National Consumer Disputes Redressal
Sudha & 2 Ors. vs Jaiprakash Associates Limited on 29 April, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2804 OF 2017 1. SUDHA & 2 ORS. ...........Complainant(s) Versus 1. JAIPRAKASH ASSOCIATES LIMITED THROUGH IT SDIRECTOR, JAYPEE GREENS, SECTOR-128, NOIDA, U.P. ...........Opp.Party(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER
For the Complainant : Mr. Nakul Singh Pathania, Advocate For the Opp.Party : Mr. Sukumar Pattjoshi, Sr. Advocate
With Mr. Sumeet Sharma, Advocate
Dated : 29 Apr 2021 ORDER
This Complaint has been filed on 20.09.2017.
2. The brief facts as alleged in the Complaint are that on 27.01.2013, the Complainant no.3 Sh. Naren Nath Sarvaria booked a unit no.GDI 143304 in Garden Isels project of the Opposite Party and the possession was to be handed over within 42 months, i.e., three and a half year. The Complainant no.3 took a home loan for the said unit on 21.04.2015 and paid EMI of approximately ₹35,000/- per month and paid total amount of ₹59,48,479.86/- towards the said unit. He also had to pay the late payment of installment @12% p.a. It is alleged that the Complainant No.3 was again duped for the second time by the Opposite Party in June-July 2015. When he had went to the office of the Opposite Party complaining about the delay in construction of the Garden Isels, it was suggested by the Opposite Party that the Complainant no.3 should buy another flat. Thereafter, the flat in the project Imperial Courts was booked by all the Complainants on 12.06.2015. It was a four bedroom flat measuring 3724.68 sq. ft. as covered area with the super area of 3724.68 sq. ft. with four car parking. The cost of one car parking was ₹5,00,000/- which was double the cost of the car parking offered in the previous unit. At the time of booking of the flat, a 4% discount on the consolidated final figure of the sale consideration was given to the Complainant. On 11.07.2015 an allotment letter was issued and the Opposite Party promised to hand over the possession within 24 months. It is contended that in the month of October 2015, the Complainant as per the plan and advice of the Opposite Party sought cancellation of the purchased unit in Garden Isels and requested for the transfer of the amount in the account of Imperial Courts flat. In March, 2016 the Opposite Party transferred the said amount in the account of Imperial Courts flat. It is submitted that due to the said transfer, the Complainants have lost home loan monthly EMI of ₹35,000/- paid for over 25 months, 5% deduction on cancellation of the unit and the late payment amount of ₹2 to 4 Lakhs calculated @ 12% p.a. on the late payment of the installments and this amount comes to approximately ₹14 to 16 Lakhs and it is recoverable from the Opposite Party along with compensation for harassment and mental agony.
3. On 24.10.2016, the Complainant received a possession letter from the Opposite Party indicating the total sale consideration of ₹2,98,13,862.30/-. By 31.12.2016, the Opposite Party had received a sum of ₹28,825,436/-. It is submitted that the total consideration amount stood paid to the Opposite Party on 31.12.2016 and as per the possession letter, the flat was to be handed over within 45 days, i.e., by 15th February 2017. However, series of unfortunate and exploitative events took place after the entire consideration amount was paid by the Complainants. It is submitted that the Opposite Party informed the Complainants about the shortage of material and therefore, informed them that it would take a long time for them to install 7 ACs, one Jacuzzi, well-furnished modular kitchen and wardrobes in all four bedrooms. On the advice of the Opposite Party, the Complainants under duress decided to give up all the materials like installation 7 ACs, one Jacuzzi, well-furnished modular kitchen and wardrobes in all four bedrooms and for that purpose, the Opposite Party had given a discount of ₹4,72,900/-, while the actual cost of all those articles were more than ₹15 Lakhs. The work which was left to be done was final finishing like putting of window panels and glasses, painting/whitewash, bathroom fittings and kitchen fitting, putting granite slabs etc. and bedroom wooden flooring, electricity and pluming. It is submitted that as per the assurance of the Opposite Party, the flooring was to be done with imported marble but