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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Dr. Sukhbir Singh and Anr. —Complainants
versus
M/s. BPTP Limited —Opp. Party
Consumer Case No.1504 of 2017
Decided on 21.9.2022
A. Consumer Protection Act, 1986—S.21[Consumer Protection Act, 2019 —S.58] - Services – Real Estate – Allotment of Flat – Delayed Possession – “Consumer” - Onus of poof – On the party alleging - Compliant has been filed alleging deficiency of Services – Whether the Complainant can be termed as a “Consumer” - The onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore, the Complainants are ‘Consumers’ as defined under Section 2 (1)(d) of the Act. [Para 9].
B. Consumer Protection Act, 1986—S.21[Consumer Protection Act, 2019 —S.58] - Services – Real Estate – Allotment of Flat – Delayed Possession – Delay if can be condoned – On the ground that delay occurred due to concerned authorities -The correspondence exchanged between the Opposite Party Builder and the concerned Authorities has not been placed on record to prove that the delay occurred solely on the part of the concerned authorities and cannot be attributed to any defect or deficiency on the part of the Opposite Party Builder in getting approvals for the Occupancy Certificate. It was the duty and responsibility of the Opposite Party Builder to get all the formalities done as per time frame. It was between the Opposite Party Builder and the Competent Authorities. The Complainants cannot be made victim for the same. [Para 10].
C. Consumer Protection Act, 1986—S.21[Consumer Protection Act, 2019 —S.58] - Services – Real Estate – Allotment of Flat – Builder Buyer Agreement – Statutory Demand – Consumers / Buyers – Liable to pay - Whether OP is justified in in demanding Cost Escalation Charges, Enhanced Area Charges, Electrification and STP Charges and Value Added Tax – Thus in Clause 2.4 of the Agreement, it is mentioned that “the Super Area of the Flat shall be determined after completion of construction of the Colony and after accounting for the changes, if any, on the date of handing over the physical possession, the final and confirmed Super Area will be incorporated in the Conveyance Deed. Any increase or decrease in the Sale Consideration, on the basis of increase or decrease in the Super Area of the Flat, shall be payable or refundable as the case may be without any interest. As such the Complainants cannot deny to pay the enhanced charges on account of any increase in the area of the Super Area - Accordingly, the Complainants are liable to pay the amount demanded under the head of Cost Escalation Charges, Enhanced Area Charges, Electrification and STP Charges and VAT. As far as the Maintenance Charges is concerned, the Complainants shall be liable to pay the Maintenance Charges with effect from the actual date of physical possession of the Flat. [Para 12].
D. Consumer Protection Act, 1986—S.21[Consumer Protection Act, 2019 —S.58] - Services – Real Estate – Allotment of Flat – Delayed Possession – Inordinate delay of 7 years – in delivery of Possession – Complainant – Entitled for Compensation - The possession was offered by Opposite Party Builder only on 06.03.2020 after obtaining Occupancy Certificate from the concerned authorities, i.e., during the course of the Proceedings, with an inordinate delay of nearly 7 years, which in our view is a clear case of deficiency in service on the part of the Opposite Party Builder. As such, the Complainants are entitled for a reasonable compensation for the inordinate delay of 7 years in offering the possession of the Flat by the Opposite Party Builder - Complainants are entitled for Delay Compensation in the form of simple interest @9% p.a. on the deposited amount w.e.f. 04.05.2013 till the date of Offer of Possession, i.e., 06.03.2020. [Paras 13 to 16].
Result: Compliant allowed.
ORDER
The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) against Opposite Party M/s. BPTP Limited (hereinafter referred to as Opposite Party Builder), by Dr. Sukhbir Singh and his wife Mrs. Sunita Singh, Complainants/Allottees of Residential Flat in a Group Housing Project, namely, “Park Prime Mansions” (for short “the Project”), to be developed and constructed by the Opposite Party Builder in Sector 66, Gurgaon, Haryana, seeking possession of the Unit alongwith compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the Opposite Party Builder in not handing over the possession of the allotted Apartment/Unit within the stipulated time.
2. According to the Complainants, facts of the case are that allured by the advertisements and the various lucrative representations made by the Officials and Brokers of the Opposite Party Builder that the Flats in the Project will be delivered within a period of 36 months, the Complainants jointly booked a Flat, i.e., Unit No. MA-3-404, admeasuring 2764 sq. ft. on 05.05.2010 by paying a sum of Rs.1,00,000/- towards booking amount in the Project, namely, “Park Prime Mansions” (for short “the Project”), to be developed and constructed by the Opposite Party Builder in Sector 66, Gurgaon, Haryana. Flat Buyer’s Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 29.09.2010. The basic sale consideration of the Flat was Rs.96,60,180/-. The Complainants have deposited a sum of Rs.1,00,82,487/- on different dates with the Opposite Party Builder as per its demand. It is stated that as per Clause 3.1 of the Flat Buyer’s Agreement, the possession of the Flat was to be delivered by 04.05.2013, that is, within 36 months from the date of booking/registration, i.e., 05.05.2010. Despite having received a huge sum of Rs.1,00,82,487/-, the Opposite Party Builder failed to deliver the possession of the Apartment.
3. Alleging deficiency in service and unfair trade practice on the part of the Opposite Party Builder, the Complainants have filed the present Complaint with following prayer:—
4. (a) To direct the opposite party to hand over the possession of the Flat/Apartment bearing Unit No.MA3-404, Unit-4, Mansion Tower-M, admeasuring super area 2764 sq. ft. in the project of the Opposite Party called “Park Prime – Mansion” situated at Sector-66, Gurgaon, Haryana and
(b) To direct the opposite party to pay the compensation @ Rs.5 per sq. ft. for every month of delay as mentioned in para 3.3 of flat buyer agreement and
(c) To direct the opposite party to pay compensation @ 18% per annum on the deposited amount i.e. Rs.1,00,82,487.20/- (Rupees One Crore Eighty Two Thousand Four Hundred Eighty Seven and Twenty Paise Only) /- for delay in delivering the possession of apartment for more than 7 years or till the actual possession handed over to the complainants or
(d) To refund the amount of Rs.1,00,82,487.20/-(Rupees One Crore Eighty Two Thousand Four Hundred Eighty Seven and Twenty Paise Only) /- along-with interest @ 18% per annum from the date of respective deposits till the date of actual payment to the Complainants and
(e) To direct the opposite party to pay a sum of Rs.1,50,000/- (One Lakh Fifty Thousand) as compensation on account of deficiency in services, Unfair Trade Practices, Committing Cheating and playing fraud upon the Complainant and for causing mental agony, harassment and loss of valuable time and
(f) To direct the opposite party to pay to the Complainant a sum of Rs.1,00,000/-(One Lakh) as compensation on account cost of this petition and further proceedings in litigation;
(g) Pass such other or further orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present Complaint.
4. The Complaint was resisted by the Opposite Party Builder. It was stated that there is
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