Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and
Ram Surat Ram Maurya, Member
Jaiprakash Associates Limited —Appellant
versus
Deepti Kumar and Ors. —Respondents
First Appeal No.380 of 2019
(Against the Order dated 24/10/2018 in Complaint No. 347/2016 of the State Commission Uttar Pradesh)
Decided on 26.9.2022

Counsel for the Parties:
For the Appellant:Mr. Krishnan Venugopal, Senior Advocate, Mr. Sumeet Sharma, Mr. Tenzen Negi, Mr. Paras Chaudhary, Mr. Kaushik and Ms. Pallavi, Advocates
For the Respondent No.1:Mr. Piyush Sharma, Advocate
For the Respondent No.2:Mr. Devendra Kumar, Advocate
For the Respondent No.3:Mr. Mayank Singh, Advocate
For the Interveners:Mr. Aditya Parolia, Advocate

IMPORTANT POINTS
(1) Refund of money - The home buyer is entitled to claim refund of money with interest from the appellant under Section-19 (4) of the Real Estate (Regulation and Development) Act, 2016.
(2) Possession - A home buyer cannot be made to wait for possession of the flat for indefinite period.

Headnote:
Consumer Protection Act, 1986 – S.19 [Consumer Protection Act, 2019 – S.51] – The Real Estate (Regulation and Development) Act, 2016 - IBC, 2016 - Home Buyer – Refund of Money - Appeal against order of State Commission - Services – Real Estate – Allotment of Flat – Delayed Possession - Stay/Abatement of proceedings - Whether the proceeding before State Commission was liable to be abated against the appellant due to order of National Company Law Tribunal - The Real Estate (Regulation and Development) Act, 2016, has been enacted to provide better protection to the home buyers in efficient and transparent manner. The appellant falls within the definition of the promoter under this Act. The home buyer is entitled to claim refund of money with interest from the appellant under Section-19 (4) of the Real Estate (Regulation and Development) Act, 2016. The provisions of the Code, 2016 do not bar initiation of proceeding and its continuation for refund against the promoter. Real Estate (Regulation and Development) Act, 2016 is a special law. Even if, for the sake of arguments, it is taken that the appellant was an agent of Jaypee Infratech Limited under the Development Agreement, then also the appellant is falling within the definition of “promoter” as given under Real Estate (Regulation and Development) Act, 2016. Special Law will prevail over general law – Therefore, a home buyer cannot be made to wait for possession of the flat for indefinite period – Thus, appeal is partly allowed. The order of State Commission dated 24.10.2018 is modified. The appellant is directed to refund entire amount deposited by the complainant with interest @9% per annum. [Paras 17 to 22]
Result: Appeal allowed.

ORDER

Heard Mr. Krishnan Venugopal, Senior Advocate, assisted by Mr. Sumeet Sharma, Advocate, for the appellant and Mr. Piyush Sharma, Advocate, for the respondent-1, Mr. Devendra Kumar Singh, Advocate, for respondent-2, Mr. Mayank Singh, Advocate, for respondent-3. Mr. Aditya Parolia, Advocate, as an intervener, on legal issue.

2. Jaiprakash Associates Limited (opposite party-2) has filed above appeal from the order of State Consumer Disputes Redressal Commission, Uttar Pradesh, dated 24.10.2018, passed in CC/347/2016, partly allowing the complaint with cost of Rs.10000/- and compensation of Rs.20000/- and directing the appellant to return Rs.4778280/- with interest @18% per annum from the date of respective deposit till the date of actual payment, firstly to Axis Bank Limited (opposite party-3), who had advanced loan to the complainant and secondly the balance amount to the complainant.

3. The office has reported 89 days delay in filing the appeal. The appellant has filed IA/3673/2019, for condonation of delay. Cause shown is sufficient. The delay in filing the appeal is condoned.

4. Deepti Kumar (respondent-1) filed CC/347/2016 for directing Jaypee Infratech Limited and Jaiprakash Associates Limited (opposite parties-1 and 2) (i) to refund Rs.4776280/- with interest @ 24% per annum, from the date of respective deposits till the date of refund, (ii) to pay Rs.39586/-, per month from 16.11.2015 till the date of refund, (iii) to pay Rs.20000/- per month towards rent from 16.11.2015 till the date of refund, (iv) to pay just compensation and punitive damages, (v) to direct opposite party-3 to pay Rs.5/- lacs, for committing unfair trade practice, (vi) to pay Rs.10000/-, as the cost of litigation; and (vii) any other relief, which is deemed fit and proper in the facts and circumstance of the case.

5. The complainant stated that Jaypee Infratech Limited (respondent-2) and Jaiprakash Associates Limited (the appellant) (hereinafter referred to as the builders) were companies, registered under Companies Act, 1956 and engaged in the business of developing and constructing group housing project. They launched a group housing project in the name of “Garden Isles” at Jaypee Greens, Sector-131 &133, Noida and made wide publicity in the year 2011. Allured with lucrative advertisements and believing on it, the complainant applied for a flat and deposited the required money of Rs.2.5/- lacs on 06.02.2012. The builders provisionally allotted Unit No.-GDI 25-2103 (super area 1205 sq.ft., Basic Sale Price of Rs.4359690/- Total Consideration of Rs.4898890/-, including Rs.2.5/- lacs for Car Parking Space) on 16.05.2012. Under the allotment letter dated 16.05.2012, the builders promised to deliver possession within 42 months from the date of allotment. The builders provided subvention scheme, under which, loan was advanced from Axis Bank Limited (opposite party-3). A quadripartite agreement dated 29.06.2012 was executed between the parties and Axis Bank Limited directly advanced Rs.3889200/- on 03.08.2012 to the builders. The complainant paid Rs.490000/- on 18.06.2012, Rs.134233/- on Rs.29.08.2012 and Rs.12847/- on 28.03.2013 (total Rs.4776280/- including loan amount). The period of 42 months expired on 16.11.2015 and grace period of 180 days as given under Clause-7.2 of Standard Terms and Conditions expired on 16.05.2016. The builders did not give any information regarding progress of the construction nor offered possession till then and paid delayed compensation as per Clause-7.2. The complainant, vide letter dated 01.09.2016 inquired about date of delivery possession and requested for payment of delayed compensation but the builders did not respond. Then the complaint was filed, claiming deficiency in service and unfair trade practice.

6. The appellant and Jaypee Infratech Limited (respondent-2) filed its joint written reply in the complaint, in which, material facts relating booking/allotment of the flat and payments made by the complainant, i