RESERVED
State Consumer Dispute Redressal Commission, Uttar Pradesh
ComplaintCase No. 107 of 2017
- RajanLuthraR/o III-K-14, Lajpat Nagar, New Delhi
- Mrs Kiran BalaLuthra W/o RajanLuthraR/o III-K-14, Lajpat Nagar,
New Delhi…….Appellants
Versus
- Jaypee Sports International Limited which has now amalgamated with
Jaiprakash Associates Limited having its registered office at Sector 128,
Noida, UP-201304, District GautamBudha Nagar, through Managing Director……Opposite Party
Present:-
- Hon’ble Justice Akhtar Hussain Khan, President
- Hon’ble Shri Mahesh Chand, Member.
Sri Sushil Kumar Sharma, Advocate for the Complainant.
Sri PratulPratap Singh, Advocate for the Opposite Party.
Date:20-6-2018
Judgment
PER Mr. Mahesh Chand, Member.
This Complaint under section 17 of the Consumer Protection Act, 1986 has been filed by Shri RajanLuthraand Mrs. Kiran BalaLuthra w/o Shri RajanLuthraboth residents of III-K-14, Lajpat Nagar, New Delhi against Jaypee Sports International Limited which has now amalgamated withJaiprakash Associates Limited having its registered office at Sector 128, Noida, (Pin-201304), District GautamBudha Nagar, UPthrough its Managing Director.
In brief the facts of the complainant’s case are thatthe Complainants had applied for allotment of an apartment in Kassia at Jaypee Greens Sports City,GautamBudha Nagar. The opposite party allotted a unit No KS2-12-201 measuring super area of 102.19 sq. mts (1100 sqft) for a consideration of Rs32,12,400/-. According to the provisional allotment letter dated 11.Feb. 2011, the
possession of the said apartment was to be delivered within a period of 24 months hereof, subject to standard terms and conditions. According to the annexure IV of the allotment letter the details of the consideration are as follows:-
Details of Consideration
KASSIA, JAYPEE GREENS SPORTS CITY, GautamBudha Nagar
Unit Reference No : KS2-12-201
Estimated Super Area : 1100 sq. ft.
Charge Types | Description | Total Amount (Rs.) |
| | |
Basic Price | @ Rs2619/- per sq.ft. | 28,80,900 |
| | |
Car Parking Slots(s) | 1 No @ Rs1.5 Lakh | 1,50,000 |
| | |
Internal Development Charges | @ Rs. 75/- per sq.ft. | 82,500 |
| | |
Electric Sub-Station Charges | @ Rs. 40/- per sq.ft. | 44,000 |
| | |
One Time Lease Rent | @ Rs. 50/- per sq.ft. | 55,000 |
| | |
Total Consideration | | 32,12,400 |
According to the payment demand notice dated 19.02.2011, the payment plan was as follows:
Due Date | Description | Charge Type | Amount Due (A) in Rs. | Amount Paid (B) in Rs. | Net Payable (A-B) in Rs. |
Mar 21, 2011 | On or before | Car Park | 1,50,000 | 000 | 1,50,000 |
| | Internal Development Charges | 82,500 | 000 | 82,500 |
| | Basic Sale Price | 25,41,876 | 000 | 25,41,876 |
| | Electric Sub-Station Charges | 44,000 | 000 | 44,000 |
| | Service | 68,711 | 000 | 68,711 |
| | Principal Amount Due | 28,87,087 | 000 | 28,87,087 |
| | Interest Due till (Feb 19,2011) | 000 | 000 | 000 |
| | | 28,87,087 | 000 | 28,87,087 |
The complainants deposited a sum of Rs 2,00,000/- vide cheque No 483620 dated 24.12.2010 drawn on HDFC Bank . The receipt of this deposited amount was issued on dated 29.12.2010. The opposite party issued a provisional allotment letter on dated 19.2.2011whereby the above mentioned property was allotted to the complainants. The complainants applied for the housing loan from the Axis Bank to make the payment of the said allotted property. A quadripartite agreement was entered into by the complainants, opposite party and the Axis Bank on dated 22.6.2011. The bank sanctioned a loan of Rs 25,90,000/- and the same was deposited by the bank in the account of the opposite party. The receipt this amount dated 15.7.2011 was issued to the complainants by the opposite party. Thus complainants deposited as total sum of Rs30,77,087/- as per payment plan. The rest amount ofRs3,25,113/- was to be paid at the time of handing over the possession of the aforesaid allotted apartment. The possession of the apartment was promised to be given within 24 months of the date of allotment letter. The opposite party did not hand over the possession of the apartment in the stipulated time. The complainants visited the office of opposite party a number of times for getting the possession of the apartment but all in vain. Hence being aggrieved with the deficiency in service and Unfair Trade Practice on the part of the opposite party, the complainants files this complaint case before this State Consumer Dispute Redressal Commission, seeking the following reliefs:-
1. Direct the opposite party to refund Rs30,77,087/- (Thirty Lacs Seventy Seven
Thousand and Eighty Seven Only) to the complainants.
