National Consumer Disputes Redressal
Narender Chopra vs M/S. Jaiprakash Associates Ltd. on 18 May, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3258 OF 2017 1. NARENDER CHOPRA W/o. Late Sh. J.C. Chopra,
R/at House No. 87,
Sector-15A, Noida Uttar Pradesh ...........Complainant(s) Versus 1. M/S. JAIPRAKASH ASSOCIATES LTD. JAYPEE GREENS,
SECTOR - 128, NOIDA - 201 304 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Complainant : Mr. Prabhakar Tiwari, Advocate For the Opp.Party : Mr. Sudhir Makkar, Sr. Advocate
: Mr. Sumeet Sharma, Advocate
: Mr. Divyanshu Gupta, Advocate
: Ms. Yogita Rathore, Advocate
Dated : 18 May 2022 ORDER
1. Heard Mr. Prabhakar Tiwari, Advocate, for the complainant and Mr. Sudhir Makkar, Senior Advocate, assisted by Mr. Sumeet Sharma, Advocate, for the opposite party.
2. Ms. Narinder Chopra has filed above complaint, for directing the opposite party (i) to refund entire amount of Rs.9731017/- with interest @18% per annum, from the date of deposit till the date of refund, (ii) to pay Rs.10/- lacs as compensation for mental agony and harassment, (iii) to pay Rs.2/- lacs, as cost of litigation and (iv) any other relief which is deemed fit and proper in the circumstances of the case.
3. The complainant stated that M/s. Jaiprakash Associates Limited (the opposite party) (the developer) was a company, registered under Companies Act, 1956 and engaged in the business of development and construction of residential and commercial building and selling its unit to the prospective buyers. The developer launched a project of group housing in the name of "Knight's Court" at Sector-128, Noida, in the year 2010 and gave attractive advertisements. The complainant booked a flat and deposited Rs.10/- lacs on 22.12.2010. She was allotted Flat No. KGT 6-701, super area 2070 sq.ft. and one car parking space in "Knight's Court", for sale price of Rs.10123430/- on 12.02.2011. As per allotment letter, possession had to be delivered within 36 months, complete in all respect, with grace period of 90 days. Allotment letter also contained Payment Plan, under which, Rs.974896/- was payable at the time of allotment, Rs.8486115/- was payable on or before 12.03.2011 and remaining amount of Rs.956869/- was payable on offer of possession. As per demand, the complainant deposited Rs.8702328/- on 11.03.2011, Rs.10300/- on 03.08.2011 and Rs.18389/- on 01.04.2013 (total Rs.9731017/-). Promised date of possession expired on 12.02.2014 but construction of the project was delayed. The complainant personally enquired about delivery of possession time to time but some imaginary time was informed in this respect time to time. The complaint was filed on 06.11.2017, complaining deficiency in service on the part of developer.
4. The opposite party filed Written Reply on 14.03.2018, in which, material facts have not been disputed. It has been stated that due to shortage of labour, scarcity of water, restriction in excavation, villager's agitation against acquisition of land, legal impediments as well as economic slowdown, the construction of the project was delayed. As per Clause-7.1, of Standard Terms and Condition, contained in allotment, the period during which, the construction was delayed due to force majeure was liable to be excluded and the developer was entitled for extension of that period. The complainant was duly informed about the delay in construction vide letter dated 09.09.2014. State of U.P. initially delayed in handing over possession of the land in the year 2012. Government of U.P. vide order dated 29.08.2014, directed for payment of additional incentive of 64.7% to the farmers and restricted the developer from entering the land parcels. National Green Tribunal, vide order dated 11.01.2013, restrained all the builder of Noida & Greater Noida from extracting ground water. National Green Tribunal, vide interim order dated 14.08.2013, restrained construction work within radius of 10 km from Okhla Bird Sanctuary, which was extended on 17.09.2013. Final order was passed on 03.04.2014 in above matter and restriction on construction was continued. The developer filed an application for review of the order dated 03.04.2014, which was rejected by National Green Tribunal vide order dated 30.05.2014. The developer challenged the orders in Civil Appeal No.5822-5823 of 2014, which was dismissed on 10.06.2014. Eco-sensitive zone of Okhla Bird Sanctuary was notified on 19.08.2015. The builder was paying delayed compensation in terms of Clause-7.2 of Standard Terms and Conditions. Supreme Court in Writ Petition (Civil) No.744 of 2017, Chitra Sharma Vs. Union of India, vide order dated 10.01.2018, directed to create an independent web-portal for the home buyers of the opposite party, which shall reflect details of home buyers. The grievances of home buyers from JAL are now being looked after by Supreme Court. After enactment of Real Estate (Regulation & Development) Act, 2016, interest of the consumers in real estate sector can be looked by RERA authorities. In the present case no agreement for sale in the format as prescribed Real Estate (Regulation & Development) Act, 2016, has been executed in favour of the complainant. Preliminary issue relating to maintainability of the consumer complaint, was also raised.
5. The complainant filed Rejoinder Reply on 29.01.2019, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Narinder Chopra. The opposite party filed Affidavit of Evidence and Additional Affidavit of Navneet Kumar Saxena. Both the parties filed their written arguments.
