District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No.572/2022.
Date of Institution: 18.10.2022.
Date of Order:11.1.2023 .
Smt. MeenaMagan, Age 50 years Wife of Sh.SanjeevMagan R/o. B-9/94, Sector 4, Rohini, North West Delhi, Delhi 110085
………Complainant………
Versus
1. M/s. BPTP Parklands Pride Limited (Formerly known as New age Town Planners Limited Wholly owned subsidiary of M/s BPTP Ltd.) Having its Registered Office at M-11, Middle Circle, Connaught Circus, New Delhi 110001 Through its Managing Director/Director
2. M/s BPTP Parklands Pride Limited, Having its Office at Next Door, Sector 76, Faridabad Through its Managing Director/Director
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Deepak Gera, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite partiesNos.1 & 2.
ORDER:
The facts in brief of the complaint are that the complainant booked a Flat in the Project "Parklands Pride" at Faridabad. The Flat No.PB-61-SF was allotted to the complainant vide Allotment Letter dated 28.05.2012 (Customer Code: BE 1/142180). The payment schedule of the plot was annexed with the allotment letter. The total cost of the flat was fixed Rs.42,70,050/- (Rupees Forty Two Lakhs Seventy Thousand Fifty). The complainant paid an amount of Rs.31,06,856/- (Rupees Thirty One Lakhs Six Thousand Eight Hundred Fifty Six). The flat was allotted to the complainant @ Rs. 3395.24 Sq.feet and totalarea of the flat was 1050 Sq.feet. The respondents kept on receiving the money in pursuance of Allotment letter dated 28.05.2012 but all of sudden the respondents started to demand money for an area 1103 sq. feet instead of 1050 sq. feet. The complainant kept on requesting the respondents to explain why area has been increased. The respondents instead of clarifying anything kept on demanding the amount of Rs.18,51,770/- (Rupees Eighteen Lakhs Fifty One Thousand Seven Hundred Seventy) vide Demand letter dated 25.07.2018 and total price was increased to Rs.45,90,404/- (Rupees Forty Five Lakhs Ninety Thousand Four Hundred Four) than Rs.42,70,050/- (Rupees Forty Two Lakhs Seventy Thousand Fifty). The complainant kept on requesting the respondents that the respondents have no right
to increase the area and the price of the flat. The respondents kept on demanding the payment but did not settle the account. The respondents thereafter demanded the amount of Rs.23,84,547/- (Rupees Twenty Three Lakhs Eighty Four Thousand Five Hundred Forty Seven) vide letter dated 19.11.2018. The allotment was done on 28.05.2012. The respondents miserably failed to offer the possession for a period of more than 6 years though the delivery ofthe flat was within 30 months. The respondents kept on befooling the complainant. As per the assurance of the respondents the possession was to be delivered within 30 months and it was also promised by the respondents that if incase the respondents fails to handover the possession then the respondents shall be liable to pay amount of Rs.10/- per sq. feet till the possession. The respondents were guilty of non handing over the possession well within time. The respondents were under an obligation to handover the possession within 3 years but the respondents were enjoying the money of the complainant since 2012. Huge amount of Rs.31,06,856/- (Rupees Thirty one lakhs six thousand eight hundred fifty six) had already been paid but the respondents are befooling the complainant. The complainant paid amount of Rs.31,06,856/- (Rupees Thirty one lakhs six thousand eight hundred fifty six) till 21.6.13 but nothing has been gained by the complainant till date. The complainant was entitled for the allotment of flat i.e Flat No.PB-61, Second Floor, Parklands Pride in Sector 77, Faridabad on the basis of Allotment letter dated 28.05.2012 and the complainant was ready to make the balance payment, if any. 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:
a) to handover the possession of Flat No. Flat No.PB- 61, Second Floor, Parklands Pride in Sector 77, Faridabad @ Rs.42,70,050/- (Rupees Forty Two
Lakhs Seventy Thousand Fifty) in pursuance of Allotment letter dated 28.05.2012 or in the alternative direct the respondents to make payment of Rs.31,06,856/- (Rupees Thirty one lakhs six thousand eight hundred fifty six) along with interest @ 18% per annum from 28.05.2012 till date in the interest of justice.
