Haryana

StateCommission

CC/351/2016

JYOTI AMAN RANA - Complainant(s)

Versus

BPTP LTD. - Opp.Party(s)

ROHIT GOSWAMI

25 Apr 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No     :    351 of 2016

Date of Institution:    18.11.2016

Date of Decision :     25.04.2018

 

1.     Mrs. Jyoti Aman Rana w/o Sh. Devendra Singh Rana, E1-77, Sector-14, Chandigarh-160014.

2.     Mr. Devendra Singh Rana s/o Sh. B.S. Rana, E1-77, Sector-14, Chandigarh-160014.

                                      Complainants

Versus

 

1.      M/s BPTP Limited 1117-1120, 11^th Floor Tower-B DLF Tower Jasola District Centre, New Delhi-110025.

2.      M/s BPTP Limited, Sector-81, Near Aaravali International School Faridabad.

3.      M/s BPTP Limited 15, Udyog Vihar Phase IV, Gurgaon-122015.

 

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Rohit Goswami, Advocate for complainants.

                             Shri Hemant Saini, Advocate for opposite parties.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        M/s BPTP Limited –Opposite Parties (for short ‘the builder’) engaged in the development of various real estate projects in Delhi, Noida, Gurgaon and Faridabad having its head office at Gurgaon and marketing office at Faridabad. The complainants No.1 and 2 – wife and husband, booked a flat with the opposite parties in their Park ELITE Floors in Parkland, Faridabad in response to an advertisement through brochure and different publicity modes. The complainants were allotted flat No.P-16/6, Ground Floor, Block-P having tentative built up area of 876 Square feet, vide allotment letter dated 24.12.2009 (Exhibit C-5). The total sale price of the flat was Rs.17,61,680/- including an amount of Rs.16,08,000/- Basic Sale Price (BSP) after deducting an amount of Rs.64,320/- as discount. The complainants had paid an amount of Rs.2.00 lacs towards the booking of flat. The remaining sale price amount was to be paid as per Construction Linked Plan and in case of default, the complainant was to pay interest at the rate of 18% per annum. The complainants paid an amount of Rs.7,75,762/- being 45% of the total sale price amount up to 01.05.2010. Thereafter, Floor Buyer’s Agreement (Exhibit C-6) was executed on 01.05.2010. As per terms and conditions in the agreement, the opposite parties were required to deliver possession of the allotted flat after completion of construction work and providing all required basic amenities within a period of three years including six months grace period.

2.                Later on the builder increased area of the flat and claimed an amount of Rs.50,000/- as Club Membership charges; Rs.20/- per Sq. ft. as interest free maintenance security and to pay at the rate of Rs.2425/- per Sq. ft regarding increase in the area. Ultimately, after adding electrification charges, cost of installing sewerage treatment plant etc., the complainant was required to make total payment of Rs.25,11,557/- instead of Rs.17,69,680/-. As per terms and conditions, the complainants shall be entitled to receive compensation at the rate of Rs.5/- per square feet per month of the total built up area in case delivery of possession is not possible within time prescribed. The complainants have already paid an amount of Rs.21,72,259.85 being 85% of the total amount of Rs.25,11,555/-. The builder-opposite parties claimed an amount of Rs.4,22,283/- due to increase in super built up area. Apart from it, demand was raised for payment of Rs.76,614/- on account of increase in External Development Charges (EDC) and Infrastructure Development Charges (IDC), as per directions of the Haryana Government. The opposite parties could not complete construction work and could not deliver possession to the complainants after more than a period of seven years.

3.                The complainants have filed the present complaint under Section 17 of the Consumer Protection Act, 1986 with a prayer to direct the opposite parties to allot the flat of same size in the same area and to pay interest to the complainants at the rate of 18% per annum regarding the amount deposited. The complainants have taken plea in the alternative that the opposite parties be directed to refund the entire deposited amount of Rs.21,72,259.65 with interest at the rate of 18% per annum; to pay an amount of Rs.5.00 lacs as compensation on account of un-necessary harassment, mental agony and an amount of Rs.2.00 lacs as litigation expenses.

