Neeraj Chowdhary Vs BPTP Ltd.: Consumer Victory in Property Dispute

Neeraj Chowdhary Vs BPTP Ltd. (NCDRC Delhi)

In a significant ruling, the National Consumer Disputes Redressal Commission, Delhi, has delivered a judgment in the case of Neeraj Chowdhary Vs BPTP Ltd., bringing relief to a group of home buyers who had been grappling with delays and uncertainties in the completion of their residential project.

The case centered around a project named “Park Sentosa,” situated in village Nimka, Sector-77, Faridabad, by BPTP Ltd., a real estate developer. The project, launched in 2013, promised a modern living experience to its customers, attracting them with alluring advertisements and attractive payment plans. However, as the years passed, concerns began to mount as the construction progress did not match the promises made.

The complainants, led by Neeraj Chowdhary, approached the National Consumer Disputes Redressal Commission, seeking various reliefs, including refunds, compensation for delays, and relief from mental agony due to the prolonged ordeal.

The Commission’s hearing witnessed arguments from both sides, with Mr. Navneet Kumar representing the complainants and Mr. Pragyan Pradip Sharma and Ms. Nidhi Tewari representing the opposite parties, BPTP Ltd.

The key issues of contention revolved around the delay in possession of the flats, non-completion of construction even after years of booking, and the alleged unfair trade practices adopted by the developer.

The Commission analyzed the evidence, including allotment dates, payment details, and construction progress, and observed that despite substantial payments by the home buyers, the construction had only reached the basement roof slab level. The promised possession timeline had long expired, leaving the buyers in a state of uncertainty and financial strain. The Commission also noted that the builder had not provided a clear deadline for completion, indicating a lack of intention to finish the project in a reasonable time frame.

The Commission invoked Section 12(1)(C) of the Consumer Protection Act, which permits a complaint to be filed by one or more consumers on behalf of numerous consumers who share the same interest. Despite objections raised against this provision, the Commission upheld the previously granted permission for the complainants to file the complaint collectively.

Ultimately, the Commission ruled in favor of the complainants. It directed BPTP Ltd. to refund the entire amount deposited by the complainants, along with interest at 9% per annum from the respective deposit dates until the date of payment. The Commission provided a two-month window for the payment to be completed.

This judgment not only offers respite to the complainants but also highlights the significance of consumer protection laws in the real estate sector. It reinforces the responsibility of developers to adhere to promised timelines and deliver what they advertise to their customers. The ruling emphasizes the importance of transparency, fair trade practices, and accountability in the real estate industry, setting a precedent that can potentially impact future property disputes and safeguard the rights of home buyers.

FULL TEXT OF THE ORDER OF NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION DELHI

1. Heard Mr. Navneet Kumar, Advocate, for the complainants and Mr. Pragyan Pradip Sharma, Advocate and Ms. Nidhi Tewari, Advocate, for the opposite parties.

2. Aforementioned complaint has filed for directing the opposite parties (i) to refund each and every buyer, the amount paid by him/her with interest @18% per annum, from respective date of deposit till the date of refund, in respect of the apartment booked by him/her in the project “Park Sentosa”, at village Nimka, Sector-77, tehsil and district Faridabad, (ii) to pay compensation to each and every buyer @ Rs.5/- per sq.ft. per month on ‘super area’, for the period of delay in offering possession of the flats booked by them, (iii) to pay Rs.5/-lacs, to each and every buyers, as compensation for mental agony and harassment, (iv) to pay Rs.50000/- to each and every buyers, as cost of litigation, (v) to award benefits of the subvention plan to the complainants, who had opted for the same, (vi) to impose appropriate penalty upon the opposite parties for indulging in unfair trade practice and (vii) any other relief which is deemed fit and proper in the circumstances of the case.

3. The complainants filed IA/6125/2018 under Section 12 (1) (c) of Consumer Protection Act, 1986, for grant of permission to file the complaint in representative capacity, which was allowed on 24.10.2018, after hearing the parties. Initially, 14 sets of flat buyers joined as the complainants. After publication of notice, Dr. Rajendra Kumar Agarwal, Mrs. Hemlata Agarwal and Ms. Garima Agarwal (allottees of Flat No.1806) filed IA/6897/2019, for their impleadment as the complainants, which was allowed on 26.04.2019. Mrs. Anju Kheterpal (allottee of Flat No.B-G001) filed A/3675/2020, for her impleadment as the complainant, which was allowed on 16.09.2020. Later on, Dr. Rajendra Kumar Agarwal, Mrs. Hemlata Agarwal and Ms. Garima Agarwal (allottees of Flat No.1806) (complainants-15 to 15-B) settled their claim with the opposite parties, out of court.

