Reserved

State Consumer Dispute Redressal Commission, Uttar Pradesh

Lucknow

Complaint Case No.  347 of 2016

DEEPTI KUMAR

Aged about 32 years w/o Mayank Gupta,

Resident of GyanSuraj, 101, Kanth Road

Ram Ganga Vihar,

                                                                         ……Complainant

Versus

1. JAYPEE INFRATECH LIMITED,

registered office situated at sector-128

Noida, through its Director.

2. JAI PRAKASH ASSOCIATES Ltd.

office situated at sector-128

Noida, through its Director

3. AXIS BANK LIMITED,

Having its registered office at Trishul

Law Garden, Ellis Bridge,

Ahemdabad, Gujarat, through its Director.                

……Opposite Parties

1. Hon’ble  Justice Akhtar Hussain Khan, President
2. Hon’ble Shri Mahesh Chand, Member.

1. Sri Piyush Mani Tripathi, Advocate for the Complainant.
2. Sri Pratul Pratap Singh, Advocate for the Opposite Parties No 1 &2.
3. Sri Mukut Bihari Tripathi, Advocate for the  Opposite Parties No 3

Date:  24 -10-2018

Judgement

(Delivered by Hon’ble Member Sri Mahesh Chand)

This Complaint under section 17 of the Consumer Protection Act, 1986 has been filed by the above mentioned complainant against the above mentioned Opposite Parties.

In brief the facts of the complainant’s case are : The Complainant booked a flat  in the project, namely “GARDEN ISLES” at Jaypee Greens, Noida, on dated 6.2.2012 and deposited a sum of Rs 242,506/- as booking amount. The opposite parties allotted a flat No/Unit No GDI0252103 admeasuring super area of 111.94 sq.mts. in the aforesaid project “GARDEN ISLES” at Jaypee Greenss, Noida,  vide provisional allotment letter dated 16.5.2012. The total consideration of this flat was Rs 48,98,890/-. According to the payment plan the balance amount was to be deposited in two stages. Rs 43,78,150/- were to be deposited before dated 15.6.2012 and Rs 5,85,424 at the time of the offer of possession.

Subsequent to the allotment of the flat, the Complainant, the Opposite Parties No 1, No. 2 & Opposite Party No 3 entered into a quadripartite agreement on dated 29.6.2012 whereby a loan amounting to Rs 38,99,200/- was sanctioned to the complainant. This amount of Rs 38,99,200/- was directly disbursed by the bank to the opposite parties. The opposite parties at the time of the booking of the flat had assured the complainant that the possession of the allotted flat will be given within 42 months of the allotment i.e. by dated 16,11.2015. But the opposite parties mis-appropriated the funds and failed to deliver the possession of the flat in stipulated time. Hence the opposite parties committed deficiency in service and resorted to Unfair Trade Practice. Being aggrieved with the Deficiency in Service  and Unfair Trade Practice on the part of the opposite parties, the complainant has filed this complaint seeking the following reliefs:-

1. Direct the opposite parties to refund the entire deposited amount of Rs 47,76,280/- carrying interest at the rate of 24%  with effects from the dates of respective deposits till the date of refund.
2. Direct the opposite parties to pay the amount of Rs 39,586/- per month with effect from 16.11.2015 till the date of refund, since this is the amount which is to be paid by the complainant on account of delay committed by the builder.
3. Direct the opposite parties to pay an amount of Rs 20,000/- towards rent with effect from the 16.11.2015 till the date of refund of the deposited amount along with interest.
4. Direct the opposite parties to pay appropriate compensation and damages which this Hon’ble Commission may deem it just and proper in the facts and circumstances of this case.
5. Direct the opposite parties to pay Punitive Damages to the complainant which this Hon’ble commission may deem it just and proper in the facts and circumstances of this case.
6. Direct the opposite party no.3 to  pay amount of Rs 5 Lakhs for deficiency in service as well as Unfair Trade Practice. It is further prayed that this Hon’ble Commission may graciously be pleased to direct the opposite parties not to adopt such kind of  Unfair Trade Practice in near future.
7. Allow the complaint and direct the opposite parties to pay a sum of Rs 100,000/- towards the cost of case.
8. Any other order which this Hon’ble Commission may deem fit and proper in the circumstances of the case may also be passed.