4.                The opposite parties in their written version have taken plea that the complaint filed by the complainants is not maintainable as the complainants are investors; that the District Forum has no territorial jurisdiction to decide this complaint; that the complainants have concealed this aspect earlier that they had approached Permanent Lok Adalat Public Utility Services, Faridabad for settlement of the dispute in between the parties. In view of the observations made by the Permanent Lok Adalat Public Utility Services, Faridabad, this complaint is not maintainable before this Commission and that the complainants have raised dispute regarding payment of charges towards Club Membership and increase in the super area etc. after more than a period of six months. The opposite parties have taken plea that vide order dated 19.02.2016, Permanent Lok Adalat Public Utility Services, Faridabad made observations that complicated questions of law and facts are involved which required leading of extensive evidence of both the parties. It is pleaded that this complaint should not be decided by adopting Summary proceedings.

5.                Apart from it, if there was controversy of any type in between the parties regarding plot allotted to the complainants, the matter should have been referred to the arbitrator.  As per terms and conditions mentioned in the agreement, the opposite parties have raised claim regarding maintenance charges, infrastructure development charges, preferential location charges and other charges as per terms and conditions mentioned in the buyers’ agreement. The opposite parties have also taken plea that the complainants time and again caused delay in payment of installments of the total remaining sale price amount and other charges. In this regard, letters were issued to the complainants on 29.11.2010; 19.12.2010; 16.03.2011, 19.04.2011, 15.07.2011 and 14.03.2012. The opposite parties also had to issue letters on 09.08.2012 regarding payment of enhanced EDC amount as per directions of the State Government and thereafter reminders were issued on 29.10.2012, 14.12.2012, 19.02.2013 and 24.04.2013. The complainants made payment of the remaining amount on 22.08.2013. As per version of the opposite parties, the complainants did not make payment of the installments of the total sale price and other charges in time and caused delay time and again.

6.                As per terms and conditions of the agreement, the allotment of the unit can be cancelled in case even a installment of the sale price amount is not paid in time. The opposite parties could not complete construction work in time as it took time to obtain permission of the Town and Country Planning Department Haryana. The opposite parties made all possible efforts to complete construction work in time. Out of the total units 3444, possession of 2046 units has already been offered and construction work of the remaining 1653 units could not be completed. In fact, Town and Country Planning Department Haryana caused delay in giving approval of the building plans. In fact, the opposite parties could not deliver possession within time due to force majeure circumstances beyond reasonable control of the opposite parties. In the buyer’s agreement also it was mentioned that the possession will be delivered within 24 months from the date of sanction of building plan. In fact at the stage of booking, it was clearly agreed and understood between the parties that the booking is provisional and that the allotment shall be conducted by draw.

7.                It is admitted fact that the buyer’s agreement was executed on 01.05.2010 and till that date, the complainants had made payment of an amount of Rs.7,75,762/-. Moreover, merely because possession could not be delivered in time, the opposite parties should not be directed to refund the entire amount deposited by the complainants because the circumstances were beyond the control of the opposite parties. Moreover, there is provision in the buyer’s agreement that in case possession is not delivered in time, the builder can be directed to compensate by making payment at the rate of Rs.5/- per sq. ft of the total built up area. It is admitted that the construction work of the flat allotted to the complainants has not been completed so far. It is prayed that the complaint filed by the complainants be dismissed with cost.

