Ramesh Radia & Anr vs Jaiprakash Associates Ltd. & Anr

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.

Ramesh Radia and Indira Radia have filed above complaint for directing the opposite party to (i) refund Rs.9854945/- with interests @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) pay Rs.250000/- as the costs of litigation; (iv) pay travelling and other expenses; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainants stated that 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 and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Pavilion Court” at Jaypee Greens, Sector-128, Noida, in the year 2008 and made wide publicity of its facilities and amenities, like open spaces, club, golf course, basketball and badminton courts, gymnasium, supermarket, shops etc. The complainants personally met with Vice-President, Marketing and other officials in April, 2008 and they confirmed that amenities mentioned above would be provided. Believing on the representations of the opposite party, the complainants booked a flat in the said project and deposited Rs.800000/- as the booking amount on 12.05.2018. The opposite party issued Provisional Allotment Letter dated 18.07.2008, allotting Flat no.P-6-103, super area 1600 sq.ft.+ two car parking spaces, total consideration of Rs.7924000/-. In allotment letter, period for delivery of possession was mentioned as 36 months and in Standard Terms and Conditions, a grace period of 90 days was given. Annexure V of the allotment letter provides payment plan as “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 15.01.2009, Rs.696000/- on 26.09.2009 and Rs.1913700/- on 25.03.2010. The opposite party issued a Cancellation Notice dated 07.03.2011. The complainants, vide letter dated 30.03.2011, replied that as above payments have not been confirmed as such no further payment was made. Thereafter, the complainants deposited Rs.1913700/- on 01.04.2011 and Rs.2553777/- on 26.05.2011 (total Rs.7567477). Due date of possession expired on 02.05.2011 but the opposite party did not offer possession. The complainants and their representative visited the site during 2010 to 2015 many times and found that the construction was not progressing on the spot. On inquiry, the officials of the opposite party used to give some vague reply. In November, 2015, the opposite party raised demand of Rs.2277397/- towards principal amount and Rs.1436046.05 towards interest. The complainants, through email dated 29.11.2015, protested the demand and stated that they had overpaid Rs.1299980/-; as the construction was delayed as such no interest was liable to be charged; they requested either to waive the interest or to refund their amount with interest. The opposite party then issued letter dated 18.12.2015, offering possession along with demand letter for Rs.4021473.53. A perusal of statement of account shows that super area has been increased from 1600 sq.ft to 1819.98 sq.ft. and some of the payments made by the complainants were not shown in statement of account. On much deliberation, the opposite party told to deposit Rs.2277397/- and his account would be verified. The complainants deposited Rs.396155.84, Rs.870066.45 and Rs.1011174.71 on 11.01.2016. The complainants wrote an emails dated 08.02.2016, 10.02.2016, 16.02.2016, 02.05.2016 and 02.03.2018 to verify their deposits and correct statement of accounts but the opposite party did not respond. The complainants tried to inspect the flat during 2016 to 2018. The opposite party permitted inspection of the flat in May, 2018. On inspection, the complainants found that there were various deficiencies and the flat was not golf course facing. They, through email dated 24.06.2019, pointed out deficiencies in construction and protested in respect of increase of super area and change of preferential location. But the opposite party avoided reply. Then this complaint was filed on 31.05.2019.