The notices were issued to the opposite parties. Opposite parties No.1 & 2 filed their written statement. The opposite parties No 1 & 2 denied the averments of the complaint application and stated that they have not committed any deficiency in service. The main objections of the opposite parties are as follows:-

1. The complainant booked the flat for speculative purpose hence the complainant is not the consumer under section 2(1)(d) of the Consumer Protection Act,1986 and the complaint is liable to be dismissed on this ground.
2. It is  alleged in the written statement that the complainant committed default in making the payment of instalments. It has been stated in the written statement that there is a balance of Rs 78,518/- towards the complainant along with interest on delayed payment.
3. It has also been stated in the written statement that there is an arbitration clause No 10.9 for amicable settlement in the agreed terms and conditions of the application form duly signed by the complainants. Therefore, the complainants must invoke the arbitration clause for amicable settlement of the dispute.
4. It is alleged in the written statement that the flat was booked by the complainant for speculation purpose in the Real Estate Market and commercial purpose. Therefore the complainants are not the consumers as defined in section 2(1)(d) of the Consumer Protection Act, 1986.
5. It has also been stated in the written statement that in the year 2001 the Government of Uttar Pradesh Conceived the Project of constructing 165 km. long Yamuna Express Way from Noida to Agra on Build Operate and Transfer (BOT) basis. Jaiprakash  Industries Limited was selected for this purpose by the Yamuna Expressway Authority. A Concessionaire Agreement was signed between Yamuna Expressway Authority and Jai Prakash  Industries Limited on dated 7.2.2003.
6. In terms of the Concessionaire Agreement, the Opposite PartiesNo.1 & 2 constituted a special purpose vehicle (SPV), known as Jaypee Infratech Ltd. According to  the Concessionaire Agreement Yamuna Expressway Authority leased to Jaypee Infratech Ltd 25 million sq. mts. (2500 Hectares or 6125 acres) land for development of Integrated Project namely Jaypee Greens Wish Town along the Expressway at five locations in Sector 128,129,131,133 & 134. The JaypeeIn fratech Limited was required to develop the Expressway from Noida to Agra so as to fund the cost of the project by developing five townships and/or by sale of apartments and sale of land.
7. It has been admitted in the written statement that the complainant was allotted a Unit No.  GDI0252103 in “Garden Isles” project admeasuring a super area of 111.94 sq.mts (1205 sq.ft.) vide allotment letter dated 16.5.2012. The total consideration of the said unit was Rs 48,98,890/- and its possession was to be delivered with in 42 months from the dated of the said allotment.
8. Due to farmers agitation for enhancement of the compensation of the acquired land, the opposite parties could not enter certain parcels of land and consequently could not realize funds for development. The Government directed to pay 64.7% enhanced land compensation to the farmers vide its order dated 29.8.2014. For implementation this order, the farmers stopped  the entry of  the opposite parties in the aforesaid land parcels causing scarcity of funds.
9. The State Government’s  decision in the year 2012 not to handover the Expressway connecting Noida and Greater Noida caused a substantial loss of revenue to Jaypee Infratech Ltd. (JIL). Because as per Concessionaire Agreement, the opposite parties were entitled to collect the toll on this expressway. These funds were to be used in the development of above mentioned land parcels.
10. Hon’ble National Green Tribunal’s order dated 11.1.2013 retrained all builders of Noida and Greater Noida from extracting the underground water for the purpose of construction.
11. Due to force majeure events such a shortage of labour, scarcity of water, restriction on excavations, villagers agitation, as well as legal impediments slowed down the progress of the project.
12. All these reasons narrated above caused the delay in progress of the Project.
13. It has been admitted that the complainants will get the discount of Rs 3,27,760/- as per clause 7.2 of the standard terms and conditions of the payment plan.
14. It has been alleged in the written statement that the instant complaint has been filed to extort money from the opposite parties.
15. Simultaneously, it has also been admitted by the opposite parties in the para wise reply of the written statement that the opposite parties are ready to refund the amount as per standard terms and conditions of the agreement.

Opposite party No 3, the Axis Bank also have filed their written statement. In the written statement, the averments of the complaint have been denied. It has been stated in the written statement that the complainant and her husband Mr. Mayank Gupta are the co-borrowers and accepted the terms and conditions of the loan agreement. A loan of Rs 38,89,200/- was sanctioned on dated 1.8.2012 for purchase of the property GDI0252103 situated at Garden Isles, Jaypee Greens, Noida to be developed by the opposite parties No.1 & 2. The complainant and her husband Mr Mayank Gupta are under legal and contractual liability to repay the said loan amount which is to be paid in equated monthly installments of Rs 39586/- each starting from dated 10.3.2015. The complainant and her husband failed to comply the legal obligation of paying the EMIs to the answering opposite party. Their loan account has been declared as NPA account (Non-performing Asset). The allegations against the opposite parties No. 1 & 2, regarding delivery of the possession have no concern with the answering opposite party no.3 . It has also been alleged in the written statement that the instant complaint has been filed with sole intent of escaping the recovery of the loan amount and the complaint has been filed with the ulterior motive. The opposite party no 3 have prayed for dismissing the complaint.

