down payment. Accordingly, the Opposite Party revised the payment plan to Rs. 75,00,280/-. As per revised payment plan, it was admitted by the Opposite Party that Rs. 29,99,200/- (excluding service tax) had already been paid by the Complainant towards basic price and Rs. 1,22,250/- towards IDC. Through demand notice dated 30.06.2011, Rs. 36,29,852/- (inclusive service tax) was demanded by the Opposite Party by 20.07.2011.The Complainant paid the aforesaid amount, vide cheques dated 18.07.2011 & 19.07.2011.It is relevant to mention here that the Opposite Party had also demanded Rs. 4,00,000/- for the car parking slot, contrary to well established law of this Commission and the Apex Court that first parking shall be free. Rs. 3,74,900/- was balance towards the basic price and the Complainantby 19.07.2011 had paid more than 95% of the due consideration.Despite making all the payments well before the due date,the Complainant was shockedto receive a notice dated 11.05.2012 that Rs. 58,42,205/- was outstanding against him and the Opposite Party demanded the same with interest @12% p.a. in 30 days, failing which they threatened to cancel the allotment. The Complainant promptly sent a reply vide an email dt. 11.05.2012 and also delivered a copy thereof at the office of the Opposite Party on 16.05.2012. However, the Opposite Party took six long months to admit payment of all dues without conceeding their fault, vide letter dated 23.11.2012. It was alleged that the possession of the unit K-8/1003 was not delivered within the promised 36 months plus a grace period of 3 months. The said period for handing over the possession expired on 30.06.2014. However, the Complainant was shocked and aggrieved to receive a letter dated 06.09.2014 wherein it was stated that the unit would be ready for possession in April 2016. No specific cause(s) of delay were given, except a bald statement that the delay was due to "various reasons beyond control". No other communication explaining the cause of continuing delay was ever received by the Complainant till the date of filing of the present Complaint in November 2016.A notice dated 22.10.2016 was sent to the Opposite Party for refund of the deposit with interest, vide speed post and email. It was submitted that the unit is still incomplete as on August, 2019.

Alleging deficiency on the part of Opposite Party, Complainantfiled a Complaint before this Commission under Section 21 of the Consumer Protection Act, 1986, praying relief as under:-

2.

Direct the Opposite Party to refund the amount deposited by the Complainant, i.e. Rs. 68,31,679/- along with interest @18% per annum from the date of deposit till the date of paymentas compensation for deficiency in services on account of delay. In the alternative,

Direct the Opposite Party to handover possession of the apartment to the Complainant, complete in all respects, in conformity with the Provisional Allotment Letter without the cost of car parking, additional super area along with interest @18% per annum beyond the period of 39 months i.e. from June, 2014 till the date of possession.

3.

Direct the Opposite Party to provide adequate car parking space in the project for the Complainant and desist from collecting any amount for the same.

4.

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Direct the Opposite Party to pay the Complainant adequate compensation for causing him mental agony and physical harassment resulting from a waste of his time in making umpteen visits to their office quantified at Rs. 5 lakhs and in addition to the above the Opposite Partyshould be saddled with punitive damages quantified at Rs. 5 lakhs for threatening to cancel his allotment even when he had paid 90-95% of the cost of the apartment which was rectified only after 6 months without any apology.

5.

Direct the Opposite Party to bear the increase in service tax with effect from 01.06.2015.6. Direct the Opposite Party to pay a sum of Rs.2 lakhs to the Complainant towards cost of litigation.

7.

Pass such other and further orders which this Hon'ble Commission may think fit and proper, in the facts and circumstances of the case in favour of the Complainant and against the Opposite Party.

8.

3. The Opposite Party resisted the Complaint by filing Written Statement. The Opposite Party issued a provisional allotment letter dated 31.03.2011 allotting an apartment bearing unit Reference No. K 8-1003 in "Kalypso Court" project of the Opposite Party admeasuring a Super Area of 1630 sq. ft. (151.43 sq. mtrs.) in favour of the Complainant herein. The said Provisional Allotment letter provided the total consideration of the said unit as Rs. 80,85,450/-, excluding other charges and a payment plan was also provided therein. Further, as per the request made by the Complainant by e-mail dated 10.06.2011 regarding the amendment of Provisional Allotment letter, the Opposite Party vide letter dated 30.06.2011, revised the consideration of the unit to Rs. 75,00,280/- excluding other charges. The time period for possession was provided as 36 months in the said Provisional Allotment Letter, subject to a grace period of 90 days given in the standard terms and conditions as agreed by the Complainant.

