Chandravadan Vithaldas Ganatra & Anr vs Jaiprakash Associates Ltd

Heard Mr. Amit Singh Chauhan, Advocate, for the complainants and Mr. Sukumar Pattjoshi, Sr. Advocate, assisted by Mr. Daksh Pandit, Advocate, for the opposite party.

Chandravadan Vithaldas Ganatra and Rajni Ganatra have filed above complaint, for directing the opposite party to (i) refund Rs.9393812.70 with interest @18% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.2000000/- as compensation for mental agony and harassment; (iii) award traveling and other correspondence expenses incurred by the complainants; (iv) pay Rs.250000/- as costs of litigation; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainants 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 in the name of “Pavilion Court” at Jaypee Green, Wish Town, Noida in the year, 2008 and made wide publicity of its amenities and facilities. The complainants held a meeting with Vice-President, Marketing and other officials, in May, 2008, in which, they confirmed the advertisements and assured that possession would be handed over within 36 months of the booking. Believing upon the representations of the opposite party, the complainants booked a flat on 10.05.2008 and deposited booking amount of Rs.8/- lacs. The opposite party issued Provisional Allotment Letter dated 14.07.2008, allotting Unit Reference No. P14-102, super area 1600 sq.ft. for a consideration of Rs.7844000/-. In the provisional allotment letter also the opposite party has mentioned that possession would be handed over within 36 months. By an Amendment To Provisional Allotment Letter dated 05.09.2008, the opposite party provided payment plan. The complainants opted for “construction link payment plan”. As per demand, the complainants deposited Rs.712000/- on 11.08.2008, Rs.696000/- on 23.10.2008, Rs.696000/- on 23.01.2009, Rs.689593/- on 26.09.2009, Rs.1458898/- on 07.05.2010, Rs.2540400/- on 02.08.2012, Rs.132857/- on 01.11.2012, Rs.4942/- on 04.04.2013, Rs.724105/- on 22.08.2013 and Rs.223748/- on 30.10.2013. The representative of the complainants visited the site in the year 2011-2012 and found that the construction was yet to commence although due date of possession expired on 13.07.2011. In the year 2013, the opposite party informed that super area has been increased. The opposite party raised a demand of Rs.712171/- in the head of interest, in February, 2015 and gave threatening that in case, it is not deposited then allotment would be cancelled, which was deposited by the complainants on 18.02.2015. Without completing the construction, the opposite party issued letter dated 31.01.2017, offering possession. The representative of the complainants visited the spot and found that construction was going on and the flat was not in habitable condition. On persistent effort, the opposite party permitted the complainants to inspect the flat in July, 2018 then they found that their flat was not located Golf Course facing, carpet area has been reduced and the flat was still unfurnished. The complainants lodged their grievances. The representative of the complainants again visited the flat in April, 2019 and found that it was still unfurnished. The complainants also came to know that the opposite party did not have requisite sanction from various statutory authorities. Then this complaint was filed on 30.08.2019, alleging deficiency in service and unfair trade practice.

The opposite party has filed its written reply on 13.01.2021, in which, booking of the flat on 02.05.2008, allotment of the flat on 14.07.2008 and the deposits made by the complainants, have not been disputed. The opposite party stated that construction of the apartment was completed and possession was offered vide letter dated 27.07.2013, along with final demand, in which Rs.348800/- was credited in the account of the complainants as delay compensation. The complainants did not turn up for completing formalities for execution of sub-lease deed and taking possession on the excuse that the unit did not have proper accessible location. The complainants booked the unit a speculator for profit. The complainants committed defaults and delayed payment of instalments on 23.10.2008, 07.05.2010 and 02.08.2012, therefore interest was carrying in their accounts. Even cancellation notices were also issued on 07.03.2011 and 19.10.2012 due to default in payment of instalments. The construction was delayed for delay in granting approvals by statutory authority, shortage of labour, scarcity of water, restrictions in excavations, villagers agitations against land acquisition since 2010 and legal impediments. Under Concession Agreement with Government of U.P., the opposite party was required to develop expressway from Noida to Agra and to fund the cost of the project through developing township at five locations and selling the flats/plots. Due to farmers agitations sale of flats/plots was halted. On 29.08.2014, Government of U.P. directed to pay additional 64.7% to the farmers as incentive, which created financial burden upon the opposite party. In the year 2012, State of U.P. withdrew the project of expressway from Noida to Greater Noida from the opposite party due to which the opposite party had suffered loss. National Green Tribunal, vide order dated 11.01.2013, all the builders in Delhi NCR from using ground water for construction purposes. The opposite party had to arrange water from alternate sources, for which, the water was carried in tankers, which increased the cost and also work had become slow. The delay had occurred due to force majeure reasons and liable to be condoned under clause-7.1 of Standard Terms and Conditions. Although area was increased more than 10% but the opposite party is charging for 10% increased area and has given rebate of Rs.223250/- for increased area. The opposite party has not committed unfair trade practice. The complaint has no merit and liable to be dismissed.

The complainant filed Rejoinder Reply and Affidavits of Evidence & Affidavits of Admission/Denial of documents of Chandravadan Vithaldas Ganatra and Rajni Ganatra and documentary evidence. The opposite parties filed Affidavit of Evidence, Affidavit of Admission/ Denial of documents of Roshan Lal Garg and documentary evidence. Both the parties have filed their written synopsis.

We have considered the arguments of the parties and examined the record. Provisional Allotment Letter dated 14.07.2008 provides 36 months period for delivery of possession and Standard Terms and Condition provides 3 months as grace period. This period expired on 13.10.2011. The opposite party offered possession vide letter dated 27.07.2013. The opposite party stated as per clause-7.1 and 7.2 of Standard Terms and Condition, Rs.348800/- as delay compensation and Rs.223250/- as rebate for increased area, were credited in the account of the complainants, in final statement of account. Total outstanding dues was Rs.1655246.61 as on 27.07.2013. The complainants deposited Rs.724105/- on 22.08.2013, Rs.223748/- on 30.10.2013 and Rs.712171/- on 18.02.2015. On making full and final payment, possession letter dated 31.01.2017 was issued.

A perusal of possession letter dated 31.01.2017 shows that possession could be taken over after execution of sub-lease deed. There is nothing on record to show that the complainants ever turned up for execution of sub-lease deed. Similarly, the complainants never informed for completing finishing works. After deposit of entire amount and issue of possession letter, it is not open for the complainant to seek refund after expiry of more than two and half year as such relief of refund is refused.

ORDER

In view of aforesaid discussions, the complaint is disposed off giving liberty to the complainant to get sub-lease deed executed in their favour, within a period of two months from the date of this judgment and take possession of the flat in dispute.