2. Direct the opposite parties to give interest @18% on the total deposited amount
(90% of the total cost of house) from the date of the deposit to the date of actual
payment.
3. Direct the opposite party to make the payment of Rs5,00,000/- compensation for
physical and mental harassment.
4. Direct the opposite party to pay Rs 30,000/- for cost of the case.
5. Grant any other relief which this Hon’ble Court deems fit and proper in the interest
of justice.
The notice was issued to the opposite party who submitted its written statement. The opposite party denied the averments of the complaint and alleged that the period of the handing over of the possession expired in May 2015 whereas the instant complaint case has been filed in March 2017. It has been alleged in the written statement that the complaint has been filed after a delay of two years approximately from the time when the cause of action arose. The opposite party has alleged that the complaint is time barred. It is also alleged in the written statement that the flat was booked by the complaints for speculation purpose in the Real Estate Market and commercial purpose. The opposite party has also alleged that the complainants are defaulter in making payments and as on date, an interest amount is due on them. It has also been alleged that this complaint case has been filed for recovery of the deposited and not for the possession of the house. Hence this case is not a consumer case and deserves to be dismissed.
It has also been stated in the written statement that there is an arbitration clause No 10.9 for amicable settlement in theagreed 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.
It has been admitted in the written statement that the complainants were allotted the above mentioned apartment by the opposite party vide letter dated 19.2.2011 and its total sale consideration was Rs 32,12,400/- and its possession was to be delivered within 24 months with a grace period of 90 days as mentioned in the provisional allotment letter. But due to the agitation of the farmers, the peaceful development of the land could not take place and the opposite party could not raise funds. The government order dated 29.8.2014 for payment of 64.7% incentive to the farmers further added the problem of funds scarcity for development of the project. The farmers stopped the work of the project demanding the payment of increased compensation of the land.
The Government declined to hand over the possession of the Noida -Greater Noida Expressway to the opposite party as per terms and conditions of the concession agreement which entitles the OP to collect the toll charges. This resulted in substantial amount of revenue loss to the OP.
It has also been stated in the written statement that the National Green Tribunal vide its order dated 11.1.2013 retrained all builders of Noida and Greater Noida area from extracting the underground water for construction purpose.
In the written statement it has been submitted that in view of the above stated circumstances the complainants are entitled to the provisional allotment as per terms of clause 9.1.5(b) of the standard terms and conditions. This clause provides as under: -
“9.1.5(a) The Applicant/Allottee shall be entitled to cancel the Provisional Allotment only on default of the company / JIL to deliver up the said premises on payment of full consideration and other dues in accordance with the terms herein and provisional allotment letter. In such an event and upon the request of the Applicant/Allottee, the JIL shall refund , without any interest or compensation whatsoever, the entire amount, including Earnest Money, as had been received from the Applicant/Allottee.”
