ANJU MOHAN v. M/S BPTP

1. This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has Delhi, for short complainant, against the M/s BPTP Limited, hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs they having not completed the (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 2 OF 10 construction and handed over the possession although payment as required was made and the agreed period for the purpose having been over and praying for the relief as under:- a. Without prejudice to prayers (a) to (j) hereinbelow, direct the respondent company to pay/refund to the complainant the sum of Rs. 32,22,345/- being the amount paid by the complainant to the respondent in respect of residential flat bearing no. P-44/301, BPTP Park Floors-II, Sector-76, Faridabad (Haryana), alongwith interest @18% p.a. calculated from the respective dates on which the amounts were paid by the complainant till the date of actual payment/refund of the amount by the respondent to the complainant. b. Direct the respondent company to refund the entire amount of Rs. 6,53,330.34 collected from the complainant deceptively by stating that the approvals are in place and that upon payment of this money, possession of complainants flat shall be handed over to her; c. Direct the respondent company to provide detailed break up and justification for all the demands raised vide its letter dated 31.07.2013 which are outside the scope of the payment schedule provide under the flat buyers agreement. d. Direct the respondent company to withdraw cost escalation charges raised vide its letter dated 1,28,268.98; e. Direct the respondent company to withdraw power backup charges being levied vide its letter dated 31.07.2013 and make this facility optional and charged only those allottees who are willing to avail the said facility. f. Direct the respondent company to withdraw its demand of stamp duty charges and raise it afresh only at the time of offering physical possession of the complainants flat for habitation with all approvals and completion/occupancy certification in place with a confirmed date for execution of conveyance deed/sale deed. g. Direct the respondent company to provide detailed calculation of the increase in super area, to the satisfaction of the complainant and in the event a detailed calculation to the satisfaction of the complainant cannot be provided, withdraw the additional demand raised on account of alleged increase in super area; h. Direct the respondent company to pay delayed possession penalty as payable under the contract, from the date the physical possession fell due to the (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 3 OF 10 complainant till the date the possession is actually delivered to the complainant;

i. Direct the respondent company to withdraw the sale/transfer of open/common areas in the form of open car parking and refund the amount charged from various allottees in the name of sale of open car parking space; j. Direct the respondent company to obtain No Objection Certificate from its bankers towards clearing of charge created by the respondent company on the complainants flat; k. Direct the respondent company to charge enhanced EDC, only in accordance with the decision of the Honble High Court of Punjab and Haryana while disposing off a Writ Petition presently under adjudication in this regard.

l. Award a compensation of Rs. 5,00,000.00 towards mental agony, harassment and losses caused by the respondent company to the complainant such as making false representation to the complainant that the building plans were approved by the authorities whereas the same were approved more than a year later, delay in offering possession from the contractually agreed period, offering possession of flat without having an occupancy certificate from appropriate authorities and other such deficiencies and unfair trade practices adopted by the respondent company as enumerated herein above, in the present complaint; Pass any other proper and further order (s) which this Honble Commission deems fit in the peculiar circumstances of the present case.

2. Facts of the case necessary for the adjudication of the complaint are these.

3. The complainant had booked a residential flat admeasuring 1275 sq. ft. in the upcoming project of OPs at Sector 76, Faridabad on being assured of the provision of 100% Power Backup, Club Facility, Fire Fighting Installations, round the clock security etc. and for this purpose booking amount of Rs. 2,00,000/- was paid. On receipt of the booking amount the OPs had allotted the complainant a flat bearing number T-44/301 in Park Floors II at Sector 76, Faridabad.

4. Subsequent to the initial booking in the year 2008 the OPs raised several demands and the complainant complied with those demands, promptly. Thus, in this manner the complainant paid a sum of Rs. 4,00,000/- from the time of booking in year 2008 till the year 2010 when the Flat Buyers Agreement was executed. As per the agreement the construction linked plan was agreed between the (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 4 OF 10 complainant and the Ops and the Ops while raising demands between the year 2008 and 2010 had furnished photographs of the construction site, giving an impression that the construction was in full swing although it was later revealed that the building plans of the project got approved only towards the end of year 2010. The OPs as per the agreement were under an obligation to complete construction of the project and deliver the possession of the complainants flat within 36 months from the date of building sanction plan which date was never disclosed. The construction having commenced in March, 2009 when the first construction linked demand was raised the OPs were under an obligation keeping in view the agreement to complete the project by March, 2012. But despite various visits of the complainant no satisfactory reply with regard to the possession of the flat was indicated.

5. Finally on 31.07.2013 a letter was received titled as offer of possession for fit-outs of unit no. T44-301... and OPs simultaneously demanded an amount of Rs. 6,53,330.34 towards final demand and also offered possession of the complainants flat for fit outs indicating that all approvals are in place and the possession of the flat subject to the final payment being made was ready to be handed over. The complainant since waiting for the possession of the flat paid all the demands so raised.