The Complainant booked the apartment in the project for speculating in the Real Estate Market, as there is no mention in the Complaint that he booked this unit for his personal use. The Complainant is not a consumer as defined in Section 2(d) of the Consumer Protection Act, 1986 and the present complaint is liable to be dismissed on this ground alone. The value of the flat booked by the Complainant was less than Rs. 1 Crore, as such this Commission did not have pecuniary jurisdiction to try this matter. Admittedly, the total value of the flat was Rs. 75,00,280/- only. Thus, the present matter did not fall within the pecuniary jurisdiction of this Commission. The Complainant had deliberately sought untenable prayers of interest to raise the claim to bring the Complaint within the pecuniary jurisdiction of this Commission. Instead, the present Complaint ought to have been filed by the Complainant before the State Commission. Thus, the Complaint be rejected on this ground alone. The present Complaint suffers with from the defect of Non-joinder of necessary and proper parties, as the present Complaint is filed against Jaiprakash Associates Ltd. only, though the Provisional Allotment Letter, is signed, executed and issued by the Jaiprakash Associate Ltd. and Jaypee Infratech Ltd.. Hence the present Complaint is liable to be dismissed on this ground also.

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It was submitted that there is an arbitration clause No. 10.8 for amicable settlement in the agreed Standard Terms and Conditions of the Application form dated 20.11.2010 duly signed by the Complainant which provided as under:

"Dispute Resolution: any and all disputes arising out of or in connection with or in relation hereto shall so far as possible, in the first instance; be amicably settled between the company and the Applicant. In the event of disputes, claim and/or differences not amicably resolved such disputes shall be referred to sole arbitration of a person nominated for the purpose by Chairman of the Company. The proceedings of the Arbitration shall be conducted in accordance with the provisions of the Arbitration and conciliation Act 1996, as amended from time to time, or any rules made there under. The Applicant hereby gives his consent to the appointment of the sole arbitrator as specified herein above and waives any objections that he may have to such appointment or to the award that may be given by the Arbitrator. The venue for the arbitration shall be New Delhi, India". It is clarified that the applicants/complainant has to approach to amicably settle the instant issue, between the parties as provided in agreed standard terms and conditions. Therefore, the Complainant must invoke the arbitration clause after trying to amicably settle the dispute at the first instances. The Opposite Party also filed an Application under section 8, "Arbitration & Conciliation Act 1996", however the present reply has been filed to comply with the limitation provided, without prejudice to the application u/s 8, filed along with the present reply.

After issuing the Provisional Allotment Letter dated 31.03.2011, the Opposite Party carried out the development work on the said project. However for reasons beyond the control of the Opposite party i.e. due to force majeure events, such as -shortage of labour, scarcity of water, restrictions in excavations, villager agitations as well as legal impediments which continued to exist some time. The progress of the project got slow down. These facts were duly brought to the notice of Complainant, vide letter dated 06.09.2014. Due to such events the delivery of project got rescheduled. At the time of booking of subject matter apartment, it was agreed between the parties (clause 7.1 of the Standard Terms and Conditions) that in case of force majeure events, the Opposite Party would be entitled to extension of time without incurring any liability.

Clause 7.1 and 7.2 of the Standard Terms and Conditions as agreed by the prospective buyers/customers/complainant provided that:

"7.1 The Company 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 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 dispute with the construction agency employed by the Company, lock-out or civic 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 certificates by any Governmental Authority or for any other reason beyond the control of the Company (hereinafter referred to as "Force Majeure Event") the Company shall be entitled to a reasonable extension of time for delivery of possession of the said premises."

