Anish Singhal Complainant(S) v. Jaiprakash Associates Ltd. Opp.Party(S).

Rs.1,00,000/- (Rupees One Lakhs Only) as litigation expenses.

6. Pass such other or further order/ orders as may be deemed fit and proper on the facts and in the circumstances of this case."

2. The brief facts as set out in the Complaint are that the Complainant's mother Mrs. Anita Singhal applied for purchase of an Apartment No. 2302, Tower No. 8, in the Project 'Kalypso Court' being developed by the Opposite Party in Sector 128 Noida, Gautam Budh Nagar, Uttar Pradesh and paid a sum of ₹8,45,000/- as Application money on 07.05.2012. On 09.06.2012, a Provisional Allotment Letter was issued by the Opposite Party, wherein the Complainant's mother was allotted an Apartment with Unique Customer ID No. JGNKLP082302 with super area of 221.10 sq. mtrs. (2380) sq. ft. for a total sale consideration of ₹1,75,71,700/-. It is averred that the promised date of delivery was 36 months from the date of the Allotment Letter dated 09.06.2012, but possession has not been delivered till date. It is stated that on the joint Application of the Complainant and his mother, the Apartment was transferred in the name of the Complainant on 19.09.2013. It is averred that the Complainant got sanctioned a home loan of ₹83,04,007/- from ICICI Bank Limited @ 10.65% p.a. interest, which amount was paid to the Opposite Party and that the Complainant has paid a sum of ₹1,57,17,029/- from 21.0.5.2012 to 25.06.2014 which constitutes 83% of the total sale consideration in the following manner:

Cheque No./ Amount

Date Particulars Bank Name

Receipt No. deposited (Rs.)

Receipt No.

21.05.2012 On Booking 2300001553/ Allahabad Bank 7,45,000.00

Cheque No. 383063

Receipt No.

21.05.2012 On Booking 2300001556/ Allahabad Bank 1,00,000.00

Cheque No. 383071

Receipt No.

31.07.2012 Against Booking Allahabad Bank 10,00,000.00

2300003977/

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31.07.2012 Against Booking 2300003979/ Allahabad Bank 25,00,000.00

Cheque No. 383070

Receipt No.

26.03.2013 Against Booking 2300014960/ HDFC Bank 16,547.00

Cheque No. 886115

Receipt No.

28.05.2013 Against Booking 2300001983/ HDFC Bank 2,50,000.00

Cheque No. 892174

Receipt No.

28.05.2013 Against Booking 2300001984/ HDFC Bank 5,00,000.00

Cheque No. 886103

Receipt No.

2300001985/ Kotak Mahindra 28.05.2013 Against Booking 12,50,000.00

Receipt No.

7,01,475.00

25.06.2014 Against Booking 2300001597/ ICICI Bank Cheque No.407596

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Total 1,57,17,029.00

3. It is pleaded that despite collecting substantial amounts from the Complainant and despite repeated requests, the Opposite Party has failed to deliver the possession of the house till the date of filing of the Complaint and that as per Clause 7.2 of the Application form, the Opposite Party is liable to pay holding/ delay charges @ ₹10/- per sq. ft. per month for the delayed period. It is further pleaded that the Opposite Party is also liable to pay ₹40,000/- per month for loss of rent.

4. Vexed with the attitude of the Opposite Party, the Complainant approached this Commission seeking the aforenoted reliefs, as the value of all goods and services is more than Rupees one crore and attracts the Pecuniary Jurisdiction of this Commission.

5. The Complaint was contested by the Opposite Party on the following grounds:-

Preliminary objections raised by the Opposite Party is that the Complainant had failed to fulfil his contractual obligations to pay the demands as per the agreed payment plan; that the Complainant has booked the subject Apartment for speculating in the Real Estate Market, therefore he is not a Consumer; that the Complaint suffers from non-joinder of necessary Party as the Provisional Allotment Letter was executed and issued by Jaiprakash Associates Ltd. and Jaypee Infratech Ltd.; that this Commission has no jurisdiction to entertain the instant Complaint as Clause 10.9 of the Application Form provides that any dispute between the parties shall be adjudicated under the provision of the Arbitration and Conciliation Act, 1996; that an amount of ₹11,82,697.49/- is due from the Complainant; that as per Clause

7.1 of the Application form the delivery of possession was subject to 'Force Majeure Events'; that a serious law and order problem occurred due to agitation by farmers; that there has been economic slowdown in the real estate industry; that the orders issued by the National Green Tribunal restrained the concerned authorities from issuing Completion Certificates from 14.08.2013 to 19.08.2015 and that all the aforenoted reasons led to delay in construction, which was beyond the control of the Opposite Parties and falls under Force Majeure Events and all the other averments made in the Complaint are denied and seek dismissal of the Complaint.