6. However the complainant noted that the said Demand-cum-offer of possession for fit outs contained certain arbitrary and illegal demands contrary to the payment plans as agreed to and took up the matter with the OPs but no satisfactory justification was furnished for the said additional charges. The said demands as stated by the complainant are as under: a. Cost Escalation:- The OPs raised a demand of Rs. 1,28,268.98/- towards cost escalation from the time the said project was launched till now when letter for Demand-cum-offer of possession-for fit outs has been issued to the complainant. b. Electricity connection charges of Rs. 30,000/- towards electricity connection charges is not reflected in the Flat Buyers Agreement. Infact under clause 6.4 of the contract the cost of demand under this head is to be made by the Ops. c. Power backup installation charges- A demand of Rs. 1,00,000/- under this head has been raised again contrary to the Clause 6.4 of the contract. d. Stamp duty and stamp paper fee charges- The demand of Rs. 1,03,300/- towards stamp duty and registration charges can be raised by the only when all approvals including but not limited to (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 5 OF 10 completion/occupancy certificate are in place. The Ops without the an occupancy certificate/completion certificate, having demanded this amount is liable to refund the entire amount so collected in the garb of offering possession. e. Enhanced EDC- The respondent company has charged a sum of Rs. 1,95,075/- towards enhanced External Development Charges without providing any details.

7. The complainant has alleged that the OPs have delayed handing over the possession of the flat so booked. Infact necessary approvals have also not been received. The OPs have therefore been deficient in rendering service to the complainant and accordingly has approached this Commission for the redressal of her grievances.

8. OPs were noticed and in response thereto they have filed their reply resisting the complaint both on technical ground as also on merit stating that there is no cause of action in favour of the complainant and against the OP as there is neither any deficiency nor any negligence on the part of the OP. The OP had diligently and efficiently provided the services to the complainant and in view thereof the present complaint is not maintainable in terms of Section 2(g) of the Consumer Protection Act, 1986.

9. The complainant has filed rejoinder rebutting the contentions raised in the written statement and reiterating the averments contained in the complaint. Evidence by way of affidavit are also on record.

10. This complaint was listed before this Commission for final hearing on 05.10.2020 when the counsel for both sides appeared and advanced their arguments, the complainants for the refund of the deposited amount with interest, the OPs having failed to deliver the possession of the flat(s) within the time as agreed to and after the period is over it is the discretion and decision of the complainant to ask for the possession with interest as claimed or for refund with interest and the OPs on the other hand for the dismissal of the complaint as according to them no cause of action subsists as against them they having offered the possession of the dwelling unit after obtaining the approvals from the competent authority. We have perused the records of the case and given a careful consideration to the subject matter.

11. Point for determination in this complaint is whether the complainant is entitled for the refund as pressed for during the course of the arguments or the OPs having offered them the possession of the flat within the time, the complainants are not entitled for the refund. (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 6 OF 10

12. In the first instance we may advert to the defence of the Ops. Their first objection that the complainant had been defaulter cannot be accepted as the complainant having opted for construction linked plan had to make the payment as per the progress done in the project. Secondly their argument that they had offered the possession of the flat within the time agreed to cannot be stretched beyond a point since that offer was, without the occupancy certificate or completion certificate and if that be the case the offer of possession was not valid. For this purpose reliance is placed on the judgment of the Honble NCDRC in the matter of Treaty Construction and Anr. Versus Ruby Tower Co- op Hsg. Society Ltd. and ors as reported in II [2018] CPJ 54 (NC) holding in para 11 as under:- So far as the question of obtaining the occupancy certificate is concerned, as per the provisions of MOFA the possession should not have been handed over to the members of the complainant society without obtaining occupancy certificate and this is a clear unfair trade practice. It is being argued on behalf of the OP that there are additions and modifications in the building and therefore, it is difficult to obtain the certificate and the matter is getting situation has been created by the OPs themselves as they offered possession without the occupancy certificate. Clearly, not obtaining occupancy certificate is the deficiency on the part of the OP/appellant. Similar view was taken by the Honble NCDRC in the matter of Kamal Kishore and anr versus Supertech Limited as reported in II [2017] CPJ

483 (NC) holding inter alia that no payment is required to be made unless the possession is offered after obtaining the requisite occupancy certificate.

13. Having regard to these facts the objections of the OPs being not maintainable are sequentially rejected. The sum and substance is that the complaint deserves to be accepted and it is ordered accordingly.

14. Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat.

15. The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 7 OF 10 extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in my view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc.