The Complainant has filed the replication of the written statement of the opposite party no.3.  In the replication statement, the complainant has stated that the opposite party no. 3 did not follow the RBI guidelines at the time of sanctioning and disbursement of the loan. In the RBI guidelines there is a clear mention that while appraising the loan proposal, the banks should ensure that the borrowers have obtained prior permission from the government/ local governments/other statutory authorities. The disbursement should be made only after the borrower has obtained the requisite clearances from the government authorities. In the instant case the bank had included the opposite parties no 1 & 2 in the approved list of builders while they had not the requisite clearances from the statutory authorities. This act on the part of  the OP no 3 has misled the complainant to believe that the builder has got all clearances from the statutory government bodies while it was not so. It amounts to Unfair Trade Practice on the part of OP no. 3.

The opposite party no.3 is the party to the quadripartite agreement with the complainant and the opposite parties no 1 & 2. In pursuance of this agreement the builder should have maintained the separate account and adjust the loan amount towards construction of the said flat as per clause 15 of the agreement. But the bank allowed the builder to flout the builder to violet the  guidelines of the RBI and the provisions of the said agreement. The builder mis-utilized the funds. The National Green Tribunal had to pass restrain orders against the builders.

The complainants filed the following document as their evidences in support of their complaint case:

1. Affidavit of complainant  dated 2.11.2016 & 12.2.2017.
2. Copy of allotment letter  dated 16.5.2012.
3. Copy of the quadripartite agreement dated 29.6.2012
4. Copy of letter dated 1.9.2016 seeking information from the builder about the progress of the construction and possession of the flat.
5. Copies of the receipts of the amounts deposited by the complainant.
6. Copy of the bank account of the complainant with the ICICI Bank.
7. Copy of the loan account with Axis Bank.
8. Copy of the legal notice.

The opposite parties filed the following documents as their evidences in support of their written statement.

1. Copy of the latest statement of account.
2. Copy of the application form dated 6.2.2012.
3. Copy of the provisional allotment letter dated 16.5.2012.
4. Copy of the order dated 11.1.2013 passed by Hon’ble National Green Tribunal.
5. Copy of the order dated 14.8.2013 passed by Hon’ble National Green Tribunal.
6. Copy of the order dated 17.9.2013 passed by Hon’ble National Green Tribunal.
7. Copy of the order dated 28.10.2013 passed by Hon’ble National Green Tribunal.
8. Copy of the order dated 3.4.2014 passed by Hon’ble National Green Tribunal.
9. Copy of the order dated 30.5.2014 passed by Hon’ble National Green Tribunal.
10. Copy of the order dated 10.6.2014 passed by Hon’ble Supreme Court.
11. Copy of Notification dated 19.8.2015.

After filing of the evidences by the parties the opposite parties No 1 & 2 moved an application  dated 1.2.2018 whereby the payer was made to restrain the Opposite Party No.3 from initiating the recovery proceedings of the loan amount. After hearing the learned counsels of the parties, this application was rejected vide order dated 29.5.2018

The complainant moved  another interim application dated 9.8.2018 under section 13(3B) of consumer Protection Act, 1986 whereby prayer has been made to direct the OPs no1 & 2  to make  payment of the loan amount  to OP no.3.

 The case was put up before this bench for hearing. Mr Piyush Mani Tripathi, Advocate, authorized by Mr Sarvesh Kumar Sharma, the learned counsel of the complainant, appeared. Mr PratulPratap Singh, advocate for the opposite parties No. 1 & 2. Mr Mukut Bihari Tripathi, advocate appeared for the opposite party No.3. We heard the arguments of the learned counsel for the complainant and the opposite parties  on the interim application as well on the complaint and perused the record available on file. So we are deciding the aforesaid interim application and the complaint finally.

It is undisputedly evident from the record on file that the complainant was  allotted a residential apartment No GDI0252103 in “Garden Isles” Project of the  opposite parties, at Jaypee Greens, Noida, District Gautam Budha Nagar, U.P. on 16.5.2012. Its super area was 111.94 sq.mts. (1205sq.ft.). It is also undisputed fact that the total consideration of the said flat was Rs 48,98,890/- excluding other misc. charges. It is also undisputed fact that the possession the said unit/flat was to be given to the complainant within 42 months of date of allotment along with a grace period of 180 days. Thus the possession was to given by 16.5.2016 which includes the grace period.

The complainant has deposited a total sum of Rs 47,76,280/- as is proved from the receipts submitted by the complainant and statement of account by submitted by the OP No. 1 &  2. The details of deposited amount are as follows:-

Thus out of the total consideration of the said flat, Rs 48,98,890/- excluding other misc. charges, the complainant has deposited Rs 47,76,280/- by dated 28.3.2013. The possession of the allotted flat was to be delivered by the opposite party No 1 & 2 by dated  16,11.2015 and if the grace period of 180 days is added as per agreement, it should have been delivered by dated 16,5.2016 but the opposite parties failed to deliver the possession in the stipulated period.

