JAIPRAKASH ASSOCIATES LIMITED V. FATEH SINGH CHAUHAN
JAIPRAKASH ASSOCIATES LIMITED
JAYPEE GREENS, SECTOR 128 NOIDA
GAUTAM BUDDHA NAGAR
UTTAR PRADESH
Versus
1. FATEH SINGH CHAUHAN
R/O R-4/82, RAJNAGAR
GHAZIABAD
UTTAR PRADESH
2. SANTOSH CHAUHAN
R/O R-4/82, RAJNAGAR
GHAZIABAD
UTTAR PRADESH
Case No: FIRST APPEAL NO. 813 OF 2020
Date of Judgement: 03 Jan 2023
Judges:
For the Appellant : Mr. Sukumar Pattjoshi, Sr. Advocate
with Mr. Sumeet Sharma, Advocate
Mr. Paras Choudhari, Advocate
For the Respondent : Mr. Aditya Shankar Pandey, Advocate
Facts:
Arguments:
Appellant:
Respondents:
No evidence property was purchased for resale so consumer status cannot be denied. Force majeure clause not applicable as no stay on construction by NGT. Appellant guilty of deficiency in service for inordinate delay. Entitled to refund of paid amount with fair compensation
Sections:
Appeal under Consumer Protection Act, 1986
Cases Referred/Cited:
Bharathi Knitting Co. Ltd vs. DHL Worldwide Express (1996). Sai Everest Developers v. Harbans Singh Kohli (2015), Fortune Infrastructure v. Trevor D’Lima (2018). Pioneer Urban Land v. Govindan Raghvan (2019). Experion Developers v. Sushma Shiroor (2022)
Laws Referred:
The Consumer Protection Act, 1986
Conclusion:
Appeal partly allowed. Appellant directed to refund paid amount with 9% interest from each date of deposit. 12% interest if amount not refunded within 2 months. Also to pay litigation cost of Rs 10,000 to complainants
Download Court Copy: https://dreamlaw.in/wp-content/uploads/2024/01/13.pdf
Full Text of Judgment:
1. 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.
(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.”
“7.1 The Company/JSIL shall make best efforts to deliver possession of the Said Premises to the Applicant within the period more specifically described in the Provisional Allotment Letter with a further grace period of 90 (ninety) days. If the completion of the Said Premises is delayed by reason of non-availability or scarcity of steel and / or cement and / or other building materials and / or water supply and / or electric power and / or slow down, strike and / or due to a dispute with the construction agency employed by the Company, lock out or civil commotion or any militant action or by reason of war, or enemy action, or earthquake or any act of God or if non-delivery of possession is as a result of any law or as a result of any restrictions imposed by a Governmental Authority or delay in the sanction of building / zoning plans / grant of completion/ occupation certificate by any Governmental Authority or for any reason beyond the control of the Company (hereinafter referred to as “Force Majeure Events” and each individual event referred to as a “Force Majeure Event”), the Company shall be entitled to a reasonable extension of time for delivery of possession of the Said Premises.
7.2. Nothing contained herein shall be construed to give rise to any right to a claim by way of compensation / damages / loss of profit or consequential losses against the Company/JSIL on account of delay in handing over possession for any of the aforesaid conditions beyond the control of the Company/JSIL. lf, however, the Company/JSIL fails to deliver possession of the Said Premises within the stipulated period as mentioned herein above, and within the further grace period of 90 (ninety) days thereafter, the Applicant shall be entitled to a discount in Consideration for delay thereafter @ Rs.5/= per sq. ft. (Rs.54/- per sq. mtr.) per month for the Super Area of the Said Premises (“Rebate”). The time consumed by the occurrences of Force Majeure Events shall be excluded white computing the time delay for the delivery of possession of the Said Premises.”
It was therefore stated that there was no deficiency in service or any unfair trade practice by the Opposite Party.
4. The State Commission after hearing the Counsel for both the Parties and perusing the record, vide order dated 02.08.2019, partly allowed the Complaint in the following terms:
5. Aggrieved by the order of the State Commission, the Appellants/Opposite Parties preferred the instant Appeal with the following prayer:-
7. It was admitted that the Respondent entered into an agreement with the Appellant for purchase of a flat bearing Unit no. KS2-35-102 in Kassia at Jaypee Greens Sports City, Gautam Budh Nagar (U.P.), vide Provisional Allotment Letter dated 20.09.2011 for a total consideration of Rs. 43,36,130/-, excluding other taxes and charges applicable. The time period for delivery of possession as provided was 24 months with a further grace period of 90 days, however it has been more than nine years and the construction work was still in progress. The Respondent had already paid substantial amount of Rs. 41,75,728/- towards the purchase of the property.
8. As regards the objection raised by the Appellant that the Respondent had booked the Unit for investment purpose, attention is drawn to the order of this Commission in the case of Sai Everest Developers v. Harbans Singh Kohli, 2015 SCC OnLine NCDRC 1895, decided on 21.07.2015, wherein it was held that:
“the Opposite Party should establish by way of documentary evidence that the Complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits.”
In the instant case, no such evidence filed by the Appellant to establish that the said flat was purchased for the purpose of resale. This contention is therefore rejected.
9. Regarding delay in handing over possession, the Appellant tried to justify on the ground of force majeure. The Appellant placed reliance on the order of NGT restricting extraction of underground water constituting a force majeure condition. It is seen from the evidence adduced by the Appellant that there was no stay on construction by the NGT. In the absence of any material on record to substantiate the plea of the Appellant that the delay was for reasons beyond their control, we hold that the Appellant cannot take shelter under the Force Majeure clause. For the latches of the Appellant, the Respondent cannot be made to suffer.
“6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement of 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-
sided clauses in an Agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the Builder.
7. In view of above discussion, we have no hesitation in holding that 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.” The Appellant was clearly deficient in its services and is bound to refund the amount deposited by the Respondent. The State Commission had rightly allowed the Complaint. The Hon’ble Supreme Court in a recent decision titled Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019, decided on 07.04.2022, observed that interest payable on the amount deposited should be restitutionary and also compensatory and it has to be paid from the date of the deposit of the amounts. It was also held in the aforesaid matter that the interest at the rate of 9% is fair and just.
10. The Order of the State Commission is modified. The Appellant/Opposite Party shall refund the entire amount deposited by the Respondent/Complainant along with interest @ 9% p.a. from date of each deposit till realisation within a period of two months from this Order, failing which it will attract an interest of 12% p.a. The Opposite Party is also directed to pay Rs.10,000/- as litigation cost to the Complainant.