8.                Mrs. Jyoti Aman Rana-complainant has appeared as CW-1 and produced the following documents:-

1.	Advertisement of BPTP	Exhibit C-1
2.	Receipt No.2009/1400002381 regarding booking of unit	Exhibit C-2
3.	Receipt No.2009/1400002382 regarding booking of unit	Exhibit C-3
4.	Receipt No.2009/1400002383 regarding booking of unit	Exhibit C-4
5.	Allotment Letter dated 24.12.2009	Exhibit C-5
6.	Buyer’s Agreement dated 01.05.2010	Exhibit C-6
7.	Demand Letter dated 24.02.2010	Exhibit C-7
8.	Letter dated 12.05.2010 regarding statement of account as on May 12, 2010	Exhibit C-8
9.	Letter dated 06.06.2012 regarding statement of account as on June 06, 2012	Exhibit C-9
10.	Letter dated 26.09.2012 regarding statement of account as on September 26, 2012	Exhibit C-10
11.	Letter dated 31.08.2010 regarding execution of Addendum Agreement	Exhibit C-11
12.	Final Reminder dated 20.10.2010	Exhibit C-12
13.	Payment request letter dated 29.11.2010	Exhibit C-13
14.	Payment request letter dated 19.12.2010	Exhibit C-14
15.	Payment request letter dated 16.03.2011	Exhibit C-15
16.	Final demand notice dated 14.03.2012	Exhibit C-16
17.	Receipt of payment of Rs.100000/-	Exhibit C-17
18.	Receipt of payment of Rs.74568.40	Exhibit C-18
19.	Receipt of payment of Rs.24569.42	Exhibit C-19
20.	Receipt of payment of Rs.200000/-	Exhibit C-20
21.	Receipt of payment of Rs.376318/-	Exhibit C-21
22.	Receipt of payment of Rs.203396/-	Exhibit C-22
23.	Receipt of payment of Rs.7917/-	Exhibit C-23
24.	Receipt of payment of Rs.120000/-	Exhibit C-24
25.	Receipt of payment of Rs.86950.87	Exhibit C-25
26.	Receipt of payment of Rs.11730/-	Exhibit C-26
27.	Receipt of payment of Rs.10.13/-	Exhibit C-27
28.	Receipt of payment of Rs.1,81,000/-	Exhibit C-28
29.	Receipt of payment of Rs.3,99,879/-	Exhibit C-29
30.	Payment request letter dated 15.07.2011	Exhibit C-30
31.	Letter dated 09.08.2012 regarding enhancement of External Development Charges (EDC)	Exhibit C-31
32.	Letter dated 16.08.2013 regarding statement of account as on August 16, 2013	Exhibit C-32
33.	Order dated 19.02.2016 passed by Permanent Lok Adalat Public Utility Services, Faridabad	Exhibit C-33

 

9.                The opposite parties in their evidence examined OPW-1 Siddhant Yadav, authorised representative of BPTP Limited and produced the following documents:-

 

1	Letter of authority	Exhibit OP-1
2	Final Opportunity Notice dated 28.05.2011	Exhibit OP-2
3	E-mail message dated 12.10.2017	Exhibit OP-3
4	E-mail message dated 06.12.2017	Exhibit OP-4
5	E-mail message dated 13.12.2017	Exhibit OP-5
6	Letter dated 27.03.2009 sent by Financial Commissioner & Principal Secretary to Government Haryana Town and Country Planning Department to All Deputy Commissioners-cum-Registrars in the State	Exhibit OP-6

 

10.              We have heard learned counsel for the parties and perused the case file.

11.              During the course of arguments, there was no controversy of any type that on 20.05.2009, complainants both wife and husband booked a flat with the opposite parties on payment of Rs.2.00 lacs as booking amount. Vide allotment letter dated 24.12.2009 (Exhibit C-5) Unit No.P-16/06 Ground Floor , Parklands, Sector-75, Faridabad was allotted in the name of the complainants. Buyer’s agreement Exhibit C-6 was executed on 01.05.2010.  It is also admitted fact that till 01.05.2010, date of execution of the buyer’s agreement, an amount of Rs.7,75,762/- being 45% of the total sale price amount was deposited with the opposite parties.

12.              It is also admitted fact that initially at the time of execution of buyer’s agreement, the sale price of the flat was Rs.17,69,680/-. It is also admitted fact that later on due to increase in the area and demand of Club Membership Charges, interest free maintenance security charges, deposit for electricity connection, sewerage treatment plant administrative charges etc., the total sale price including basic sale price and other charges mentioned above became Rs.25,11,557/-instead of Rs.17,69,680/-. It is also admitted fact that out of the total amount mentioned above, the complainants have already made payment of an amount of Rs.21,72,259/- which is evident from the receipts regarding payment Exhibit C-17 to Exhibit C-29 and receipts Exhibit C-3 and Exhibit C-4. In this way, situation is clear that as per demand raised by the opposite parties, the complainants were required to pay an amount of Rs.3,39,298/-. As per version of the complainants, they did not make payment of the remaining amount as the opposite parties even did not start construction work of the flat allotted to the complainants.

13.              Shri Siddhant Yadav, OPW-1 when appeared in the witness box admitted that construction work of the flat allotted to the complainants has not been completed so far. Shri Siddhant Yadav stated that possession of this unit is likely to be delivered up to the month of November, 2018. OPW-1 also admitted that up to the date of execution of the buyer’s agreement 45% of payment of the total sale price of the flat had been made. OPW-1 in his cross-examination stated that the date of sanction of the building plan was received in the year 2014 although the opposite parties applied for sanction of the building plan in the year 2009.