b) pay Rs.10,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 1,00,000 /-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 the complaint under reply had been filed by the Complainant for possession of Unit No. PB-61-SF, booked by her in the OP's Project "Parklands Pride" situated in Faridabad, Haryana, despite the fact that after completion of construction of the said Unit and after grant of the Occupancy Certificate on 02.06.2018, the OP had already issued Offer of Possession (hereinafter referred to as the "OOP") to the Complainant vide letter dated 25.07.2018. However, the Complainant had out-rightly failed to make payment, complete the documentary formalities and take possession of the Unit in question in complete disregard to the contractual terms of the Floor Buyer's Agreement duly executed by and between the Parties. Therefore, the present Complaint was not only misleading but has been filed in order take undue advantage of the benevolent provisions of the Consumer Protection Act. The Complainant was not a consumer as defined under Section 2 (1) (7) of the Consumer Protection Act, 2019. In this regard it was submitted that the Complainant had invested in the Project "Parklands Pride" situated in Faridabad, Haryana for making gains and profits from re-sale of the unit in question and instead of completing the payment and documentary formalities as per the offer of
possession letter dated 25.07.2018, had filed the present Complaint. The present Complaint wass further liable to be dismissed on the ground that the issues averred are barred by limitation. It was submitted that the Offer of Possession was issued by the OP on 25.07.2018 and the instant complaint had been filed by the Complainant, on 18.10.2022 L.e. much later than the prescribed limitation period under Section-69 (1) of the Consumer Protection Act, 2019. The Complainant after expiry of almost four years from the date of receipt of offer of possession has approached this Hon'ble Commission on account of concocted and baseless allegations by distorting material facts of the case. The Complaint under reply was not maintainable as the Complainant had averred complex questions of facts, interpretation of law and disputes regarding rights and obligations of the parties under various statutes which would require elaborate evidence to be led for adjudication. It is well settled law that such kind of Complaints are to be adjudicated upon by the Civil Courts. The Complainant had indulged in suppression, concealment and misrepresentation of true facts and documents which have material bearings on the present case. It was further submitted that the Complainant had approached this Hon'ble Commission with unclean hands. It was a well settled law that one who approaches the court of law with unclean hands, deserves no indulgence from the Hon'ble Courts. In this context, the following facts are noteworthy:
(a) The Complainant had concealed and suppressed from this Hon'ble Commission that in the year 2012, the Complainant after conducting thorough due diligence and out of her own volition approached the OP through her broker Modern Buildtech Pvt. Ltd.' for booking of a Floor/Unit in the project- Parklands Pride' and applied for a booking/registration of a unit (tentative area 1,050 sq. ft.) in the project Parklands Pride, Sector-77, Faridabad' by submitting duly signed
Application for Provisional Allotment (hereinafter referred to as the "Booking Form") on 16.05.2011. It was submitted that the Complainant had invested in the project in question after through reading, understanding and accepting the incorporated terms and conditions of the Booking Application. The Complainant had deliberately neither referred to nor filed theBooking Application with the Complaint.
b) The Complainant had also deliberately concealed from this Hon'ble Commission that the booking amount payable with the Booking Application was Rs. 3 lacs but the Complainant tendered 3 cheques, one of which was of current date while the balance 2 were PDCs. The Complainant begged to the OP to accept the booking without upfront payment of booking amount assuring that all the cheques would be honoured on due dates. However, the Complainant had failed to make the payment of complete booking amount in as much as Cheque no. 970723 dated 28.05.2012 drawn on Canara Bank for a sum of Rs. 1,08,500/- towards part payment of the booking amount was dishonored for insufficient funds. Although, in view of the assurance given by the Complainant coupled with Clause 8 of the Booking Application, the OP was well within its rights to terminate the booking and after forfeiting 25,000/- from the partial booking amount, refund the balance but being a customer friendly organization, on the request of the Complainant, the OP did not terminate the booking despite the fact that the payment towards the partial booking amount was made by the Complainant after much delay only on 22.08.2012.
