Mukul Pareek & Anr vs M/s Jaiprakash Associates Limited

Heard Mr. Ajit Sharma, Advocate, for the complainants and Mr. Sukumar Pattjoshi, Sr. Advocate, assisted by Mr. Paras Choudhary, Advocate, for the opposite party.

Mukul Pareek and Shipra Pareek have filed above complaint, for directing the opposite party to (i) refund Rs.13816458/- with interest @18% per annum, compounded quarterly from the date of respective deposit till the date of refund; (ii) pay Rs.5/- lacs, as compensation for mental agony and harassment; (iii) pay compensation at the rate of Rs.10/- per sq.ft. per month on super area, in terms of Clause-7.2 of the allotment letter; (iv) in alternative, handover possession of the apartment along with interest @18% per annum on the deposit of the complainants w.e.f. November, 2013; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainants stated that M/s. 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 projects and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Knights Court”, at Jaypee Greens, Sector-128, Noida, Uttar Pradesh, in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, the complainants booked a flat in above project on 31.08.2010 and deposited booking amount. The opposite party issued Provisional Allotment Letter dated 19.11.2010, allotting Unit No.KGT-8-1502, super area 2700 sq.ft., for total consideration of Rs.14338000/-, to them. Annexure V of the allotment letter contained ‘Payment Plan’, under which Rs.1169876/- was booking amount, Rs.12301999/- was payable on or before 20.12.2010 and Rs.1245625/- was payable on offer of possession. The complainants made payment of Rs.13816458/- till 02.12.2010. The opposite party, vide email dated 12.12.2010, informed that under Special Incentive Scheme, the complainants would be paid 1% discount on the amount deposited on 02.12.2010 and it would be adjusted at the time of offer of possession. Provisional Allotment Letter provides 36 months period for delivery of possession. Due date of possession as per allotment letter was on or before 18.11.2013 but the opposite party through email dated 02.05.2012, unilaterally shifted due date of possession as March, 2015. The opposite party issued an amended Provisional Allotment Letter dated 03.11.2012, in which, consideration was revised to Rs.16565500/-. The complainant, through email dated 28.11.2014, sought for information about expected date of possession. The opposite party, through email dated 06.10.2015, informed that the Tower, in which the complainant were allotted flat, would be likely to be ready for possession by mid of 2016. The complainants again through email dated 17.10.2016, sought for information about due date of possession, then the opposite party, through email dated 02.11.2016, informed the internal plaster work was going on. The opposite party published Press Note on 12.05.2017, in which, possession of Tower-8 was shown as March, 2019. Then this complaint was filed on 21.09.2017, alleging deficiency in service.

The opposite party has filed its written reply on 09.03.2018, in which, material facts, relating to booking of the flat on 31.08.2010, issue of Provisional Allotment Letter dated 19.11.2010 and deposit of Rs.13816458/- till 02.12.2010 by the complainants, have not been disputed. The opposite party pleaded that due to force majeure reasons the construction of the unit was delayed, namely (i) The farmers raised violent protest against land acquisition and possession of the acquired land, due to which development of infrastructure and construction could not be started for a long time. Ultimately Government of U.P. directed for payment of 64.7% additional compensation to the farmers on 29.08.2014, due to which, the cost was increased. (ii) Under Concession Agreement with Government of U.P., the opposite party was required to fund Yamuna Expressway, in lieu of which, the opposite party was allotted land for development of 5 townships, including land of “Knights Court”. Violent protest of the farmers badly affected booking and sale of plot/flat in 5 townships as till the protest very few allotments were done by the opposite party. Due to paucity of fund, the construction was halted. (iii) In the year 2012, State of U.P. decided not to handover a part of Yamuna Expressway i.e. from Noida to Greater Noida, which resulted substantial loss to JIL and one more reason for paucity of fund. (iv) National Green Tribunal Delhi, vide order dated 10.01.2013, restrained all the builder of Noida & Greater Noida from extracting ground water for building purposes, due to which, the builders have to make arrangement of water from alternate sources by transporting it in tanker, due to which construction works had become slow. (v) National Green Tribunal Delhi, vide order dated 14.08.2013, stopped all construction works in a radius of 10 KM from Okhla Bird Sanctuary. The builders challenged the order of National Green Tribunal in Supreme Court but could not get any success. This order continued till notification of “Eco-Sensitive Zone” by State of U.P. on 19.08.2015. Under clause-7.1 of Standard Terms and Conditions, which was part of allotment letter, the period for which the construction was delayed for force majeure reasons, is liable to be excluded. The home buyer is provided compensation under Clause-7.2 of Standard Terms and Conditions, for the delayed period. Preliminary issues that (i) Some of the home buyers of the opposite party filed Writ Petition (Civil) No.744 of 2017 Chitra Sharma & other Vs. Union of India and others before Supreme Court, in which, under the order of Supreme Court dated 10.01.2018, the home buyers were permitted to lodge their grievance before Mr. Pawan Shree Agarwal, Advocate, learned Amicus Curie, this complaint is not maintainable. and (ii) State of U.P. has constituted competent authority under Real Estate (Regulatory and Development) Act, 2016, which is an special enactment on the subject, as such, this complaint is not maintainable, are also raised.