4. The complainants stated that the opposite parties were separate companies, incorporated under Companies Act, 1956 and have its registered office at M-11, Middle Circle, Connaught Circus, New Delhi. M/s. Countrywide Promoters Private Limited and M/s. Anjali Promoters & Developers Private Limited (opposite parties-2 and 3) owned of 13.187 acres land at village Nimka, Sector-77, tehsil and district Faridabad. They obtained License No.267 of 2007 dated 03.12.2007, from the Director, Town and Country Planning, Haryana, for development of township over the aforesaid land. Opposite parties-2 and 3 assigned the work of

development, construction of building and selling its unit to the prospective buyers over the aforesaid land to M/s. BPTP Limited (opposite party-1). The opposite parties launched the project of group housing in the name of “Park Sentosa” over the aforesaid land and gave attractive advertisements in 2012. Basic sale price of a flat of ‘super built up area’ of 1646 sq.ft. was around Rs.8634905/- including other charges. The opposite parties prescribed four payment plans i.e. (i) Construction Linked Payment Plan, (ii) Down Payment Plan, (iii) Subvention Plan and (iv) Self-Funding Payment Plan. Under Subvention Plan, initial 15% of sale price was payable by the buyer, thereafter, 80% of sale price was payable by the HDFC Ltd. by way of loan and remaining 5% of sale price was payable by the buyer at the time of possession. The complainants and other buyers booked the flats in the year 2013-2014. Allotment letters were issued and Flat Buyer’s Agreements were executed during 2013-2014 by the opposite parties in favour of the complainants and other buyers.

5. A chart, giving date of provisional allotment, flat numbers, total sale price and amount paid by the complainants are given below:-

6. At the time of launching the project there were only four towers. The builder was mala fide trying to merge ‘Park Floor’ Project with the ‘Park Sentosa’ though both the projects were different. The project ‘Park Sentosa’ was launched in February, 2013, but the construction on the spot was only upto roof slab of basement. Although no construction on the spot was in progress, but the builder used to issue demand of various stages of construction, which was wholly unfair. The complainants have either opted under “Construction Link Payment Plan” or under “Subvention Plan”. In both these plans, the payment had to be made on the various stages of construction. However, demands were arbitrarily raised from the complainants and other buyers without proceeding with the construction. There was no possibility of completing the construction in near future.

7. The complainants stated that the complainants were paying the instalments as per payment plan opted by them as per demand notice issued by the opposite parties. Clause-1.5 of Flat Buyer’s Agreement is headed as “Commitment Period”, which provides that the builder will handover possession of the apartment to the allottees within 42 months from the date of sanction of the building plan or execution of Flat Buyer’s

Agreement, whichever is later. Clause-5.1 provides that the builder will offer possession within “Commitment Period” and entitled to additional 180 days after expiry of said “Commitment Period” as grace period. “Commitment Period” and “Grace Period” expired around July, 2017, for all the allottees but the opposite party did not offer possession. The complainants made inquiry through emails but no proper response was received. The opposite parties could not give a deadline for delivery of possession in clear term. Then some of the complainants visited the site and found that construction work was barely started and there was no hope that they would be completed within 4-5 years. Which shows that the opposite parties never intended to complete construction. They started construction to extract and usurp money from the allottees. The allottees took loan either at own level from the Bank or under subvention scheme from Housing Development Finance Corporation Limited, to pay instalments to the opposite parties. Due to delay in construction, EMI of the loan was started and the complainants had to pay EMI, on the loan. Due to not having their home, the complainants are paying rent of the rented accommodation. Due to extra financial burden of high interest on the loans, the complainants demanded for return of their money but the opposite parties threatened to forfeit 20% of sale price in the shape of earnest money. The opposite parties were charging interest @18% per annum on delay in payment of instalments as such the complainants were also entitled for interest at the same rate on their refund. The complaint was filed on 23.03.2018, complaining deficiency in service and unfair trade practice.