It has been stated in the written statement that there is no fault on the part of the opposite party and the delay has been only due the factors not attributable tothem. The opposite party have alleged in the written statement that the complaint has been filed to extort money from them and pleaded to dismiss the complaint with costs.
Both parties have filed their evidences in support of their statements. The complainants have filed the copy of the provisional allotment letter, copy of payment plan, demand notices, copy of bank loan sanction letter and receipts of the deposits, and copy of quadripartite agreement between the parties. The opposite party have filed the copy of provisional allotment letter, copy of the statement of account, copy of the application form and copy of the order dated 11.1.2013 passed by National Green Tribunal.
The case was put up before this bench for hearing. Mr Sushil Kumar Sharma, the learned counsel for the complainants and MrPratulPratap Singh, the learned counsel for the opposite party appeared. We heard their arguments and perused the documents available on the file.
It is admitted that the complainants were allotted the residential unit No KS-II-12/201 in Kassia at Jaypee Greens Sports City, GautamBudha Nagar. The complainants deposited sum of Rs 30,77,087/- as per demand notices. This is about 90% amount of the cost of the house while the balance amount was to be deposited at the time of handing over of the possession . This is also admitted that the possession of the allotted apartment was to be given after 24 months of the date of allotment. Allotment was made on dated 19.2.2011. Thus the possession was to be delivered after dated 19.2.2013. It is also admitted that the possession of the said apartment could not be given in the stipulated time. The opposite party’s statement that this delay is not due their fault but due to other reasons were not under their control, is not tenable because the land procurement and its development and management was their responsibility before launching the scheme. The should have procured the environment clearance from the competent authority before launching the scheme. The opposite party taking shelter of the clause 9.1.5(b) of the standard terms & conditions of the provisional allotment where by it has been stated that in such case the opposite party will refund the deposited amount without interest. The learned counsel of the opposite party also argued that these proceedings are not maintainable in the light of the stay granted by Hon’ble Apex Court in the matter of JP Infratech Limited. From the perusal of the allotment letter it is apparent that the letter has been issued by Jai Prakash Associates Limited and Jaypee Sports International Limited. It has not been issued by JP Infratech Limited which is separate company. Hence the said plea of the learned counsel of the opposite party regarding non-maintainability of the proceedings is also not tenable. The illustration of the writ petition (civil) No 744/2017 Chitra Sharma &Ors vs Union of India &Ors. also does not provide relief to the opposite party in the instant case. So far as the allegation of the opposite party regarding the purchase of the said unit for speculation purpose of commercial purpose, is concerned, there is no such evidence on file. Hence this plea of the opposite party is also baseless. Before launch of the project, the land procurement, its development and management was the business of the opposite party. Funds management and getting all sorts of clearances including that environment from the concerned authorities, is also the responsibility of the builder-opposite party to complete the project as promised. The toll collection at Noida-Greater expressway is different issue which can’t be linked with the instant case. The complainants can’t be punished the farmers agitation or any reasons as stated by the opposite party in their written statement. So far as the fund scarcity is concerned, the complainants had paid the entire money as per demand letter and they are entitled to get refund of their deposited amount along with interest as the opposite party failed to hand over the possession of the allotted apartment as promised.
From the above discussion, this bench is of the view that the opposite party have committed deficiency in service and involved in unfair trade practice.
In the light of above discussion, the complaint is allowed. The opposite parties have failed to hand over the possession of the allotted flat to the complainants within the stipulated period of 24 months of the date of the provisional allotment letter. The opposite party is directed to pay total amount deposited by the complainants with in a period of 45 days of this order along with the interest @18% per annum from the respective dates of deposits to the date of actual payment. The opposite party will pay the amount of Rs 100,000/- on account of compensation for mental agony and Rs 30,000/- cost of litigation. Let the copies of this Judgement and order be provided to the parties as per rules.
(Justice Akhtar Husain Khan) (Mahesh Chand)
President Member
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