National Consumer Disputes Redressal
Kamakhya Shahi & Anr. vs Jaiprakash Associates Ltd. on 29 May, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 177 OF 2017 1. KAMAKHYA SHAHI & ANR. 2, ROSSLYN AVENUE, ACKWORTH, PONTEFRAT, WEST YORKS, U.K. WF 77QF 2. DR. KUNWAR BAHADUR SHAHI 2, ROSSLYN AVENUE, ACKWORTH, PONTEFRAT, WEST YORKS, U.K. WF 77QF ...........Complainant(s) Versus 1. JAIPRAKASH ASSOCIATES LTD. JAIPRAKASH ASSOCIATES, JAYPEE GREENS, SEC-128, NOIDA-201304, UP ...........Opp.Party(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE COMPLAINANT : MR. AMIT CHAWLA, ADVOCATE
MR. SURENDER GUPTA, ADVOCATE FOR THE OPP. PARTY : MR. PARAS CHOUDHARY, ADVOCATE
Dated : 29 May 2023 ORDER
1.The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-
Handover physical possession of Apartment, to the complainants, complete in all respects and in conformity with the Provisional Allotment Letter and for the consideration mentioned therein, with all additional facilities and as per quality standards promised, and execute all necessary and required documents in respect of said apartment in favour of Complainants;
Refund the amount collected from complainants on pretext of increase in super area and limited common area;
Give adequate car parking space to the complainants;
Refund the service tax already collected from complainants alongwith interest at the rate of 6% p.a. from the date of deposit till the date of refund;
Pay interest @12% p.a. on amount deposited by complainants with OP, with effect from 36 months from date of Provisional Allotment Letters, till date of actual physical possession as per clause (i), (ii), (iii) and (iv) above is handed over by OP, along with all necessary documents and common areas and facilities;
Pay a sum of Rs. 3,00,000/- to the complainants, as a whole, towards litigation costs including mental agony.
2. Notice was issued to the OP(s). Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.
3.It is averred/stated in the Complaint that: -
The complainant booked an apartment in the OP's project 'Kalypso Court' for a consideration of Rs.1,97,54,500/- and was issued an allotment letter dated 24th March 2008, wherein the delivery of possession was promised within 36 months (90 days grace period) from date of provisional Letter, i.e. by 23rd June, 2011. That the OP has failed to deliver timely possession and was delayed for nearly 5 years from the promised date of possession. That the complainants have paid 95% of total consideration till date, which is Rs. 1,84,21,543/-.
That terms & conditions are loaded with one sided arbitrary terms, OP offered no reasonable justification for inordinate delay in construction of project. That OP made false claims about the construction status of the apartment, and complainants made the final payment to the OP. That OP while issuing "Offer of Possession" dated 21st December, 2015 claimed super area of apartment has increased from super area indicated at the time of allotment. OP therefore demanded an additional amount on account of alleged increased super area. The alleged increase in super area has been done without consent or knowledge of the complainants.
That OP charged extra amount towards reserved car parking slot in the project, even though the OP in clause 4.4 of Terms & conditions acknowledges that Parking slots are part of "common area and facilities". OP has sought to impose highly arbitrary, unfair and unreasonable conditions on complainants. That in addition to the consideration of apartment, OP has also sought service tax from complainants. That complainants have suffered grave financial loss, mental pressure, harassment, and agony.
4. The OP in their written statement/reply stated that: -
The complaint is devoid of merits and has been filed with motive to harass OP, abuse the process of law and to extort benefits from OP. There is no deficiency on part of OP. The complainants booked the apartment for commercial/investment purpose, therefore complainants are not consumers as defined in Section 2(d) of Consumer Protection Act. That present complaint suffers with defect of Non-Joinder of necessary & proper parties as complaint is filed against Jaiprakash Associates Ltd. only, however the provisional allotment letter is signed, executed and issued by Jaiprakash Associate Ltd. and Jaypee Infratech Ltd.
There is an arbitration clause no. 10.9 for amicable settlement in agreed Standard terms & Conditions of Application. That OP also filed an Application under section 8, "Arbitration & Conciliation Act, 1986". That as per Concession Agreement with Yamuna Expressway Authority, Jaypee Infratech Ltd. was required to develop Expressway from Noida to Agra and was to fund the cost of Project through either developing five townships or by sale of land. That complainants made request to OP regarding changes on payment plan, and OP on request of complainants had amended the said provisional allotment letter dated 24.03.2008, and issued an amended provisional allotment letter dated 03.10.2008 in favour of complainants. However, for reasons beyond control of OP, due to force majeure events such as, shortage of labour, scarcity of water, restrictions in excavations, villager agitations as well as legal impediments and because of orders of NGT, the delivery of project got rescheduled.
