Geetika Mallan & Anr vs Jaiprakash Associates Limited

Subhash Chandra, Presiding Member

This complaint under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) has been filed alleging deficiency in service on the part of the opposite party in delay in offering possession of a flat booked by them with the opposite party and in charging an additional amount by arbitrarily increasing the super area of the flat.

The relevant facts of the case as per the complainant, in brief, are that they had booked a residential unit on 30.11.2007 admeasuring approximately 2380 sq.ft (221.11 sq. mtr.) in Kalypso Apartments, a project promoted and executed by the opposite party. Apartment no. 0802 in Tower No. 3, Kalypso Apartments, Jaypee Green, Noida was allotted on 17.02.2008 for a sale consideration of Rs 1,38,82,700/- of which the complainants have paid Rs 1,20,88,930/-. Possession was to be delivered within 36 months which period expired in February, 2011. The opposite party issued an offer of possession on 03.06.2015 stating that the area of the subject flat was increased from 2380 sq ft to 2612.52 sq ft and accordingly a demand for Rs.12,90,486/- was raised. According to the complainant, this increase was arbitrary as it could have been done only with the prior consent of the complainants, which was not obtained. Secondly, the opposite party, vide this letter, offered a rebate for the delay in the offer of possession of Rs 11,64,309/-. It is stated that the increase in super area by 232.52 sq ft or 9.77% of the original super area was also contrary to section 4(4b) of the UP Apartments Act, 2010. Reliance is placed on this Commission’s order in Developers Township Property Owners Welfare Society Vs. Jai Prakash Associates Ltd., CC No. 1479 of 2015 which held that “We find enough force in the arguments submitted by the counsel for the Complainant, if there is any increase in the internal area, the OP is entitled to get the additional amount that too at the fixed rate at the time of booking. However, no such proof has been produced on record. Consequently, we hereby hold that the OP is not entitled for any additional amount.” The complaint submits that super area comprises internal area of the apartment together with the proportionate share in the common areas in the said project and the area of the common area cannot be increased without consent of the allottees.

The complaint contends that the opposite party’s justification of the delay in the offer of possession is unacceptable since it is based upon the order of the National Green Tribunal (NGT) in OA No. 158 of 2013 which was operative between 28.10.2013 to 03.04.2014 restraining the Noida Authority from issuing a completion certificate. It is contended that this order had prohibited construction without prior environmental clearance which the opposite party failed to obtain. As per the order dated 11.01.2013 of the NGT relied upon by the opposite party in their evidence affidavit, the restriction was only on extraction of ground water for construction work and the delay was due to the latches of the opposite party. The complainants state that the order of the NGT was dated 11.01.2013 which was after the scheduled date of handing over possession in February 2011 and therefore is not tenable. It is further argued that the opposite party had not obtained the completion and occupation certificates, the onus for which was on them, and therefore the offer of possession was invalid. The complainant is therefore, before this Commission with the following prayer:

(i) To declare that the opposite party is guilty of adopting unfair trade practice by imposing unreasonable restrictions upon the complainants with respect to the Apartment bearing unit reference no. 0802 in Kalypso Tower no. 03, at Jaypee Greens, Noida, Uttar Pradesh with approximately super area of 2380 sq ft (221.11 sq meters) by asking them to make the payment of Rs.12,90,486/- and other charges for the increase in the super area of the said apartment;

(ii) To direct the opposite party that the complainants are not liable for any additional costs for the increase of the super area of the said apartment, from 2380 sq ft to 2612.52 sq ft as referred in the allotment letter dated 03.06.2015 and further direct the opposite party to deliver the physical possession of the apartment bearing unit reference no. 0802 in Kalypso Tower no. 03, at Jaypee Greens, Noida, Uttar Pradesh, with approximately super area of 2380 sq ft (221.11 sq meters) at the total sale consideration of Rs.1,38,82,700/- as per the allotment letter no. JGNKLP030802 dated 07.02.2008 issued by the opposite party to the complainants;

(iii) To direct the opposite party to pay the penalty of Rs.13,58,500/- instead of Rs.11,64,309/- for delay in delivery of the apartment and difference amount be adjusted accordingly in the balance payment payable by the complainant to the opposite party for the said apartment;

(iv) To award the damages by directing the opposite party to make payment of Rs.10,00,000/- to the complainants for the sufferings on account of adopting restrictive trade practice/ unfair trade practice by the opposite party and against the complainants and delay in delivery of possession by the opposite party;

(v) To award the costs of the present proceedings, before the Hon’ble Commission; and

(vi) Pass any such or further relief (s) which this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case and in the interest of justice in favour of the complainants and against the opposite party.

The complaint was resisted by way of a reply by the opposite party. Deficiency in service and unfair trade practice was denied. It was submitted that the opposite party had applied for grant of a Completion Certificate to the Noida Authority after completing construction of the Tower in which the subject flat was located. However, in view of the order of the NGT dated 28.10.2013 which was extended vide order in OA 158/2013 dated 03.03.2014, the Authority was restrained from issuing Completion Certificates. An intimation dated 03.06.2015 had been sent to the complainant intimating the delay in handing over of possession. The offer of possession was sent on 29.12.2015 after receipt of the Completion Certificate. The opposite party contends that the delay is attributable to force majeure causes such as shortage of labour, scarcity of water, restrictions in use of ground water, legal impediments, etc as per clauses 7.1 and 7.4 of the agreement and is not due to any reason attributable to it other than the order of the NGT and its restriction on Noida to issue completion and occupancy certificates.

It is averred that the complaint has been filed beyond the prescribed period of 2 years and was therefore, barred under section 24A by limitation. It is also averred that the complainant’s contention regarding the increase in the super area is contrary to the agreement between the parties in writing which permitted deviation in the super area at the time of completion. It is stated that the complainant had undertaken to abide by the terms and conditions of the allotment as per which timely payment of instalments was of the essence. It is contended that clause 6.8 of the agreement relating to the super area was categorical in stating that the applicant was aware that all plans were ‘tentative’ and subject to ‘variations, deletions, additions, alterations’ either in its sole discretion or requirements of a Governmental Authority as below:

6.8 “The Applicant has reviewed the Plans and has been made aware of and accepts that the Plans, Super Area, specifications as more particularly described in the application forum, brochures etc., are tentative and that there may be variations, deletions, additions, alternations made either by the Company as it may in its sole discretion deem fit and proper, or by or pursuant to requirements of a Governmental Authority, which alternations may involve changes, including change in the position/ location of the said premises, change in the number of units, change in its dimensions, change in the height of the buildings, change in its super area/ plot area and the applicant hereby gives his consent to such variations, additions, deletions, alterations modifications as aforesaid (the ‘permitted alterations’). The consideration amount may be increased on account of the permitted alterations and the applicant shall pay without demur such increased amount of consideration at such times as may be required by the company. In the event that the consideration amount is decreased pursuant to the permitted alterations, the excess amounts if any, paid by the allottee shall be refunded by the company.

Provided further that any changes as a result of the permitted alterations shall not be construed to give rise to any claims, monetary or otherwise. Any increase or decrease in the super area/ plot area of the said premises shall be payable or refundable on pro-rate basis without any interest at the agreed rate per sq meter as may be more specifically described in the allotment/ provisional allotment letter and that the other charges as specified herein will be applicable for the changed area pursuant to permitted alterations at the same rate at which the said premises were allotted.”

The opposite party contends that the complainant is in default of payment of Rs 30,92,292/- as on 06.01.2016. A rebate of Rs 11,64,309/- is stated to have been adjusted by the opposite party for the delay in the offer of possession and therefore the complainant has no cause of action. It is stated that no loss or injury has been caused to the complainants and the claim is liable to be rejected.

Parties led their evidence and filed affidavits in support. I have heard the learned counsel for both the parties and given thoughtful consideration to the material on record.

On behalf of the complainant it was argued that (i) the delay in the offer of possession by the opposite party is entirely attributable to delays on its part and not on account of any force majeure grounds as urged. The possession which was to be offered on February 2011 was offered in 29.12.2015 and the complainant was entitled to be compensated for this period of delay and (ii) the increase in the super area of the flat from 2380 sq ft to 2612.52 sq ft i.e. by an additional 232.52 sq ft was arbitrary and without prior consent for which Rs 12,90,486/- was being charged illegally by the opposite party.

Per contra, the learned counsel for the opposite party argued that the issue of super area was squarely covered under this Commission’s order in Capital Greens Flat Buyers Association Vs. DLF Home Developers Ltd., CC No. 351 of 2015 dated 03.01.2020 wherein it was held that:

” 13. In terms of Annexure II of the Agreements executed between the developer and the allottees, the price of the apartments was to be calculated on the basis of its super area. It was also noted in the above referred clause that the super area mentioned in clause 1.1 was only tentative and could change. The allottees had agreed not to object to the change of the super area. However, if the super area was to increase/decrease by more than 15% on account of any alteration/modification/change, the allottees were required to be intimated in writing before carrying out the proposed change and had an option to take refund of the payment which they had made to the developer along with interest.

The super area in terms of Annexure II of the Agreements was to consist of the apartment area, pro rata share of the common areas of the building and pro rata share of other common areas outside the building, as defined there in.

In the project subject matter of these complaints, the developer has not sought additional payment for increase in the super area beyond 15%. Therefore, no prior notice to the allottees was required before increasing the super area and to the extent there has been actual increase in the Super area as defined in Annexure II of the Agreements, the allottees are required to pay for such an increase. The allottees had also agreed that not only the super area but even the percentage of the apartment area to the super area could change and they would have no objection to change of the said ratio, though the case of the OP is that the ratio has not changed and the same continues to be 78.5 percent of the super area.

