. 49,21,434.90/- as per the opted plan from the Complainants.
3. After a considerable lapse of time and regular follow-ups regarding the said unit, the Opposite Parties vide letter dated 07.10.2019, offered possession of the said unit along with an illegal and arbitrary demand of Rs. 6,43,841/- on account of the increased super area from 1770 sq. ft. to 1924 sq. ft., Rs. 5,90,490/- for cost escalation, and increased charges for GST. Immediately, the Complainants contacted the Opposite Parties, seeking justification regarding these illegal charges but the Opposite Parties failed to give any satisfactory response. Moreover, the Complainants visited the site of the project of the Opposite Parties and were shocked to see that the construction of the said unit was still incomplete. Thus, left with no other option, the Complainants approached this commission, alleging deficiency in services on the part of the Opposite Parties.
4. During the course of proceeding written statement was filed and the Opposite Parties were directed to file evidence by way of affidavit. However, the Opposite Parties failed to file the same within stipulated period. Consequently, this commission vide order dated 12.05.2023, closed the right of the Opposite Parties to file evidence by way of affidavits. Since the Opposite Parties failed to file the evidence by way affidavit to prove the averments made in written statement, the contentions raised by the Opposite Parties in the written statement cannot be taken into consideration and the present complaint remains unrebutted.
5. The Complainants have filed its evidence by way of affidavits and written arguments.
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MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
6. The Opposite Parties have filed written arguments and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Parties submitted that the Complainants are not consumer under the Consumer Protection Act, 1986 as the Complainants invested the money to earn profit, which amounts to commercial purpose. He further submitted that the Opposite Parties vide letter dated 07.10.2019, offered the possession of the said unit to the Complainants along with outstanding dues. However, Complainants failed to clear the outstanding dues till date. He also submitted that the Complainants themselves failed to obliges its contractual obligation towards the payment as per the agreed terms. Therefore, there is no deficiency on the part of the Opposite Parties. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Parties argued that the present complaint be dismissed.
7. We have perused the material available on record and heard the counsel for the parties.
8. The fact that the Complainants had booked a unit with the Opposite Parties is evident from the Floor Buyer Agreement dated 23.04.2012 (Annexure C-2). Payment to the extent of Rs. 49,21,434.90/- by the Complainants to the Opposite Parties is not disputed by them.
9. The first question for consideration before us is whether the Complainants fall under the category of 'consumer' defined under the Consumer Protection Act, 1986. To comment on this issue, we deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
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MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
"6. .......A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
10. 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 Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant 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 Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act.
11. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Parties to prove that the said unit purchased was for commercial purpose, by way of some ALLOWED PAGE 6 OF 13 CC. NO. 1079/2019 D.O.D.: 27.05.2024 MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainants.
12.In the present case, the Opposite Party has merely made a statement that the Complainants purchased the said unit for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainants are 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 units. 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.
13. The next issue which arises is whether the Opposite Parties are actually deficient in providing its services to the Complainants.
14. 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 ALLOWED PAGE 7 OF 13 CC. NO. 1079/2019 D.O.D.: 27.05.2024 MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
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.
15. At this stage, we deem it appropriate to refer to clause 5 of the Floor Buyer Agreement dated 23.04.2012 entered into by both the contesting parties. It reflects that the Opposite Parties were bound to hand over the possession of the said unit within 24 months from the date of sanctioning of the building plan or execution of floor buyer agreement plus 180 days of grace period. However, the Opposite Parties failed to hand over the possession of the said unit till date. More so, it is evident from the picture attached with complaint that the construction of the said unit was not completed by Opposite Parties as per agreed terms by year 2019. Resultantly, the Opposite Parties offered the possession of the unit without completing it.
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MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
16. Furthermore, the Opposite Parties vide letter dated 07.10.2019 offered the possession of the said unit after the expiry of the agreed period of 24 months plus 180 days along with outstanding dues of Rs. 51,76,704.13/-. Therefore, another issue before us is whether the aforesaid demand charged by the Opposite Parties was justified or not.