During the arguments the learned counsel of the opposite parties pointed out that the proceedings are not maintainable as the matter of insolvency of the OP no. 1  Jaypee Infratech Limited is pending before NCLT.He further  argued that due to force majeure events such a shortage of labour, scarcity of water, restriction on excavations, villagers agitation, as well as legal impediments slowed down the progress of the project and the opposite parties have not committed any deficiency in service. He vehemently argued that the in the light the stand taken by the opposite parties in their written statement this complaint deserves to be dismissed.

We have considered the submissions made by the parties. Provisional allotment letter dated 16.5.2012, is  annexure  No 2 to the complaint and annexure No.3 to the written statement It has been issued by the opposite parties namely, Jai Prakash Associate Limited and Jaypee Infratech Limited jointly. Complainant has deposited the sale consideration as mentioned above in pursuance of the allotment letter. But the possession of the flat allotted to the complainant could not be given within stipulated period. Undisputedly, the flat is still not ready for the possession to be handed to the complainant. The allotment letter has been issued to the complainant by the above mentioned opposite parties jointly.  Therefor, both the opposite parties are equally liable for the performance of the promise made in the allotment letter. But in view of the order dated 9.8.2018 passed by the Hon’ble Apex Court in writ petition (civil) No 744 of 2017 Chitra Sharma & others Vs Union Of India & others, this complaint can’t be proceeded further against opposite party No. 1- Jaypee Infratech Limited. The aforesaid order of the Hon’ble Apex Court does not provide any prohibition against the remaining opposite parties. As such, we are proceeding to decide the complaint against opposite party No. 2 & 3 only. We find support for this decision from the order dated 1.10.2018 passed by the Hon’ble National Consumer Commission in Complaint case No1495 of 2015, Arvind Kumar Dhingra and others Vs. Jai Prakash Associates Limited & others along with the bunch of similar cases. 

Complainant has deposited a sum of Rs 47,76,280/- out of  the total sale consideration of Rs 48,98,890/- . But the possession of the allotted flat has not been given to the complainant with the stipulated period. Causes or explanations for delay in possession as given the opposite parties no 1 & 2 are insufficient. Considering all facts and circumstances of the case, we are of the view that Unfair Trade Practice and deficiency in service have been caused to the complainant by the opposite parties. 

OP no 2 is equally responsible for deficiencies in service. It is pertinent to mention that OP No 1 and OP No 2 have filed the joint written statement wherein  it has been admitted by the opposite parties No. 1 & 2 in para 1 of the para wise reply of the written statement that the opposite parties are ready to refund the amount as per standard terms and conditions of the agreement. The clause 5.6 of the standard terms and conditions  mentioned in the application for allotment provides that in case of default or delay in payment of the consideration amount, the allottee will be liable to pay to the builder the interest @ 18% per annum on the outstanding amount. Conversely, the same principle applies to the opposite parties. They are  also liable to pay interest @ 18% per annum on the refund amount as they have defaulted in construction of the allotted flat.  But the condition of  refund without interest as per clause 9.1.5. of the said standard terms and conditions can not sustain as it is against  the principle of equity and it is totally unjustified and amounts to Unfair Trade Practice. Thus the complainants have the right to get the refund of the deposited amount along with interest @18% per annum from the date of respective deposits till the date of actual refund. Since the allotted flat has been financed by the opposite party no.3 and the OP no.3 have a lien over it and the complainant is liable to pay the liability of the said flat. In case of the refund  of the amount deposited against the said flat, the OP no 3, the Axis Bank has the first charge over it to recover the balance amount along with interest. The complainant will be entitled to the balance amount of refund (principal plus interest). The complainants are also entitled for compensation of Rs 20000/- for mental agony and litigation cost of Rs 10,000/-.  Hence the complaint deserves to be partially allowed against opposite party No 2. The interim application dated 9.8.2018 under section 13 (3B) of consumer Protection Act, 1986 where by prayer has been made to direct the OPs no1 & 2 to make payment to OP no.3, deserves to be disposed of accordingly.

The complaint is partially allowed. The opposite party No 2 is directed to refund the balance amount of Rs 47,78,280/- with interest @18% pa from the date of  respective deposits till the date of actual refund as follows:

1. The Opposite Party No 3 shall get the balance loan amount along with the due interest out the total refund amount (Principal plus 18% as mentioned above).
2. The complainant shall get the balance amount after clearance of the dues of the opposite party no 3 as above out of the total refund amount (Principal plus 18% as mentioned above).
3. The complainant is also entitled for compensation of Rs 20000/- for mental agony and litigation cost of Rs 10,000/-.

 All these amounts shall be paid within a period of 45 days from the date of this Judgement and Order. No order to other  costs.

Let the copies of this judgement and order be provided to all concerned as per rules.

               (Justice Akhtar Husain Khan)                         (Mahesh Chand)

                                President                                                   Member

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