it was done with the tiles. It is submitted that the series of e-mails were exchanged between the parties and the Opposite Party had done nothing towards handing over of the possession of the flat. Even after receiving the full consideration amount, on 31.12.2016, the Opposite Party had demanded ₹2,80,000/- as interest for the delayed payment since the payment of ₹53,94,134/- was done late. It is submitted that this amount was transferred from the account of Garden Isels in the account of Imperial Courts flat. The TDS Certificate was also not issued. The Opposite Party pressurized the Complainants to get the flat registered and therefore, stamp papers of ₹13,67,700/- were bought by the Complainants. The Opposite Party had also extorted ₹5,17,830/- towards FMD, maintenance, social club subscription for one year. On 02.05.2017, the Opposite Party forced the Complainants to pay total sum of ₹2,95,21,460.74/-. It is submitted that the Opposite Party had done nothing to ensure the handing over of the possession of the Imperial Courts flat. It is submitted that the agreement between the parties is biased and contrary to the settled principle of law and public policy, hence, the agreement cannot be implemented in the present form. The Complainants were induced to enter into this agreement which Opposite Party now seeks to enforce. The super area was surreptitiously increased and that the Complainants were surreptitiously charged for four car parking and thus Opposite Party has wrongfully gained a sum of ₹41 Lakhs. It is submitted that the super area as shown by the Opposite Party is not the correct super area which can be revealed from the allotment letters issued to the other allottees of the said property which would show that the super area of the flat was 3440 sq. ft. with one car parking. It is further contended that on 06.09.2017, the Complainant No.3 had visited the Imperial Courts flat and had found that the second hand window panels were installed, windows glasses were of some local company and of highly inferior quality, 5mm glasses were installed despite the fact that it is 29th floor and that the workers were putting cut pieces/broken glasses on the window panels. The overall condition of the project was not what was proposed and represented to the Complainants. The staircase was full of filth and some waste material besides having puke and other human waste and due to that, it was not possible to use the staircase. It is submitted that the Opposite Party is forcing the Complainants to take the possession of such flat. It is submitted that in such a situation, taking possession of the flat would not solve the problem because the Opposite Party does not seem to have the intention to deliver what was promised and represented. The agreement, therefore, stands breached and deserves to be cancelled. On these contentions, the following prayers are made:
a. Direct the Opposite Party to refund the entire consideration amount paid by the Complainants towards flat bearing no.IMP-0128A04 in the housing project name Imperial Court as well as other miscellaneous charges towards electricity, club charges, maintenance etc. and all other charges paid:
b. Direct Opposite Party to pay compensation at the rate of 18 percent on the entire amount paid by the Complainants till the date of realizing of the refund of the entire amount received by the Opposite Party towards Imperial Court Flat and/or as per the ratio and directions laid down by this Hon'ble Commission in "Developers Township Property Owners Welfare Society vs. Jaiprakash Associates Limited, in Consumer Case No.1479/2015 decided on 02.05.2016.
c. All losses that have been incurred and that may continue to incur to the Complainants, including cancellation fee of stamp paper.
d. Direct refund of all the late payment charged by the Opposite Party in the Garden Isles Unit being Unit No.GDI143304, in project called Garden Isles, along with 25th Months EMIs paid and 5% cancellation fees towards cancellation and transfer of amount from Garden Isles Unit to present Imperial Court flat i.e. ₹15 lakhs along with compensation towards mental harassment/and agony caused and for misleading and defrauding the Complainants w.e.f. the two units being Garden Isles Unit and Imperial Court Flat which continued from 2013 January till date.
e. Award cost of legal expense borne by the Complainants.
