Prashant Narayan & Anr vs BPTP Ltd. & Anr

Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Pragyan Pradip Sharma, Advocate, for the opposite parties.

Prashant Narayan and Mrs. Shakti Narayan have filed above complaint, for directing the opposite parties to (i) refund Rs.7219039/- with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.100000/-, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainants stated that M/s. BPTP Limited and Countywide Promoters Private Limited (the opposite parties) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite parties launched a group housing project, in the name of “Pedestal” at village Palra, Sector-70 & 70-A, Gurgaon, in the year, 2013 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite parties, the complainants booked a flat and deposited booking amount of Rs.1200000/- on 25.07.2013. The opposite parties issued Allotment Letter dated 11.11.2013, allotting Unit No.C-08-TF, super area 2878 sq.ft., total cost of Rs.17557981/- and executed Floor Buyer’s Agreement on 27.11.2013, in favour of the complainants. Annexure to the allotment letter contained payment plan as “construction link payment plan”. Clause-5.1 (read with clauses-1.4 and 1.15) of the agreement provides 36 months period from the date of execution of the agreement with grace period of 180 days for delivery of possession. In order to make timely payment of the instalments, the complainants took a loan of Rs.13072193/- from HDFC Bank, for which, a Tripartite Agreement was executed on 27.11.2013. By an addendum dated 23.01.2014, the opposite parties re-allotted Unit No.B-98-SF, super area 1823 sq.ft., in place of Unit No.C-08-TF and issued a fresh Allotment Letter dated 08.04.2014, in which net cost of the Unit was mentioned as Rs.17557981. As per demand, the complainants deposited Rs.7219039/-. The opposite parties issued demand letter dated 12.02.2018 for the instalment “on casting of first floor roof slab” for Rs.1828617.16. The complainants downloaded photographs of the site from the website of the opposite parties and found that construction of block-B was at preliminary stage. Due date of possession, as per agreement expired in May, 2017. The opposite parties undertook to pay Pre-EMI on the loan till offer of possession but they stopped payment Pre-EMI from December, 2017. Then this complaint was filed on 03.04.2018, alleging deficiency in service.

The opposite parties have filed its written reply on 25.07.2018, in which, booking of the floor, allotment of the floor, execution of agreement, change of the allotment and the deposits made by the complainants, have not been disputed. The opposite parties stated that Haryana Urban Development Authority has sanctioned plan, for development of Sector-70 & 70-A, Gurgaon. Director, Town and Country Planning, Haryana granted Licence No.15 of 2011 dated 07.03.2011, for development of the land of 102 acres to the opposite parties, falling in these sectors. But Haryana Urban Development Authority has not acquired the land of sector roads, master sewer line, master storm water drains, master water lines and master electricity line nor developed above external infrastructures. The opposite parties have developed the sector road at their own costs in 2016. In the absence of approach roads and other facilities for construction, the project was delayed. The opposite parties are now proceeding with the construction with full swing, which is likely to be completed in near future. The opposite parties changed the allotment of the complainants on their request and a demand of Rs.126567.84 of transfer charges was payable by 21.02.2014. The opposite parties have borne Pre-EMI interest of Rs.1638474/- till 31.12.2017 and assured the complainants through emails dated 29.10.2015, 04.11.2015, 21.11.2016 and 04.01.2017 for bearing Pre-EMI interest till offer of possession although under the scheme, liability of the opposite parties was up to 31.03.2016. The complainants delayed payment of instalment payable on 31.01.2014 and after reminders this instalment was paid on 31.07.2014. The complainants have paid total Rs.2913008.81 and HDFC Bank has paid total Rs.3479246/-. Demands of the instalments “on casting first floor roof slab” and “on casting second floor roof slab” raised on 12.02.2018 and 04.04.2018, have not been paid by the complainants. The opposite parties always updated the buyers about the construction status along with demand letters. In the allotment letter, the Terms and Conditions have been given as such it cannot be said that agreement was one sided. The period of 42 months for possession was subject to force majeure. The agreement provides for arbitration in case of any dispute and the complaint is not maintainable. The complaint has no merit and liable to be dismissed.

The complainants filed Rejoinder Reply, Affidavits of Evidence of Prashant Narayan and Shakti Narayan and documentary evidence. The opposite parties filed Affidavit of Evidence of Inderjeet Singh and documentary evidence. The complainants have filed their written synopsis.

The counsel for the complainants relied upon the judgment of this Commission, passed in CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, dated 18.06.2020, arising out of same project, in which, direction for refund of entire amount with interest @10% per annum was issued due to inordinate delay in offer of possession. This judgment was affirmed with slight modification of interest in Civil Appeal No.1001-1002 of 2021, by judgment of Supreme Court dated 12.04.2021. He further relied upon judgment of Supreme Court in Ireo Private Limited Vs. Aloke Anand, 2022 SCC OnLine SC 106.

We have considered the arguments of the parties and examined the record. CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, was in respect of other project and has no application in the present case. Floor Buyer’s Agreement was executed on 27.11.2013. Clause-5.1 (read with clauses-1.4 and 1.15) of the agreement provides 36 months period from the date of execution of Floor Buyer’s Agreement, for delivery of possession subject to force majeure and fulfilling the obligations of the buyer with a grace period of 180 days. The opposite parties took plea that the construction was delayed due to force majeure reasons. The period of 36 months was completed on 26.11.2016 and grace period was completed on 26.05.2017 and this period is liable to be extended. Interest of the buyers has been protected under clause-6.1 of the agreement by providing delay compensation. The complainants stopped payment of instalment “on casting first floor & second floor roof slab” was raised on 12.02.2018 and 04.04.2018, respectively. Due date of possession expired on 26.05.2017. There is nothing on record to prove that the opposite parties have obtained ‘occupation certificate” till today. It is well settled that a home buyers cannot be made to wait for unlimited period, for possession.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite parties are directed to refund entire amount deposited by the complainants with interest @9% per annum from date of respective deposit till the date of refund, after adjusting Pre-EMI interest paid by them, within a period of two months from the date of this judgement. It shall be open to the opposite parties to satisfy the loan of the bank and refund balance amount to the complainants.