Delhi

East Delhi

CC/399/2022

JIGEESH A.M. & ANR. - Complainant(s)

Versus

M/S B.S. BUILDTECH - Opp.Party(s)

31 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.399/2022

 

	Mr. Jigeesh A.M. Flat No. B-38, Manavsthali Apartments Plot No.6, Vasundhara Enclave, Delhi-110096.	….Complainant No.1
	Mrs. Anupama Sasi W/o. Mr. Jigeesh A.M. Manavsthali Apartments, Plot No. 6, Vasundhara Enclave, Delhi-110096.	….Complainant No.
Versus
	M/s B.S. Buildtech throgh Managing Director A1/B-64, Janakpuri New Delhi-110058.   Also at: Vaibhav Heritage Height GH-01E, Sector-16, Greater Noida (West), Uttar Pradesh.	……OP

 

Date of Institution	:	18.07.2022
Judgment Reserved on	:	11.05.2023
Judgment Passed on	:	31.05.2023

               

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

Order By: Ms. Rashmi Bansal (Member)

 

JUDGMENT

The present case is filed by the complainant against OP alleging deficiency in services and unfair trade practice in not handing over the possession of flat booked by him despite having received 95% of the payment and thereby not returning the amount despite demand by the Complainant.  The Complainant is claiming the refund along with compensation for mental agony, torture and harassment and litigation cost with interest.