6. The Complainant filed his Affidavit by way of Evidence and marked Exhibits- CW 1/1 (copy of the Application Form), Exhibits -CW-1/2 (colly)(copy Advance Payment Receipt dated 21.05.2012), Exhibits- CW 1/3 (copy of Provisional Allotment Letter dated 09.06.2012), Exhibits- CW 1/4 (copy of the Letter dated 19.09.2013), Exhibits- CW 1/5 (colly) (copy of the Statement of Account), Exhibits- CW 1/6 (copy of the Letter dated 11.07.2015 written by the Complainant to the Opposite Party) and Exhibits- CW 1/7 (copy of the sheet calculating the total claimed amount) on his behalf.

7. The Opposite Party filed its Affidavit by way of Evidence and marked Exhibit RW 1/1 (copy of the MAP showing the details of the Jaypee Greens Wishtown Project), Exhibit RW- 1/2 (copy of the photographs of the project), Exhibit RW-1/3 (copy of the Application Form

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dated 07.05.2012), Exhibit RW-1/4 (copy of the Provisional Allotment Letter), Exhibit RW- 1/5 (copy of the order dated 11.01.2013 passed by the NGT), Exhibit RW-1/6 (copy of the order dated 14.08.2013 passed by the NGT), Exhibit RW-1/7 (copy of the order dated 17.09.2013 passed by the NGT), Exhibit RW-1/8 (copy of the order dated 28.10.2013 passed by the NGT), Exhibit RW-1/9 (copy of the order dated 03.04.2014 passed by the NGT), Exhibit RW-1/10 (copy of the order dated 30.05.2014 passed by the NGT), Exhibit RW-1/1 (copy of the order dated 10.06.2014 passed by the Hon'ble Supreme Court of India), Exhibit RW-1/12 (copy of the notification dated 19.08.2015) and Exhibit RW-1/13 (copies of the reminders and demand letters sent by the Respondent to the Complainant) on its behalf.

8. Heard counsel for the parties at length.

9. In brief, it is the case of the Complainants that despite paying an amount of ₹1,57,17,029/- out of the total sale consideration of ₹1,75,71,700/-for Apartment No. 2304, in Tower 8 of the project, with the promised time for delivery of possession being 36 months from the date of Allotment Letter, the Opposite Party did not complete the construction nor offered possession and hence the Opposite Party is liable to refund the amount paid with interest @ 18% p.a. together with compensation and costs.

10. At the outset, we address ourselves to the submission of the learned Counsel for the Opposite Party that since a moratorium has been ordered against 'Jaypee Infratech Limited' by the National Company Law Tribunal at Allahabad in IDBI Bank Limited Vs. Jaypee Infratech Limited, 2017 SCC OnLine NCLT 12613, this Commission has no jurisdiction to entertain the Complaint against this Opposite Party also. Further, learned Counsel argued that the present Complaint is bad for non-joinder of parties as Jaypee Infratech Limited is not a party here. It is reiterated that Jaypee Infratech Limited is not a party before us and therefore, we are of the considered view that this Complaint against Jaiprakash Associates Limited is maintainable. Be that as it may, this Commission in judgement dated 01.10.2018 in Arvind Kumar Dhingra & Ors. Vs. Jaiprakash Associates Limited & Anr., Consumer Complaint No. 1495 of 2015,

while having given its anxious consideration to the question of maintainability of the Complaint against Jaiprakash Associates Limited has observed as follows:

"17. As regards the apprehension that the home buyers would abandon their participation in the proceedings against JIL under IBC and would rush to file claims before this Commission, as noted earlier, nothing in law prevents such flat buyers from proceeding against JAL under the provision of C.P. Act, for the redressal of their grievances, if any, against JAL.

18. As regards the contention that the Hon'ble Supreme Court has already permitted RBI to direct financial institutions to proceed against JAL under the provisions of IBC, and pursuant thereto, ICICI bank has already approached NCLT by way of an Insolvency Petition against JAL, the fact remains that as to day, no Insolvency Petition has been admitted against JAL which is contesting the petition filed by ICICI Bank, and consequently there is no prohibition, at this stage, on institution or continuance of any proceedings against the said company. Mere institution of an Insolvency Petition which is yet to be admitted does not come in the

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way of the proceeding against JAL at this stage.

19. As regards the contention that under the terms and conditions of allotment it is for JIL and not for JAL to refund the amount received from the allottees, this Commission in my view, would be competent to pass appropriate orders, including payment of compensation by JAL in the event of its ultimately holding that the services rendered by the said company to the buyers were defective and / or deficient, resulting in loss to them. In that event, JAL may have such remedy, if any, as may be open to it against JIL for reimbursement to the extent it is made to pay to the home buyers.

20. Since in my opinion, JAL was a co-service provider along with JIL and not just an agent of JIL, qua the home buyers, I need not examine the contention of the complainants that this Commission should lift the corporate veil and hold JAL to be the service provider, on account of its being the promoter and holding company of

JIL.