(c) The Complainant had concealed that at the time of booking the OP had offered an inaugural discount of Rs. 35,650/- on the Total Sale Price of the unit to the Complainant and further that the OP offered additional benefits to the
Complainant in the form of Timely Payment Discounts ("TPD"), and as such the complainant earned additional benefits/incentives to the tune of Rs. 109,152.36/-, thereby substantially reducing the cost of the unit in question.
(d) The Complainant had deliberately made selective reference to the allotment letter dated 28.05.2012 issued to the Complainant to portray that vide the said letter, the Complainant was allotted unit no. PB-61-SF with the area of 1050 sq. ft. @ Rs. 3395.24 per sq. ft. with the total cost of the unit as Rs. 42,70,050/- and has also deliberately concealed the facutum of execution of Floor Buyers Agreement (FBA) between the parties. It was submitted that at the stage of booking, the Complainant was well aware that the broad terms and conditions agreed in the Booking Form were only indicative in nature and the intent of the terms and conditions of the booking form is to broadly acquaint the applicants including the Complainant herein with the terms and conditions, which are comprehensively set out in the FBA. The Complainant after reading and understanding the terms and conditions of the FBA affixed her signatures on each and every page of the agreement without raising any objection or concern regarding any clause of the FBA. The FBA was executed by the Complainant on 03.01.2013, after spending considerable time on it and considering the same to be a prudent commercial decision. However, for the reasons best known to the Complainant, the most vital document executed between theparties i.e.
the FBA has been concealed from this Hon'ble Commission. In this regard, the following has been concealed from this Hon'ble Commission-
(1) The Complainant was aware and had agreed before entering into the transaction that built up area communicated at the stage of booking was tentative
and is subject to change which is clearly evident from a bare reading of the Booking, in particular, column 4 (Running page 4), clause 5 of the booking Application.
(2) The Complainant further accepted that 1050 sq. ft. was only tentative area of the Unit in question and not the final area as is evident from the allotment letter dated 28.05.2012 filed by the Complainant herself along with the Complaint.
(3) The Complainant has deliberately not filed the duly executed FBA dated 03.01.2013 with the Complaint. A bare reading of Clause 2.2 read with 2.13 Clause thereof would clarify that the parties had categorically agreed that area of unit being 1050 sq. ft. was only tentative and that the final built up area of the floor was agreed to be determined after completion of construction of the building consisting of three independent residential floors and that it was further agreed that any increase or decrease in the built up area shall be payable or refunded without any interest and further that in case the variation was more than 15% and the purchaser was unwilling to accept the change, the allotment shall be treated asterminated and the payments received would be refunded with 6% interest.
(4) The Complainant has misrepresented that the rate of unit wasRs. 3395.24/- per sq. ft. and the total cost of the unit is Rs. 42,70,050/- while concealing that vide clause 7, 10 and 15 of the Booking Application, the Complainant had agreed to make payment of various charges including Statutory dues and had also agreed and accepted that Development Charges are not final yet. Further, vide the allotment letter referred to and relied upon by the Complainant, the Complainant had specifically agreed and accepted that apart from the heads of
charges stated in the allotment letter, other charges in terms of agreement are payable as per the demand raised by the OP The Complainant has further deliberately concealed the fact of execution of FBA since vide Clause 2.3 of the FBA, the Complainant had agreed to pay the following charges over and above the Basic Sales Price (BSP) of Rs. 3395.24/- per sq. ft.-
The Seller/Confirming Party hereby confirm that while arriving at the present Basic Sale price, it has only considered the present taxes, levies & charges payable to the state government/central government & authorities. However, it has been specifically agreed by and between the parties herein that any fresh incidenceof Statutory dues by any of the authority or increase on such account, fit is with retrospective in effect, shall be borne by the Purchaser(s) in ption to the Built-Up-Area of the floor. The Purchaser(s) undertakes to pay such proportionate amount, if any, within 15 days on the demand by the seller."