' 4. The Complaint is contested by the Opposite Party. It is submitted that initially the unit was booked by the Complainant No.3 in the project called Garden Isles. It was contended that it was the Complainants who had moved the application for allotment of a unit in the Imperial Courts and the said application is dated 10.06.2015. On 10.07.2015, the said unit in the Imperial Courts was allotted vide the provisional allotment letter dated 11.07.2015. Total sale consideration of the said unit was ₹2,78,21,009 excluding the other charges as per the said allotment letter. Along with the said allotment letter, a payment plan was also provided. As per this allotment letter, the possession was to be handed over within 24 months from the said date + 90 days of grace period. It is submitted that the change in the super area was made with the consent of the Complainant. As per the clause 6.8 of the agreement, standard terms and conditions were agreed between the parties. The super area which was mentioned in the letter was tentative and in case of change in the super area due to the reasons mentioned in the said clause the allottees did not have any right to object to the same. It is submitted that the Opposite Party completed the construction and obtained Occupancy Certificate from the concerned authority and issued a letter dated 24.10.2016, offering possession to the Complainants. It is submitted that the Opposite Party has always acted in bonafide manner and that the Complainants have not come to this Commission with clean hands. It is submitted that the Opposite Party has not committed any deficiency in service. It is submitted that it is the Complainants who are not coming forward to take possession of the unit in question. It is submitted that the late payment interest has been charged as per the agreed terms and conditions. It is further submitted that the Complainants have voluntarily cancelled their allotment of Garden isles and the Opposite Party has no role to play in that. The Complainants had also agreed to the terms and conditions relating the charges of the car parking and did not raise any objection at the time of allotment of the unit. It is denied that the Opposite Party was ever shortage of any material and had failed to provide all the amenities. It is denied that the Opposite Party had forced the Complainants to pay the sum of ₹29521460.78/- or to purchase the stamp paper. It is submitted that the Opposite Party is always ready to hand over the possession by removing any snag which bothers the Complainants. It is submitted that the terms and conditions of the agreement were fair to both the parties. It is denied that the Complainants were ever induced to enter into the present agreement. It is submitted that the four car parkings are provided in a basement of a particular tower as a matter of industrial practice. The parking spaces are booked separately and in the application form of provisional allotment submitted by the applicants, the applicant has categorically mentioned his desire to have the car parking space. It is submitted that actually, the Complainants had booked an apartment for investment in the real estate market and therefore, they are not the consumers. It is submitted that the Complainants have no locus standi in the present case and the case is liable to be dismissed.
5. The parties have led their evidences. The Complainants have furnished the affidavit of Complainant No.3 and the Opposite Party has examined Mr. Roshan Lal Garg, Vice President of the Opposite Party. Parties have also filed their written arguments.
6. I have heard the arguments and have perused the relevant record.
7. The admitted facts in this case are that the Complainant No.3 had on 31.01.2013 booked a two bedroom flat in Garden Isles. The possession of the said flat was to be handed over within 42 months plus 6 months of grace period, i.e., within 48 months, i.e. within four years. Before the expiry of four years, the Complainant No.3 on 12.06.2015 applied for the booking of a four bed room flat with four car parking in Imperial Courts project of the Opposite Party and paid a booking amount of ₹18 Lakhs. The total sale consideration of the said flat was ₹27,791,313. The allotment letter dated 11.07.2015 was issued in favour of the Complainants. Vide this letter, the Opposite Party had promised to hand over the possession of the subject flat within 24 months. Vide this allotment letter, the parties also bound themselves with the standard terms and conditions in respect of the allotment of the said unit. This letter also included along with it the location plan, unit plan, the details of consideration and payment plan. The Opposite Party completed the construction of the subject flat and also obtained the Occupancy Certificate from the concerned authorities and vide letter dated 24.10.2016, offered possession of the subject flat to the Complainants. This allotment letter also shows the following information:
"Based on the "As-built" plans, the super area of the above apartment is 3728.65 sqft., whereas the tentative super area of this apartment as indicated at the time of allotment was 3724.67 sq.ft. As such the increase in super area of your apartment is 3.98 sq.ft. i.e. 0.11% of the earlier indicated super area. The details of balance amount payable by you are as below:
Sl.No.
particulars
Rate per sq.mts. (₹)
Rate Per sq.ft. (₹)
Super area
Super area (sq.ft.
Total amount (₹)
1.