The complainants have filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Om Prakash Pareek and documentary evidence. The opposite party has filed Affidavit of Evidence of Navneet Kumar Saxena and documentary evidence. The opposite party filed IA/5964/2021, for dismissing the complaint, stating therein that U.P. RERA authority had initiated proceeding under Section 8 of Real Estate (Regulatory and Development) Act, 2016, in which a series of meetings were held between Association of Allottees and the opposite party with U.P. RERA authority and a consensus was arrived at between the parties, which was reduced in writing on 22.01.2021 and signed by Mr. Arvind Verma, the President of Association of Allottees, who was authorised to sign, in general body meeting of the association and Sri Prabhat Agarwal, from the office of U.P. RERA authority and the opposite party, under which, the construction has to be completed till 24.12.2021. On the basis of aforesaid agreement, Rehabilitation order was passed by U.P. RERA authority on 29.01.2021. The provisions of Real Estate (Regulatory and Development) Act, 2016 have overriding effect. Both the parties filed their written synopsis. At the time of arguments, the counsel for the opposite party has supplied copy of Minutes of Meeting dated 09.09.2022 and order of U.P. RERA authority dated 17.10.2022, by which, time period for completion of construction was extended till 31.05.2023.

We have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725, Imperia Structure Limited Vs. Anil Patni, (2020) 10 SCC 783, IREO Grace Realtech (P) Ltd. Vs. Abhishek Khanna and Experion Developer Private Ltd. Vs. Sushama Ashok Shiroor, 2022 SCC OnLine SC 416, held that remedies to a home buyer under Consumer Protection Act, 1986 or Real Estate (Regulatory and Development) Act, 2016 or Insolvency and Bankruptcy Code, 2016 are concurrent and the home buyer can elect any of these remedy. The complainant has elected remedy under Consumer Protection Act, 1986 as such his complaint is maintainable in spite of proceedings under Section 8 of Real Estate (Regulatory and Development) Act, 2016, which is an administrative proceeding and it does not bar judicial remedy. As such, Rehabilitation order passed by U.P. RERA authority dated 29.01.2021 as extended on 17.10.2022 has no effect on the complainant filed before passing these orders. There is nothing on record to say that the complainants have given consent for extension of period of construction.

As per Provisional Allotment Letter dated 19.11.2010, possession had to be given within 36 months i.e. on or before 18.11.2013. The opposite party claims that under Standard Terms and Conditions, a grace period of 90 days have been provided as such due date of possession was on or before 18.02.2014. Alleged force majeure reasons came to an end on 19.08.2015. From 19.08.2015 also the period of 36 months and 3 months expired on 18.11.2018. Till today the opposite party is not in position to handover possession although more than 90% of consideration has been realized till 02.12.2010. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Vs. Govind Raghavan, (2019) 5 SCC 725 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from date of this judgment.