District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.189/2022.
Date of Institution: 05.04.2022.
Date of Order: 02.12..2022.
Smt. Sheetal Arora W/o Shri Lokesh Arora R/o H.No.72, SEctor-11E, Faridabad – 121006.
…….Complainant……..
Versus
M/s. BPTP Ltd., Regd. Office: M-11, Middle Circle, Connaught Circus,New Delhi-110001 through its Director
IInd address
Site Office: Park Elite Floor,
BPTP, Sector-85, Faridabad (Near Aravali International School)
…Opposite party……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana…………Member.
PRESENT: Sh. Ankur Gosain, counsel for the complainant.
Sh. Jay Shankar, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the Residential Floor, bearing no. E-40-37, SF, on Second Floor of Block E, having super built up area of 876 Sq. ft. approx. in Park Elite Floors, Sector 85, Faridabad developed by the Respondent was originally allotted to Sh. Arvind Raina S/o Sh. T.N. Raina for a total basic sale price of Rs.16,08,004/- (Rupees Sixteen Lakhs Eight Thousand and Four Only)and a Floor Buyers Agreement dated 22.07.2010 was executed between Sh. Arvind Raina and Respondent and later on the said floor was transferred in the complainant vide letter dated 19.11.2018 and in this manner the Complainant had stepped into the shoes of the original allottee in respect of the above mentioned floor. In letter dated 19.11.2018 issued by the Respondent it has been clearly admitted by the Respondent that they have already received a total payment of Rs.19,75,885.05 and since the allotment of the floor was transferred in the name of the complainant the above said amount received in respect of floor, bearing No. E-40-37, SF was credited to the allotment of the complainant and vide said letter all the terms and conditions of the booking/allotment became applicable to the complainant. As per clause 4.1 of the floor Buyers Agreement dated 22.07.2010 the possession of the said floor was to be handed over to the allottee within a period of 30 months from the date of sanction of building plan and since no agreement could be entered into by the buyer before the sanction of the building plan, therefore the possession of the above said residential floor was to be handed over to the complainant within a period of 30 months from the date of sanction of building plan and since no agreement could be entered into by the buyer before the sanction of the building plan, therefore the possession of the above said residential floor was to be handed over to the complainant within a period 30 months from the execution of the said agreement. The possession of the above residential floor was to be handed over to the complainant by the month of January 2013 and now more than a period of 9 years had already lapsed thereafter but the opposite party had failed to provide the possession of the said floor to the complainant. The complainant had visited the office of the opposite party several times in year 2021 and asked the opposite party various times to hand over the possession of the allotted floor to the complainant but the opposite party paid no heed to the genuine request of the complainant. The complainant also visited the office of the opposite party on 28.02.2022 and requested them to provide the possession of the floor allotted to him but the opposite party had flatly refused to do so and even threatened to cancel the allotment of the complainant. As mentioned in Clause 6.1 of the Floor Buyers Agreement dated 22.07.2010 in case of any delay on the part of the complainant in making the payment of installment complainant was liable to pay delay payment charges and interest to the opposite party @ 18% p.a. on the amount due but in case there was delay in handing over the possession to the complainant would only be entitled to the compensation @ Rs.5/- per sq. ft. for the total built up arrear for delay of every month which was arbitrary, therefore the complainant was also entitled to interest @ 18% p.a. on the total amount paid by him in respect of the above said floor. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
i) Handover the possession of the allotted Floor to the Complainant with all necessary documents in respect of the said floor,
ii) provide compensation/interest on amount of Rs.19,75,885.05 @18% p.a. from the committed date of Possession i.e. from January 2013 till the actual date of offer of possession of the Floor.
iii) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
iv) pay Rs. 50,000 /-as litigation expenses.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that Complainant had concealed the fact from this Hon'ble Commission that before nomination of Complainant as an allottee, Complainant voluntarily submitted "Indemnity cum Undertaking dated 29.09.2018" whereby vide Clause 7, Complainant confirmed and acknowledged that she had physically inspected the project and were aware about the development status of the said project vis-à-vis the said Unit, and also submitted "Undertaking dated 29.09.2018" whereby via Clause (ii) voluntarily agreed to waiver of her right to claim delay compensation from OP for delay in making offer of possession as agreed in the FBA. It was submitted that in the year 2009 Mr. Arvind Rama (First alolottee) applied for a provisional registration of a unit in the project Park Elite Floors’ developed by OP at Faridabad, thus in said regard submitted Booking Application Form and on his own will invested a sum of Rs.200.000/-towards receipt dated08.06.2009. Accordingly, OP on 24.12.2009 allotted 140-37-57 the park Elite Floors in favour of First Allottes Copy of Allotment letter dated 24.12.2009 is annexed herewith as Annexure R/3.
The Floor Buyer's Agreement (FRA) on 22.07 2010 was executed between the First Allottee and OP. It was stated that on 03.09.2010 "Addendum to FBA 22.07.2010 was also executed between First Allottee and opposite party whereby First Allottee voluntarily agreed and accepted to be bound and shad conditions contained herein in addition to the FBA The said Addendum has be read as part and parcel and addition to the FBA .
G. That OP vide letter dated 24.06.2011 informed First Allottee that tentative unit super built up area as offered stands revised to 1,044 sq. ft. (96.99 sq. mtrs.) instead of 876 sq. ft. and raised demand on account of increased super area and thus gave the option of making payment of demand on account of increased super area in one go and avail timely payment discount or to make payment in 4 equal interest free monthly instalments. It is stated that First Allottee failed to make any payment towards the same either in one go or in 4 equal installments within stipulated time in lieu to which reminder letters were issued to First Allottee, which was later paid by First Allottee against receipt dated 12.11.2011 without any demur or protest. It is also stated that the final area and total sale consideration is subject to be finalized at the stage of offer of possession and completion of construction.
H. That Complainant has wrongfully alleged and misrepresented the fact from this Hon'ble Commission that as per Clause-4.1 of FBA, possession of the unit in question was to be handed over to Complainant within a period of 30 months from the execution of the agreement i.e. by month of January 2013. It is stated that Complainant has deliberately misrepresented and concealed material facts and documents from this Hon'ble Commission and has also referred to incomplete clauses while importing incorrect meaning to clauses of duly endorsed FBA with a sole intent to misrepresent the clauses qua proposed timelines. In said regard, true, correct and actual facts of the case are reproduced herein under:
a. The OP and First Allottee vide Clause-4.1 of the FBA amended via Addendum to FBA dated 03.09.2010 [later voluntarily agreed and accepted by Complainant] mutually agreed that subject to force majeure or any other circumstances beyond the control of OP, OP proposes to handover the possession of the unit within a period of 24 months from the date of execution of Floor Buyer's Agreement OR on completion of payment of 35% of the Basic Sale Price along with 20% of EDC and IDC by allottee, whichever is later. It was apparent to state that Complainant after conducting due diligence knowingly purchased unit in question from secondary market with open eyes which is beyond the period when timeline for possession already stood expired in terms of FBA and thus, knowingly approached OP for transfer of allotment in her name, on the basis of all relevant information / details duly intimated by First Allottee and later by OP also, as well as being satisfied with actual construction status of the unit in question at site. Relevant Clause of FBA is reproduced herein below:
"Clause 4.1 - FBA: Subject to Clause 13 herein or any other circumstances not anticipated and beyond the control of the Seller/Confirming Party or any restraints/restrictions from any courts/authorities but subject to the Purchaser(s) having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this Agreement including but not limited to timely payment of Total Sale Consideration and Stamp Duty and other charges and having complied with all provisions, formalities, documentations, etc., as prescribed by the Seller/Confirming Party, whether under this Agreement or otherwise, time to time, the Seller/Confirming Party proposes to hand over the possession of the Floor to the Purchaser(s) within a period of 24 months from the date of execution of Floor Buyer's Agreement OR on completion of payment of 35% of the Basic Sale Price along with 20% of EDC and IDC by the Purchaser(s), whichever is later. The Purchaser(s) 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 24 months, for applying and obtaining the occupation certificate from the concerned authority. The Seller/Confirming Party shall give a Notice of Possession to the Purchaser(s) with regard to the handing over of possession, and in the event the Purchaser(s) fails to accept and take the possession of the said Floor within 30 days thereof, the Purchaser(s) shall be deemed to be custodian of the said Floor from the date indicated in the notice of possession and said Floor remain at the risk and cost of the Purchaser(s).Clause 4.5 FBA: That if the Seller/Confirming party fails to complete the construction of the Said Colony and Floor within the period as mentioned in the Agreement due to force majeure circumstances or for any other reason as stated in the Agreement or for any other circumstances beyond the control of the Seller/Confirming Party, then the Purchaser(s) agrees that the Seller/Confirming Party shall be entitled to reasonable extension of time for completion of construction of the Colony and delivery of possession of Floor.
Clause-13-Force Majeure: That the compliance hereof, by the Seller/Confirming Party, of the terms and conditions of this Agreement shall be subject to Force Majeure circumstances, such as act of God, fire, flood, civil commotion, war, riot, explosion, terrorist acts, sabotage, or general shortage of energy, labour, equipment, facilities, material or supplies, failure of transportation, strike, lock outs, action of labour union, change of law, Act of Government or intervention of Statutory Authorities like DTCP or any other cause not within and beyond the reasonable control of the Seller/Confirming Party."
b. Complainant has failed to disclose the fact that First Allottee miserably failed to abide by agreed Clause-11 of FBA L.e. timely payment of each installment shall be the essence of the agreement. It is stated that First Allottee materially breached the agreement by making huge defaults in timely payment of the installments raised in terms of payment plan since the beginning of transaction, which is proportionally essential for OP qua completion of construction works. It is stated that real estate projects are collaborative in nature where project can be completed in time only if all stake holders ie, customer, developer and government act in same direction. To support said contention, relevance is highlighted on demand letters & demand cum reminder letters followed by reminder letters issued to First Allottee i.e. demand letter dated 05.10.2009, 24.06.2011, 04.08.2011, 23.08.2011. 12.09.2011, 03.10.2011, 28.10.2011, 21.11.2011, 01.03.2012, 01.04.2012, 01.05.2013, 03.06.2013, 03.07.2012, 02.08.2013, 02.09.2013, 04.10.2013, 06.11.2013, 07.12.2013, 07.01.2014, 06.02.2014, 10.03.2014, 11.04.2014, 19.05.2014, 18.06.2014, 01.09.2014, 06.10.2014, 06.11.2014, 08.12.2014,27.01.2015, 26.02.2015, 02.04.2015, 05.05.2015, 04.06.2015, 08.07.2015, 25.08.2015, 01.10.2015, 09.11.2015, 09.12.2015, 21.01.2016 and 07.05.2016.
C. Complainant has also deliberately concealed the fact from this Hon'ble Commission that timelines for possession were subject to force majeure circumstances which already stood expired at time of purchase of unit by Complainant & timely payment of the installments by allottees, thus due to reasons beyond the control of OP (as stated herein above) and delay in making timely payments by large no. of allottees including First Allottee, tentative timelines stood diluted. It is stated that there has been general delay in making payment of instalments by the customers and therefore OP has to invest funds from its resources and by taking loan to complete the construction of the project. It is further stated that force majeure circumstances were duly informed to Complainant by First Allottee as well as by OP before and at time of applying for transfer of allotment in her name and thus on own will purchased unit in question.
d. In lieu to above stated, it is pertinent to mention here that in the year 2018, Complainant after conducting due diligence and site inspection, being completely satisfied with each and every aspect related to concerned allotment including but not limited to construction status, force majeure circumstances and delay in handing over possession in accordance with clauses of FBA, voluntarily and willingly purchased unit in question from secondary market with open eyes and thus approached the OP along with First Allottee jointly while seeking transfer of allotment of unit in question in her favour. It is stated that on account of completion of documentary formalities and payment qua unit in question, Complainant after thorough reading and understanding submitted fresh Booking Application Form. It was reiterated that Complainant had concealed the fact from this Hon'ble Commission that before nomination of Complainant as an allottee, Complainant voluntarily submitted "Indemnity cum Undertaking dated 29.09.2018" whereby vide Clause 7, Complainant confirmed and acknowledged that she had physically inspected the project and are aware about the development status of the said project vis-à-vis the said Unit. In said regard, OP vide nomination letter dated 19.11.2018 confirmed Complainant as allottee of the unit in question and also confirmed that OP has received an amount of Rs.19,65,785.05/- (exclusive of timely payment discount availed by First Allottee amounting to Rs.10,100/-). It was stated that the said nomination letter was received by the Complainant on 22.12.2018. Following completion of all documentary formalities, already executed FBA dated 26.12.2012 was endorsed in favour of Complainant. Copy of fresh Booking Application Form, Nomination Letter dated 19.11.2018 are annexed herewith as Annexure R/8 and R/9, respectively.
1. That Complainant has wrongfully alleged & misrepresented Clause-4.3 read along with Addendum to FBA (delay compensation) & 6.1 of duly endorsed FBA (termination, cancellation and forfeiture) leading to extraction of incorrect and incomplete meaning, which even otherwise is not applicable to Complainant in lieu to fact that Complainant has deliberately concealed that in terms of Undertaking dated 29.09.2018 submitted by Complainant knowingly and willingly before confirmation of nomination, subject to waiver of her right to claim delay compensation. It is stated that clauses of duly endorsed FBA were implied subject to remittance and adherence to other terms and conditions of the agreement including but not limited to timely payment of each instalment, which is the essence of the agreement and subject to force majeure circumstances. In said regard, Complainant being completely aware of defaults in timely payment by
First Allottee which affected timeline for possession, deliberately concealed the same from this Hon'ble Commission and thus filed present frivolous complaint. For ready understanding, relevant clause is as follows -
"Clause (11) - Undertaking I/We hereby waiver my/our right to claim delay compensation from Company for delay in making offer of possession as agreed in Buyer's Agreement dated 22.07.2010 and further undertake not to hold the Company, land holding company(ies), licensee company(ies) or any of its directors, representatives, employees, agent responsible on this account. I/We undertake to make any/all payments as demanded by the Company in the offer of possession including but not limited to cost escalation and other charges without any demur or protest. We are aware that the final area of the unit shall be determined at the time of offer of possession and we undertake to make all payments as calculated on the final area of the unit."