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"7.2 Nothing contained herein shall be construed to give raise to any right to a claim by way of compensation/damages loss of profit or consequential losses against the Company on account of delay in handing over possession for any of the aforesaid conditions beyond the control of the Company. If, however, the Company fails to deliver possession of the said Premises within the stipulated period as mentioned herein above, and within the further grace period of 90 days thereafter, the Applicant shall be entitled to compensation 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 occurrence of Force Majeure Events shall be excluded while computing the time delay for the delivery of possession of the Said Premises".

4. Heard the Learned Counsel for the Complainant. Also carefully perused the record.

5. The Opposite Party contested that the Complainant had booked the Apartment in the project for speculating in the Real Estate Market and hence is not a Consumer as defined under the Act.

The Complainant has clearly stated in his Complaint that he was "tempted to own an apartment for his personal residence". The Complainant has also stated in his written arguments that he purchased the said Apartment "for self after marriage as his residence". No evidence has been adduced by the Opposite Party that the Complainant has generated any profit by way of trading, except the bald allegation that he brought the apartment for speculation in the Real Estate Market. The Complainant is a consumer as he sought to purchase the apartment for his personal use.

The Opposite Party further contended that as the value of booked flat was less than Rs. 1 Crore, this Commission did not have any pecuniary jurisdiction to entertain this matter. The Complainant had booked the Flat in the year 2010. The Opposite Party had itself admitted in the written statement that the total value of the flat was Rs. 75,00,280/-. The Complainant paid Rs. 68,31,679/- till the date of filing the Complaint. Approximately 10 years has already elapsed, but till date possession of the Flat has not been delivered. In Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., this Commission held that interest has to taken into account in computing pecuniary jurisdiction. After adding interest on the value of the Flat, the present Complaint would lie within the pecuniary jurisdiction of this Commission. Another point of contention is that the present Complaint suffers with the defect of Non- joinder of necessary and proper parties, as it was filed against Jaiprakash Associates Ltd. only, though the Provisional Allotment Letter is signed, executed and issued by Jaiprakash Associate Ltd. and Jaypee Infratech Ltd. As per the payment plan and receipts placed on record, it is found that all payments were made in the account of Jaiprakash Associates Ltd. only. The issue of non-joinder of parties came up before this Commission in Anish Singhal vs. Jaiprakash Associates Ltd. CC/2194/2016 decided on 01.10.2019 wherein it was held that the complaint against Jaiprakash Associates was maintainable.

The contention that as per Standard Terms and Conditions, the Complainant must invoke the arbitration clause in the first instance, Section 3 of the Consumer Protection Act provides that the Act is in addition to and in derogation of the provisions of any other law being in force. The Consumer Protection Act is a socially beneficial legislation which is in addition to the rights of a Consumer. The Complainant can, therefore, come to this Commission as an

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alternative remedy. This issue also came up for consideration of the Hon'ble Supreme Court in National Seeds Corporation Vs. M. Madhusudhan Reddy & Anr. (2012)2SCC 506 whereby it was held that the Complaint filed by a s Consumer before the Consumer Fora would be maintainable, despite there being an arbitration clause in the agreement to refer the dispute to the Arbitrator.

The Opposite Party also contended that at the time of booking of the apartment, it was agreed between the parties that in case of force majeure events, the Opposite Party would be entitled to extension of time without incurring any liability. Possession of the flat has not yet been delivered to the Complainant. The Opposite Party has not provided any evidence in support of the reasons adduced by the Opposite Party. There being no evidence as to unforeseen and unexpected events which prevented the development of the allotted unit, the Opposite Party cannot take shelter of the force majeure clause. A person cannot be made to wait indefinitely for the possession of the flats allotted to him/her. The reasons stated for force majeure conditions are only delay tactics to handover possession of the Apartment. The Complainant is, therefore, entitled to seek the refund of the amount paid by him along with compensation.

6. In view of the above, the Opposite Party is directed to refund the amount deposited/paid by the Complainant with simple interest of 10% per annum with effect from the respective date of each payment, till the date of refund with compensation. Further, the Opposite Party is directed to pay Rs. 25,000/- towards cost of litigation. Payments in terms of this order shall be made within three month from today.

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

DEEPA SHARMA

PRESIDING MEMBER

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

C. VISWANATH

MEMBER

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