Delhi District Court
Date Of Institution Of Suit : 18.11.2013 vs M/S Bptp Limited on 15 December, 2021
IN THE COURT OF MS. SUNENA SHARMA: ADDL. DISTRICT
JUDGE- 04: PATIALA HOUSE COURTS: NEW DELHI
CS no.55547 of 2016
Date of institution of Suit : 18.11.2013
Date of final arguments : 15.12.2021
Date of judgment : 15.12.2021
Mrs. Manju Gangwar
w/o Sh Satya Pal
2. Mr. Satya Pal
S/o Sh. Nahu Lal
Both r/o F-902, Freedom Park Life,
BPTP sector 57
Gurgaon Haryana.
.........Plaintiffs
VERSUS
1. M/s BPTP Limited.
2. M/s Countrywide Promoters
Both Having its registered office at
M-11 Middle Circle
Connaught Circus
New Delhi 110001
3. M/s Business Park Maintenance Service Pvt. Ltd.
M-11 Middle circle
Conaught Circus
New Delhi- 110 001.
........Defendants
JUDGMENT
1. Vide this judgment, I shall decide the suit filed by plaintiff for recovery of an amount of Rs.14,61,985/- (Rs. Fourteen Lakh Sixty one Thousand Nine Hundred and Eighty Five only) with interest pendente-lite and future @ 9 % per annum.
2. In brief, plaintiffs' case as disclosed in plaint is that D-1 is a Real Estate Developer engaged in the business of construction, CS no 55547 of 2016 Page no.1 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors development and marketing of residential housing and commercial projects whereas D-2 is the owner/licensee of lands admeasuring 13.878 acres situated in Sector 57, Village Smashpur, District Gurgaon, Haryana with a license from Director, Town and country planning, Haryana, Chandigarh to develop and sell residential flats on the aforesaid land. D-2 has constituted D-1 to undertake and sell the proposed residential flat as per terms and conditions determined by D-1. D-3 is the service provider engaged in the business of providing maintenance services in the buildings and complexes constructed by D-1 and D-2.
2.1 Plaintiffs had purchased a flat no. F-902, 9th Floor, admeasuring 2047 sw. feet (super built up area) in the project of defendants known as "Freedom Park Life" at Sector 57, Gurgaon, Haryana from its erstwhile owner Mr. Vinod Kumar and D-1 and D-2 accorded their permission to said transfer vide Endorsement dated 28.03.2008. In view thereof, plaintiffs inherited all rights/obligations of the original allottee (Mr. Vinod Kumar).
2.2 In the the Flat Buyers Agreement, the charges excluded from the basic cost were determined as per the following rates :
1. EDC- Rs. 104/per sq. ft. of the super ares.
2. PLC- Rs. 75 per sq. ft of the super area.
3. CMC- Rs. 50,000/-
4. IBMS- Rs.75/- per sq. ft of the super area.
2.3 The agreement stipulates that the EDC (External Development Charge) was to be paid at the interim rates as per the demand raised by Director, Town and Country Planning, Haryana and and further that the consideration for the premises was to be CS no 55547 of 2016 Page no.2 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors calculated on the basis of super area. Further that the EDC charges under the License issued by DTCP, Haryana, Chandigarh to the defendants are Rs. 80/- per sq. feet, which was never revised whereas, as per the Agreement defendants have charged the EDC from the plaintiffs @ Rs.104/- per sq. feet.
2.4 In addition to the aforesaid, plaintiff also purchased one covered parking space @Rs. 1,75,000/- per covered parking despite the fact that parking space cannot be sold separately under the Haryana Apartment Owners Act and the cost of parking has to be included in the basic sale price of the flat.
2.5 As per the Agreement the possession of the said flat was to be handed over to the plaintiffs within 24 months from the date of commencement of the construction by issuing notice of possession with regard to the date of handing over of possession to the purchasers failing which D-1 and D-2 would be liable to pay Purchasers compensation @ Rs. 5 per square feet for every month of delay until the actual date of handing over the possession fixed by the intending seller/D-1 and D-2.
2.6 The construction of the complex commenced in August 2005, however possession of the flat was offered to the plaintiffs only on 24.06.2010. Defendants received Occupancy Certificate from the Authorities only on 16.09.2009. The 30 month extended period during which the defendants had offered the flat for possession expired in February 2008 showing delay of 28 months in offering the possession of the flat by the defendants to the plaintiffs.
