Delhi

StateCommission

CC/13/582

YOGESH KUMAR GARG - Complainant(s)

Versus

M/S JAYPEE GREENS - Opp.Party(s)

24 Oct 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 24.10.2016

 

Complaint Case No.582/2013

 

 

In the matter of:

 

Mr. Yogesh Kumar Garg,

BC-82 (West), Shalimar Bagh,

Delhi -110088.

                           ....Complainant

 

 

Versus

 

M/s. Jaypee Greens,

JA House, 63, Basant Lok,

Vasant Vihar,

New Delhi -110057.

                                                  ...Opposite Party

CORAM

 

SHRI N P KAUSHIK                   -       PRESIDING MEMBER

MS. SALMA NOOR                    -       MEMBER

 

      1.   Whether reporters of local newspaper be allowed to see the judgment? Yes

2.  To be referred to the reporter or not? Yes

 

N P KAUSHIK   -  MEMBER (JUDICIAL)

 

JUDGMENT

1. Admitted facts of the complaint are that the complainant Shri Yogesh Kumar Garg got booked a flat with M/s. Jaypee Greens (in short the OP) on 05.10.2009 for a total sale consideration of Rs.74,72,515/-. It was agreed upon between the parties that out of the aforesaid amount, an amount of Rs. 68,00,000/- would be paid before November 2009 and the balance sale payment be made at the time of handing over of the possession in April 2010. Complainant paid an amount of Rs.68,07,696/- by 10.12.2009. As per letter of allotment dated 05.10.2009, OP was required to handover the physical possession of the flat to the complainant within a period of 15 months from the date of letter of allotment. A grace period of 09 days was also stipulated. Submission of the complainant is that he visited the site in April 2009 and found the construction incomplete.
2. Complainant submitted that suddenly on 02.01.2012, OP wrote a letter to him calling him upon to make payment of additional amount of Rs.11,54,984/-. OP had come up with the proposition that the super area of the flat had been increased from 1461 sq. ft. to 1698.70 sq. ft. OP had also demanded Rs.1,27,403/- towards maintenance charges @Rs.75/- per sq. ft. of the super area and besides this amount for social club membership and service tax were demanded. Thus the OP demanded in all an amount of Rs.27,57,188/-, which included stamp duty amounting to Rs.4,31,400/-. At the same time the OP also informed the complainant that the following works involving final finishing had been withheld.
   1. Wooden Flooring
   2. Final Painting & Polishing
   3. C P Fittings
   4. Video Door Phone for Security etc.

                                                                                                                                                                                                                                                                                                                                                                                                    

3. The complainant replied to the aforesaid letter stating that there has been a delay in handing over the possession of the apartment and the flat was also not fit for habitation. Complainant demanded interest @ 18% on the amount due to him on account of delay in construction. In relation to the increase in the super area, complainant informed that the basic structure of the building was ready when he applied for allotment. There was thus no occasion of increase in area. For this reason any demand for additional amount was not justified. OP did not reply to his letter dated 02.02.2012. Complainant sent e-mails dated 06.03.2012, 20.04.2012, 03.05.2012 and 27.06.2012. Vide e-mail dated 10.07.2012, OP threatened to cancel the provisional allotment. It was replied to vide e-mail dated 10.07.2012. Complainant also informed that he had paid 95% of the total sale consideration. OP vide letter dated 22.07.2012 asked the complainant to take possession after clearance of the outstanding dues. OP vide its e-mail dated 29.07.2012 informed the complainant that the super area had been increased due to architectural requirements.  OP in its notice for cancellation of allotment asked the complainant to pay the balance consideration of Rs. 17,16,133/- which included the holding charges and interest on delayed payments. Complainant vide its letter dated 27.02.2013 asked the OP to give the details of the payments asked for. Vide letter dated 04.07.2013, OP cancelled the allotment and forfeited the earnest money of Rs. 7,47,251/-. Complainant vide his e-mail dated 08.07.2013 asked the OP to provide the copy of terms and conditions of allotment. Letter remained unreplied. OP also stopped responding to the calls of the complainant.
4. OP in its written version admitted the allotment of the flat in question in pursuance to the complainant’s application dated 20.07.2009. On the death of the wife of the complainant an amended provisional allotment letter dated 03.11.2009 was issued. The tripartite agreement between the complainant, OP and M/s Housing Development Finance Corporation Ltd. was entered into. OP admitted having received the amount of Rs. 37,50,000/- from the said financial institution and on behalf of the complainant on 17.12.2009. Besides this, the complainant paid an amount of Rs. 30,57,595/- to the OP out of his own resources. In all, complainant admittedly paid to the OP an amount of Rs. 68,07,595/-. OP also admitted having written the letter dated 02.01.2012 offering possession and demanding outstanding dues. Contention of the OP is that the complainant did not come forward to take the possession. He was reminded to clear the outstanding dues. E-mail dated 09.07.2012, letter dated 29.07.2012 and letter dated 06.09.2012 were issued. OP admitted having sent the notice dated 28.01.2013 for cancellation of the provisional allotment. OP also admitted having sent letter of cancellation dated 04.07.2013. Complainant was informed of forfeiture of earnest money of Rs. 7,47,251/-. Next submission of the OP is that it refunded the amount of Rs. 37,50,000/- to M/s HDFC disbursed as loan to the complainant under the aforesaid tripartite agreement. OP admitted that possession of the flat was to be handed over within 15 months of the letter of allotment dated 05.10.2009 i.e. by January 2011. OP denied that the possession was to be handed over to the complainant in April 2010. In response to the contention of the increase in super area, OP submitted that the area of 1461 sq. ft. was based on ‘concept plan’ which underwent change on ‘as builder plans’. The super area now came to 1698.70 sq. ft. OP admitted the total sale consideration as per provisional allotment letter as Rs. 74,72,515/-. OP admitted having received of an amount of Rs. 68,07,595/- from the complainant. OP stated that the flat was to be handed over by January 2011 whereas it was offered for possession in January 2012. OP admitted that the complainant was never handed over the possession of the flat. His contention is that the complainant did not make full payment of outstanding dues.
5. We have heard the arguments addressed by the Counsel for the complainant Sh. Puneet Yadav Advocate and Counsel for the OP Sh. Kapil Kher Advocate, at length.
6. There is no dispute on the booking of the flat and the terms and conditions of the provisional letter of allotment dated 05.10.2009. The total amount of sale consideration of Rs. 74,72,515 and the payment of the amount of Rs. 68,07,595/- are also not in dispute. The main controversy that arose between the parties is relating to the increase in super area from 1461 sq. ft. to 1698.70 sq. ft. OP demanded an amount of Rs. 17,16,133/-. Now a question arises whether the OP was justified in demanding the additional amount due to alleged increase in super area. The practice of concept of super area adopted by the builders has been condemned by the Hon’ble National Commission and the Hon’ble Apex Court in a catena of judgments. Builders have been directed to confine themselves to the concept of carpet area only. In the present case the super structure already existed at the site when the complainant applied for allotment of the flat. OP came up with another proposition that its concept underwent a change. OP contended that the change occurred due to the computation based on ‘as builder plan’. Question arises whether the complainant and other prospective buyers ever consented to change in the super area. The answer is clearly in the negative. Another question arises whether the Greater Noida Industrial Development Authority GNIDA ever compelled the OP to change the super area. The answer is again in the negative. OP ought have made its intentions clear to the prospective buyers at the time of entering into the flat buyers’ agreement. He ought have taken such buyers into confidence while increasing the super area. The gullible buyers were kept in dark. They were under the threat of cancellation of allotment. OP asked them to make additional payments which were totally illegal in the eyes of law. OP admitted that the finishing work was incomplete even at the time of offer of possession. On the contrary, the OP deliberately withheld the said work. Even at the time of final arguments, the OP did not contend that the flat in question was ready for occupation. Letter of allotment dated 05.10.2009 provided for delivery of flat within a period of 15 months. Be that as it may, even after including the grace period, if any, OP was required to handover the flat (after completing the finishing work) before April 2011. There has thus been a delay of 5 years in handing over the possession. We, therefore, direct the OP to pay to the complainant as under:

1. to refund the amount of Rs. 68,07,595/- alongwith interest @ 18% p.a. from the date of deposit till the date of its realisation.
2. to pay compensation in lump sum to the tune of Rs. 5,00,000/- to the complainant for harassment, inconvenience, mental agony, sadness, frustration and anguish caused to the complainant.
3. to pay litigation charges of Rs. 1,00,000/- to the complainant.

 

       The abovesaid amounts shall be paid to the complainant within a period of 60 days from today failing which interest @ 24% p.a. shall be chargeable on the amount accruing after the scheduled date.

7.   Before parting, it may be mentioned here that any amount refunded by the OP to the HDFC shall be recovered by him i.e. the OP at his own level as the OP unilaterally refunded the said amount. There is no controversy raised by the parties in relation to the alleged tripartite agreement. Complaint is accordingly disposed of.
8.   Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

(N P KAUSHIK)
MEMBER (JUDICIAL)

 

 

 

(SALMA NOOR)
MEMBER

6.