That clause 7.1 & 7.2 of Standard Terms & Conditions, in case of Force majeure events OP would be entitled to extension of time without incurring any liability and the time consumed by occurrence force majeure events shall be excluded while computing the time delay for delivery of possession. That a rebate of Rs. 15,65,556/- was given to complainant on account of delay for offer of possession and while calculating such amount neither the delay period caused by Force Majeure nor the period consumed in obtaining the completion certificate was deducted, only to show goodwill gesture towards the complainant. That OP duly informed the complainants vide letter dated 04.06.2015, that the said flat was completed and application for grant of completion was pending before Noida Authority.
The increase in Super Area only increase the cost of expenses of construction and therefore does not benefit OP. As a matter of industry practice, parking spaces are booked separately and therefore allottee are charged separately depending upon number of parking space booked. It is denied that OP has imposed highly arbitrary, unfair and unreasonable conditions on complainants. The payment plan forming part of Provisional Allotment Letter stated that applicable Service Tax shall be payable extra.
5. Complainant in his rejoinder stated that OP had offered a delayed penalty of Rs.15 lakhs (approx.) which is mere pittance for delay of 5 years. That OP is taking contrary stands, as on one hand it has said that delay was due to force majeure conditions and on the other OP has offered delay rebate.
6. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
7. The main issues for consideration in the case are:-
a) Delay in delivery of possession of the apartment and consequently liability of the OP for delay compensation.
b) Increase in the super area of the apartment and consequently the liability of complainants to pay for enhanced area and,
c) Whether the car parking slots are included in the common areas or the complainants are liable to pay for it separately.
These issues are briefly discussed as follows:-
7.1 Committed date of possession as per allotment letter, with a grace period, was 23.06.2011. The possession was offered on 21.12.2015 subject to payment of certain dues. OP has contended that the delay is on account of force majeure reasons, including inter alia, on account of certain orders passed by NGT, which would entitle the OP to extension of time without incurring any liability for delay. The complainants argued that the NGT's order came after the promised date of possession, the order passed by NGT did not restrain construction activity, but only directed Noida Authority not to issue OCs. OP had not completed construction by October 2013, therefore, the occurrence of issuance of OC did not arise. OP in its written submissions admits that due to NGT orders they were forced to slow down the construction of the Project, owing to the aforesaid uncertainties and the order passed by the NGT. It means that NGT did not per se stop the construction activities. Further, OP admits having offered rebates to the complainants on account of delay in possession. OP has not been able to produce any satisfactory evidence in support of their contention that the reasons pleaded by them can be construed as 'force majeure'. Hence, we are of the view that complainants are entitled to delay compensation and OP is liable to pay the same. During the pendency of the complaint, in compliance of the directions of the Commission dated 10.08.2017, the complainants have already taken possession of the apartment in question without prejudice to their rights and contentions in the present complaint. Hence, they are entitled to claim delay compensation. The complainants have contended that the claim of the OP that apartment was ready for possession on the date of offer of possession viz 21.12.2015, is false. In pursuance to the said offer of possession, complainants made payments of Rs.19,82,663/- on 29.01.2016 and Rs.1200/- on 17.03.2016. Prior to making these payments, the complainants registered protest regarding paltry sum of Rs.15 lakhs on account of inordinate delay of 5 years. The complainants further contended that upon inspecting the apartment they learnt that the apartment was not completed as claimed by the OP. In view of the above, we are of the view that the complainants are entitled to delay compensation from the committed date of possession (23.06.2011) till the actual date of possession in compliance to the order dated 10.08.2017.
7.2 As regards demand for additional charge on account of increase in super area, complainants argued that as per offer of possession letter dated 21.12.2015 OP is claiming that super area of the apartment has increased from 3300 sq.ft. to 3585.92 sq.ft. on account of alleged increase in common areas, the consequence of which would be additional financial burden on the complainants. The complainants contended that the alleged increase in super area has been done without the consent or even the knowledge of complainants. Stating further that as per Proviso to Section 4 Sub-Clause 4 of the U.P. Apartment Act, which prohibits promoter like OP from revising the plans and consequently super area of apartments, without consent of the respective apartment owners. OP has violated these provisions as no consent of the complainants was taken. OP on the other hand, placing reliance on clause 6.2 and 6.8 of the Standard Terms and conditions pertaining to super area argued that super area specifications were tentative in nature and subject to change in variation which may result in change in the total consideration of the apartment. In the present case, super area has increased by 5.9% from the super area prescribed initially in the application form. Placing reliance on the judgment of this Commission in Capital Greens Flat Buyers and Ors. Vs. DLF Universal Ltd. & Ors. (2020 SCC Online NCDRC 3), OP argued that the increase in super area is much less than 15%. While reserving judgment on 07.03.2023, the OP was directed to file an affidavit stating the break-up of the super area into covered area and common facilities, both as per original allotment letter as well as final area at the time of possession. OP was also instructed to include in its affidavit whether car parking areas which are being charged separately from the allottees, are included in the calculation of super area or not. In compliance of the instructions dated 07.03.2023, OP filed an affidavit on 03.04.2023 stating that OP at the time of obtaining the OC filed a declaration before the Authority and in the said declaration the increased areas have been specifically mentioned. OP has furnished following details in this affidavit.