The opposite party submits that the increase in area is as per clause 6.3 and 6.8 of the Standard Terms and Conditions of the Application Form and that he has already given a discount of Rs.1,48,820/- on the increase in the super area to the complainants.

In respect of the delay in the offer of possession beyond February 2011, it was argued that the delay was covered on account of force majeure reasons as per the agreement and that it was for reasons beyond the control of the opposite party since the NGT order imposed legal restrictions on Noida as the authority responsible for issuing completion and occupation certificates leading to delay in the same. The opposite party had, as per the agreement, extended a rebate of Rs 11,64,309/- on the account of delay in possession. It was argued that by not making the necessary payment to clear the final payment before possession, the complainant was in default of clause 6.8 (supra) and Clause 6.3 of the Application Forum which reads as under:

6.3 The consideration for the said premises and other charges are based on the Super Area/ plot area of the said premises and shall be paid by the applicant in accordance with the terms herein.

An analysis of the foregoing indicates that there was admittedly a delay in the offer of possession of the flat to the complainant as well an increase in the super area of the flat. Although the opposite party has offered compensation of Rs 11,64,309/-, the complaint has sought compensation for the delay in the offer of possession which according to him was not due to force majeure reasons advanced by the opposite party. However, as regards the increase in the super area, the complainant contends that this was arbitrary and without consent while the opposite party has argued that it is within the stipulated limit as per the agreement which had categorically laid down that the area indicated was tentative subject to final construction and has relied upon this Commission’s order in Capital Greens (supra).

The complainants’ argument that the super area of the flat in question has been arbitrarily increased by the opposite party and a demand for Rs.12,90,486/- raised illegally has been considered. In view of the Terms and Conditions of the Application Form between the parties being specific with regard to the super area being determined on completion of the project and the area mentioned in the allotment letter being tentative, it is not open for the complainants to take such a position at this stage. The letter dated 03.06.2012 of the opposite party conveying the final super area details mentions the same to be 232.52 sq ft , i.e., 9.77% of the tentatively allotted area. This Commission in Capital Greens (supra) has held that super area as agreed in the agreement between the parties has to be reckoned on completion based upon the agreement. For this reason, the contention of the complainants cannot be accepted.

It is manifest that there is a delay in the offer of possession from February 2011 to 29.12.2015. The complainants have argued that even on this date the Completion Certificate was not available. From the record it is evident that the opposite party had obtained the Completion Certificate for Tower 3 of Kalypso, Jaypee Green, Noida on 11.12.2015. Therefore, the date of offer of possession could not have been prior to 29.12.2015. The delay in the offer of possession has been justified by the opposite party on the grounds of force majeure reasons in the agreement between the parties. However, it is apparent that the order of the NGT was dated 28.10.2013, which was after the committed date of possession. In so far as the order of the NGT is concerned, the restriction on the builder/opposite party was with regard to undertaking construction with ground water. The opposite party has not been able to justify the delay claimed on grounds of any specific issue pertaining to shortage of labour or of water for construction with particular reference to the project Kalypso. Therefore, the opposite party’s justification for the delay cannot be accepted. He is liable to compensate the complainants for the delay in the offer of possession. In view of the compensation of Rs 11,64,309/- already offered by the opposite party, this amount should be adjusted accordingly.

In light of the foregoing analysis, it is manifest that the opposite party is liable to compensate the complainants for the delay in the offer of possession from the promised date of possession (February, 2011) till the date of actual offer of possession (29.12.2015) after adjusting the compensation offered by the opposite party. The delay in handing over possession will be reckoned @ 9% from the respective dates of deposits.

However, the complainants are not entitled to any relief as claimed by them on the ground that the super area was arbitrarily increased by the opposite party. The issue of finalization of super area is clearly covered under the agreement and the super area arrived at is as per the Terms and Conditions of the Application Form. The claim of the complainant on this issue therefore cannot be sustained.

In the result, the complaint is partly allowed with the following directions:

(i) The opposite party is directed to compensate the complainants for the delay in the offer of possession by way of interest @ 9% p.a. from 28.02.2011, the date of promised possession till 29.12.2015, the date of offer of possession;

(ii) From the compensation for delay, Rs 11,64,309/- and Rs.1,48,820/- offered by the opposite party as per the agreement shall be adjusted in the final amount of compensation arrived at under the respective heads;

(iii) The complainant shall pay the opposite party the charges for the finalized super area as per the demand letter dated 03.06.2015; and

(iv) This order shall be complied with within 2 months failing which the amount shall be paid by the opposite party with interest @ 12% p.a. till realization.

The complaint is disposed of with the above directions. All pending IAs are also disposed of.