RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Complaint No. 18 of 2015

Mr. Rajan Nanda through Power of Attorney

Holder, Sh. Umesh Nanda, R/o Flat lNo.B-104.

Kalka Apartment, Sector 6, Plot NO.31, Dwarka,

New Delhi.                                                  ..Complainant.

Versus

M/s Jaypee Sports International Limited,

A company concerned of: Jai Prakash Associates

Limited Registered Office, Jaypee Greens,

Sector-128, Noida-201304 Uttar Pradesh  …..Opp. Party.

Present:-                                                   

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Govardhan Yadav, Member.

Shri Vibhore Bagga, for complainant.

Shri  Pratul Pratap Singh, for the OP.

Date   12.7.2017

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This complaint has been filed by the complainant for refund of Rs.84,01,711.00 with 18% as also payment of damages of Rs.10,00,000.00 with interest and also compensation amounting to Rs.2,50,000.00 with interest. 

The case of the complainant, in short, is that he applied for allotment of a plot under the project floated by the OP as Country Homes II, J.P. Greens Sport City, Gautam Budh Nagar. The OP had promised to provide a gated society with all amenities of proper roads, power back-up, school and hospitals etc. The complainant was allotted a plot no.P-280 under the floated scheme, measuring 250 Sq. meters for a consideration of Rs.94,37,935.00. It was specifically stated in the allotment

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letter that the actual possession of the plot shall be handed over to the complainant within 18 months from the date of provisional allotment and accordingly, the plot was to be handed over to the complainant by the OP latest by 26.11.2013. However, it was also provided under the contract that the possession could further be given within grace period of 90 days i.e. within 90 days from 26.11.2013 which comes to 26.2.2014. But, even after expiry of the aforesaid grace period, the OP failed to handover actual possession of the plot. Besides, no development work was done as promised. In fact, even presently no development work has been done as no roads, proper power back-up, water etc., are there in the area containing the plot. The complainant kept asking the OP as to how much time would be needed to give actual possession of the plot with all the amenities required for residing in the house built on such plot. However, the OP vide letter dated 20.11.2014 offered the complainant to take over actual possession of the plot in question, demanding payment of balance amount i.e. Rs.11,75,701.56 as the complainant had already made payment of Rs.84,01,711.00. The complainant on 20.11.2014 went to the actual site but found that there was a bare piece of land where no amenities as promised were there and even the road work was not done till that date. The complainant, thereafter, feeling much harassed, demanded the refund of the payment made by the complainant to the OP as the OP had failed to provide the

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possession of the plot with assured terms and conditions of the project. The complainant had taken the plot with the aim to reside in the said plot by the joint owner Mr. Vinay Kumar Nanda who had also invested money that he got upon his retirement with the sole idea of residing there but the OP miserably failed to provide plot with all the amenities. Therefore, the complainant sent a legal notice to them demanding the total amount of Rs.84,01,711.00 with 18% p.a. interest. The OP did not respond to the legal notice whereupon a reminder notice was sent by the complainant and thereafter, filed  this complaint for refund of Rs.84,01,711.00 with 18% interest as also payment of damages of Rs.10,00,000.00 with interest and also compensation amounting to Rs.2,50,000.00 with interest.

The OP filed their written statement mentioning therein that the plot no.P-280 in the Country Homes-II, J.P. Greens Sports City, Gautam Budh Nagar was provisionally allotted in favour of the complainant and possession was expected to be delivered within 18 months. The cost of the plot was Rs.98,54,095.00 to be paid at different stages as per provided in para 4 of the reply. The OP did carry out work on the project but for the reasons beyond their control, i.e. due to force-majeure event, the project got slightly delayed but after providing all the amenities and facilities as promised, the plot was ready for possession and hence, vide letter dated 20.11.2014 the possession of the said plot was offered to the complainant. The OP had also given the delay compensation of