CS no 55547 of 2016 Page no.3 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors 2.7 The Conveyance Deed in respect of said Flat was executed in favour of the plaintiffs on 19.11.2010. D-1 and D-2 on the pretext of modifications in the layout and building plans of residential complex arbitrarily increased the super area of the flat allotted to the plaintiffs to 2293 sq. ft form the original 2047 sq. feet. Defendants represented that the alleged increase was due to revision of the plans as per statutory requirement/Govt. Orders and that there would be concomitant increase in the carpet area of the flat. Defendants represented to the allottees to pay for the increase in the super area otherwise the allotment would be cancelled and amounts would be forfeited as per the Agreement. However, the defendants defrauded and cheated the plaintiffs as the said revision of plans was unilateral act of the defendants without any statutory/Govt. requirement and there was no increase in the carpet area of the flats. Defendants illegally increased the super area while the carpet area of the flats has remained the same and even the common area has been reduced. At the cost of allotees defendants increased the built up area and reduced the common areas such as Basement, stilts etc. In contradiction to the Agreement, D-1 covered the stilt parking into flats which reduced the common areas and consequently, it also resulted in payment of cost upon the allottees while there was no change in the carpet area of the flats.
2.8 On raising issue of revision with the defendants, defendants threatened the plaintiffs to refuse the handing over of the possession of the flat and forced them to sign the indemnity stating that they would not raise the said issue. Defendants have also charged an amount of Rs. 1,22,500/- from the plaintiffs for power back up charges despite the fact that it was advertised by the defendants in their brochures that the power back up in the CS no 55547 of 2016 Page no.4 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors complex would be free. Plaintiffs had also incurred expenses towards the payment of rent for leased accommodation and for substantial amount towards the EMIs of bank loans because of the failure of the defendants in handing over the possession of the said flat. In above facts and circumstances, plaintiffs were constrained to file the present suit.
2.9. The cause of action is stated to have arisen in favour of plaintiffs on 28.03.2008 when Endorsement letter was issued by D- 1 for transfer of the flat in the name of plaintiffs and on all different occasions when defendants raised demands on plaintiffs for payment of balance amount and also on 24.06.2010 when the defendants offered the flat for possession to the plaintiffs and got the indemnity deed/other documents signed and the cause action is still alive and subsisting. This court is stated to have territorial jurisdiction as the Flat Buyers Agreement between the parties was entered into at New Delhi and further in view of the fact that Clause 21 of the Flat Buyers Agreement stipulates that the courts of Delhi/New Delhi have jurisdiction to entertain /decide all the disputes and differences, if any between the parties. For the purpose of pecuniary jurisdiction, the suit has been valued at Rs.14,61,985/-on which court fees of Rs.16,650/- has been paid.
3. Summons were served upon defendants but they failed to appear and were proceeded ex-parte vide order dated 08.01.2014. Thereafter, on application of defendants under Order 9 rule 7 CPC, said order was recalled imposing cost of Rs.500/- upon defendants vide order dated 25.03.2014.
4. Defendants filed their written statement and further on CS no 55547 of 2016 Page no.5 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors 15.05.2014, subsequent to amendments allowed, they filed amended WS wherein they took preliminary objection that the suit is misconceived, unjustified and untenable and liable to be dismissed. It is stated that plaintiffs have not approached the court with clean hands. Plaintiffs have made bald averments regarding entitlement of principal amount and suit is based on surmises and conjectures. It is averred that purported issues raised in the suit are not adjudicable in the light of clause 15.2 of Flat Buyer Agreement dated 30.03.2007, which provides that in event of any complaint, the intending buyer shall get the same resolved before taking over the possession of their unit. Whereas plaintiffs were handed over possession of the flat on the date of execution of Conveyance Deed dated 19.11.2010 and in this way, plaintiffs have already waived off their right to raise any dispute. Further said clause 15.2 contained in Flat Buyer Agreement dated 30.03.2007 is valid and falls within the parameter of Section 63 of the Indian Contract Act and therefore, plaintiffs ought not to be permitted to plead what is contrary of said agreement. Further that vide clause 28 of Conveyance Deed dated 19.11.2010, parties had mutually agreed to the terms and conditions mentioned therein and therefore, it is not open to the parties to go beyond the agreed terms especially before the court lacking territorial jurisdiction because, the jurisdiction vests with Courts at Gurgaon where the Conveyance Deed dated 19.11.2010 was executed and registered. Further that plaintiffs in terms of clause F, G and H of the Conveyance Deed dated 19.11.2010 has specifically surrendered on their claims against defendant after taking over of the possession of suit property.