21. For the reasons stated hereinabove, I hold that the complainants, being consumers not only of JIL but also of JAL, these complaints can, for the present, continue against JAL, though the same cannot at this stage continue against JIL."

11. The Hon'ble Supreme Court in Civil Appeal No (s). 11320-11329 of 2018 has dismissed all the Appeals preferred by Jaiprakash Associates Limited and observed in para 4 to 6 of the order as follows:

"4. We make it clear that Commission may examine "all" contentions available to

"both sides" regarding the rights and obligations of the parties inter se on its own merits in accordance with law uninfluenced by any observation made in the impugned judgment.

6. We once again make it clear that the impugned order may not be construed as having given any direction to the respondents in the complaint. The Commission, however, may give appropriate directions in the final Judgment which obviously will be subject to the outcome of the proceedings before the NCLT insofar as JIL is concerned and also subject to the outcome of proceedings against JAL before the NCLT."

12. Hence, we are of the considered view that the question of maintainability of Complaint against Jaiprakash Associates Limited has attained finality and at the cost of repetition at the time of disposal of this Complaint, no insolvency petition has been admitted against Jaiprakash Associates Limited.

13. The Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs. Aftab Singh - I (2019) CPJ 5 (SC), has laid down the law that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the objection raised by the Learned Counsel for the Opposite Party that the clause of Arbitration bars this Commission from entertaining the Complaint is unsustainable. Needless to add, IA/5537/2017, preferred by the Opposite Party seeking direction to dismiss the Complaint as not maintainable

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and refer it to Arbitration based on Section 8 of the Arbitration and Conciliation Act, 1996, has already been dismissed vide order dated 04.09.2017. The contention of the Learned Counsel for the Opposite Party that the Complainant is not a 'Consumer' and that he has booked the subject flat for earning profits is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore we are of the considered view that the Complainant is a 'Consumer' as defined under Section 2 (1)(d) of the Act.

14. The contention of the learned counsel for the Opposite Party that the delay is attributable to Force Majeure Events, and therefore no deficiency of service can be attributed to them is totally unsustainable as the Opposite Party could not substantiate by means of any documentary evidence that the project was delayed by events beyond their control. Except for stating that there was economic slowdown in the real estate market, orders of the NGT restraining the builders from extracting underground water for construction and restraining the concerned authorities from issuing Completion Certificate for the buildings constructed within 10km radius of the Okhla Bird Sanctuary which led to the delay, which submission, viewed from any angle, cannot be said to be a "Force Majeure Event" as the said restraint was set aside on 19.08.2015, as stated by the Opposite Party themselves in their Written Version and it is pertinent to mention that even thereafter till the date of final arguments, i.e., four years subsequent to the restraining orders have been lifted, still the construction is incomplete and the Opposite Party is not in a position to deliver possession. There is no material on record to establish that the aforenoted reasons were beyond their control.

15. We find it a fit case to place reliance on the judgement of the Hon'ble Supreme Court in

Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), in which the Hon'ble Apex Court has observed as hereunder:

"……….It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the Opposite Party, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."

16. In the instant case also the Complainants cannot be made to wait indefinitely for possession of the unit, as even till date the construction is yet to be completed. As a period of more than 7 years has lapsed from the date of allotment (09.06.2012) and is still incomplete, we are of the considered view that the Complainants are entitled for refund of the principal

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amount with reasonable interest.

17. The next question which arises for consideration is the rate of interest is to be paid to the Complainants on the principal amount. It is the Complainant's case that if the Opposite Party is charging interest from the flat purchasers @ 18% p.a. (as per Clause 5.6 of the Application Form), the Commission should also award the same. Though, we are of the considered view that the argument of the learned counsel that equities have to be balanced merits on consideration, having regard to the fact that Banks have lowered the interest rate and the Hon'ble Supreme Court has been awarding interest keeping in view the current market situation and considering the recent decline in the cost of borrowing and return on the investments made with the Banks, we are of the view that interest @ 12% p.a. would meet the ends of justice, together with costs of ₹25,000/-. This interest @ 12% p.a. is being awarded keeping in view that the Complainant had taken a loan from ICICI Bank @ 10.65% interest rate and also having regard to the mental agony suffered by the Complainant as the construction is still incomplete and even as on the date of final arguments the Opposite Party was not in a position to deliver legal possession with the Occupation Certificate coupled with the fact that the Complainant had taken a home loan only to fulfil his dream of owning a house and even after four years from the promised date of delivery, he could not realise his dream, we are of the considered view that awarding interest @ 12% p.a. by way of damages and compensation would meet the ends of justice as no additional amount are being awarded under the head of 'Compensation'.

18. In the result, this Complaint is allowed in part directing the Opposite Party to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.

......................J

R.K. AGRAWAL

PRESIDENT

......................

M. SHREESHA

MEMBER

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