Basic Sale Price 75,401.82 7,461.42 346,40 3,728,65 27,821,009.25
2. Gross Consideration(a) 27,821,009.25
3. Less Discounts:
Early Payment Discount Other Discount(s) if any Credit Note on Account of Demand Reduction Rebate On Account of Delay in offer of Possession Round off Discount/Surcharge 0.00 0.00 0.00 0.00 0.00
4. Debit Note on account of rectification of Demand 0.00
5. Net Consideration (b) 27,821,009.25
6. Interest Free maintenance Deposit 1,130.22 105.00 346.40 3,728,65 391,508.25
7. Maintenance Advance 322.92 30.00 346.40 3,728,65 111,859.50
8. Social club Subscription Charges 15,000.00 1.00 15,000.00
9. Total Other Charges(c) 518,367,75
10. Applicable Service Tax (d) 1,237,625.04
11. Add:- Interest Outstanding on delayed payments as on 24.10.2016 € 236,860.26
12. Grand Total (f = b + c +d +e) 29,813,862.30
13. Total amount already received till dated 24.10.2016 (g) 11,587,553.00
14. Net Payable (h = f - g) 18,226,309.30 The above super area is based on "As build" Plans.
We would request you to make the above payment within 30 days i.e. before 23.11.2016 (Due Date) and complete the pre-possession documentation to enable us to complete the final finishing works, if any, and to hand over the above apartment to you within 45 days of the aforesaid payment.
We are also attaching herewith the following;
Annexure 'A' for pre-possession formalities for execution of the Sub-Lease Deed.
Annexure 'B' for reservation of car park slot(s) and finishing works.
Demand letter and statement of account.
8. Admittedly, vide this allotment letter, the Complainants were asked to clear their amounts within 30 days i.e. before 23.11.2016 and also to complete the prepossession documentation so that it would enable them to complete the final finishing work and it was promised that the flat would be handed over within 45 days of the aforesaid payment. Along with this letter, certain annexures were included relating to the prepossession formalities for execution of the said lease deed and for reserving of the car parking and finishing work and also the demand letter and the statement of the account. Thereafter, the Complainants had applied for loan to ICICI Bank and subsequently, a quadripartite agreement was executed with the ICICI Bank. It was thereafter that the balance unpaid amount was cleared by the Complainants.
9. From the above, it is clear that although, the Opposite Party had promised to hand over the possession of the said apartment within a period of 24 months which was to expire on 11.10.2017, an offer of possession after obtaining the Completion Certificate was made even prior to the expiry of that period and more than one year in advance. The present Complaint was filed on 20.09.2017, i.e. before the expiry of 24 months, promised in the provisional allotment letter. It therefore can be said that there is any delay on the part of the Opposite Party in offering the possession.
10. It is argued by learned Counsel for the Complainants that merely because an offer of possession is made, it does not amount to handing over of the possession. The possession can be said to have been given when the actual delivery of the unit is made. It is submitted that the said unit was having several deficiencies as mentioned by them in the Complaint like second hand window panels were installed, windows glasses were of some local company and of highly inferior quality, 5mm classes were installed despite the fact that it is 29th floor and that the workers were putting cut pieces/broken glasses on the window panels and that the staircase was full of filth etc. It is argued that since the deficiencies were there, which were not removed, hence mere offer of possession is not sufficient and there is deficiency in service on the part of the Opposite Party.
11. It is argued by the learned Counsel that on 17.10.2017, when notice of the Complaint was issued, the Complaint was directed to furnish the report of qualified architect, specifying the defects in the flat and the Complainant has not filed any such report. The Complainants have thus failed to prove any deficiency or defect in the flat. It is argued that burden to prove its case is upon the Complainants.
12. It is apparent that when this Complaint was filed and taken up by this Commission, this Commission in its order dated 17.10.2017 issued following directions:
"The learned counsel for the complainants states on instructions that the possession of the flat offered vide letter dated 24.12.2016 was not accepted by the complainants for several reasons including the defects in the flat offered to them. The complainants are directed to file report from a qualified architect, specifying the defects/deficiencies on account of which they are not willing to take possession of the flat offered to them. In the meanwhile, the complaint is admitted, subject to just exceptions. Issue notice in terms of Section 13(1) of the Consumer Protection Act alongwith a copy of the complaint to the OP for 13.02.2018 alongwith notice of IA No.16392 of 2017 directing it to give its version of the case within a period of 30 days from the date of receipt of the notice."