14.              During the course of arguments, learned counsel for the opposite parties argued that construction work of the unit could not be completed and possession could not be delivered to the complainant due to the circumstances beyond the control of the opposite parties. Town and Country Planning Department Haryana caused un-necessarily delay in sanction of the building plan and moreover, claim of the complainant should not be accepted because the complainants have also committed default time and again regarding payment of the installments of the sale price amount and other charges. Learned counsel for the opposite parties argued that even if the opposite parties are found at fault regarding causing delay in delivery of possession, as per terms and conditions mentioned in the buyer’s agreement,  the allottee can be compensated by making payment to the complainants at the rate of Rs.5/- per sq. ft. of the super area.

15.              In our view, the findings in this case cannot be given in favour of the opposite parties merely because delay was caused by Town and Country Planning Department Haryana regarding sanction of the building plan. Firstly, the opposite parties should have invited the public persons to invest their amount for booking of the units after completion of all such like formalities. In case, the building plan had not been sanctioned, the opposite parties should not have invited applications for booking of the flats. Any how it was mentioned under Clause 4.1 of the buyer’s agreement also that the possession shall be delivered after 30 months including six months grace period after building plan is sanctioned by the Government. In our view, due to this reason also prayer of the complainants in this complaint cannot be declined because OPW-1 Siddhant Yadav in his cross-examination has stated that the building plan after sanction was received in the year 2014. Even if it be presumed that opposite parties were required to deliver possession of the unit after 30 months from the date of sanction of the building plan, even then the opposite parties could not deliver possession of the unit after expiry of a period of 30 months. Shri Siddhant Yadav, authorised representative when appeared in the witness box on 16.03.2018 has stated that the construction work still could not be completed and the opposite parties are likely to deliver possession of the unit up to the month of November, 2018. In our view on this ground, the claim of the complainant cannot be declined.

16.              During the course of arguments, learned counsel for the opposite parties also argued that when the complainants were themselves at fault and did not make payment of the installments of the sale price amount and other charges in time, they are not entitled to claim refund of the amount deposited. Learned counsel for the opposite parties argued that due to default of payment of any installment, the allotment in the name of allottee can be cancelled and the builder is entitled to recover interest at the rate of 18% per annum. We are not much impressed with this contention of the learned counsel for the opposite parties. In our view, the opposite parties cannot be allowed to raise this plea at this stage. Although the complainants also caused delay in payment of installments of the sale price amount and other charges but on this ground the opposite parties did not issue any specific letter regarding cancellation of the allotment in favour of the complainants and regarding forfeiture of the earnest money. The opposite parties did not take it seriously and now the opposite parties have raised this issue after accepting payments which were made after due dates. The complaint of the complainants cannot be dismissed on this ground also.

17.              Learned counsel for the opposite parties also argued that the opposite parties should not be given direction for refund of the amount deposited merely because construction work could not be completed in time. Learned counsel for the opposite parties argued that there is specific provision under Clause 4.1 of the buyer’s agreement that in case the construction work is not completed and possession could not be delivered within prescribed period, the allottees can be compensated by making payment at the rate of Rs.5/- per square feet of the total super area. Learned counsel for the opposite parties argued that instead of giving direction for refund of the total amount deposited, the complainants should be compensated as per terms and conditions of the buyer’s agreement Exhibit C-6. We are not much impressed with this contention of the learned counsel for the opposite parties. It is a clear case of un-necessary harassment of the complainants due to faults on the part of the opposite parties. The complainants applied for allotment of a flat with the opposite parties on 20.05.2009 with the assurance that possession of the flat after construction will be delivered to them within 30 months including six months grace period. The opposite parties could not able to deliver possession to the complainant till today 25.04.2018. The complainants have already made 85% payments of the total sale price amount. The opposite parties could not provide a flat to the complainants after more than a period of nine years. The complainants had made payment for allotment and obtaining possession of a flat and they have not deposited the above mentioned amount to earn interest and that is also as per desire of the opposite parties as per terms and conditions mentioned in the buyer’s agreement.