16. From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.

17. The Honble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.

18. The complainants in their arguments have also relied on the judgment of the Honble NCDRC in the matter of Puneet Malhotra vs. Parsvnath Developers Ltd. CC 232/2014 decided on 29.01.2015 holding as under: The opposite party has already taken almost entire sale consideration from the complainants. However, despite making almost entire payment, the complainants have not been able to get the shelters they had sought to acquire (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 8 OF 10 and considering the steep increase in the value of land and the cost of construction in last 7-8 years, it is not possible for them to acquire another similar accommodation even after adding the amount of interest @ 18% per annum to the amount they had deposited with the opposite party. Therefore , the facts of these cases are really gross and justify grant of interest @ 18% per annum, inclusive of appreciation in the value of land and in the cost of construction in last about 7-8 years. For the reasons stated hereinabove, the complaints are disposed of with a direction to the opposite party to refund the amount which the complainants had deposited with it, along with interest on the said amount @ 18% per annum from the date the deposit was made till the date the refund is made. This comprises 8% per annum on account of appreciation in the land value and increase in cost of construction and 10% on account of interest. However, considering that compensation is included in grant of interest @ 18% per annum, we do not grant any separate compensation to the complainants over and above interest @ 18% per annum. They have relied on yet another judgment passed by the Honble NCDRC in the matter of Swarn Talwar and two ors vs Unitech Ltd. passed in CC 347/2014 decided on 14.08.2015 holding as under: For the reasons stated hereinabove, we direct the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount, at the rate of 18% per annum from the date of deposit till the date of payment. The payment shall be made within six weeks from today. In the facts and circumstances of the case there shall be no order as to cost. The complaints stand disposed of.

19. Besides, their Lordships in Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor Dlima and ors as reported in II[2018] CPJ 1 (SC) are pleased to hold as under: Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation.

20. The Honble NCDRC in its recent judgment, in the matter of Anil Kumar Jain versus Nexgen Infracon Pvt. Ltd. as reported in I [2020] CPJ 368 (NC) is pleased to direct as under:- Even though in the main relief, the complainants have sought for possession of the flats/apartments in these (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 9 OF 10 complainants and alternatively they have claimed refund of the amount deposited by them along with interest and compensation, but as the builder OP has failed to deliver the possession of the flats to the complainants latest by 31.12.2016, i.e. the stipulated period with grace period in the agreement and approximately three years have passed but the possession has not been given and the complainants cannot be made to wait for such a long period, they are entitled for refund of the deposited amount along with compensation. Hence, for all the afore-noted reasons, all these complaints are partly allowed and disposed of along with pending IAs, if any, with the following directions to the developer to:- a. Refund the entire amount deposited by the complainants along with compensation @ 12% from all respective dates of deposits till the date of realisation, within a period of one month from today failing which the builder/OP shall be liable to pay compensation @ 14% p.a. The compensation @ 12% p.a. has been directed to be paid for the reason that the complainants have taken home loans from the Banks/Financial Institutions for making payment to the Builder/OP for purchasing the flats/apartment in question. b. Pay 10,000/- as costs of litigation to the complainants in each of the complaints. Before parting, I may make it clear that the interest @ 12% per annum on the refund of the amount which has been awarded as compensation is not factually interest on refund and, therefore, there is no question of deducting any tax on source.

21. The Honble NCDRC in the matter of Universal Infrastructure & anr. versus Binay Pal Singh & anr. as reported in IV[2019] CPJ 437 (NC) relying on the judgement of the Honble Supreme Court of India in the matter of Kolkata West International City Pvt. Ltd. versus Devasis Rudra [Civil Appeal Number 3182/2019 decided on 25.03.2019] is pleased to hold as under:- More than seven years have already expired from the date on which flat was booked by the complainants with the appellant. Complainant cannot be expected to wait (CC-675/2013) MS. ANJU MOHAN VERSUS M/S BPTP LIMITED PAGE 10 OF 10 indefinitely for possession of the allotted flat and are entitled to seek fund of the amount paid alongwith appropriate compensation.

22. The Honble NCDRC in another matter of STUC Awasiya Grahak Kalyaan Association & ors. Versus Supertech as reported in III [2019] CPJ 226 (NC) has held as under:- Allottee cannot be compelled to accept possession at the belated stage. Accordingly refund of the entire amount alongwith compensation in the form of simple interest @ 10% was ordered.

23. Having regard to the discussion and the legal position explained, we are of the considered view that the ends of justice would be met if a direction is issued to the OPs to refund to the complainant the amount deposited with interest at the rate of 7% from the date of deposit till realisation.

24. Ordered accordingly leaving the parties to bear the cost.

25. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records. (Dr. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER PRONOUNCED ON 09.10.2020