8. The opposite parties filed Written Statement on 25.01.2019, in which, material facts have not been disputed. It has been stated that the complainants were investors. Atul Bhiwapurkar (complainant-2), Amit Dagar (complainant-6) and Abhay Bhiwapurkar (complainant-10) belonged to the same family and booked separate flats for commercial purpose. Market in real estate has gone down, after the year 2016, as such, the complainants now want for refund along with interest @18% per annum and other exaggerated reliefs. The complainants are not consumers and the complaint was not maintainable. The complainants got allotments on different dates, for difference sale price and under different payment scheme. Some of the complainants are defaulter in payment of instalments and have committed breach of contract. For committing default, the opposite parties have terminated allotment of complainants-13 and 14. Under the agreement, their earnest money is liable to be forfeited. The complaint, as representative complaint was not maintainable as there is no similarity between them. The complaint under Section 12 (1) (c) of the Consumer Protection Act, 1986, has been filed with an intention to make out pecuniary jurisdiction to file the complaint before this Commission although value of the flat was below Rs.one crore. “Commitment Period” under Clause-1.5 of the agreement was subject to force majeure, intervention of statutory authority and timely payment of instalments by the purchasers. On payment of total sale consideration, liability of the opposite parties to deliver possession arises. It was further agreed that the opposite parties would pay delayed compensation at the rate of Rs.5/- per month on the ‘super built up area’, for delay in offer of possession. The opposite parties, vide email dated 02.06.2017, offered the complainants to give possession of the flat in other project but none of the complainants gave any reply of email dated 02.06.2017, which shows that they were not interested in possession. At the time of submitting allotment application and under clause-4.1 of FBA, the complainants were clearly informed that the opposite parties were in process of developing towers and proposed specifications were not final till the stage of “occupation certificate”. Revised layout plan of Tower E was approved by DTCP on 08.08.2017. Flat Buyer’s Agreements were executed in favour of some of the complainants in February, 2014 and “Commitment Period and “Grace Period” expires in February, 2018, while the complaint was filed in March, 2018. Clause-1.5 of FBA has to be read with Clause-1.16, which provides Force Majeure conditions and Clause-6 which safeguard the interests of the complainant by making a provision of delayed compensation. Out of the aforementioned complainants, 9 complainants have opted under “Subvention Plan” for which there was tripartite agreement and the money financed by the HDFC has to be returned to the HDFC and not to the complainants.

9. The complainants filed Rejoinder Reply on 17.12.2019, in which, the facts stated in the complaint were reiterated. The complainants filed separate Affidavits of Evidence of all the sets of Flat Buyers. The opposite parties filed Affidavit of Evidence of Inderjeet Singh. Both the parties have filed their short synopsis.

10. I have considered the arguments of counsel for the parties and examined the record. The counsel for the opposite parties has again raised objection against order dated 12.10.2018 allowing IA/6125/2018 under Section 12(1)(C) of the Act and granting permission to file the complaint in representative capacity. The counsel for the opposite parties, relying upon the judgment of Supreme Court in Civil Appeal No.1779 of 2021, Brigade Enterprises Limited Vs. Anil Kumar Virmani & Ors. and others (decided on 17.12.2021) and judgment of Delhi High Court in CM(M) 664/2018 CM Appl. 23358/2018 and CM Appl.5843/2019, Lucina Land development Ltd. Vs. Union of India & Ors. (decided on 27.04.2022), submitted that since the ingredients of Section 12(1)(c) are not fulfilled, as such, no permission under Section 12(1)(c) can be granted. At the most the complaint can be treated as joint complaint on behalf of the complainants under Section 12(1)(a).

11. Section 12(1)(C) of Consumer Protection Act, is quoted below:-

“12. Manner in which complaint shall be made- (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District

Forum by- (a)……..

(b) ………….