4.1 Further that after execution of Conveyance Deed and handing over of physical possession, plaintiffs are now estopped CS no 55547 of 2016 Page no.6 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors from filing the present suit raising various allegations pertaining to payments made against said flat such as payment made towards EDC, ECC, car parking etc and the alleged penalty for delay in possession, in as much as the plaintiff had made complete payment after settling their account with the defendants upon being completely satisfied with the flat in all regards. Further in terms of clause 15.2 of Flat Buyer Agreement, after the sale deed was executed and possession of the flat was handed over to the plaintiffs, the plaintiffs shall be demeed to have waived their right to raise any such claim in respect of the flat on any ground whatsoever. Further in term of clause 26 of the Conveyance Deed dated 19.11.2010, the plaintiffs have specifically consented that conveyance and Annexure (s) constitute the entire agreement among the parties with respect to subject matter contained therein and said deed will supercede, all prior contemporaneous correspondence, agreement, report, project report, negotiation, discussion, representation, promise or understanding both oral and written between the parties. Further that despite acknowledging and confirming in clause G and H of the Conveyance Deed dated 19.11.2010 that defendants had discharged all the applications undertakings by them towards plaintiffs and further despite agreeing not to raise any claim against defendants in respect to flat in question, plaintiffs have breached the said undertaking by filing the present suit on false and baseless allegations.
4.2 Further that the suit is barred by limitation as the plaintiff got the possession of the suit property in August 2010 whereas, the suit was filed on 16.11.2013 that is much beyond the period of three years.
CS no 55547 of 2016 Page no.7 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors 4.3 In para-wise reply, defendants categorically denied all the contents of the plaint as wrong and incorrect except the fact which are matter of record. It is further submitted that the concept of charging EDC by the defendants from its customers is not only the statutory charge but mutually agreed commercial term, which includes various other heads and the sole aim for filing the present suit is just to harass the defendant on account of ulterior motives. Defendants categorically denied that amount of Rs. 1,75,000 charged as parking allotment is impermissible. It is submitted that said car parking charges were paid by the plaintiffs almost 04 years back without any protest or demur and as such claim in respect of such charges is barred by law of limitation. Further, the Flat Buyer Agreement dated 30.03.2007 specifically mentions that car parking space charges will be charged from the customer later on as contained in clause 1.1 of said agreement. Further that said car parking was offered to plaintiffs vide letter dated 10.01.2009 and the purchase of the same was purely optional and salable on first come first serve basis and since the plaintiffs themselves availed said option of purchasing the car parking space, they are estopped by raising the claim for refund of same. Further the combined reading of various clause of the Flat Buyer Agreement makes it evidently clear that the penalty for delay in offering the possession of flat beyond 30 months from the date of commencement of construction is subject to clause 9 of Flat Buyer Agreement i.e. Force Majeure capital clause and is payable only if the intending purchaser adhered to the terms and conditions accepted by him vide said Agreement which includes adherence to timely payment.
4.4 Further the delay in handing over possession occurred on account of the fact that much time got consumed in obtaining CS no 55547 of 2016 Page no.8 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors necessary approvals from concerned authorities and during said period, the construction activities were hindered. Further that plaintiffs in Oct 2011, had already approached District Consumer Dispute Redressal Forum on similar issues but said complaint was dismissed vide order dated 12.10.2011, therefore, suit is barred by res-judicata. Further as per clause 1.2 of Flat buyer, defendants had a right to cancel the agreement and return the money received from the plaintiff with 6 per cent interest in case the plaintiffs have indicated that increase in super area is not acceptable to them. Since the plaintiffs have never raised any issue in this regard earlier, they are estopped to raise any issue of increase in super area at this stage. Furthermore, the revised area i.e. 2293 sq. feet was mentioned clearly in Flat Buyer Agreement dated 30.03.2007 and plaintiffs having signed the same, have agreed to the area having full knowledge about it. Defendants categorically denied that any increase in the area took place by way of any illegality in relation to carpet area or common area. Defendants categorically denied power back up claim of plaintiffs in the light of clause 5 of the Application for allotment.
5. In replication, plaintiffs reiterated his stand taken in the plaint as true and correct.
6. After completion of pleadings following issues were framed on 27.10.2014:-
1. Whether the plaintiff is entitled for a decree of recovery of amount of Rs. 14,61,985/- as prayed for ? OPP.
2. If the issue no.1 is proved in affirmative, whether the plaintiff is entitled of pendentilite and future interest & if so, as what rate ? OPP.
CS no 55547 of 2016 Page no.9 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors
3. Whether this court has no jurisdiction to entertain the present case ? OPD.
4. Whether the suit is time barred ? OPD.
5. Whether no cause of action has been made out against the defendant? OPD.
6. Relief.
7. As per record, despite numerous opportunities plaintiffs failed to lead any evidence which ultimately led to closing of their evidence vide order dated 29.01.2016. Even defendants did not lead any evidence in the matter despite repeated opportunities and DE was also closed vide order dated 13.05.2019.