The opposite party filed its written reply on 23.12.2019, in which, material facts relating to the booking of the flat, provisional allotment and payment made by the complainants, have not been denied. The opposite party stated that the construction was delayed due to force majeure reasons and the opposite party was entitled for extension of the period for which, the construction was delayed for force majeure reason under clause-7.1 and 7.2 of Standard Terms and Conditions. Initially the construction was delayed as the farmers started agitation against acquisition of the land, which created law and order problem on the spot. Under the concession agreement between the opposite party and TEA (now YEA), the opposite party had to construct Expressway from Noida to Agra and was to fund the cost of the project through developing five township and sale of plot/flat. But sale of the plots was halted due to farmer’s agitation. Ultimately State Government directed to pay additional compensation/incentive to the farmers to the extent of 64.7%, on 29.08.2014. This resulted in the land becoming encumbered as such it could neither be used for development nor could be transferred. In the year 2012, State Government modified concession agreement and taken away road from Noida to Greater Noida from the opposite party, which resulted in substantial loss to the opposite party. During this period, the market in real estate has become down. National Green Tribunal, vide order dated 10.01.2013, restrained all the builders in Delhi NCR from using ground water in construction work. The opposite party had to arrange water from alternate sources, for which, the water had been carried in tankers due to which, the work had become slow. National Green Tribunal, vide order dated 14.08.2013, stopped construction work within a radius of 10 KM from Okhla Bird Sanctuary and this order continued till notification of Eco-Sensitive Zone by State of U.P. on 19.08.2015. Thereafter, the opposite party started construction with full spring and completed construction. The opposite party obtained “occupation certificate” and offered possession on 18.12.2015 but the complainants did not come to take possession after deposit of the balance amount. Super area has been increased due to change for structural reasons. Under clause-9.15 of Standard Terms and Condition, the complainants can cancel the allotment if the builder has failed to deliver possession after deposit of full consideration. The complainants have not deposited full consideration as such the complaint for refund, is not maintainable.

The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of the documents of Devender Gupta and documentary evidence. Through IA/6725/2021, the complainants filed a report of Architect dated 16.08.2020, showing that the construction was not complete. The opposite party has not filed Affidavit of Evidence. Both the parties have filed written submission.

We have considered the arguments of the counsel for parties and examined the record. Although in written reply issue of limitation has not been raised but in written synopsis, the opposite party has raised this issue and stated that possession was offered on 18.12.2015 and the complaint was filed on 31.05.2019 as such it is barred by limitation as provided under Section 24-A of the Consumer Protection Act, 1986. We do not agree with this argument. In final statement of account attached along with letter dated 18.12.2015, the opposite party has charged Rs.1237707.07 towards interest and Rs.16580/- as Preferential location charge. The complainants deposited Rs.396155.84, Rs.870066.45 and Rs.1011174.71 on 11.01.2016. The complainants specifically challenged two demands i.e. interest and preferential local charge through emails dated 08.02.2016, 10.02.2016, 16.02.2016, 02.05.2016 & 02.03.2018 and requested to verify their deposits and correct statement of accounts and also pointed out snags but the opposite party did not respond. Payment plan was “construction linked payment plan”. The opposite party admitted that construction was halted and delayed for force majeure reasons. In the absence of any demand notice and failure of the complainants to deposit it within time, the opposite party was not entitled to charge interest. Even after issue of possession letter, the opposite party did not handover possession and insisted for deposit of their illegal demands, although according to the complainants excess amount had been deposited as in allotment letter total consideration of Rs.8004000/- was mentioned and the complainants had deposited Rs.9854945/-. The opposite party did not issue any letter to the effect that snags were removed and the construction has been completed as per specification after 11.01.2016. The opposite party never cancelled the allotment nor denied handing over possession. Under the allotment letter, the opposite party had liability to handover possession, which is a continuing cause of action as held by Supreme Court in Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., AIR 2022 SC 428. As such the complaint cannot be held as barred by limitation.

Due date of possession was October, 2011 and possession was offered through letter dated 18.12.2015 as such there was delay in offer of possession. The opposite party took plea that the construction had been delayed due to force majeure reasons and the opposite party was entitled for extension of the period for which, the construction was delayed for force majeure reason under clause-7.1 and 7.2 of Standard Terms and Conditions. Alleged force majeure reasons were of the period much after due date of possession.

The counsel for the opposite party submitted that Supreme Court, in Ireo Grace Realteck Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held that once possession was offered after obtaining “occupation certificate” then the home buyers are obligated to take possession after deposit of balance amount. The complainants are not entitled for refund of their money.

In the presents case, the complainants deposited total Rs.9854945/-as against total consideration of Rs.8004000/- as mentioned in the allotment letter. The complainants through email dated 08.02.2016, pointed out some snags and requested to remove the snags and correct statement of account. The opposite party did not advert to the grievance of the complainants for more than three years. The subsequent conduct of the opposite party justified the demand of the complainants for refund of their money. A home buyer cannot be made to wait for unlimited period for possession.

ORDER

In view of the 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 refund, within a period of two months from the date of this judgment.