18.              The opposite parties have also taken plea that the State Commission Haryana has no jurisdiction to decide this complaint as under Clause 34 of the buyer’s agreement, it is mentioned that this agreement shall be subject to the jurisdiction of the Courts at New Delhi and High Court of Delhi at New Delhi.  Admittedly, office of the opposite parties is located at Gurgaon and allotted flat is situated at Faridabad.  There is no controversy of any type that the cause of action to file the present complaint arose within the territorial jurisdiction of this Commission.  Much discussion is not needed on this point of controversy in view of the decision of the Hon’ble Supreme Court of India in case law (2011) 7 Supreme Court Cases page 463 titled as Interglobe Aviation Limited Vs. N. Satchidanand as well as decision of the Hon’ble National Commission dated 13.01.2014 while deciding First Appeal No.225 of 2013 titled as Ms. Melanie Das Vs. Royal Sundarm Alliance Insurance Company Ltd. & others. While deciding the above case laws in similar circumstances, findings were given that the jurisdiction cannot be restricted by contractual clause in between both the parties excluding jurisdiction of all other courts if cause of action or part of cause of action did not arise at the place mentioned in contractual clause. Resultantly, findings are given that State Commission, Haryana has jurisdiction to decide this complaint.

19.              Learned counsel for the opposite parties has also argued that the matter should be referred to the arbitrator as per clause 33 of the Buyer’s Agreement, Exhibit C-6. Learned counsel for the opposite parties has contended that after enactment of the Arbitration and Conciliation (Amendment) Act, 2015 in Section 8 of the Arbitration Act, it is mandatory for this Commission to refer the parties to arbitration. It will be pertinent to mention here that in this complaint case after filing written version, the opposite parties filed an application under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 on 20.09.2017.

20.              Section 3 of the Consumer Act is relevant to adjudicate the point at issue. So, it is necessary to reproduce the provisions of Section 3 of the Consumer Act:-

“3. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

21.              A reading of Section 3 of the Consumer Act, referred to above, clearly shows that it provides additional remedy and existence of arbitration clause in the agreement to settle disputes between the parties, is not a bar to entertain a complaint filed by the consumer, alleging deficiency in service in providing services etc.  It is a remedy in addition to and not in derogation to any other remedy available to an individual. 

22.              Hon’ble Supreme Court in Skypak Couriers Ltd. v. Tata Chemicals Ltd., (2000) 5 SCC 294 held as under:-

                   “Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.”

23.              In Trans Mediterranean Airways v. Universal Exports 2011(4) R.C.R.(Civil) 472 (SC), Hon’ble Supreme Court held as under:

                   “In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy.     

24.              No doubt these authorities were rendered prior to the amendment of Section 8 of the Arbitration Act, 1996 but even then the spirit of Section 8 of Arbitration (Amendment) Act, 2015 and Section 3 of the Consumer Act is the same, that is, the remedy is in addition to and not in derogation to any other remedy available.  In a recent judgment Lt. Col. Anil Raj and Another Versus M/s Unitech Limited and another, C.C. No.346 of 2013, decided on May 02^nd, 2016, Hon’ble Mr. Justice D.K. Jain, President, National Consumer Disputes Redressal Commission, New Delhi after considering the amendment in Section 8 of the Arbitration (Amendment) Act, 2015 held that in spite of the recent amendments in the Arbitration Act that the protection provided to the consumers under this Act is in addition to the remedies available under any other statute, including the consentient arbitration under the Arbitration Act.  It was held that the complaint filed by a consumer before the Consumer Fora would be maintainable despite there being an arbitration clause in the agreement to refer the dispute to the Arbitrator.  Hence, the contention raised by learned counsel for the builder is rejected.  As per discussions above in detailed, we find no merit in the application filed by the opposite parties under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 on 21.09.2017 and the same stands dismissed.

25.              As per discussions above in detail, we have no hesitation in holding that the complainants had to face un-necessary harassment and mental agony due to faults of the opposite parties. The complainants cannot be asked to wait for more time. It is a fit case to give direction to the opposite parties to refund the total amount deposited by the complainants Rs.21,72,259/- with interest at the rate of 12% per annum from the date of respective deposits till realisation; to pay an amount of Rs.25,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.10,000/- as litigation expenses. 

26.              Hence, the complaint is accepted. The opposite parties are directed to refund the total amount of Rs.21,72,259/- to the complainants with interest at the rate of 12% per annum from the date of respective deposits till realisation; to pay an amount of Rs.25,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.10,000/- as litigation expenses. 

 

Announced: 25.04.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL