State Consumer Disputes Redressal Commission
Satpal Singh Bhatia vs B.P.T.P. Ltd. on 21 February, 2018
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Hearing: 20.02.2018 And 21.02.2018 Date of decision: 01.03.2018 COMPLAINT NO-509/2014 IN THE MATTER OF: Sh. Satpal Singh Bhatia, D 197, Saket, New Delhi-110017 Smt. Shalini Bhatia, D 197, Saket, New Delhi-110017 ....Complainants VERSUS Business Park Town Planners Ltd., M-11, Middle Circle, Connaught Place, New Delhi-110001 ....Opposite Parties HON'BLE SH. O.P. GUPTA, MEMBER(JUDICIAL) HON'BLE SH. ANIL SRIVASTAVA, MEMBER 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Present: Sh. Rakesh Sachdeva, Counsel for the Complainant. Sh. Prayag P Sharma with Smt. Madakani Sharma for the OP PER: SHRI ANIL SRIVASTAVA, MEMBER (G) JUDGEMENT
Sh. Satpal Singh Bhatia and Smt. Shalini Bhatia, husband and wife, resident of New Delhi, have filed this complaint under Section 17 of the Consumer Protection Act 1986, for short complainants against Business Park Town Planners Ltd., herein after referred to as opposite parties, alleging deficiency of service on the part of the OP in not handing over physical possession of the flat applied for by the complainants despite payment as demanded from time to time having been made and praying for possession of the flat as also claiming compensation owing to the delay done.
Facts of the case are these.
The complainants had made an application with the opposite parties for booking of a three bed room flat admeasuring 1400 Sq ft on 04.04.2006 and paid the booking amount of Rs, 4,00,000/- for this purpose and as a consequence thereof the OPs made on offer of allotment of flat in their project at Princess Park bearing flat no: 1001, 10th Floor, Block No-K on a basic sale price of Rs. 15,069.60/- per Sq Mrs. Other terms and conditions in this behalf are as under:
Preferential location Charges - NIL Charges for Parking Space - Rs. 75,000/-
Interest free maintenance Security - Rs. 50/- per Sq ft.
External Development Charges + Infrastructure Development Charges - Rs. 145/- sq ft.
Electric Connection Charges + five ____ Charges + power back up installation - Rs 200/- per sq ft Club Membership Charges - Rs. 50,000/-
The complainants had opted for installment payment plan. Payments were made by the complainant according to the plan opted. OPs had also clarified vide their letter dated 10.05.2007 that their building plan has been approved by the Director, Town and Country Planning Chandigarh and the construction work would commence. Flat buyer agreement (Tri-party) was executed on 28.09.2007 and the relevant clauses of the said agreement are indicated below:
2.1 The Subject to Clause 9 and subject to the Purchaser having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this agreement and having complied with all provisions, formalities, documentation etc., as prescribed by the Seller/Confirming party, whether under this Agreement or otherwise, from time to time, the Seller/Confirming party proposes to hand over the possession of the Flat to the Purchaser within a period of 36 months from the date of sanction of the building plans of the said complex. The purchaser agrees and understands that the Seller/Confirming Party shall be entitled to a grace period of 180 (One Hundred and Eighty) days, after the expiry of 36 months, for applying and obtaining the occupation certificate in respect of the Complex from the concerned authority. The Seller/Confirming party shall give Notice of Possession to the purchaser with regard to the handing over of possession, and in the event the Purchaser fails to accept and take the possession of the said flat within 30 days of, the purchaser shall be deemed to be custodian of the said flat from the date indicated in the notice of possession and the said flat shall remain at the risk and cost of the Purchaser.
2.2 The Purchaser shall only be entitled to the possession of the said Flat after making the full payment of the Consideration and other charges as payable under the Agreement. Under no circumstances shall the possession of the said Flat be given to the Purchaser unless all the payments in full, along with interest due, if any, have been made by the Purchaser in accordance with this Agreement.
2.3 Subject to remittance and adherence to the terms and conditions of this Agreement by the Purchaser and subject to clause 9, if, the Seller/Confirming Party fails to offer possession of the said Flat within a period of 42 months from the date of sanction of the building plans of the said Complex, it shall be liable to pay to the Purchaser compensation calculated @ Rs. 5/- (Rupees Five Only) per Sq.ft. for every month of delay thereafter until the actual date fixed by the Seller/Confirming Party for handing over of possession.
The complainant has further submitted that they were offered possession of the Flat by the OPs vide their letter dated: 18.09.2013, after the delay of 41 months. The relevant extracts of the letter are as under:
But in this letter nothing has been addressed on the point of delay. With the offer of possession an amount of Rs.7,70,672.77 which included the requisite amount required for stamp duty, was demanded and which amount the complainant had paid in two installments but the possession of the flat has not been delivered. Delay of 47 months has occurred in the process. The complainant has alleged that for this reason they had suffered financially. A letter was also addressed by the complainants on 26.08.2014 requesting the OPs as under:
That the above flat's possession and registration be done withing 3 weeks from the date of this letter but not later than 15th September 2014.
Interest @ 18% (the rate at which BPTP has levied penalty) be sent immediately on the final amount paid plus on the registration & stamp duty fees plus on the one year maintenance charges, since BPTP has been using this money unethically.
