IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:21.10.2019

1. Complaint Case No. 471/2013 In the matter of:

1. Anindita Purkayastha Flat No.C-105, Vivek Vihar (AWHO) Sector -82, Noida, UP - 201304.

2. Indranil Chatterjee, Flat No.C-105, Vivek Vihar (AWHO) Sector -82, Noida, UP - 201304. .....Complainants

Versus

M/s BPTP Ltd.

Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001. …Opposite Party

2. Complaint Case No. 469/2013

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In the matter of:

Monotosh Sarkar SPS Residency, I-107, Indirapuram, Ghaziabad- 201014, Uttar Pradesh .....Complainant Versus

M/s BPTP Ltd.

Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001. …Opposite Party

3. Complaint Case No. 488/2013 In the matter of:

Jasjot Singh Dang, S/o Sh. Ajit Singh Dang R/o House No. 513 Sector-30, Opposite Shiv Mandir, Faridabad, Haryana .....Complainant Versus

M/s BPTP Ltd.

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Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001 …Opposite Party

4. Complaint Case No. 525/2013

In the matter of:

1. Ajay Singh Chaudhary J 80/3, 1st Floor, Pandav Nagar,

Opposite Akashardham Metro Station, Delhi- 110092

2. Meenu Chaudhary J 80/3, 1st Floor, Pandav Nagar, Opposite Akashardham Metro Station, Delhi- 110092 .....Complainants Versus

M/s BPTP Ltd.

Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001 …Opposite Party

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5. Complaint Case No. 526/2013 In the matter of:

1. Subir Chaterjee S/o Sh. B.N. Chaterjee Flat No. 332, Pocket A, Sector-17, Dwarka, Delhi- 110075

2. Shreya Chaterjee W/o Sh. Subir Chaterjee Flat No. 332, Pocket A, Sector-17, Dwarka, Delhi- 110075 ....Complainants Versus

M/s BPTP Ltd.

Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001. …Opposite Party

6. Complaint Case No. 530/2013

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In the matter of:

Surjeet Singh 5527, Shora Kothi, Pahar Ganj, Delhi. .....Complainant Versus

M/s BPTP Ltd.

Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001. …Opposite Party

7. Complaint Case No. 531/2013

In the matter of:

Rajeev Kumar House No. 3620, Gali Dariba Pan, Pahar Ganj, New Delhi- 110055. .....Complainant

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Versus M/s BPTP Ltd. Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001. …Opposite Party

8. Complaint Case No. 541/2013

In the matter of:

Naveen Sharma FIS Limited, I Park, 4th Floor, 402, Plot No. 15, Udyog Vihar, Phase-IV, Gurgaon. .....Complainant Versus

M/s BPTP Ltd.

Through its Managing Director

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M-11, Middle Circle, Connaught Place, New Delhi-110001 …Opposite Party

9. Complaint Case No. 542/2013

In the matter of:

Anoop Maheshwari, House No. 645, Sector-9, Faridabad, Haryana .....Complainant Versus

M/s BPTP Ltd.

Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001. …Opposite Party

10. Complaint Case No. 590/2013

In the matter of:

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Subodh Kumar Philips Electronics India Limited, Philips Innovation Campus, Manyata Tech. Park,

Nagavara, Bangalore- 560045 Through Attorney

Mr. Pranay Kumar,

A-62, DDA Flats,

KatwwariaSarai,

New Delhi- 110060 .....Complainant Versus

M/s BPTP Ltd.

Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001 …Opposite Party

11. Complaint Case No. 674/2013

In the matter of:

Krishan Lal Jaiswal S/o Sh. Shesh Mani

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R/o 2438, Behind Govt. Snr. Sec. School Jawahar Colony,

Nit Faridabad - 121005 .....Complainant Versus

M/s BPTP Ltd.

Through its Managing Director M-11, Middle Circle,

Connaught Place,

New Delhi-110001. …Opposite Party

CORAM

Ms. Salma Noor, Presiding Member

1. Whether reporters of local newspaper be allowed to see the judgment?

2. To be referred to the reporter or not?

Ms. Salma Noor, Presiding Member

1. By this order, I propose to dispose of aforesaid 11 consumer complaints, filed by the complainants under Section 17 of the Consumer Protection Act, 1986 (in short 'the Act'). Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts involved in the above complaints, by and large, are the same, and therefore, all the complaints can be disposed of, by passing a consolidated order.

2. In all the aforesaid complaints, apart from seeking compensation and to obtain NOC from banks towards clearing of charge created by OP on the complainant(s) flat, the complainant(s),inter-alia, have sought setting aside of demands raised by the OP and a direction to withdraw/refund the interest levied/charge or any delayed payment. Complainant(s) have also prayed for award of delayed penalty till the physical possession is actually delivered to them. However, it is an admitted position as on today OP is not having the Occupation Certificate and construction work of EWS Block has not been completed till date and Occupation Certificate issued on 13.12.2013 is withdrawn by DTCP. In these

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circumstances, OP cannot legally offer possession to complainant(s).

3. To dictate order, facts are being taken from consumer complaint bearing No.471 of 2013 titled as Anindita Purkayashta & Anr. Vs. M/s. BPTP Limited. It is the case of the complainant(s) that OP had launched a residential project by the name of M/s. BPTP Park Floor-II in Sector 76, Faridabad in the year 2008, which was promoted by way of various publishing materials, brochures and other publicity materials wherein salient features of the project were stated. Considering that the flat was within their budget, complainant(s) booked a residential flat measuring 1414 Sq. ft. by paying booking amount of Rs.2,50,000/-. Another sum of Rs.3,21,000/- was also paid by the complainant(s) and thereafter a flat bearing No. T2-204, Tower-T2 vide allotment letter dated 15.12.2008 was allotted to the complainant(s). A Flat Buyer's Agreement (in short, the "Agreement") was executed between the parties on 09.07.2009. It was a construction linked plan. The complainant(s) had availed home loan from LIC Housing Finance Ltd. A Tripartite Agreement was also executed on 10.02.2011. It is stated that building plans of project were approved only on 03.11.2010 as such the project was approved by LIC Housing Finance Ltd. and loan was disbursed thereafter. It is alleged that though there was a delay on the part of OP in obtaining approval of building plans, despite that OP had charged interest on complainant(s) for not paying the installments on time. It is alleged that vide e-mail dated 30.06.2012 it was informed by an employee of OP that no interest would be charged by OP on the outstanding amount till the disbursal of loan from financial institution. It is stated that OP was under an obligation to complete the construction of project and deliver the possession of the subject flat within 36 months from the date of sanction of building plans i.e. the possession was to be delivered by 03.11.2010. However, no offer of possession was made by the stipulated date. It is stated that OP had sent a letter dated 07.06.2013 titled "Demand-cum-Offer of Possession for fit outs" and not for actual habitation of complainant and his family members. It is stated that the aforesaid letter was issued in the absence of any completion/occupancy certificate from the concerned authorities in favour of OP. It is stated that even in the "Demand-cum-Offer of Possession for fit outs", illegal demands were raised by OP i.e. Rs.4,18,466.70 towards basic sale price which was to be payable at the time of physical possession. The cost of Rs.1,45,541.62 towards escalation was wrongly raised. Rs.30,000/- towards electricity connection charges and Rs. 1 lac towards power back up charges were also wrongly raised. It is alleged that Rs.2,16,342/- was demanded towards enhanced EDC charges though the same were stayed by the High Court of Punjab & Haryana in a writ petition filed by Apartment Owners Association of Greater Faridabad. A demand of Rs.1,56,700/- was also raised towards stamp duty and registration, which can only be raised when all approvals including but not limited to completion/occupancy certificate being in place.

4. It is further the case of the complainant(s) that even in the letter dated 07.06.2013, size of the unit was increased from 1414 Sq.ft. to 1483 Sq.ft. It is stated that complainant(s) have paid about 90% of the original agreed cost of the flat. Despite that possession of the flat has not been offered.

5. By stating as above, the complaints aforesaid, were filed by the complainants, with a prayer for setting aside demands raised vide letter dated 07.06.2013 and seeking directions to OP to withdraw/refund the interest levied/charged or any delayed payment. Complainant(s) have also prayed for award of delayed penalty till the physical possession is actually delivered to him. There is also a prayer for award of compensation and to obtain NOC from banks towards clearing of charge created by OP on the complainant(s) flat.

6. Upon notice, the opposite party filed its written statement, wherein, inter-alia, many preliminary objections were raised that this Commission has no territorial jurisdiction to deal with the matter as per clause 34 of the Agreement. It is stated that as per aforesaid clause, parties have mutually agreed to confer the jurisdiction exclusively to the Courts at Faridabad and Punjab and Haryana High Court at Chandigarh alone, in all the matters arising out of or in connection with the Agreement. The complaint(s) raises complex questions of fact and interpretation of law and disputes regarding rights and obligations of parties under various statutes, which requires elaborate evidence and such cases should be adjudicated by the Civil Courts.

7. On merits it is stated that no cause of action has arisen in favour of complainant(s). OP has admitted letter of allotment dated 15.12.2008 issued to complainant(s) allotting the subject flat, the details of which are given above. The Agreement between the parties is also admitted. It is admitted that complainant had paid Rs.2,50,000/- towards booking amount and Rs.3,21,000/- subsequent to

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booking. It is stated that subsequent demands were raised upon complainant(s) in accordance with the Agreement between the parties. It is also admitted that construction linked plan was agreed between the parties and the building plans of the aforesaid project were approved on 03.11.2010. The payments made by the complainant(s) as well as disbursement from sanctioned loan by LIC Housing Finance Ltd. are also admitted by the OP. It is alleged that no specific Agreement was executed between the parties for non-levying of interest till disbursement of loan as is alleged. However, as a gesture of goodwill, OP had agreed to waive the interest of Rs.5,71,314/- and requisite intimation in this regard was also sent to the complainant(s).

8. It is stated that clause 2.1 of the Agreement deals with the possession. It is stated that as per aforesaid clause subject to clause 9 or any other circumstances and subject to complainant(s) having complied with terms and conditions of the Agreement and not being in default under any of the provisions of Agreement, OP had agreed to handover the possession within a period of 36 months from the date of sanction of building plans. A grace period of 180 days was also agreed after the expiry of 36 months for applying and obtaining occupation certificate. It is stated that though the Opposite Party had completed the construction of the flat even before the end of year 2012 but the possession could not be granted to the complainant(s) as the occupation certificate was pending from the concerned authority. It is stated that since the possession was subject to clause 9, which is a Force Majeure clause and one of the force majeure condition, which was accepted between the parties, was the non- procurement of any approval from any government authority, including delay in issuance of Occupation Certificate/Completion Certificate. It is alleged that in these circumstances, there is no delay on the part of Opposite Party as is alleged by the complainant(s).

9. It is denied that arbitrary demands were raised in letter dated 07.06.2013 as is alleged. It is alleged that demands raised upon complainant(s) are legal and are in consonance with the Agreement and terms and conditions of application for allotment. It is alleged that complainant(s) were aware about the Power Back up charges, Electrification Charges, cost escalation in case of increase in prices in the raw materials or any other cost and charges. OP has relied upon clause 6, 7 and 26 of the Terms and Conditions of Allotment.

10. It is denied that there is any deficiency in service on the part of OP. OP has alleged that relief prayed by complainant(s) cannot be granted as complainant has to comply with demands raised vide letter dated 07.06.2013 and has to make payments and interest towards delayed payments.

11. In the rejoinder filed, the complainant(s) reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite party.

12. The parties led evidence in support of their cases.

13. The contesting parties, raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.

14. Before making any reference to the merits of the case, I would like to decide preliminary objections raised by the opposite party wherein territorial jurisdiction of this Commission was challenged by the OP stating that this Commission has no territorial jurisdiction to deal with the present complaint as per Clause 34 of the Agreement Ex. CW-1/1 It is contended that only courts at Faridabad and Punjab and Haryana High Court at Chandigarh alone have the jurisdiction. The objection raised is baseless. The Agreement Ex. CW -1/1 between the parties was executed at Delhi. Even the registered office of OP is at Delhi. Under Section 17(2) of the Act, this Commission has territorial jurisdiction to deal with the present complaint. It has been held by National Commission in catena of judgments that restriction of jurisdiction to a particular court need not be given any importance in the facts and circumstances of the case. Reliance is placed upon Radiant Infosystem Pvt. Ltd. & Others v. D. Adhilakshmi & Anr.

1(2013) CPJ 169 (NC).

15. Another preliminary objection raised by the OP is that the complaint raises complex questions of fact and interpretation of law and disputes regarding rights and obligations of parties under various statutes, which requires elaborate evidence and such cases should be adjudicated by the Civil Courts. In case, I go through the pleadings as well as the evidence produced by the parties, the complainant(s) had booked one flat with opposite party and had paid the payment as demanded by opposite party and all the terms and conditions were incorporated in the agreement executed between the parties. As per the agreement the possession was to be delivered to the allottee within a period of 36 months from the date of sanction of building plans. A grace period of 180 days was also agreed after the expiry of 36

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months for applying and obtaining occupation certificate. It is admitted position that though the Opposite Party had completed the construction of the flat even before the end of year 2012 but the possession could not be granted to the complainant(s) as the occupation certificate was not obtained by the OP from the concerned authority. Thus, it is only the interpretation of the terms and conditions and then to see whether there is any deficiency in service on the part of the opposite party? I do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission.

16. It may be stated here, that the complainant(s) hired the services of the opposite party, for purchasing the plot, in the manner, referred to above. According to condition No.2.1 of the Agreement, physical possession of the flat was to be delivered by the opposite party, within a period of 36 months, from the date of execution of the Agreement alongwith all basic amenities as mentioned in Article 2.1 of the Agreement, which they failed to do so and on the other hand, have raised demands, which is being challenged by way of filing this complaint, by the complainant(s). Section 2 (1) (o) of the Act, defines service as under:-

"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"

17. From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held by the Hon'ble Apex Court that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar, principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal &Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act provides an alternative remedy. Even if, it is assumed that the complainant(s) have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by them, as they falls within the definition of consumer. In this view of the matter, the objection of the opposite party in this regard, being devoid of merit, must fail, and the same stands rejected.

18. On merits, it is admitted that the complainant(s) had purchased a flat, in the project of the opposite party, in the manner, referred to above. Fact qua price of the plot, as mentioned in the complaint is also not disputed.

19. It is also not disputed that as per Agreement Ex. CW -1/1 executed between the parties, the possession was agreed to be delivered by OP within a period of 36 months from the date of sanction of building plan. The date of sanction of building plan is 03.11.2010. A grace period of 180 days was also allowed after 36 months for applying and obtaining OC. It is also admitted that no possession was offered even after lapse of 42 months from 03.11.2010 or even thereafter. It is also not disputed that vide letter dated 07.06.2013, OP had offered possession for fit outs only. It is also admitted position that 90% agreed cost has already been received by OP i.e. Rs.29,92,692.27. The remaining 10% of agreed cost was to be paid only at the time of possession. OP has also raised additional demands vide the aforesaid letter. Complainants have alleged that additional demands are not legitimate. Without going into said controversy, when OP was not having OC, in such circumstances, OP was not justified in raising further demands. The purpose of aforesaid letters was to collect more money, which is an unfair trade practice.

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20. OP has alleged that possession was subject to clause 9 of Agreement which deals with Force Majeure circumstances. It is contended that delay in issuance of Occupation Certificate is one of Force Majeure conditions as such no delay can be attributed on the part of OP. The contention raised has no force. The delay is on the part of OP in obtaining Occupation Certificate. There is no governmental delay in the grant of Occupancy Certificate as such OP cannot claim benefit of clause (9) of the Agreement as is contended. As per material on record, the OP has applied for Occupation Certificate vide application dated 01.05.2012 to the Director of Town and Country Planning (DTCP). However, nothing is placed on record to show the status of the same. The net result is that flat was booked in the year 2008 and till date OP is not having Occupancy Certificate.

21. Ld. Counsel for complainant(s) has submitted that though the prayer in the complaint is made for setting aside the demands raised by OP vide letter dated 07.06.2013 and for the grant of possession, however, keeping in mind the factual position discussed above i.e. OP is still not having the Occupation Certificate, complainant(s) are not interested in the reliefs prayed in the complaint case. It is submitted that during the pendency of complaint, complainants have awaited for sufficient time so that OP can get clear OC but till date there is no OC with OP as such complainant(s) are interested for refund of amount with 18% interest along with compensation and litigation cost. It is submitted that complainants have paid 90% of the agreed cost and despite that have been deprived of the possession of the flat due to inaction of the OP in obtaining the OC. It is submitted that OP has used the money and enjoyed the benefit arising out of huge payment made by the complainants. It is submitted inordinate delay in obtaining OC is deficiency in service on the part of OP. It is submitted that OP has failed to fulfil its contractual obligation of obtaining the OC as such complainants cannot be compelled to wait further to enable the OP to offer possession.

22. On the other hand, Ld. Counsel for OP has argued that OP is still willing to offer the flat with delay compensation. It is stated that as per clause 2 (3) of Agreement, OP has agreed to compensate for delay in handing over the possession @ Rs.5/- per sq. ft. It is further submitted that refund of money is a substantive relief. It is submitted that the same cannot be allowed without there being specific prayer in this regard in complaint case. It is contended that subject to payment of balance amount, OP is ready to offer the possession with compensation.

23. During arguments, ld. Counsel for OP has fairly admitted that as on today OP is not having the Occupancy Certificate. In these circumstances, OP cannot legally offer possession to complainant(s). Reliance is placed on the judgment of National Commission in Shailender Singh & Ors. v. Parsvnath Developers IV 2018 CPJ 85 NC.

24. As noted above, complainant(s) are not interested in possession of the flat as OP is not having Occupancy Certificate. The question for consideration; is whether in these circumstances, the relief for the refund of amount with interest can be awarded in favour of complainant(s), when there is no specific prayer in this regard. The aforesaid question has been dealt by the National Commission in

Parsvnath Exotica Resident Association Vs Parsvnath Developers Ltd. &Ors. Devidayal Aluminum Industries (P) Ltd. IV (2016) CPJ 328 (NC) wherein it is held that even in the absence of specific prayer, it is always open to grant relief which is justified and warranted in the facts and circumstances of the case. The relevant portion of the judgment is as under:

"Though, in Consumer Complaint No.45 of 2015, the main prayer made by the complainant is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the tile deed in their favour, when this matter came up for hearing on 27.4.2016, the learned counsel for the complainant stated on instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them. The learned counsel for the opposite party submitted in this regard that no prayer for refund has been made in Consumer Complaint No.45 of 2015. In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief

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which is justified and warranted in the facts and circumstances of the case."

25. In view of above discussion, even in the absence of specific prayer, keeping in mind the facts and circumstances discussed above, the relief for refund with appropriate compensation can be considered in favour of complainants.

26. As discussed above, the complainant(s) have made out a clear case of deficiency of service on the part of the OP. The complainant(s) cannot be compelled to wait for indefinite period for the possession of flat allotted to them, whenever it is offered by the OP.

27. In Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, Hon'ble Supreme Court has held that when possession of property is not delivered within the stipulated period, the delay so caused is denial of service.

28. In Fortune Infrastructure &Anr. v. Trevor D'Lima & Ors., (2018) 5 SCC 442, it is held by Hon'ble Supreme Court that a 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.

29. It has been held by the National Commission in catena of judgments that when possession of the allotted flat is not delivered within the specified time, the allottee is entitled to refund of amount paid, with reasonable interest thereon from the date of payment till the date of refund. Reliance is placed on the judgments of National Commission titled Subodh Pawar v. M/s Ireo Grace Realtech Pvt. Ltd. &

4 Ors. dated 24.09.2018 in CC No.1998/2016 and Amit Arora v. M/s Ireo Grace Realtech Pvt. Ltd.

dated 27.03.2019 in CC No.696/2017.

30. As far as aforesaid connected consumer complaints are concerned it may be stated here that a Tripartite Agreement dated 07.06.2011 was entered into between the parties i.e. complainant, OP and finance company in Consumer Complaint No.469/2013. As stated above the facts averred by the complainant(s) in the main complaint and the defence raised by the OP are almost similar to each other, therefore, narration of the same is not required. Further, the objections taken by the OP in the main complaint bearing No.471/2013 have been dealt with by this Commission in the preceding paras of this order. However, for the sake of convenience, the details of the documents executed between the parties and the amount paid by the complainant(s) to the OP, which is admitted by the OP in its statement of accounts, in the aforesaid connected complaints are mentioned herein below:

S.

CC No. Date of Agreement Offer of

allotment dated possession for Amount paidNo. Fit outs

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31. Except from contending and arguing the averments and the objections made/raised in the complaint(s) and written statement, no other point was raised during the course, by any of the contesting parties in all the complaints.

32. In view of the above discussion, present is a clear case of deficiency in service on the part of OP. Complainant(s) are legally entitled to seek refund of the money deposited by them with OP along with appropriate compensation. The complainant(s) have prayed for award of interest @ 18% p.a. However, keeping in mind the facts and circumstances of the case, I award compensation in the form of interest @ 12% p.a. from date of each deposit till realization.

1) The Opposite Party is directed to refund the amount deposited by the complainants as mentioned in Para No.30 of the order along with compensation in the form of interest @ 12% p.a. from the date of each deposit till realization.

2) The Opposite Party shall also pay a sum of Rs.50,000/- towards cost of litigation to complainant.

33. However, it is made clear that, if the complainant(s) in any of the above complaints, have availed loan facility from any banking or financial institution, for making payment towards the said flat, they will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainant(s)), respectively.

34. Certified copy of this order, be placed on connected complaints file, referred to above.

35. A copy of this order as per statutory requirements be sent to the parties free of cost. Thereafter the file be consigned to record room.

(Salma Noor)

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Presiding Member

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