8. I have given my thoughtful consideration to respective arguments raised by the counsels for the parties and also carefully perused the entire record.
9. My issuewise findings are as under :
Issue no. 1.
Whether the plaintiff is entitled for a decree of recovery of amount of Rs. 14,61,985/- as prayed for ? OPP.
Onus of proving said issue was upon the plaintiffs. But, as already noted above no iota of evidence was adduced by either side. Hence, the issue is liable to be decided against the plaintiffs.
However, counsel for plaintiff has raised an argument that on the basis of admitted position of pleadings and documents on record, certain claims still deserve to be allowed in plaintiffs' favour, such as the claim of differential amount to the tune of CS no 55547 of 2016 Page no.10 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors Rs.782403/- mentioned in Sr. no.2 of para no.22; claim towards refund of excess amount of External Development Charge (EDC) to the tune of Rs.55,032/-mentioned in Sr. no.4 of para no.22, and refund of amount of Rs. 1,75,000/- illegally charged from plaintiff towards car parking as mentioned in Sr. no.6 of para no.22 of the plaint.
9.1 However, careful perusal of written statement shows that all the aforementioned claim of plaintiffs have been categorically denied by the defendants in the WS in the light of specific terms of the Flat Buyer Agreement dated 30.03.2007 as well as the Conveyance Deed dated 19.11.2010.
9.2 Furthermore, the aforementioned contention raised by plaintiffs' counsel has been vehemently refuted by defendants' counsel. She has argued that for lack of evidence on record, plaintiff is not entitled to any relief as there are no admissions of any such liability on the part of the defendants in the WS or in any admitted document.
9.3 It was submitted that EDC as well as car parking charges were only part of the basic cost price and clause 1.1 of the Flat Buyer Agreement clearly mentions that said charges were payable in addition to basic cost price by the intending purchaser at the rate given in the agreement itself. She has drawn attention of the court to said clause of agreement where EDC @ 104 per sq ft of super area is mentioned while clause (1.4) clearly mentions that intending buyer shall pay an additional consideration of Rs.1,75,000/- towards car parking. Counsel submitted that since even original allottee is bound by terms and conditions of Flat Buyer CS no 55547 of 2016 Page no.11 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors Agreement dated 30.03.2007, therefore, plaintiff who just stepped into the shoes of original allottee is also bound by said terms and as such plaintiffs cannot escape from their liability arising out from the terms and conditions agreed upon between them and the defendants. It is further argued that car parking were chargeable only for an open car parking space in addition to an unreserved car parking which is already attached to the flat. Counsel further says that even provisions of Haryana Apartment ownership Act does not apply as the offer was for open car parking was optional and plaintiffs only after acceptance of that offer remitted the amount of Rs.1,75,000/- without any dispute.
9.4 With regard to payments towards additional area, it is argued that as per sub clause (ii) of Flat Buyer Agreement, on account of increase of area beyond 10%, an unwilling buyer had an option to get the allotment cancelled and in that eventuality payments were liable to be refunded with simple interest @ 6% per annum. Counsel says that after increase in the area, plaintiffs never raised objection rather got conveyance deed executed in their favour and at this stage, they cannot seek refund of alleged excess amount. Counsel files on record the certified copy of Flat Buyer Apartment dated 30.03.2007, which is an admitted document and further stated that copy filed by plaintiff with plaint was not complete copy and said objections had been taken in WS also.
9.5 In view of aforementioned circumstances, said document was taken on record during course of final arguments. Counsel had drawn my attention to clause 15.2 of the Flat Buyer Agreement and submitted that in terms of said clause, purchaser always had the option not to have possession subject to grievance with regard to CS no 55547 of 2016 Page no.12 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors quality of work, material installation or any other ground whatsoever. In instant case, plaintiffs never raised objection at the time of taking possession of flat in question. Therefore, they are not entitled to raise any contentions by way of present suit. Counsel says that in terms of aforementioned clauses in Flat Buyer Agreement, the plaintiff has already waived off all his rights to raise any such objection before this court.
9.6 Clause 15.2 of the Flat Buyers Agreement is reproduced as under :
15.2. upon possession (Proprietary or otherwise) of the said premises being taken by the Intending Purchaser, the Intending Purchaser shall have no claim against the Intending Seller with regard to any item of work, quality of work, materials, installations, etc. In the said premises or on any ground whatsoever and all such claims, if any, shall be deemed to have been waived. All complaints that the Intending Purchaser may have with respect to the said Premises should first be resolved by the Intending Purchaser with the Intending Seller before taking over the possession of the said Premises."