(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or”

12. A full bench of this Commission in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC), held that if the consumers are numerous and they have same interest then the complaint can be filed by one or more consumers with the permission of the forum for the benefit of all consumers so interested, this judgment has been affirmed by Supreme Court in Rameshwar Prasad Shrivastava and Ors. Vs. Dwarkadhir Projects Pvt. Ltd. and Ors. (2019) 2 SCC 417. The Supreme Court in Vikrant Singh Malik and others Vs. Supertech Limited and others, (2020) 9 SCC 145 held that requirement of a complaint under Section 12(1)(C) are that (i) it can be filed by one or more consumers, (ii) it is filed for and on behalf of numerous consumers who have the same interest and (iii) it requires permission of District Forum.

13. In the present case, there are allegations that the opposite parties launched the project of “Park Sentosa” in February, 2013 and gave attractive advertisement in this respect. Due to alluring representation of the opposite parties, the complainants as well as numerous consumers got the flat allotted, in the year 2013. Although substantial amount has been charged from the complainants and numerous consumers, but even after expiry of about 54 months the building was constructed upto the basement roof slab level only. Under the Flat Buyer’s Agreement (FBA), the builder has promised to give possession within 42 months with grace period of 180 days, but the construction on the spot is not in progress nor it was likely to be completed in the near future. The allegation has been made that numerous consumers are affected with unfair trade practice adopted by the opposite parties in realising substantial amount and not completing the construction in time. This Commission by detailed order dated 24.10.2018 has allowed the application under Section 12(1)(C). This order has not been challenged before any higher court. I do not find any reason to recall the permission as granted on 24.10.2018 and permitting to file the complaint in representative capacity.

14. Allegation that the construction was not progressed after roof slab of basement, has not been disputed. The opposite parties contested the matter on the ground that some of the allottees were rank defaulter and their allotments have also been cancelled. No doubt a perusal of the chart of payment as given by the complainants, shows that complainants No.3, 5, 9 and 12 have deposited very less amount. But in the “Construction Link Payment Plan”, they were liable to pay on various levels of construction. Since, there was no progress after the roof slab of basement on the spot, which has been proved from various photographs filed by the complainants as such the builder cannot be permitted to take a ground that due to default committed by various allottees they could not proceed with construction.

15. So far as the refund of amount under the “Subvention Plan” is concerned, for that purpose a tripartite agreement were executed between the complainants, HDFC and the builder. Under tripartite agreement, the complainants alone are liable to repay the loan of HDFC. Supreme Court in Prateek Infra Projects India Pvt. Ltd. Vs. Nidhi Mittal and another, Civil Appeal No.2504 of 2020 (decided on 05.06.2020), held that the amount under subvention scheme is liable to be refunded to the consumers.

16. In most of these cases, allotments were made around June, 2013 and Flat Buyer’s Agreement was executed around July, 2013. Clause-1.5 provides “Commitment Period” which is quoted below:-

“1.5 Commitment Period” shall mean, subject to, Force Majeure circumstances, intervention of statutory authorities and Purchaser(s) having timely complied with all its obligations, formalities or documentation, as prescribed/requested by Seller/Confirming Party, under this Agreement and not being in default under any part of this Agreement, including but not limited to the timely payment of all instalments of the Total Sale Consideration as per the payment plan opted, the Seller/confirming Party shall offer the possession of the Unit to the Purchaser(s) within a period of 42 months from the date of sanction of the building plan or execution of Flat Buyer’s Agreement, whichever is later.”

17. Under Clause-5.1 a grace period of 180 days has also been provided, but the total period of 48 months have elapsed in July, 2017, but the constriction is not in progress on the spot except roof slab of basement. The opposite parties have not taken any plea of force majeure in the written reply. Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Govind Raghvan, (2019) 5 SCC 725, Kolkata West International City Vs. Devasis Rudra, 2019 SCC OnLine SC 438 and NBCC (India) Ltd. Vs. Shri Ram Trivedi, (2021) 5 SCC 273, held that a buyer cannot be compelled to wait for possession for unlimited period.

18. So far as compensation for mental agony and harassment is concerned, Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711 has held that in the matter of contractual obligation there is no scope of compensation for mental agony and harassment. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, held that the home buyer would be entitled for compensation in the shape of interest @9% per annum from the date of each deposit till the date of refund.

ORDER

In the result, the complaint is partly allowed. The opposite parties are jointly and severally directed to refund entire amount deposited by the complainants with interest @9% pa. from the date of respective deposits till the date of payment, within a period of two months, from the date of this judgment.