17. On perusal of record, it is evident from the Annexure-D attached with floor buyer agreement at page 56 of the present complaint that the Complainants booked the said unit for with super area of 1,770 sq. ft. at the rate of Rs.4,180.79 sq. ft. for total basic price of Rs. 73,99,998/-. However, the Opposite Parties in its offer of possession letter increased the super area from 1,770 sq. ft. to 1,924, therefore, increasing in total basic price of the said unit.
18. To resolve this issue, we deem it appropriate to refer to the Pawan Gupta vs Experion Developers Pvt. Ltd. reported as I (2021) CPJ 72 (NC), wherein the Hon'ble National Commission has held as under:
"17. The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and ALLOWED PAGE 9 OF 13 CC. NO. 1079/2019 D.O.D.: 27.05.2024 MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area. Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required."
19. On perusal of the above settled law, it is clear that once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings which ALLOWED PAGE 10 OF 13 CC. NO. 1079/2019 D.O.D.: 27.05.2024 MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
were specified at the time of approval cannot be changed until there is a change either in the area of the flat or in the area of any of the common buildings or there is a change in the total area of the project (plot area).
20. Returning to the facts of the present case, we failed to find any document which shows that there was change in either the total area of the unit or in the area of any of the common buildings or any change in the total area of the project. Moreover, the Opposite Parties failed to show any comparison/ difference in the areas of the original approved space and the common spaces/buildings which were finally allotted by the Opposite Parties to the buyers. Therefore, we do not see any justification in increasing the super area of the said unit and charging the excess amount for the said increased area by the Opposite Parties.
21. Furthermore, the Complainants were asked to clear the outstanding dues of Rs. 51,76,704.13/-, along with a hefty amount of Rs. 5,90,494.84/- for cost escalation. However, no explanation was provided for these cost escalation charges, except for mentioning that it is as per the agreement. Despite the Complainants' several emails and notices seeking an explanation for this cost escalation, Opposite Parties failed to provide any justification. It is pertinent to note that the Opposite Parties already inordinately delayed in handing over the possession of the said unit, therefore, the Opposite Partys' demand for cost escalation of Rs. 5,90,44.84 /- clearly unjust and illegal. Moreover, the Opposite Parties also failed to give any relaxation towards the inordinate delay in handing over the possession of the said unit. Consequently, the offer of possession letter dated 07.10.2019 is unjust and not reasonable.
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MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
22. Furthermore, the other costs related to club membership charges, electrification, firefighting & power backup charges, service and Vat tax and Goods and Services Tax are in accordance with the agreed terms, therefore, these demands of the Opposite Parties are justified.
23. Relying on the above settled law, we hold that the Opposite Parties are deficient in providing its services to the Complainants as the Opposite Parties by illegally and arbitrary charging extra amount for increased super area and cost escalation charges towards the said unit.
24. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Parties are directed to send revised offer of possession letter as per Annexure-D attached with the Floor Buyer's Agreement dated 23.04.2012 within 30 days from date of the present judgment with following arrangement:
i. Not to charge any interest or penalty for delayed payment.
ii. Not to charge any amount for increased super area and cost escalation.
iii. Preferential Location Charges as per Annexure - D of the said agreement.
25. After receiving the balance amount, the Opposite Parties are directed to handover the physical, vacant and peaceful possession of the said unit, complete in all respects as per the Agreement dated 23.04.2012 within 30 days from the date of receiving the balance payment from the Complainants.
26. 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 ALLOWED PAGE 12 OF 13 CC. NO. 1079/2019 D.O.D.: 27.05.2024 MR. SUBHASH CHANDER AND ANR. VS. M/S BPTP LTD. AND ANR.
A. Penalty as per clause 6 of the Floor Buyer Agreement dated 23.04.2012 from the date 23.10.2014 till the actual realization of the amount.
B. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainants; and C. The litigation cost to the extent of Rs. 50,000/-.
27. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
28. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties as well as forwarded to the corresponding email address of the parties available on record i.e., [email protected] (Complainant).
29. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (J.P. AGRAWAL) MEMBER (JUDICIAL) Pronounced On: 27.05.2024 LR-ZA ALLOWED PAGE 13 OF 13