Delhi

New Delhi

CC/712/2011

Subir Kumar Podder - Complainant(s)

Versus

M/S. BPTP Ltd. - Opp.Party(s)

12 Sep 2022

ORDER

 

 CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.712/2011                               

In the matter of:

 

SUBIR KUMAR PODDER

         S/o Late Sh. Mongal Chandra Podder,

        R/o Flat No. A-3, Omkar Apartment

        86,C-3, Ward no. -4, New Delhi-110030                          ……..Complainant

 

 

Versus

1.       BPTP Ltd.

Through its Director/ Principal Officer

M-11, Middle Circle, Connaught Circus,

New Delhi-110001

 

2.            LIC Housing Finance Ltd.

Laxmi Insurance Building,

Asaf Ali Road, New Delhi                                               ........... Respondent

 

 

Quorum:

          Ms. Poonam Chaudhry, President

          Ms. Adarsh Nain, Member

          Shri Bariq Ahmad , Member

                                                                                                             Dated of Institution :05.07.2011                                                                                                                                                                        Date of Order         : 12.09.2022

 

COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT, 1986 FOR REMOVING DEFICIENCY OF SERVICE BY EXECUTING THE CONVEYANCE DEED OF FLAT ALLOTTED TO COMPLAINANT.

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. Briefly stated that facts of the case as alleged in the complaint

are that the complainant is consumer as defined in Consumer Protection Act, 1986 and the respondent no. 1 is company registered under the Companies Act and is engaged in business of construction of flats and selling the same to public in large.