Sr.No. At the time of booking the apartment in question At the time of offer of possession Super Area 3300 Sq.ft.
3585.92 Sq.ft.
Covered Area 2792.61 Sq.ft.
2881 Sq.ft.
Common Area 507.39 Sq.ft.
704.92 Sq.ft.
Note: Car Parking is independent and it's area is not considered in Common Area.
A perusal of the above details show that while the covered area of the apartment has increased only by 3.17%, the area of common facilities has increased by 38.93% and consequently the super area has increased by 8.66%. While it is possible for the complainants to objectively measure the actual covered area of his apartment, it is not possible to do so for common areas and consequently for super area. Hence, they have a genuine apprehension whether the super area has actually increased to the extent claimed by the OP. Hence, we are of the view that the OP is entitled to charge additional amount for increase in the covered area from the one mentioned in the booking/allotment letter to the actual area at the time of offer of possession/handing over the possession at the originally agreed rates, subject to such additional covered area actually being given to the complainants, for which complainant has a right to get it physically verified. However, in the absence of any defined ratio between the covered area and super area in the standard terms & conditions of allotment, in fairness to both sides, the OP may maintain the same ratio between the covered area and super area as existing at the time of booking, which comes to 118.17% as per details as given in the Table above and charge the increase in super area only upto this extent i.e. treat the super area as 118.17% of the final covered area at the time of possession (2881 sq.ft. as per OP's declaration) which comes to 3404.45 sq.ft. for purposes of charging the complainants. However, we make it clear that in case complainants dispute the figure of 2881 sq.ft. covered area at the time of possession, complainants have right to get the covered area physically measured, for which if the complainants so desire, OP may arrange a joint inspection/measurement. If any variation is found as result of actual measurement during such joint inspection, (whether increase or decrease) the covered area would be as per result of such joint measurement and super area would be calculated as 118.17% of covered area.
7.3 a) The complainants have argued that OP has no right to sell parking space and charge extra amount towards reserved car parking and OP is entitled to charge only for common areas and facilities. OP has claimed that parking spaces are provided in the basement of the towers. The complainants argued that the definition of common areas and facilities as per provided under Section 3 of the UP Apartment Act includes 'basement and parking areas of common use'. The complainants relied upon the judgment of the Hon'ble Supreme Court in Nahalchand Laloochand (P) Ltd. Vs. Panchali Cooperative Housing Society Ltd., Civil Appeal No. 2544 of 2018, in support of their contention.
b) The complainants further contended that this Commission in its order dated 02.05.2016 in CC No. 1479 of 2015 with respect to same Project of the OP i.e. 'Kalypso Court' in Wishtown, while dealing with similar issues as in the present complaint with respect to increase in super area and sale of parking slots, directed that OP is not entitled to additional amount for increased super area and further OP was directed to provide adequate car parking spaces in the project to the complainants and refund the excess amount collected. However the complainants themselves have stated in their written submissions that the said judgment dated 02.05.2016 of the Commission has been challenged by the OP before the Hon'ble Supreme Court and the Hon'ble Supreme Court has stayed the portion of the judgment with respect to unilateral increase in super area and sale of parking slots in Civil Appeal No. 5919 - 5920 of 2016. In its Affidavit filed on 03.04.2023 in pursuance to this Commission's order dated 07.03.2023, OP has stated that car parking is independent and its area is not considered in common area, stating further that the terms of the contract contained a breakup total price of the apartment at the time of booking the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. Parking charges were revealed to the complainants even in the brochure. Thus, the charges are included in terms of the Standard terms and conditions of the agreement. OP further stated that the limited common area charged only the car parking charges and same can be verified from the declaration filed at the time of filing O.C. Section 3(s) of the UP Apartment Act 2010 states that limited common areas and facilities are those common areas and facilities which are designated in writing by the promoter before the allotment, sale or other transfer of any apartment as reserved for use of certain apartment or apartments to the exclusion of the other apartments. Thus, the limited common area charges includes only the car parking charges and the demand of car parking charges is in terms of the standard terms and conditions of the agreement. The relevant extract of form of declaration enclosed by the OP alongwith above sated Affidavit is given below:-
"FIFTH: That these condominium shall be known as "Kalypso Courts & Imperial Courts Apartments, Group Housing" (insert the name of the building / scheme as given above) and that the apartments, 'common areas and facilities (as defined in 5.3 (i) of the Act), the 'limited common areas and facilities (as defined in 5.3 (s) of the Act), and the 'independent areas' (as defined in 5.3 (p) of the Act), shall be as follows:-
"Sl. No. Item Details "Covered area of Apartments" 316628.28 Sqm "Common areas & facilities" [As per Annexure 'D' as defined in 5.3 (i) of the Act] 49534.22 Sqm "Limited common areas & facilities" [As per Annexure 'E' as defined in 5.3(s) of the Act] 101551.36 Sqm "Independent areas" [As per Annexure 'F' as defined 5.3 (p) of the Act] 86830.80 Sqm"
In view of the above, we are of the view that as OP has not included the car parking areas in the common areas, which in turn have been included for the calculation of the super area. Hence, they are entitled to separately charge car parking charges as declared in the common limited areas and facilities and could demand the same in accordance with the terms and conditions of the booking.
