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Judgment
Heard Mr. Sachin Patil, Advocate, for the complainant and Mr. Sumeet Sharma, Advocate, for the opposite party.
Birendra Chaudhary has filed above complaint, for directing the opposite party to (i) refund Rs.7121925/- with interest @24% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.2000000/-, as compensation for causing loss due to deficiency in service; (iii) pay Rs.1000000/-, as compensation for mental agony and harassment; (iv) pay Rs.500000/-, as compensation for travelling expenses; (v) pay Rs.10000/- as expenses for legal notice; (vi) pay Rs.200000/-, as costs of litigation; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that Jaiprakash Associates Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project of plotted colony in the name of “County Home-II” at Jaypee Greens Sport City, Gautam Budh Nagar, in the year, 2012 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked a plot on 21.04.2012 and deposited booking amount of Rs.600000/-. The opposite party issued Provisional Allotment Letter dated 26.05.2012, allotting Unit Reference No. P-146, in “County Home-II”, admeasuring 250 sq.mtrs. for Rs.10440183/-. In the provisional allotment letter, the opposite party has committed that possession was expected be delivered within 18 months. Standard Terms and Conditions provides 90 days period as ‘grace period’. The payment plan was “development link payment plan”, under which entire consideration was payable in 9 instalments. As per demand, the complainant deposited Rs.600000/- on 15.05.2012, Rs.1314617/- on 27.06.2012, Rs.957308/- on 04.08.2012, Rs.900000/- on 06.01.2013, Rs.350000/- on 12.03.2013, Rs.114038/- on 12.03.2013, Rs.535962/- on 12.03.2013, Rs.350000/- on 12.05.2013, Rs.900000/- on 09.12.2013, Rs.900000/- on 20.12.2013 and Rs.500000/- on 01.05.2014, total Rs.7121925/-. Due date of possession expired in November, 2013. Delivery of possession was unreasonably delayed. In the meantime, the complainant fell ill. In October, 2014, the complainant asked the opposite party to cancel his allotment and return his money. The opposite party informed that in case of cancellation of the allotment, 10% of the sale price would be deducted towards earnest money. As required, the complainant gave an application for cancellation of allotment and surrendered original allotment letter and receipts and other required papers on 18.05.2015, in the office of the opposite party, which was acknowledged through email dated 20.05.2015. But the complainant did not receive refund. The complainant inquired the opposite party through email dated 19.06.2015, about the refund but the opposite party did not respond. The complainant, through emails dated 12.08.2015, 18.08.2015, 26.08.2015, 01.09.2015, 27.110.2015, 26.11.2015, 28.11.2015, 30.11.2015 and 03.02.2016 reminded for the refund. The opposite party through email dated 08.02.2016 gave a vague reply that refund was pending before account team. As the opposite party was not responding, the complainant was compelled to travel India from Kuwait on 03.04.2016 and met with Mr. Ajit Kumar and Mr. K.C. Batra, the directors on 03.04.2016 and 05.04.2016, who assured that refund would be given within two months along with interest @12% per annum. But refund was not made. The complainant again travelled to India from Kuwait on 10.06.2016 and met with the officials on 13.06.2016, who at this time offered for another property. This complaint was filed on 15.06.2016, alleging deficiency in service. The complainant was in need of money and agreed to accept principal amount waiving the interest on 13.06.2016 and 25.07.2016. But the opposite party did not respond. The complainant then gave emails dated 16.08.2016 and 07.09.2016 and legal notice dated 07.11.2016.
The opposite party has filed its written reply on 16.03.2017, in which, booking of the plot on 21.04.2012, allotment of the plot on 26.05.2012 and the deposits of Rs.6621925/- (not Rs.7121925/-) made by the complainant, have not been disputed. The opposite party stated that the complainant was not a consumer rather an investor in real estate with speculative motive. In the year 2013, when he realized that the market in real estate had gone down, then he stopped payment of instalments payable on 03.10.2013. The opposite party gave a final demand notice dated 19.03.2014, demanding Rs.1002079/- payable on 12.03.2014, to deposit it within 30 days. Failing which, the allotment stands cancelled. In spite of service of the notice, the complainant did not deposit the demanded amount. The complainant, vide email dated 28.10.2014, expressed his financial difficulties in making further payment. After development of the project, the opposite party offered possession with demand of balance amount of Rs.386227.13, vide letter dated 14.05.2015. Then the complainant gave an application for cancellation of allotment and deposited original allotment letter and receipts and other required papers on 18.05.2015, in the office of the opposite party. Due to huge number of cancellation applications of various projects of the opposite party, it had become impossible for it to refund the amount immediately. Refund could be made after selling the plot, for which, the complainant had to cooperate. U.P. Government conceived the project of Taj Expressway later on known as Yamuna Expressway in the year 2001, connecting Noida to Agra. The project was Built, Operate, Transfer basis which envisaged development of 25 million sq.mtrs. land along with expressway. The bid of M/s. Jaiprakash Industries Limited was lowest and accepted Taj Expressway Authority and a Concession Agreement was executed on 07.02.2003. In order to carry out the project Jaypee Infratech Limited was incorporated as a special purpose vehicle. Jaypee Greens Noida was a part of 25 million sq.mtrs. land. The project “County Homes-II” was launched by the opposite party. Development of the project was delayed due to force majeure i.e. shortage of labour, scarcity of water, restrictions in excavations, village agitations against land acquisition and legal impediments. Due to villager’s agitation, Government of U.P. vide order dated 29.08.2014, directed for payment of 64.7% extra compensation to the farmers. The opposite party is entitled for extension of the period for which the development was delayed due to force majeure under Clauses-7.1 and 7.2 of Standard Terms and Conditions. Standard Terms and Conditions contain an arbitration clause and the complainant be relegated for arbitration. The complaint is liable to be dismissed.
The complainant filed Rejoinder Reply and Affidavit of Evidence & Affidavit of Admission/Denial of documents of Birendra Chaudhary and documentary evidence. The opposite party filed Affidavit of Evidence & Affidavit of Admission/Denial of documents of Navneet Kumar Saxena and documentary evidence. The complainant has filed written synopsis.
We have considered the arguments of the parties and examined the record. In the provisional allotment letter dated 26.05.2012, the opposite party has committed that possession was expected be delivered within 18 months. Standard Terms and Conditions provides 90 days period as ‘grace period’. These periods expired on 25.02.2014. The opposite party offered possession vide letter dated 14.05.2015. The complainant paid Rs.6621925/- out of total consideration of Rs.10440183/- and stopped payment of instalments payable on 03.10.2013. The opposite party gave a final demand notice dated 19.03.2014, demanding Rs.1002079/- payable on 12.03.2014, to deposit it within 30 days but the complainant did not deposit the demanded amount. The complainant, vide email dated 28.10.2014, expressed his financial difficulties in making further payment and demanded refund of his money. The complainant was defaulter in payment of instalments. The complainant is claiming refund of money. As he has committed breach of contract, his earnest money is liable to be forfeited.
The opposite party took pleat that the construction was delayed for force majeure reasons i.e. shortage of labour, scarcity of water, restrictions in excavations, villagers agitations against land acquisition since 2010, bans imposed by National Green Tribunal and legal impediments and it was entitled for extension of period under clause-7.1 & 7.2 of Standard Terms and Conditions. A perusal statement of account shows that the demands of the instalment were also delayed. In any case, without making full payment of consideration, no one can expect possession.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. 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 refund, after deducting 10% of basic sale consideration, within a period of two month from this judgment. It would be open to the complainant to prove the payment made.