2. It is further alleged that the Respondent no. 2 is the Housing finance company and agreed to finance the flat that had been allotted by Respondent no. 1 for sale to the complainant, i.e. flat/ unit P14-01-FF in project, Park Elite Floors, Park lands, Faridabad vide allotment letter dt. 24.12.2009 at the total consideration/ cost of the flat Rs. 18,39,405/20/- (Rupees Eighteen Lakh Thirty Nine Thousand Four Hundred Five Twenty Paise) and OP-1 received the booking amount Rs. 5,54,860/- (Rupees Five Lakh Fifty Four Thousand Eight Hundred Sixty).
3. It is further alleged that the remaining amount payable to the respondent no. 1 was to be remitted by LIC Housing Finance Ltd. on behalf of complainant to Respondent no. 1 by the respondent no. 2. However the same was kept on hold by the said financing Agency the Respondent No. 2 as there were some formalities to be completed between the respondent no. 1 & 2.
4. It is further alleged that due to non-issuance of permission to mortgage in the form of “NO OBJECTION” by respondent no. 1, the said flat could not be mortgaged in favor of Respondent no. 2 despite of the fact that sanction of the loan amount Rs. 12,00,000/- (Rupees Twelve Lakh)  was already granted by Respondent No.-2 vide letter dt. 18.01.2010 of Respondent No.-2 which was renewed/ sanctioned on 15.10.2010. It is also alleged the conveyance deed of the flat was to be executed after payment by Respondent no. 2 on behalf of Complainant to Respondent no. 1.
5. It is  further alleged that after much delay, on after part of Respondent no. 1 the permission to mortgage in the form of “NO OBJECTION TO MORTGAGE” was issued vide dt. 28.10.2010 that was further communicated to Respondent no. 2 vide dt. 22.02.2011.
6. It is further stated that the Respondent no. 1 however issued letter dated. 03.03.2011 to terminate the allotment/ booking of Unit aforesaid/ flat that was allotted to complainant after about 9 days from grant of the Permission to Mortgage.
7. It is also stated that the Respondent no. 1 after issuing NO OBJECTION TO MARTGAGE ON 22.02.2011 had no right to terminate the allotment of the said flat after 9 days by issuing letter dated . 03.03.2011.
8. It is also alleged that the said notice of termination of allotment dt. 03.03.2011 could not be issued without serving show cause notice. The said termination of allotment and non-execution of Conveyance deed after receiving the Rs. 9,40,003.59/- (Rupees Nine Lakh Forty Thousand Three and Fifty Nine) is deficiency of service on part of the respondent no. 1, specially  as R-2 had sanctioned loan amount Rs. 12,00,000/- (Rupees Twelve Lakh) vide dt. 18.01.2010 that was further confirmed vide letter dt. 21.10.2010.
9. It is also alleged that the complainant sent e mail dt. 21.03.2011, 07.04.2011 and 15.04.2011 to the customer care cell of respondent no. 1 but no heed was given till date as no response was received.
10.  It is prayed the Respondent no. 1 be restrained from terminating the allotment of flat/ unit no. P-14-01-FF in project parle Elite floor, Park Lands, Faridabad, Haryana. Respondent No.-1 be also directed to remove the deficiency of  service and execute conveyance deed after receiving the outstanding balance of Rs. 9,40,003.59/- (Rupees Nine Lakh Forty Thousand Three and Fifty Nine). It is also prayed the said property be allowed to be mortgaged in favour of Respondent no. 2 on the basis of “NO OBJECTION CERTIFICATED GRANTED ON 28.02.2011 by Respondent No.-1. Respondent no. 2 be directed to release the amount sanctioned vide letter dt. 15.10.2010 as loan and create equitable mortgage on the same for purchase of the property in question. The cost of litigation be also awarded.
11. Notice of the complaint was issued to OPs. Both OP-1 and 2 entered appearance and filed their written statement.
12. OP no.-1 in its reply take the objection that this Forum did not have jurisdiction in as much as the complainant had approached this Forum without exhausting the remedies available to the complainant under the terms and condition appended to the Floor Buyers’ Agreement, according to which the disputes between the parties were to be adjudicated through arbitration.
13.  It was also alleged that as there was neither any deficiency nor ay negligence on the part of the Opposite Party no. 1 in rendering services to the complainant, But it is the complainant who was guilty of non-payment of the amount outstanding for a long time within the stipulated time along with the interest despite the service of the various demand letters, reminders sent to him.
14. It was further alleged that the complainant was trying to shift the burden of his own faults on the Opposite Party No-1 by raising false, frivolous, pleas that OP-1 had delayed the grant of permission to mortgage in the form of ‘NO OBJECTION to Mortgage. It was also alleged that OP-1 had never promised or assured the complainant in any manner to get his loan sanctioned/ processed/ issue documents for disbursement of the sanctioned loan etc. nor was OP-1 rendering the services of Financing and was not contractually or otherwise liable and could not be held responsible/ liable in any manner to get the Loan disbursed through any Bank, as alleged. It was the sole duty and responsibility of the complainant to arrange for the funds on his own.
15. It was further stated that though OP-1 being a consumer oriented Company helped its customers in availing loan without any difficulty based on their eligibility to avail the said loan amount, OP got its Projects approved from different Banks which includes both Nationalized and private Multi National Banks. It was also alleged that complainant never approached OP no.-1 for issuance of NOC as alleged.
16. It was also stated that OP-1 immediately on the receipt of the Sanction letter dated 15.10.10 and request for issuance of PTM/NOC issued the PTM/NOC on 28.10.10 in terms of the Loan Sanction letter. The Complainant was however negligent as he did not get the loan disbursed and failed to clear the outstanding payment.
17. It was also stated that the OP-1 was justified and within its contractual rights in cancelling/ terminating the allotment on account of consistent and persistent breaches on the part of the Complainant to make outstanding payments inspite of issuance of  demand letters/ reminders by OP no.-1 to complainant.
18.  It was also alleged that the issues and the facts involved are complicated questions of facts and law which requires leading of the extensive evidence and hence, cannot be decided before this Forum which is a court of Summary jurisdiction as such this Complaint be dismissed and the Complainant may be directed to approach the Civil Court. It was also denied complainant is a consumer as defined in the Consumer Protection Act, 1986.
19. It was denied that termination letter dated 03.03.11 was issued without serving show cause notice to the Complainant. It was also denied that OP-1 had received outstanding balance of Rs. 9,40,003.59/- (Rupees Nine Lakh Forty Thousand from Complainant. It was also denied that there was any deficiency of service on part of OP-1. It was prayed that the complaint be dismissed.
20. OP No.-2 also filed its written statement stating that there was no deficiency on the service on the part of the OP No.-2. It was also alleged that the complainant is not a consumer as defined in of the Consumer Protection Act. 1986. It was further stated that the complainant had admitted that there was no fault on part of Respondent No. 2 LIC Housing Finance Ltd. New Delhi. The respondent no. 2 deserves to be dismissed.
21. Complainant filed rejoinder reiterating therein the averments made in the complaint and controverting all the allegations made in the written statements of OP no.-1 and 2. The parties thereafter filed their evidence by affidavits.
22. We have heard the Ld. counsels for parties and perused the record.
23. We shall first decide the preliminary objections raised by OP no.-1. OP No. -1 had taken an objection that as there exists an arbitration clause in the floor buyer agreement that the dispute between parties should be referred to arbitration and this Commission/Forum has no jurisdiction to try the complaint. It is to be noted that in this regard it has been held by Hon’ble Supreme Court in Skypay Courier’s Limited Vs Tata Chemicals Limited IV (2000) SLT 494 that the provisions of Consumer Protection Act are in addition to and not in derogation to the other Acts or law or prevailing in India. Even if there exists an arbitration clause in an agreement and a complaint is made by the complainant in relation to a deficiency of service then the existence of an arbitration clause would not bar proceedings before this Forum . We thus hold that the said contention is without merits.
24. Another objection has also been raised by OP no.-1 that complainant is not a consumer as defined in the Consumer Protection act, 1986. In this regard it is to be noted that no evidence was brought on record by OP no.-1 to show that complainant booked the flat in question for business in real estate. It is pertinent to note that in this regard it has been held by Hon’ble Supreme Court in Sai Everest Development Vs. Harbans Singh Kohli 2015 SC online that OP should establish by documentary evidence that complaint was dealing in real estate for making profit. Thus we reject the said contention of OP no.-1.
25. OP No.-1 had also taken an objection that as this case required leading of extensive evidence it cannot be decided in a summary jurisdiction. We are of the view that the said objection is also without merits as remedy provided under the Consumer Protection act are additional remedies apart from the other remedies provided by special statutes. The availability of alternate remedy is no bar in  entertaining a complaint under the Consumer Protection Act as held by Hon’ble Supreme Court in Civil Appeal no. 3581-3590-20 M/s Imperia Structures Ltd. Vs. Anil Patni and anothers.  Thus we reject the said contention of OP No-1.
26. It is an admitted fact that complainant paid Rs. 5,54,860/- (Rupees Five Lakh Fifty Four Thousand Eight Hundred Sixty) towards the booking amount of the flat in question. The case of complainant is that the remaining amount of Rs. 12,00,000/- (Rupees Twelve Lakhs) payable to R-1 was to be financed by OP no.-2 housing finance Company. It was alleged that R-2 sanctioned loan of Rs. 12,00,000/- (Rupees Twelve Lakh) vide letter dated  18.01.2010 issued by R-2 and renewed vide letter dated 15.10.2010. However R-2 kept the loan on hold as permission to mortgage the flat in question was not accorded by R-1 which resulted in overdue of amount of Rs. 9,40003.59 (Rupees Nine Lakh Forty Thousand Three and Fifty Nine Paise) with interest @ 18 % p.a. It was also contended that due to non-issuance of NOC for mortgage by R-1, R-2 did not release the loan. It was further contended on behalf of complainant that R-1 gave NOC to mortgage only on 28.10.2010 and communicated it to R-2 vide letter dated 22.02.2011. R-1 thereafter cancelled the allotment on 03.03.2011 within 9 days of issuing NOC to mortgage the flat in question.
27. We are of the view that termination of allotment within 9 days of issuance of NOC amounts to unfair trade practice and deficiency in service by OP no.-1. It is to be noted that OP no.-1 stated in its written statement that OP no.-1 for the benefit of its customers who wanted to avail housing loan, could approached the nationalized and private multi-national as OP-1 got its project approved from the Nationalized and Private Banks. It is also to be noted that clause 9 of floor buyer agreement dated 23.03.2010 relates to Mortgage Finance Fist Charge provides as under:

That purchasers authorities the seller, the purchaser (s) hereby authorizes and permits the Seller/Confirming Party to raise finance/loam from any Institution/Company/bank by any mode or manner by way of charge/mortgage of the lands/floor subject to the condition that the said floor shall be made free from all encumbrances at time of execution of conveyance deed. The seller/confirming party or such finance institution/bank the case may be shall always have the first charge on the floor for all their dues and any other su payable by the purchaser(s).

The purchaser(s) agrees that no lien shall be created/arise against the said Floor as a result of money deposited here under by the purchaser(s) or otherwise in any manner by virtue of entering into present Agreement. In furtherance and not in limitation of the provisions of the preceding sentence purchase(s) agrees that the provisions of this agreement are and shall continue to be subject subordinate to the lien of any mortgage here to fore or hereafter made/created by the seller/confirm party and any payments or expenses already made or incurred or which hereafter may be made incurred pursuant to the terms thereof or incidental thereto and such mortgage(s) or encumbrances not constitute an objection to the little of the said floor or excuse the purchaser(s) from completing the payment of the price of the said floor or performing all the purchaser(s)’s other obligations here under or be the basis of any claim against or liability of the seller provided that at the time of the execution of the conveyance deed the said floor shall be made free and clear of all such encumbrances by the seller/confirming party.

28. It is also to be noted that as R-1 gave permission to mortgage the flat in question to vide letter dated 28.10.2010 and cancelled the allotment on 03.03.2011. The complainant had paid booking amount of Rs. 5,54,860/- (Rupees Five Lakh Fifty Four Thousand Eight Hundred Sixty) against the total consideration of Rs. 1,81,901.05 (Rupees One Lakh Eighty One Thousand Nine Hundred One and five paise). The remaining amount was payable to OP no.-1 by OP-2 housing finance company. OP no.-2 stated in its written statement that it is a housing finance company and had agreed to finance the flat allotted to complainant by R-1. It was also stated the loan of complainant was sanctioned on 18.01.2010 and renewed on 15.10.2010.
29. The fact that complainant booked a flat in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the flat buyer agreement and receipt of payment Rs. 5,54,860/- (Rupees Five Lakh Fifty Four Thousand Eight Hundred Sixty). The copies of receipt of the above amount issued by OP No.-1 have not been controverted by OP.
30. It was contended on the behalf of the complainant that OP was deficient in providing its services and indulged in unfair trade practices. It was contended on behalf of complainant as per clause 9 of the flat buyer agreement, the complainant had applied for housing loan which was sanctioned by OP No.-2, but the loan was to be disbursed only after OP no.-1 granted permission to mortgage the flat to OP No.-2. OP No-1 delayed in granted of NOC to mortgage the flat. As regard deficiency in services, Hon;ble Supreme Court has heldin ArifurRahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
31. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243byHon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
32. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view that admittedly, there is inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
33. It is to be noted Section 2 (r) of the Consumer Protection Act, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …” and includes any of the practices enumerated therein. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
34. We are further of the view that the cause of action being the continuing one as the possession of the flat was handed over to him, the complaint is within the period of limitation.
35.  We accordingly direct the OP No-1 guilty of deficiency in service and unfair trade practices. We direct OP No.-1 to hand over the possession of flat no. P-14-01-FF in project Elite floors, Park Lands, Faridabad, Haryana to complainant within 8 weeks from the date of receipt of order and execute conveyance deed in favour of complainant after receiving the outstanding amount of the flat in question of Rs. 9,40,003.59/- (Rupees Nine Lakh Forty Thousand Three and Fifty Nine Paise). OP no.-1 is directed to issue NOC for the mortgage of the property in question in terms of the flat buyer agreement. In case of delay in the above said directions beyond 8 weeks OP No.1 will be liable to pay interest @ 12% p.a. for the delayed period on outstanding amount. We also award compensation of Rs.5,00,000/- (Rupees Five Lakh) for harassment and mental agony suffered by the complainant for cancellation of flat, due to deficiency in service of the causing harassment and mental agony to the complainant including the deficiency in service and unfair trade practice adopted by Op No.1. OP No.1 to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand) towards cost of litigation to the complainant.

A copy of this order be provided to all parties free of cost. The order be uploaded on the website of this Commission.

File be consigned to record room along with a copy of the order.

 

(POONAM CHAUDHRY)

President

 

        (BARIQ AHMAD)                                                                           (ADARSH NAIN)           

         Member                                                                                           Member