13. It is also apparent that despite the fact that the Commission had asked the Complainant to file a report from the qualified architect specifying the defects/deficiencies on account of which they were not willing to take possession, the Complainants have not filed any such report. Therefore, there is no report before this Commission which could specify the defects in the subject flat. There are only allegations and denials of those allegations. In the absence of any specific report showing the specific deficiencies of the nature which goes to the very root of the agreement between the parties and which makes the taking over of the flat impossible or not feasible, small snags here and there, which could be removed on pointing out are not sufficient reasons for the Complainants to refuse to take possession of the subject flat especially when the flat had been offered a year in advance before the promised date. It is also clear that the Complainants had booked in the year 2013 one flat in Garden Isles which was to be completed within four years and before the expiry of four years they had booked the subject flat in Imperial Courts project and subsequently sought cancellation of the Garden Isles flat and sought transfer of the money they had paid against Garden Isles flat in the account of the Imperial Courts flat. The Complainants have raised certain objections relating to Garden Isles flat. They allege that they had lost about ₹14 to 16 Lakhs in the entire process of cancellation of Garden Isles flat and transfer of the money which they were forced and induced to cancel. It is apparent that no objection had been raised at any time by the Complainants before filing of the present Complaint. It is a settled proposition of law that if somebody complaints inducement, force or coercion it is his duty to plead the facts which led to said inducement, coercion or force and thereafter, prove those facts. In the present case, mere averment that the Complainants were forced or induced are made and no specific allegation has been made by the Complainants. Rather, the facts of the case go to show that the Complainants have been acting voluntarily. During the existence of the allotment of their flat in Garden isles project, they booked another flat in Imperial Courts and finding difficult in paying installments towards Imperial Courts flat, they sought cancellation of the allotment of the flat in Garden Isles even before the period within which the possession of the said flat was to be handed over to them and requested for transfer of the money paid against the said flat in the account of Imperial Courts. The Complainants have relied on judgment of this Commission in "Ramesh malhotra & Ors. vs. Emaar MGF Land Limied & Anr. decided on 29.06.2020 in Consumer Complaint No.438 of 2019". The facts in that case are entirely different from the case before me. In Ramesh Malhotra's case (supra), there was a delay of about 1 year and 2 months in offering the possession while there is no delay in the present case.
14. The Opposite Party on the other hand has relied on the findings of the Hon'ble Supreme Court in "Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., Civil Appal No.5785 of 2019 decided on 11.01.2021. It is argued that the three judges bench of the Hon'ble Supreme Court in Abhishek Khanna's case (supra) had even directed the allottees to take possession of the flat wherein the offer of possession was delayed and in this case, there was no delay in offer of possession. It has relied on para 21.1 of the said judgment which is reproduced as under:
"21.1 The issue which now arises is whether the apartment buyers are bound to accept the offer of possession made by the Developer where the Occupation Certificate has been issued, along with the payment of Delay Compensation, or are entitled to terminate the Agreement.
The factum of delay in completing the construction and making the offer of possession is an undisputed fact in this case."
15. It is clear from the findings of the Hon'ble Supreme Court in Abhishek Khanna's case (supra) that where the offer of possession is made along with Occupation Certificate, even if there is a delay in the said offer, the allottees cannot refuse to take the possession. In the present case, there is no delay in the offer of possession and the Complainants have since failed to give any valid reason and also there exists no valid reason/ground for the Complainants to refuse to take possession and terminate the contract, the refusal of take possession and refund sought in the facts and circumstances of the case is not justifiable. The Complainants have failed to prove any fact on record to show that the Opposite Party had adopted an unfair trade practice or that the agreement was biased or onesided.
16. The relief claimed qua Garden Isles flat is naturally time barred, but the Complainant's claim is unwarranted.
17. In view of the above discussion, it is apparent that the relief sought by the Complainants cannot be granted. The Complaint stands disposed of in these terms.
......................J DEEPA SHARMA PRESIDING MEMBER