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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Subhash Chandra, Member
Jaiprakash Associates
Limited Jaypee Greens – Appellant
versus
Fateh Singh Chauhan and Anr. – Respondents
First Appeal No.813 of 2020
(Against the Order dated 02/08/2019 in Complaint No. CC/225/2016 of the State Commission Uttar Pradesh)
Decided on 3.1.2023
Consumer Protection Act, 1986 – S.15[Consumer Protection Act, 2019 – S.41] – Appeal Against order of District Commission - Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Apartment Buyer’s Agreement – one sided clauses – Binding nature of -There was unreasonable delay by the Appellant in completion of the flat - In the present case, even after payment of more than 90% of the consideration of the Apartment, the Appellant failed to fulfill its contractual obligation of delivering possession of the Unit of the Respondent within the time stipulated in the Agreement, or even within a reasonable time thereafter. The possession of the flat has still not been offered to the Respondent. It has already been 9 years from the date of promise of the possession – Also, the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms – On facts, The Appellant was clearly deficient in its services and is bound to refund the amount deposited by the Respondent – Thus, State Commission had rightly allowed the Complaint – Appeal dismissed. [Paras 4 to 11].
Result: Appeal dismissed.
ORDER
The present Appeal is filed against the order dated 02.08.2019 passed by the U. P. State Consumer Disputes Redressal Commission, Lucknow (in short ‘State Commission’) in Consumer Complaint No. 225/2016.
2. Brief facts of the case are that the Complainant/Respondent applied for the allotment in the Project namely Kassia at Jaypee Greens Sports City, Gautam Budh Nagar, having Unit Reference No. KS2-35-102, on 29.01.2011. After making an application, an agreement was made with the Opposite Party on 29.01.2011. In pursuance of the Agreement, the Complainant deposited a Cheque of Rs.3,00,000/- in favour of the Opposite Party on 29.01.2011. The Opposite Party issued receipt dated 01.02.2011 and acknowledgement dated 24.02.2011 for the amount paid by the Complainant. After receiving the aforesaid amount of Rs. 3 ,00,000/-, the Opposite Party issued Provisional Allotment letter, dated 20.09.2011, in favour of the Complainant and sent a demand notice of Rs. 38,56,852/-, on 20.09.2011. The Complainant accordingly paid the amount, vide Cheque No. 465222 on 19.10.2011. The Opposite Party thereafter demanded Car Parking Charges and Service Tax from the Complainant, vide letter dated 10.12.2012, and the Complainant, pursuant to it paid Rs. 3,863/-. The Opposite Party also demanded Rs. 15,013/- towards Service Tax differential amount, which was also deposited by the Complainant through Cheque dated 19.06.2013. Despite a total payment of Rs. 41,75,728/-, the Opposite Party had not started the construction work. The Complainant, therefore, demanded refund from the Opposite Party along with interest, but the Opposite Party failed to refund the Complainant. Aggrieved by the deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainants filed Consumer Complaint before the State Commission with the following prayer:—
“(i) To direct the Opposite Party to make the payment of (Rs.3,00,000) Rs. 38,56,862/-, Rs. 3,863/- and Rs. 15,013/-, Total - Rs.41,75,728/- and interest of five years from January 2011 to 2016 Rs. 2505,436/- along with 18% interest annually on aforesaid total amount (Rs 66,81,164/-) from the date of filing of complaint case to the date of actual payment to the complainant.
(ii) To direct the Opposite Party to make the payment of Rs.15,00,000/- towards physical and mental agony because till date no work has been initiated on project and neither refund the deposited amount.
(iii) To direct the respondent to pay Rs. 30,000/- for cost of the case.
(iv) Any other relief which this Hon’ble Court deems fit and proper in the interest of justice.”
3. The Opposite Party resisted the Complaint by filing reply whereby it was averred that the Complainant had wrongly filed the Complaint. It was stated that the Complainant had invested money in real estate market for obtaining profits and therefore, under Section 2(1) (d) of the Consumer Protection Act, the Complainant was not a consumer. The delay in construction was due to force majeure events and there was no deficiency in service on part of the Opposite Party. The project was delayed due to agitations by the farmers. In such situation, the Opposite Party was neither in a condition to develop the land nor in a condition to sell the land. Besides this, as per order dated 29.08.2014, the Opposite Party was directed to pay 64.7% additional incentive to the farmers due to which the farmers stopped the construction work. The Opposite Party filed a complaint with the District Administration but no action was initiated in this regard. There was, thus, delay in the construction work. Also, the National Green Tribunal, vide its order dated 11.01.2013, restrained all builders of Noida & Greater Noida, including the Opposite Party from extracting any quantity of underground water for the purpose of construction or otherwise, hampering the pace of development of the said project. At the time of booking of the apartment, it was agreed between the parties th
One-sided contractual terms - Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.
“Since the possession of subject flats were not delivered within the stipulated time, allottee held entitled for refund of amount deposited with interest.”
(1) Contract - A term of a contract, will not be final and binding if it is shown that the consent to the said term was not really voluntary, if the person giving consent had no other choice. (2) Nom....
(1) Justified Withholding of Payments – An allottee is not necessarily “at fault” for stopping installments if it is evident that the builder is nowhere near completing the project by the committed d....
Flat Buyer’s Agreement – Denial of timely possession despite substantial payment – Payment of interest on refund of principal amount is necessary.
Right to claim refund - the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.
(1) Possession – Directing possession of the apartment without the requisite certificates would be inappropriate and not in the interest of justice.(2) National Commission – National Commission deter....
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