Excess payment of Rs. 30222.00/- per your records, be sent immediately.
Late delivery penalty should be paid immediately as I have already paid interest on the late payments.
The OPs did not respond to the appeals made by the complainants leading to filing of this compliant in this Commission on 18.10.2014 with the following prayers:
Direct the opposite party to immediately handover the possession of flat/apartment No. K-1001 Princess Park, Sector-86, Faridabad, Haryana to the complainants and get it registered with the registrar of assurances at an earliest.
Direct the opposite party to refund Rs. 1,84,500/- charged as Preferential Location Charges with interest @ 15% from the date of its payment till realization.
Direct the opposite party to refund the excess money of Rs. 33,000/- with interest @ 15% per annum till its realization.
Direct the opposite party to Pay Rs. 3,21,139/- as calculated in the Para 4 hereinabove with interest @ 15% till its realization.
Direct to the opposite party to pay the interest @ 15% on stamp duty amounting to Rs. 2,33,000/- paid on 31.10.2013 by the complainants to the opposite party till its deposition with the government.
Direct the opposite party to refund of Rs. 54,731/- charged as yearly maintenance charge for the period 19.10.2013 to 19.10.2014 along with interest @ 15% per annum.
Direct the opposite party to pay interest @ 15% on Rs. 94,400/- deposited by the complainants as interest free maintenance security from the date of its deposit till the handing over the possession.
Direct the opposite party to pay Rs. Ten Lakhs as compensation for harassment, mental agony and suffering caused to the complainant etc. Direct the opposite party to pay interest at the rate 15% per annum on the balance amount paid by the complainants from the date of payments till the date of handing over the possession of apartment/flat No. K-1001 Princess Park, Sector-86, Faridabad, Haryana to the complainants.
Direct the opposite party to pay Costs.
The OPs were noticed by this Commission and when they did not appear despite service of notice it was ordered on 24.09.2015 to proceed ex-parte as against them. The complainant have filed their evidence reiterating what they had averred in the complaint.
The matter was listed before us for final hearing on 20.02.2018 when the ld. Counsel for the complainant advanced his arguments and made his submissions. Orders were reserved, granting liberty to the OP to advance their arguments, if any on the following day, 21.02.2018 which the ld. Counsel for the OP did. We have perused the records of the case and given a careful consideration to the subject matter.
The ld. Counsel for the OPs argued that they are ready to deliver the possession of the subject flat. The ld. Counsel for the complainant on the other hand stressed the point that despite he having made the payment as required and despite the agreed time having elapsed, the OP have not adhered to the terms of the agreement in handing over the physical possession of the flat which they were under an obligation to do so.
The ld. Counsel for the Complainant has alleged deficiency in service and unfair trade practice on the part of the OPs in not handing over the possession of the flat in question within the time, resulting in the financial loss and mental agony to the complainant. In that view of the matter the inevitable conclusion is that there was "deficiency", as defined in Section 2(1)(g) of the Act, on the part of OP in its failure to deliver possession of the subject flat to the complainants in terms of the agreement. It is a trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade as defined, under Section 2(r) (ii) of the act, as well. (See: Lucknow Development Authority vs. M.K. Gupta-(1994) 1 SCC 243).
Having bestowed our anxious consideration to the facts at hand, we are of the opinion, that the complaint deserves to be accepted. Having arrived at the said conclusion, the core question for consideration is as to how the complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OP on account of non-delivery of the allotted flat within time.
The provisions of the act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental, or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to inaction on the part of the OP. In Ghaziabad Development Authority vs. Balbir Singh-(2004) 5CC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations, given in the said decision was between the cases, where possession of a booked/ allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.
We have given our careful consideration to the subject matter as also the law laid down by their Lordships. We are of the considered view that ends of justice would be met if the OPs are directed to deliver the possession of the flat as agreed to by the ld. Counsel for the OP during the counsel of the argument. This may be done within two months from the date of receipt of this order.
Indisputably there is delay in handing over the possession. The complainants are therefore entitled for the compensation. For delay, keeping in view the terms of agreement, para 2.3., as detailed in the preceding paragraph, the OPs are liable to pay to the complainant compensation calculated @ 5/- per sq.ft. for every month of delay until the actual date of the handing over the possession. In our view, the delay being abnormal, compensation @ Rs 5 sq.ft. is not adequate. In our view the compensation be calculated and paid to the complainant @ 10/- per sq.ft for every month of delay until the date of handing over of the possession and secondly until the date of receipt of the completion certificate from the authority concerned.
We also direct the OPs to refund Rs. 54,731/- charged as yearly maintenance charges as, as per the settled law, no amount can be demanded in this behalf without possession having been handed over. The Hon'ble NCDRC in the matter of Sh. Kamal Kishore versus Supertech as reported in II(2017) CPJ 483(NC) held as under:
"Maintenance charges would be payable only after the date when occupancy certificate is obtained. Therefore the maintenance charges, in my opinion, would be payable only from the date on which the possession is offered to the complainant, after obtaining the occupancy certificate provided the construction of the villa is complete in all respect at that time."
We order accordingly.
Let a copy of this order be forwarded to the parties to the case free of cost as statutorily required and the file be consigned to record.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER (GENERAL) MEMBER (JUDICIAL)