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Rs.1,99,060.00 to the complainant as per the standard terms and conditions. However, the complainant instead of making payment of the balance amount sent a legal notice making false allegations against the OP and again a reminder notice was issued, whereupon the OP duly replied to the legal notices vide its letter dated 26.2.2015 rejecting the allegations of the complainant. The OP also agreed to the alleged surrender of the allotment of the said plot and to refund the payment made by the complainant as per terms and conditions but this fact has been suppressed by the complainant. However, the OP is entitled to forfeit the earnest money amount of Rs.9,43,793.00 being 10% of the total consideration. It is wrong on the part of the complainant to say that the OP has committed unfair trade practice as the development work of the plots was done after approval given by the Government authorities and after providing all the amenities as promised, the possession of the plot was offered. Therefore, there is no cause of action against the OP and this complaint has been filed, suppressing material facts. Hence, it is liable to be dismissed with costs.

The complainant has filed rejoinder to the written statement filed by the OP mainly, refuting the averments made by the OP in their written statement and reiterating the facts contended in the complaint. However, it has also been mentioned that the OP has merely stated that the delay was caused for reasons beyond their control but has not divulged details of the delay.

The complainant has filed in support of his

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complaint the affidavit of Shri Umesh Nanda, the Attorney Holder of the complainant and the copies of the documents pertaining to the allotment and agreement of the plot in question as also copies of the legal notices etc.

The OP has filed affidavit of Shri Manoj Dembla, General Manger of Jai Prakash Associate. The copies of the documents pertaining to the allotment and agreement of the plot in question have also been filed.

Heard counsel for the parties and perused the entire evidence on record.

In this case, with regard to pecuniary jurisdiction of the State Commission an objection was raised by the OP that the case was beyond the pecuniary jurisdiction of the State Commission whereupon this Commission passed orders on 21.6.2016. Objections raised by the OP were found not acceptable and the case proceeded for final hearing in the matter.

In this case, it is not disputed that the complainant was allotted a plot in a project Country Homes-II floated by the OP and that the cost of plot was to the tune of Rs.94,37,935.00. It is also not disputed that the complainant had deposited Rs.84,01,711.00. It is also not disputed that the actual possession of the plot was to be handed-over within 18 months of the allotment letter. However, a grace period of 90 days was available over and above this period of 18 months. It is also not disputed that there was delay in providing the actual possession of the plot. The disputed point according to the complainant OP is that the complainant was offered to take actual

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possession of the plot on 20.11.2014 providing all the amenities therewith but the complainant refused to take possession of the plot and demanded refund of the amount and therefore, they did not commit any deficiency in service, whereas according to the complainant firstly there was much delay in providing the plot and secondly, even when the actual possession of the plot was being offered on 20.11.2014 then too there was no development work and amenities as promised by the OP and therefore, the complainant feeling harassed demanded refund of the amount deposited by him with interest and OP did not refund the amount and therefore, the OP has committed deficiency in service.

So, now it is to be seen as to whether the OP committed deficiency in service in not being able to provide the plot with all the facilities as promised within the time provided for the purpose and also in not refunding the amount with interest to the complainant when the OP was not able to provide the plot with the facilities as promised. If so, it consequences. 

It is argued by the ld. counsel for the complainant that firstly there is delay in giving possession of the plot in question by the OP and secondly, when the actual possession of the plot was offered then there was no development work excepting bare land as no amenities including roads, electricity or water and other facilities promised were actually there on the plot. It is further argued by the ld. counsel for the complainant that the complainant had purchased the plot for constructing a