9.7. Counsel has further drawn my attention to clause (G) and (H) of Conveyance Deed at page no.4. which mentions that in case vendee has any issue with regard to any matter pertaining super area charge, car parking charges etc, he could have raised said dispute with the vendor at the time of offer of possession. It is important to reproduce said relevant clauses of the Conveyance Deed which are as under :
"F. The vendee represents and confirms that the Vendee has carried out a detailed inspection of the Residential Unit and it fully satisfied with the same.
G. The Vendee further represents and confirms that the Vendee has no issue or dispute with the Vendors with CS no 55547 of 2016 Page no.13 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors respect to the said Residential Unit on any aspect including qulaity of construction, material used in construction, finishing/fittings, fixtures, specifications etc, super area, common area, charges for EDC, IDC, Car parking, power back up, Electricity connection, Club membership and Maintenance and on being fully satisfied, the Vendee has requested the Vendore to get the Conveyance Deed of the Residential Unit executed and to hand over the physical possession, H. The Vendee further confirms that after the execution of the Conveyance Deed, the Vendee shall not raise any issue or dispute with respect to the Residential Unit on any aspect at anytime in future.
10. I have duly considered the aforementioned submissions raised from both sides and also carefully perused the entire record including the Flat Buyer Agreement dated 30.03.2007 as well as the Conveyance Deed dated 19.11.2010.
11. Admittedly, plaintiffs did not lead any evience to prove their case. Further there is no admission on the part of defendants in respect of any of the aforementioned claims towards differential amount, External Development Charge (EDC) or towards car parking charges either in the WS or in any other document placed on record. In absence of any evidence in support of any of the claims raised in the plaint, the issue is liable to be decided against the plaintiffs and in favour of the defendants. The issue no.1 stands accordingly decided.
12. Issue no. 2 If the issue no.1 is proved in affirmative, whether the plaintiff is entitled of pendentilite and future interest & if so, as what rate ? OPP.
CS no 55547 of 2016 Page no.14 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors In the light of my finding on issue no.1, this issue is also decided against the plaintiffs and in favour of the defendant.
13. Issue no. 3.
Whether this court has no jurisdiction to entertain the present case ? OPD.
The onus of proving this issue was upon the defendants. However, no evidence was adduced even from the defendants' side to discharge onus of said issue. On the other hand, the plaint of the suit shows that the address of all the three defendants is of Connaught circus, New Delhi falling within the territorial jurisdiction of this court and considering the nature of present suit which is for recovery of damages and refund of certain excess payment, in the light of Section 20 clause (a) of CPC, this court does have the territorial jurisdiction to try and entertain the present suit. The issue is accordingly decided in favour of plaintiffs and against defendants.
14. Issue no. 4 Whether the suit is time barred ? OPD.
The onus of proving this issue was on the defendants however, no evidence was adduced from the defendants side to discharge onus of said issue. However, issue being a legal issue, it was bounden duty of plaintiff to satisfy the court that their claim was within limitation, whereas, plaintiff also did not lead any evidence in this regard.
CS no 55547 of 2016 Page no.15 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors 14.1 As per clause (1) of Conveyance Deed dated 19.11.2010, the physical possession of flat was handed over to vendee simultaneously to execution of sale deed i.e. on 19.11.2010. As per record suit was instituted on 16.11.2013. All the payment under different heads towards differential amount on revision of super area, Power Backup Facility, EDC, electricity connection and car parking, of which refund has been sought, were paid much prior to handing over of possession of suit flat. As such, apparently all the claims except the claim of compensation for delay in handing over of possession are apparently barred by limitation. This issue stands accordingly decided.
15. Issue no.5 Whether no cause of action has been made out against the defendant? OPD.
The onus of proving this issue was on the defendants however, no evidence was adduced from the defendants' side to discharge onus of said issue.
15.1 Further, in the light of my findings on issue no. 1, even plaintiffs failed to prove the averments contained in the plaintiff for proving the cause of action in their favour for entitling them to seek recovery of alleged claims. The issue stands accordingly decided against the plaintiffs.
CS no 55547 of 2016 Page no.16 Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors
16. In the light of my findings on the aforementioned issues, suit of the plaintiffs is dismissed. Parties are left to bear their own costs.
17. Decree-sheet be drawn accordingly. File be consigned to record room.
Announced in the open court.
(Sunena Sharma)
Additional District Judge-04
Judge Code DL00222
PHC/ND/15.12.2021
CS no 55547 of 2016 Page no.17
Mrs. Manju Gangwar and anr Vs. M/s BPTP Limited and ors