The Complainant had further deliberately concealed from this Hon'ble Commission that the Complainant was a perpetual defaulter and that the Complainant has defaulted in making payments of the following demands which remain unpaid till date-
(1) Demand dated 18.11.2016 for payment of VAT, followed byreminders dated 30.03.2017, 12.05.2017, 12.10.2017
(2) Demand dated 15.03.2017 at the stage of completion ofbrickwork followed by reminders dated 11.04.2017, 22.06.2017.
(3) Demand dated 25.08.2017 at the stage of completion of internal flooring followed by reminders dated 11.12.2017, 07.03.2018, 09.04.2018 and last
and final opportunity letter dated 04.07.2018 putting the Complainant to notice that the booking/ allotment shall be terminated/cancelled in question in case ofnon-clearance of dues by 19.07.2018
(4) Demand dated 25.07.2018 at the stage of offer of possession followed by reminder cum last opportunity letter dated19.11.2018 (filed with the Complaint)
Complainant has misrepresented the fact that she had paid an amount of Rs 31,06,856/- till date,, while the fact is that the Complainant had only paid a sum of Rs 29,97,704/- and availed the TPD of Rs 1,09,152/- which was evident from receipts dated 19.05.2012, 22.05.2012, 28.05.2012, 22.08.2012, 06.09.2012, 10.11.2012, 08.01.2013, 20.04.2013, 22.05.2013, 21.06.2013 issued to the Complainant.
It had been falsely pleaded on oath that the OP had failed to offer possession of the unit till date. In fact, the Complainant had herself filed the letter dated 25.07.2018 with the Complaint whereby the OP offered possession of the unit while intimating that the Occupation Certificate of the unit was received on 02.06.2018 and that the final built up area of the unit is 1103 sq. ft., which was only 5.47% morethan the booked area. The Complainant had concealed that she had also agreed vide Clause 5.5 of the FBA if she ignores to take the possession of the unit in question despite offer thereof been made by the OP, then the Complainant shall be liable to pay Rs 10/- sq. ft. per month of the built up area of the unit as Holding charges to the OP. Admittedly, the OP had offered possession of the Unit in question vide letter dated 25.07.2018 and despite receipt thereof, the Complainant failed make payment and complete documentary formalities to be able to take possession of the Unit and thus, holding change applicable after expiry of the due date Le 24 2018 .
The Complainant further misrepresented that the OP kept on demanding the payment but did not settle the account while concealing that without even asking, the OP on its own offered Rs. 3,18,935/-as compensation to the Complainant subject to receipt of dues within the stipulated time. However, since the Complaint failed to make payment within due date i.e. 24.08.2018, the said offer stood withdrawn and accordingly, in the Final Demand Notice dated 19.11.2018, the due amount demanded was Rs. 23,84,547/-, as was the due in the offer of possession letter before reflecting the compensation amount of Rs. 3,18,935/-.Thus, it is evident that the entire Complaint is based on gross misrepresentation, concealment and misrepresentation of facts and documents. Thus, on this ground alone, the Complaint is liable to be dismissed outrightly.
Notwithstanding the submission made herein, it is submitted that the OP has always been fully committed to honour the terms and conditions of the FBA. The project Parklands Pride' was delayed due to reasons beyond the control of the OP. In this regard, reference may be made to the following facts:
a) In terms of the Notification dated 16.03.2010 of Self Certification Scheme issued by the Town and Country Planning Department, Government of Haryana (hereinafter referred to as "the Department") whereby, any person could construct building in licensed colony by applying for approval of building plans by giving 15 days' notice to the Director or Officers of the department delegated with the powers for approval of building plans intimating the date of start of construction and in case of non-receipt of any objection within 15 days thereof, the construction could be started, the Opposite Party applied for approval of building plans under the Self Certification Scheme. Although, no objection was received from the Department, however, to ensure that there are no problems later, the Opposite Party also applied for approval of building plans under the regular scheme.
The bona fide of the OP was established from the fact that the OP from time to time had been updating the Complainant with respect to the progress being made in the Project, same is evident from various e-mails sent to the Complainant informing her about the construction progress. Reference may be had to emails dated 04.08.2016, 28.10.2016, 02.03.2017, 19.04.2017, 24.05.2017, 21.06.2017, 28.07.2017, 11.12.2017, 12.04.2018, 09.05.2018 and 13.06.2018 .
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–BPTPwith the prayer to:a) to handover the possession of Flat No. Flat No.PB- 61, Second Floor, Parklands Pride in Sector 77, Faridabad @ Rs.42,70,050/- (Rupees Forty Two Lakhs Seventy Thousand Fifty) in pursuance of Allotment letter dated 28.05.2012 or in the alternative direct the respondents to make payment of Rs.31,06,856/- (Rupees Thirty one lakhs six thousand eight hundred fifty six) along with interest @ 18% per annum from 28.05.2012 till date in the interest of justice. b) pay Rs.10,00,000/- as compensation for causing mental agony and harassment . c) payRs. 1,00,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence,
Ex.CW1/A – affidavit of MeenaMagan, Ex.C-2 to c-10- receipts,,Anx. -1 – Application for the Provisional allotment of Unit/i.e floor/villa in “Parklands Pride”, Parklands, Faridabad, Haryana, Annexue-3 (colly) - email, Annexure-4 - statement of account, annexure-5 (colly) - letter dated18.11.2016,, annexue6 (coly) – email, Annexue-7 –order dated 25.05.2017 passed by the Hon’ble High court,
On the other hand counsel for the opposite parties strongly agitated
and opposed. As per the evidence of the opposite parties Ex.RW1/A – affidavit of Jay Shankar, Authorised representative of opposite parties, Ex.R-1 – Resolution,, Ex.R/2 –Application for the Provisional Allotment of Unit i.e floor/villa in “Parklands Pride”, parklands, Faridabad, Haryana, Ex.R/3 (colly) – statement of account 01.05.2012 to31.05.2012,Ex.R-4 – allotment letter,, Ex.R-5 – payment request,, Ex.R-6 – payment request dated October 26,2012,, Ex.R/7 – payment request dated 24.12.2012,Ex.R/8 – floor Buyer’s Agreement,, Ex.rR9(coly) – letter dated 18.11.2016, Ex.R-10 (colly) - receipt, Ex.R-11 – letter dated 257.2018, Ex.R/13 – email, Ex.R-14 – Notification dated 16.3.2020, Ex.R-15 – Public notice, Ex.R-16 –Order, Ex. R-17(colly) – email, ,Ex.R-18(cooly) – photographs.
6. In this complaint, the complaint was filed by the complainant with the prayer to handover the possession of Flat No. Flat No.PB- 61, Second Floor, Parklands Pride in Sector 77, Faridabad @ Rs.42,70,050/- (Rupees Forty Two Lakhs Seventy Thousand Fifty) in pursuance of Allotment letter dated 28.05.2012 OR in the alternative direct the respondents to make payment of Rs.31,06,856/- (Rupees Thirty one lakhs six thousand eight hundred fifty six) along with interest @ 18% per annum from 28.05.2012 till date.
7. After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite parties because the Buyer’s Agreement was made to the complainant on 03.01.2013 vide Ex.R/8 and he has waited for more than 8 years to see the project to be completed and the offer of possession of flat was not given to him. As per allotment letter vide Ex.C-1(colly-11) , the flat No. PB-61-SF was allotted to the complainant on 28.05.2012. The counsel for the complainant has placed on record authority in case titled Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him The complainant had been waiting for completion of the project in which allotted unit is located for more than 8 years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the refund of the amount deposited with the opposite parties besides interest and compensation.
8. Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite parties jointly & severally, are directed to refund the deposited amount to the complainant with compensation in the form of simple interest @ 6% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 11.01.2023 (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.