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house on it, so that the joint owner of the plot in question may live in it but as offer of the delayed possession was without any facilities hence, the entire purpose of purchasing the plot was defeated and therefore, the complainant was compelled to terminate the agreement and asked for the amount deposited by him with interest but the OP has not made payment of the same and therefore, the OP committed deficiency in service. On the contrary, it is argued by the ld. counsel for the OP that the delay was caused in giving possession of the plot because of the reasons beyond control of the OP but the OP has not been able to specifically divulge the details of the events which were not in their control. In fact, it appears that there was no such reasons beyond their control as alleged by the OP for they had offered rebate of Rs.90.00 per Sq. meter as per the terms and conditions of the agreement and accordingly, Rs.1,99,060.00 was offered as compensation as contained in para 5 of the WS of the OP. Now, in this regard, it is noticeable that this rebate/compensation is not payable as per condition 7.1 of the terms and conditions of the agreement which provides that the time consumed for force majeure shall be excluded while computing the time delay for delivery of the possession so as per aforesaid condition no compensation was payable for the period for delay caused for force majeure. It is the case of the OP that the delay was cause due to force majeure, as is clear from the contention made by the OP in para 5 of the WS. Now here the question arises as to when the delay was caused due to force majeure then there was no question of

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the OP paying the compensation in the form of rebate as offered by them. The very fact that the OP offered for making payment of compensation for the delay caused, shows that there was no involvement of force majeure. It is a different case that no such even could be specifically mentioned or clearly proved by the OP whereby it could be assumed that the delay was caused because of the reasons beyond their control, so this is a lame excuse offered by the OP so far as offering to give actual possession of the plot with so much delay.

          From the evidence in the form of photograph of the area containing plot in question and the averments made by the complainant in the affidavit of Shri Umesh Nanda, it is very much clear that there are no development works such as roads, electricity, water, sewerage for the plot to be made habitable by constructing the house. When such builders as the OP make such tall promises then the hapless consumers keeping faith in the builder's commitment, go for the project for purchasing of the plot, flats etc. but obviously, when the facilities which are necessary for living in a house on a plot, are not there then there is no question of any person making use of the plot for constructing a house for living purposes.

          The complainant has gone to the extent of stating in his complaint that even at the time of filing of the complaint, the facilities were not there. The OP could have refuted and challenged the contention of the complainant by making available of the entire evidence to prove the existence of the facilities and amenities and the

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development works done, but the OP has miserably failed in proving that all the amenities and facilities as promised were provided to the complainant at the time of making offer of actual possession of the plot which was admittedly

delayed. Therefore, the complainant had no choice but to terminate agreement and to ask for refund of the entire amount with interest which the OP has not done. Merely, making an offer to the complainant to allow him to surrender the plot and deducting 10% of the amount deposited by him is nothing sort of unfair trade practice and also deficiency in service in the given scenario of the case.

          From the discussions made above, it is clear that the OP has committed serious deficiency in service as also unfair trade practice in not refunding the entire amount deposited by the complainant with interest, therefore, the OP is bound to refund the amount deposited by the complainant with interest. Now, here the question arises as to how much interest should be levied on the deposited amount. The complainant has prayed for 18% interest on the deposited amount. Considering the facts and circumstances of the case, we find it proper to award 12% interest on the deposited amount. The complainant has been thoroughly harassed in this case, as despite depositing a huge amount he was made to run from pillar to post for getting first the possession and thereafter, refund of the amount with interest, when possession could not be delivered with all the amenities promised. Therefore, we consider it proper to award compensation

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also for harassment caused to the complainant and in the facts and circumstances of the case, we consider Rs.20,000.00 as reasonable amount to be awarded in this regard. The complainant also deserves to be paid cost of litigation to the tune of Rs.5,000.00.

ORDER

The complaint is partly allowed. The O.P. is directed to refund Rs.84,01,711.00 with simple interest @ 12% p.a. from the date of filing of the complaint till the payment is made. The OP shall also make payment of Rs.20,000.00 as compensation for mental and physical harassment and also cost of litigation of Rs.5,000.00 to the complainant. The compliance of this order is to be made within a month.

Certified copy of the judgment be provided to the parties in accordance with rules.

                 (Vijai Varma)                 (Govardhan Yadav)

               Presiding Member                     Member

Jafri PA II

Court No.4