6. When the complaint became ripe for final hearing, the opposite party filed IA/5410/2020, praying to return the complaint for presenting before appropriate forum having pecuniary jurisdiction in view of provision of Consumer Protection Act, 2019. This application was rejected by this Commission vide order dated 16.03.2021. Then the opposite party filed IA/5965/2021, for dismissing the complaint as agreement for completion dated 22.01.2021 was executed between the developer and Association of Allottees and U.P. RERA Authority approved it by rehabilitation order dated 29.01.2021.It has been stated that after enactment of Real Estate (Regulation & Development) Act, 2016, the developer registered the project "Knight's Court" with the authority, having registration No.UPRERAPRJ 3890 and undertook to complete the project till 30.06.2019. However the project was not completed within that period or in extended period. Knight's Court Social Welfare Association, a society registered under Society Registration Act, 1860, having 160 home buyers as the members approached RERA Authority Uttar Pradesh under Section-8 of the Act to facilitate development and construction work of the project. General Body of Knight's Court Social Welfare Association, vide resolution dated 10.01.2021 authorised Mr. Arvind Verma, President of Association and Sh. Prabhat Agrawal, from Uttar Pradesh RERA Authority to discuss the issue with the promoter, prepare draft agreement for completion of the said project and submit before the authority. After several meetings a formal agreement was prepared on 22.01.2021. Under this agreement total cost for completion of the project was estimated to Rs.98.12 crs. Out of which Rs.20.46 crs. was to be financed from the promoter and Rs.77.66 crs. was to be collected from the allottees towards balance payment and construction had to be completed within 15 months. Draft agreement has been approved by RERA Authority Uttar Pradesh vide order dated 29.01.2021. As RERA Authority is supervising the work and protecting the interest of the consumers as such the complaint be dismissed.
7. The complainant filed her Reply to the aforesaid application on 29.09.2021. It has been stated that this application has been malafide filed to delay the hearing of the complaint. The complainant was not a member of Knight's Court Social Welfare Association as such, the resolution passed by this association or any agreement by this association with the promoter was not binding upon the complainant nor does it affect hearing of this complaint on merit, which has been filed long before the alleged agreement dated 22.01.2021. The complainant booked the flat on 22.10.2010, investing her life saving with an expectation that she would get possession, in February, 2014. At this time, she had attained the age of 80 years. She cannot be compelled to wait for unlimited period. Approval of the agreement dated 22.01.2021 by U.P. RERA Authority has no effect on her complaint nor the complaint can be dismissed on its basis.
8. I have considered the arguments of the counsel for the parties and examined the record. A perusal of order dated 29.01.2021, passed by Uttar Pradesh Real Estate Regulatory Authority, shows that after enactment of Real Estate (Regulation & Development) Act, 2016, the developer registered the project "Knight's Court" with the authority, having registration No. UPRERAPRJ 3890 and undertook to complete the project till 30.06.2019. However the project was not completed within that period. Period of completion was extended up to 28.12.2020 but the project was not completed within that period also. Knight's Court Social Welfare Association, a society registered under Society Registration Act, 1860, having 160 home buyers as the members out of total 310 home buyers approached RERA Authority Uttar Pradesh under Section-8 of the Act to facilitate development and construction work of the project. General Body of Knight's Court Social Welfare Association, vide resolution dated 10.01.2021 authorised Mr. Arvind Verma, President of Association and Sh. Prabhat Agrawal, from Uttar Pradesh RERA Authority to discuss the issue with the promoter, prepare draft agreement for completion of the said project and submit before the authority. After several meetings formal agreement was prepared on 22.01.2021. Under this agreement total cost for completion of the project was estimated to Rs.98.12 crs. Out of which Rs.20.46 crs. was to be financed from the promoter and Rs.77.66 crs. was to be collected from the allottees towards balance payment and construction had to be completed within 15 months. That period is also expiring. The complainant was not a member of Knight's Court Social Welfare Association nor she ever gave consent for taking possession. Therefore she is not bound by the act of the association. None of the provision of Real Estate (Regulation & Development) Act, 2016 affects the right of the complainant to pursue her remedy under Consumer Protection Act, 1986. IA/5965/2021 is liable to be rejected.
9. As per allotment letter dated 12.02.2011, possession had to be delivered within 36 months, complete in all respect, with grace period of 90 days. Allotment letter also contained Payment Plan, under which, Rs.974896/- was payable at the time of allotment, Rs.8486115/- was payable on or before 12.03.2011 and remaining amount of Rs.956869/- was payable on offer of possession. As per demand, the complainant deposited Rs.8702328/- on 11.03.2011, Rs.10300/- on 03.08.2011 and Rs.18389/- on 01.04.2013 (total Rs.9731017/- out of sale price of Rs.10123430/-). After taking payment of about 95% of sale price in March, 2011, the builder has no excuse for not completing the construction. Even the period during which the construction was stopped under order of National Green Tribunal is excluded, possession ought to have been delivered before filing of the complaint. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125, held that delay in sanction of layout plan was an expected fact and cannot be set up a defence for delaying construction.
10. Supreme Court in Fortune Infrastructure Vs. Trevor D' Lima, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan (2019) 5 SCC 725, Kolkata West International City Vs. Devasis Rudra, 2019 SCC OnLine SC 438 and N.B.C.C. (India) Ltd. Vs. Shri Ram Trivedi, (2021) 5 SCC 273, held that the home buyer cannot be made to wait indefinitely for possession of the flat allotted to him.
ORDER
In view of the aforesaid discussions, the complaint is allowed with cost of Rs.one lakh. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit, till the date of actual payment. The order shall be complied with within two months from the date of this judgment. IA/5965/2021 is rejected.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER