National Consumer Disputes Redressal
Rashmi Idnani vs Jaiprakash Associate Ltd. on 8 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 544 OF 2018 1. RASHMI IDNANI ...........Complainant(s) Versus 1. JAIPRAKASH ASSOCIATE LTD. ...........Opp.Party(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER
For the Complainant : Mr. Pankaj Srivastav, Advocate
: Mr. Sanjay Gupta, Advocate For the Opp.Party : Mr. Sumeet Sharma, Advocate
Dated : 08 Jun 2022 ORDER
1. Heard Mr. Pankaj Srivastav, Advocate, for the complainant and Mr. Sumeet Sharma, Advocate, for the opposite party.
2. Reshma Idnani has filed above complaint for directing Jaiprakash Associates Limited (i) to give possession of Unit No. PH-3-903 in "Pavilion Height" Wish Town, Jaypee Greens, Sector-128, Noida, (ii) to pay compensation of Rs.50/- lacs, for mental agony and harassment, (iii) to withdraw all illegal and unsubstantiated demands as raised in the letter dated 31.10.2017, (iv) to reconcile the statement of account qua Unit No. PH-3-903 in "Pavilion Height" Wish Town, Jaypee Greens, Sector-128, Noida, (v) to restrain the opposite party, in raising demand towards maintenance charges or other charges, levies, taxes until reconciliation of the statement of account qua Unit No. PH-3-903 in "Pavilion Height" Wish Town, Jaypee Greens, Sector-128, Noida, (vi) to pay interest @12% per annum on the amount of rebate which was payable for delayed possession, (vii) to pay Rs.10/- lacs as compensation for business loss, (viii) to pay Rs.one lac as litigation cost and (ix) any other relief which is deemed fit and proper be awarded to the complainant.
3. This Commission, vide order dated 31.08.2018, directed the opposite party to handover possession of the said Unit No. PH-3-903, on giving undertaking by the complainant within a week before the Commission that she would pay such amount as directed by the Commission. In compliance of the aforesaid order, the opposite party handed over possession of Unit No. PH-3-903 to the complainant on 01.04.2019 and executed Sub-lease Deed of it, in her favour.
4. The facts as stated in complaint and emerged from the documents are that Jaiprakash Associates Limited was company registered under the Companies Act, 1956 and a flagship company of Jaypee Groups. The opposite party was engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The opposite party launched a project of group housing in the name of "Pavilion Height" at Wish Town, Jaypee Greens, Sector-128, Noida, in the year 2008 and gave attractive advertisements. The representatives of the opposite party approached Harish Kumar Idnani (husband of the complainant) and showed glittering pictures about the project. Harish Kumar Idnani booked a flat in the said project, on 20.09.2008. As per demand, he deposited Rs.69/- lacs through cheques and on en-cashment of these cheques receipts were issued to him on 30.09.2008. The opposite party allotted Unit No. PH-3-903, (super area 1650 sq. ft., total sale price Rs.7448300/- i.e. @Rs.3902/- per sq.ft.) in "Pavilion Height" Wish Town, Jaypee Greens, Sector-128, Noida to him 13.10.2008. As per allotment letter possession had to be delivered within 36 months and remaining amount of Rs.548300/- was payable on offer of possession. The opposite party, vide letter dated 02.01.2009, revised the rate of the Unit @Rs.3837/- per sq.ft. due to which total consideration came to Rs.7341050/- and issued an Amendment to Provisional Allotment Letter dated 02.01.2009, in which, balance amount of Rs.441050/- was payable on the offer of possession. In April, 2010, Harish Kumar Idnani went on the site and found that no construction was going on. Due to which, he went in shock and depression and died on 10.05.2010. On his death, Provisional Allotment Letter dated 13.10.2008 was amended and the names of the complainant and her minor son Rahul Kumar Idnani were substituted on 26.04.2013. The opposite party, vide letter dated 31.10.2017 offered possession of the Unit to the complainant raising a demand of Rs.213627.05/- and pointing out that various fittings, painting and polishing were incomplete. The complainant filed online Complaint No.1220174755 before UPRERA on 21.12.2017, however, she was not satisfied with the progress in the said complaint and got it dismissed as withdrawn on 20.01.2018 and filed this complaint on 27.02.2018 alleging unfair trade practice and challenging the various demands in letter dated 31.10.2017 i.e. Rs.892678/- as increase in super area, Rs.400000/- as Limited Common Area Charge, Rs.56479.50 as Maintenance Advance, Rs.197678.25 as Interest Free Maintenance Deposit, Rs.115000/- as Social Club Membership as well as giving very nominal rebate for delayed possession.
5. The opposite party filed Written Reply on 13.08.2018, in which, material facts have not been disputed. It has been stated that Jaypee Infratech Limited was confirming party of Provisional Allotment Letter dated 31.10.2008, which is a necessary party in the complaint. The complaint is liable to be dismissed for non-joinder of necessary party. Total sale price of the flat in dispute was Rs.7934365/-. In order to reach the pecuniary jurisdiction of this Commission, exaggerated compensation has been claimed. The complainant was offered possession vide letter dated 31.10.2017.Instead of completing formalities as required in the letter, this complaint was filed seeking possession although on humanitarian ground, Rs.200000/- was refunded to the complainant on 14.03.2016. The complainant invested for speculating in the real estate market and not a consumer. In the Provisional Allotment Letter, the period of 36 months for delivery of possession was subject to force majeure such as delay in government approvals like Building Plans, shortage of labour, scarcity of water, restrictions in excavations, landowners agitations and legal impediments as provided in clause-7.1 and 7.2 of Standard Terms and Conditions. National Green Tribunal vide order dated 11.01.2013 restrained all the builders of Noida & Greater Noida from excavating ground water and this restriction was continuing even on today. National Green Tribunal vide order dated 14.08.2013, passed in Application No.158 of 2013, Amit Kumar Vs. Union of India, restrained issuing 'occupation certificate' within a radius of 10 KM from Okhla Bird Sanctuary. This application was disposed of vide order dated 03.04.2014, directing Ministry of Environment, Forest and Climate to fix the Eco Sensitive Zone in respect of Okhla Bird Sanctuary and interim order continued till then. The opposite party filed M.A. No.240 of 2014 for review of the order dated 03.04.2014 but it was rejected on 30.05.2014. The opposite party challenged aforesaid orders in Civil Appeal Nos.5822-5823 of 2014, which was dismissed by Supreme Court on 10.06.2014. Eco Sensitive Zone was notified on 19.08.2015. It has been denied that the husband of the complainant came in depression and shock and due to that reason, he passed away. It has been denied that the agents of the opposite party approached the husband of the complainant and convinced him for booking the flat. In the Provisional Allotment Letter or Amended Provisional Allotment Letter, total sale consideration was exclusive of other charges, which were mentioned in Standard Terms & Conditions. The allottee agreed to abide by Standard Terms & Conditions, as mentioned in the application form dated 20.09.2008. The opposite party adjusted delay compensation as per clause-7.2 of Standard Terms & Conditions in the letter dated 31.10.2017 and also waived Rs.34192/- towards interest. The opposite party gave rebate of Rs.270735/- on excess of super area, increasing 10% as mentioned in the allotment letter, Rs.386397/- on account of demand reduction and Rs.763630/- as delayed compensation. In the Provisional Allotment Letter and Standard Terms & Conditions, it was made clear that 'super area' was tentative and subject to variation. Car Parking Charge, Maintenance Advance, Interest Free Maintenance and Social Club Membership are mentioned in Provisional Allotment Letter and Standard Terms & Conditions and not a new demand. It has been denied that there was any deficiency in service or unfair trade practice.
6. The complainant filed Rejoinder Reply on 22.03.2019, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Admission & Denial of Document of Reshma Idnani. The opposite party filed Affidavit of Evidence of Navneet Kumar Saxena. Both the parties filed their documentary evidence and short synopsis.
7. We have considered the arguments of the counsel for the parties and examined the record. Preliminary objection that after execution of lease deed dated 01.04.2019, the complaint does not survive has no force. Firstly possession was handed over under interim order passed by this Commission and secondly Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held execution of final conveyance deed in favour of the buyer does not affect the right of the buyer to agitate his grievances in respect of other deficiency in service.
8. Payment of Rs.69/- lacs was made on 30.09.2008. Provisional Allotment Letter dated 13.10.2008 (Annexure-P-1) provides that subject to the Standard Terms and Conditions, the possession of apartment was expected to the delivered within a period of 36 months thereof. Possession was offered vide letter dated 31.10.2017 (served on 15.11.2017). As such there was delay of 73 months 15 days in offer of possession. The opposite party, in entire reply, nowhere stated that the construction was stopped due to reasons beyond their control i.e. force majeure. The opposite party alleged that National Green Tribunal vide order dated 11.01.2013 restrained all the builders of Noida & Greater Noida from excavating ground water and this restriction continued even on today. National Green Tribunal vide order dated 14.08.2013, passed in Application No.158 of 2013, Amit Kumar Vs. Union of India, restrained issuing 'occupation certificate' within a radius of 10 KM from Okhla Bird Sanctuary, which continued till 19.08.2015. The builder used the water of Sewage Treatment Plant in construction of buildings. These orders were passed after expiry of due date for possession and had no effect on construction of the building. There was unexplained delay of 73 months 15 days in offer of possession. The complainant deposited Rs.69/- lacs on 30.09.2008 and remaining amount of Rs.548300/- was payable on offer of possession. As such there was deficiency in service on the part of the opposite party.
9. The complainant claims compensation for delayed possession in shape of interest @12% per annum on her deposit from due date of possession till the offer of possession, i.e. total Rs.5261807/-. The opposite party gave rebate of Rs.763630/- on account of delay in the letter dated 31.10.2017. The opposite party alleges that delayed compensation was adjusted at the rate of Rs.10/- per sq.ft., per month on 'super area' according to Standard Terms & Conditions. In the Provisional Allotment Letter dated 13.10.2008, tentative 'super area' has been shown as 1650 sq.ft. In the letter dated 31.10.2017, final 'super area' has been shown as 1882.65 sq.ft. If delay compensation is calculated at the rate of Rs.10/- per sq.ft., per month on 'super area' then it comes to Rs.1374334/- for 73 months. As such, the opposite party has not adjusted full amount of delayed compensation in the letter dated 31.10.2017 according to their own commitment. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that the home buyer would be entitled for compensation for delay in possession in the shape of interest @6% per annum from due date of possession till the delivery of possession. In view of the judgment of Supreme Court, the complainant is entitled for delayed compensation from 01.10.2011 to 01.04.2019, in the shape of interest @6% per annum on her deposit of Rs.69/- lacs as offer of possession vide letter dated 31.10.2017 was illegal and cannot be held as valid date of offer of possession.
10. The complainant has challenged demand of Rs.400000/- as Limited Common Area Charge as mentioned in the letter dated 31.10.2017. The opposite party tried to justify this demand by saying that in Details of Consideration provided along with Provisional Allotment Letter, Rs.400000/- was shown as 'Car Parking Slot' charge. If the opposite party provides 'Car Parking Space' to a place other than the common area, then the opposite party would be justified in raising its demand. But in the letter dated 31.10.2007, it has been clearly mentioned as Limited Common Area Charge. The Real Estate (Regulation and Development) Act, 2016 defines "common area" under Section 2 (n), which includes the common basements, terraces, park, play area, open parking area and common storage spaces. The common area is proportionally included in the 'super area' of all flats constructed in the project and its price is charged. The opposite party is realizing charges on the 'super area', which proportionately includes common area as such further demand of Rs.400000/- as Limited Common Area Charge in the letter dated 31.10.2017 was illegal.
11. The opposite party has demanded Social Club Membership, Maintenance Advance and Interest Free Maintenance Deposit. These demands were in accordance with Provisional Allotment Letter.
12. The complainant has challenged demand of additional price due to increase of 'super area'. Provisional Allotment Letter provides that 'super area' is tentative and price for increase in 'super area' was payable. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125, upheld 10% increase in 'super area' and demand of its price. In the present case, super area has been increased more than 10% but demand of 10% increased area only has been made.
13. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is scope for compensation for mental agony and harassment.
ORDER
In view of the aforesaid discussions, the complaint is allowed with cost of Rs.one lac. The opposite party is directed to pay delayed compensation from 01.10.2011 to 01.04.2019, in the shape of interest @6% per annum on Rs.69/- lacs after adjusting Social Club Membership, Maintenance Advance and Interest Free Maintenance Deposit as mentioned in the letter dated 31.10.2017, within a period of two months from the date of this judgment. After getting formalities of documentation completed, the opposite party shall execute final conveyance deed in favour of the complainant of the flat in question. If the order is not complied within two months from the date of judgment, then the opposite party shall be liable to pay interest @9% per annum on the amount of delayed compensation.
...................... C. VISWANATH PRESIDING MEMBER ......................J RAM SURAT RAM MAURYA MEMBER