7.4 The contention of OP that complainants are not consumers as they have purchased the unit for commercial/investment purposes is rejected as no such evidence has been adduced by the OP in this regard. Complainants contended that they have not availed the services of OP for commercial purpose and have purchased the same to reside therein. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose.
7.5 Plea of the OP for Arbitration as per conditions in the Agreement is also not accepted. It was held by Hon'ble Supreme Court in Imperia Structures Ltd Vs Anil Patni and Anr (2020)10 SCC 783 "Remedies under the Consumer Protection Act are in addition to the remedies under special statutes". In Emaar MGF Land Ltd Vs Aftab Singh (2019) 1 CPJ 5 (SC), Hon'ble Supreme Court held "Arbitration Clause does not exclude the jurisdiction of Consumer Fora"
8. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
(i) The OP shall pay delay compensation in the form of simple interest @ 6% per annum on the amount paid by the complainants from the committed date of possession (with grace period) viz 23.06.2011 till the date of possession in pursuance to orders of this Commission dated 10.08.2017.
(ii) For the purposes of charging additional price on account of increase in super area, OP shall treat the super area as 118.17% of the actual covered area at the time of possession. All other charges, if any, which are based on super area, shall be charged accordingly.
(iii) In case complainants dispute the figure of covered area at the time of possession as per declaration filed by OP viz 2881 sq.ft., they may make a specific request in writing to OP for joint measurement/inspection within 15 days of this order. OP shall arrange such joint measurement/inspection within 15 days of receipt of such request. If any variation is found in the covered area as a result of such joint measurement/inspection (whether increase or decrease) OP shall fix the covered area accordingly based on such joint measurement/ inspection report and the super area shall be fixed at 118.17% of such covered area.
(iv) OP shall be entitled to charge separately for the exclusive car parking slot given to the complainants as per the rates contained in the allotment letter.
(v) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(vi) The payment in terms of this order shall be paid within three months from today.
9. The pending IAs, in the Consumer Complaint, if any, also stand disposed off.
Annexure-A Details of the Unit and other related details Sr No Particulars 1 Project Name/Location etc. 'Kalypso Court', Jaypee Greens in sector 128, Noida 2 Apartment no.
K3-1102 3 Size (Built up/Covered/Super Area) 3300 sq. ft.
4Date of application 23.02.2008 5 Date of allotment 24.03.2008 03.10.2008 (amended) 6 Committed date of possession as per Agreement (with Grace period of 90 days) 23.06.2011 7 D/o Obtaining OC by the OP 11.12.2015 8 D/o Offering Possession 21.12.2015 9 Total Consideration as per agreement Rs.1,97,54,500/-
Rs.1,79,03,200/- (amended) 10 Amount Paid Rs.1,84,89,577/- 11 D/o Filing CC in NCDRC 20.01.2017 12 D/o Issue of Notice to OP(s) 03.02.2017 13 D/o Filing Reply/Written Statement by OP1 23.03.2017 14 D/o filing Rejoinder by the Complainant(s) 22.12.2017 15 D/o Filing Evidence by way of Affidavit by the Complainant(s) 22.12.2017 16
D/o filing Affidavit of admission/denial of documents filed by Complainant(s) 22.12.2017 17 D/o Filing Evidence by way of Affidavit by the OP-1 21.02.2018 18 D/o filing Written Synopsis by the Complainant(s) Feb. 2018 19 D/o filing Written Synopsis by the OP-1 19.01.2023 ................................................ DR. INDER JIT SINGH PRESIDING MEMBER