1. Succinctly, the facts of the case unfolded from the complaint are that the complainant is the allottee of unit C- 2004/ Tower-C (customer ID: VH – 000319) comprising 3BHK + 2T measuring 1450 sq. ft. in OP’s project of group housing complex named as ‘Vaibhav Heritage Heights’ at GH – 01E, Sector 16, Greater Noida West,  for which it was assured by the OP that it will be one of the best in the category in India, with all facilities, amenities, locality, and construction and completion of the same will be carried out well on time as per schedule and possession will be given within 36 months from the date of booking. Believing the assurances of the OP, the complainant on 26.11.2014, booked a unit by paying a booking amount of Rs.1,00,00/-  through cheque dated 26.11.2014 against receipt number 0020. The Builder-Buyer Agreement dated 18.12.2014, and tripartite agreement dated 18.12.2014 between the complainant, Opposite Party and Housing Development Finance Corporation, Allotment Letter dated 08.03.2019 and another Builder-Buyer Agreement dated 05.04.2019 as executed between OP and complainant have been relied upon.
2. The payment was agreed between the parties in the following manner:
   • 10% upon booking;
   • 10% within 30 days of booking,
   • 75% at different stages of construction and
   • the remaining 5% is to be paid on the offer of possession of flat
3. The Complainant submits that he has paid a total sum of Rs. 42,73,444/-  i.e. equal to 95% of the consideration for the above said flat which was a Construction-Linked Payment Plan as per demand raised by  OP from time to time. A letter dated 05.06.2019 was also issued by OP for permission to mortgage the Flat to House Development Finance Corporation. The complainant submits that the Flat was taken by him for his own use and residence purpose and he had made all the payments timely in expectation of the timely possession of the Flat. The complainant stated that he has not been hearing anything from the OP regarding the status of the construction or the stage of completion and with respect to the possession of the said Flat and none of his telephonic calls,  emails and letters were replied by OP.
4. The complainant also submits that the Allotment Letter And Builder-Buyer Agreement have been framed and drafted by the OP in a totally one-sided manner in order to fleece and cheat the complainant and since beginning, the OP was not intending to complete the construction work of the flat and give possession in time and delayed the project deliberately and knowingly utilised the fund received for his own use. The complainant alleges unfair and illegal trade practices and deficiency of services on the part of OP in not completing the project in time and handing over the possession to the complainant as promised and failing to comply with the terms of the Builder Buyer Agreement. The complainant submits that there is an inordinate and unexplained delay of almost 5 years from the first date of receiving the money and till date the OP failed to complete the construction of the flat and hand over the possession to the complainant because of which he has suffered extreme trauma, mental stress, harassment and agony, despite having made the payment of approximately 95% of the cost of the Flat. The complainant submits that his hard earned money is blocked and he has been put to wait indefinitely for the possession of flat and also was additionally also burdened to bear the payment of interest and rent despite having completed all his obligations towards OP and it is now OP’s turn to carryout and comply with his obligations. The complainant submits that he is paying EMI to the concerned bank towards the loan availed by him for the payment of the said flat. The legal notice dated 16.12.2021 was issued to the OP but the same remained unanswered. The complainant submits that under these circumstances, the OP is liable to return the amount paid to them which is Rs. 42,73,444/-  along with 24% interest from the date of actual payment, Rs.10,60,000/- along with 12% interest being the actual rent paid by the complainant from 2017 December in order to secure alternate accommodation which has been paid by him unnecessarily due to the said delay on the part of  OP and  Rs.10 lakhs towards compensation for deficiency in services, unfair trade practice and for causing mental agony, sufferings and harassment for delay caused.
5. Upon notice to appear, OP failed and as such has been proceeded ex-parte on 15.11.2022. The complainant has filed his ex-parte evidence alongwith the relevant documents on record.
6. In support of his claim, the complainant has filed:
   • The Builder-Buyer Agreement dated 18.12.2014, the Tripartite Agreement dated 18.12.2014, the Allotment Letter dated 08.03.2019, the Builder-Buyer Agreement dated 05.04.2019, Ex. CW1 (colly);
   • Receipts of payment Ex. CW2 (colly);
   • True copies of the Tripartite Agreement, letter of permission to mortgage dated 05.06.2019, Ex. CW3 (colly); and
   • legal notice dated 16.12.2021, Ex. CW4;
7. The Commission has heard the ld. counsel for the complainant and perused the record. Since OP chose not to appear, therefore, all the allegations put forth by the complainant, remained unrebutted and deemed to have accepted by OP.
8. Documents on record show that initially by way of Builder Buyer Agreement dated 26.11.2014, the complainant has been allotted a Flat in Tower-F Unit 1604 and later by the other Builder Buyer Agreement dated 05.04.2019,  Unit 2004 in Tower, C of the same project has been allotted in place of previous Flat. The Builder-Buyer Agreement reads that “the possession of the apartment will be given within 36 months from the date of Booking/sanction of the plan from an authority, whichever is later, subject to receipt of the entire basic price, extra charges, registration, charges, and any other charges as may be initiated by the company”. The clause itself is uncertain and arbitrary as it is not declaring a fixed date or time period for delivery of the possession of the flat and is subject to the Plan required to be sanctioned by the authority concerned. This makes the contract between the parties as uncertain as no time limit has been provided.  Even otherwise, when 36 months are counted from the date of booking, the due date for handing over the possession comes to 26.11.2017 from the date of booking i.e. 26.11.2014.  Even after filing the present complaint, the OP failed to offer the possession to the complainant, nor has appeared before this Commission to file his reply/evidence or to put forward its arguments, which act of OP establishes that OP is not ready or willing to offer the possession of the Flat to the complainant. It would be unreasonable to take the contract between the parties to mean that it requires a buyer to wait indefinitely for the possession and in the present case OP has included a clause which does not give a particular date to deliver the possession.
9. Hon'ble Supreme Court of India in Manoj Kawatra v. Pioneer Urban Land & Infrastructure, 2021 SCC OnLine NCDRC 325, decided on 1-11-2021, has held that a person cannot be made to wait indefinitely for the possession of the flats allotted to him/her. The Complainants are, therefore, entitled to seek a refund of the amount paid along with compensation.
10. The demand letter dated 13.07.2019 shows that the total amount received by the OP from the complainant is Rs. 31,39,862/- and the further demand of Rs.11,33,581/- was paid by the complainant on 02.08.2019 and 30,07.2019 vide receipt no. 3374 and 3373 respectively. Thus the total amount paid by the complainant is 42,73,443/- against the total consideration of Rs. 43,55,800/-.
11. The Hon'ble Supreme Court in ‘Pioneer urban land and Infrastructure Ltd versus Govindan Raghavan’  – para 10’ “Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.”
12. Considering the facts and circumstances and the above-mentioned judgements of the Hon'ble Supreme Court this Commission is of the considered view that the complainant cannot be expected to wait for an indefinite time period to get the benefits of his hard-earned money that he has spent in order to purchase the Flat in question. The OP has failed to comply with the contractual obligation to provide/offer possession of the flat to the complainant within a stipulated time despite receiving  95% amount of the total consideration which amounts to a deficiency of service and utilised the complainant’s money for such a long period amounts to unfair trade practice on its part, which has caused mental agony, torture and harassment to the complainant and the complainant is entitled to refund along with interest due to such delay. Considering further that the Builder Buyer Agreement provides for levying interest at the rate of 18% per annum for the delayed payment by the complainant, if any, but does not provide for payment of any interest upon the amount retained by him, in case of delayed delivery of possession this also amounts to unfair Trade Practice and Builder Buyer Agreement is unilateral. The complainant had to pay EMI for the loan taken for purchasing the flat, upon which he also had to pay the interest. Keeping in view all these facts, the complainant has been able to prove that there is deficiency on the part of OP and accordingly OP is directed:

1. To refund the entire amount of Rs. 42,73,444/-  with an interest at the rate of 12% per annum from the date of each deposit till the final payment;
2. To pay compensation of Rs. 75,000/-  for deficiency in services and unfair trade practice that caused  mental agony and harassment to the complainant;
3. To pay an amount of Rs.25,000/-  towards the litigation cost

13. The above-stated order be complied with within 30 days from the date of the receiving of the order, failing which the entire amount accrued 31st day shall carry interest at the rate of 15% per annum till realisation. 
14. The prayer of the complainant to pay a sum of Rs.10,60,000/-  with interest paid towards the rent from December 2017 cannot be granted as no document/evidence filed by the complainant to show that he has been residing in a rented accommodation.
15. A copy of the order is given to the parties as per CPA2019 and thereafter filed be consigned to the record room. Ordered to be uploaded on the website.
16. The order contains – 10 pages.
17. File be consigned to Record Room.
18. Announced on 31.05.2023