J. That Complainant after adequate site inspection and completely conversant with construction status, voluntarily applied for transfer of allotment. The reason in delay in delivery has already been put on record, whereas an undeniable fact is that the OP has already handed over large no. of units in the project 'Park Elite Floors' to its respective allottees and is committed to handover the remaining units at the earliest in a phased manner, despite bad economic situation and other circumstances that are not under its control.
K. That the Complainant has approached this Hon'ble Commission with unclean hands. The Apex Court has always stated that the courts/commissions/authorities of law are meant for imparting justice between the parties. One who comes to court must come with clean hands. Reference is invited to the judgments passed by Supreme Court of India that if there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim, in the case of K.D. Sharma Vs. Steel. Authority of India and others (2008) 12 SCC 481 and G. Jayshree and others Vs. Bhagwandas S. Patel and others (2009) 3 SCC 141. It has been stated on numerous occasions without hesitation that a person whose case is based on falsehood has no right to approach the court, reference was invited to judgment 'S.P. Chengalvaraya Naidu (dead) by L.R's Vs. Jagannath (dead) by LR's AIR 1994 SC 853'. He can be summarily thrown out at any stage of the litigation. A litigant who approaches the court is bound to produce true, correct and actual facts of the case which are relevant to the litigation. If he withholds a vital information in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.
L. That the Complainant has miserably failed to produce any strict proof in support of her allegation/s, which has been cleverly drafted to mislead the Hon'ble Commission. It is submitted that merely making bald and unsubstantiated claims does not entitle any party to get the relief as sought by them. In this regard, it is also stated that it is the basic principle of law of evidence that one who asserts must prove its allegations.
M. That the complaint filed by the Complainant is wholly misconceived, based on incomplete and distorted facts which is misleading this Hon'ble Commission resulting in unwanted litigation burden on this Hon'ble Commission as well as the OPs, thus present complaint be dismissed with heavy costs on the Complainant.
Opposite parties denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite parties–M/s. BPTP Ltd. with the prayer to: i) Handover the possession of the allotted Floor to the Complainant with all necessary documents in respect of the said floor. ii) provide compensation/interest on amount of Rs.19,75,885.05 @18% p.a. from the committed date of Possession i.e. from January 2013 till the actual date of offer of possession of the Floor. iii) pay Rs. 50,000/- as compensation for causing mental agony and harassment . iv) pay Rs. 50,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Sheetal Arora,, Ex.C1 – Floor Buyers Agreement, Ex.C-2 – Endorsement Form, Ex.C-3 – letter dated 19.11.2018, Ex.C4 – letter dated 19.11.2018, Ex.C-5 to 8– Receipts,
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.RW1/ A – affidavit of Shri Jay Shankar, Authorized Representative of opposite party,, Ex.RW/1 – Resolution letter, Ex.RR/2 – Indemnity cum undertaking by transferee/nominee, Ex.R/3 – undertaking, Ex.R/4 – allotment letter, Ex.R/5 – Floor Buyer’s Agreement,, Ex.R/6 – Addendum to the floor buyer’s agreement, Ex.R/7 – payment request, Ex.R/8 (colly) – letter dated October 05,2009, Ex.R/9 – application for allotment of a residential independent floor at Parklands, Faridabad, Haryana, Ex.R//10 – letter dated 19.11.2018.
6. During the course of arguments, Shri Jay Shankar, Authorized representative of opposite parties has made a statement that “We do not have the occupation certificate. One year may kindly be granted to handover the physical possession of the unit in question to the complainant. In case of failure, customer should be entitled to seek refund with reasonable rate of interest.”
7. Keeping in view of the above statement made by Shri Shankar, Authorized representative of opposite party, the Commission is of the opinion that the complaint is allowed with the direction to opposite party to handover the physical possession of the unit in question to the complainant within six month from the date of this order. In case of non compliance of order, opposite party will liable to pay Rs.12,000/- p.m to the complainant till its realization Opposite party is also directed not to charge any other hidden charges and escalation charges from the complainant. Opposite party is also directed to pay the delayed interest @ 9% p.a. to the complainant from the date of agreementi.e. Jan. 2013 till its realization.
Opposite party is also directed to pay Rs.11,000/- as compensation for causing mental agony and harassment alongwith Rs.11,000/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties free of costs and file be consigned to the record room.
Announced on: 02.12.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
