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Judgment
Dr.Inder Jit Singh, Presiding Member
The present Consumer Complaint (CC) has been filed by the complainant against opposite parties as detailed above, inter alia praying for directions to OPs:-
i. To complete the unit with complete specification and hand over the possession of the unit in question and transfer the same in name of complainant through registry in favour of the complainant.
ii. To pay delay penalty of Rs. 24,64,451/- @18% from date of payment and pendente lite interest till the possession is handed over
iii. To pay complainant compensation of Rs. 5,00,000/- for physical and mental harassment he had suffered
iv. To pay Rs. 1,00,000/- towards litigation charges
Notice was issued to the opposite parties on 25/01/2018 giving them 45 days’ time to file their written statement.
It is averred/stated in the complaint that:-
i. That the complainant booked a Villa at Jaypee Greens Sports City in the name of Villa Expanza on 22.08.2013. Villa reference number PVEJ000021 was allotted to the complainant vide provisional allotment letter dated 21.09.2013 and was to be handed over within 24 months from the date of allotment i.e. 20.09.2015.
ii. That the complainant had paid Rs. 23,77,875/- till date. The failure of OPs to complete the project is deficiency in service. OPs using said funds of complainant for their own purposes and making money from it amount to unfair trade practice causing complainant immense pecuniary loss, mental and physical trauma and harassment. OPs have fraudulently made the complainant invest in their project which has not received legal sanction of government authorities, and is in complete violation of UP Apartments Acts 2010.
The OPs in their written statement/reply has denied the fact of deficiency in providing its services and being involved in unfair trade practices and restrictive trade practices as alleged in the complaint and has stated
i. That JPSK Sports Private Ltd. subsequently changed to JPSI and amalgamated with M/s Jaiprakash Associates Ltd. (JAL) under scheme of amalgamation duly approved by Hon’ble High Court of judicature at Allahabad vide order dated 14.09.2015. In terms of the said scheme, all contracts entered into with JPSI stood transferred in favour of JAL, therefore the respondent is filing the reply on behalf of JAL.
ii. That the matter does not fall in the pecuniary jurisdiction of this Hon’ble Commission as the value of property in question is Rs. 77,35,000/- which is much below the limit set down by legislature. The delay occurred due to force majeure conditions and grievances are baseless, devoid of merits and tainted with malafides. That the complainant booked the more than one unit for speculating in real estate market. Therefore, complainant is not a consumer as defined in Consumer Protection Act, 1986.
iii. That the grievance of home buyers who have invested in Jaiprakash Associates Ltd. is now being looked into and considered by Hon’ble Supreme Court and it is desirable in view of judicial propriety that instant complaint is not processed further before this Commission. That the time provided by the promoter at time of registration under RERA Act, 2016 for completion of project has not lapsed till 30.06.2021.
iv. That no agreement for sale has till date been entered between complainant and Respondent herein as the format for same has till date not been prescribed by State Government. That the complainant agreed with the standard terms and conditions of the Allotment letter. That the delay was caused due to force majeure events such as Shortage of labour, scarcity of water, restrictions in excavations, villager agitations, order of NGT that restrained builders from extracting underground water for purpose of construction as well as legal impediments and it was agreed that in case of force majeure events, the Respondent would be entitled to extension of time without incurring any liability.
Rejoinder was filed by the complainant. Evidence by way of an Affidavit was filed by the complainant and OP broadly on the lines of averments made in their respective complaint/reply. Written Synopsis filed by the Complainant but not OPs.
Sr No
Particulars
1
Project Name/Location etc
Villa Expanza, Jaypee Greens
Sports City, Gautam Buddh
Nagar
2
Apartment no.
PVEJ000021
3
Size (Built up/Covered/Super Area)
907 sq. ft.
4
Date of application
22.08.2013
5
Committed date of possession as per Allotment Letter( with grace period of 3 months)
20.09.2015
6
Total Consideration
77,35,000
7
Amount Paid
23,77,875
8
D/o Filing CC in NCDRC
09.10.2017
9
D/o Issue of Notice to OP
25.01.2018
10
D/o Filing Reply/Written Statement by OP
14.05.2018
11
D/o filing Rejoinder by the Complainant
20.09.2018
12
D/o Filing Evidence by way of Affidavit by the Complainant
20.09.2018
13
D/o Filing Evidence by way of Affidavit by the OP
12.12.2018
14
D/o filing Written Synopsis by the Complainant
29.11.2021
15
D/o filing Written Synopsis by the OP
Not Filed
Heard counsels of both sides
Although in the complaint the complainant has prayed for possession, in the written arguments filed on 29.11.2021 the complainant stated that as OP have not yet commenced construction of the said property till date, OP may be directed to refund the said amount along with interest and penalty. During the oral arguments also the complainant prayed and argued for refund of his money.
The contention of OPs that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs one crore. The contention that complainant is not a consumer as he has purchased the unit for Investment/ commercial purpose is also rejected as no such evidence has been adduced by the OPs in this regard. The plea of OPs that delay was due to force majeure circumstances is not valid as even after a gap of more than 07 years from the committed date given in the Allotment letter, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. Even now the project is not complete, Occupancy certificate has not been obtained and OP is not in a position to give any firm date for completion of the project and handing over the possession of unit to the complainant.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OPs. Keeping in view the own contentions of the OP regarding amalgamation of JPSI with JAL, the liability to refund rests with OP-1 viz JAL.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
(i) The OP-1 shall refund the entire principal amount of Rs. 23,77,875 (Rupees Twenty three lakhs seventy seven thousand eight hundred and seventy five only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.
(ii) The OP-1 shall pay a sum of Rs.25,000/- as cost of litigation to the complainant.
(iii) The payment in terms of this order shall be paid within three months from today.
(iv) In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs, if any, also stand disposed off.