HARMEET KAUR KOHLI Vs. JAIPRAKASH ASSOCIATES LTD.

JUDGEMENT

(1.) This is a complaint under Sec. 21 (a) (1) of the Consumer Protection Act, 1986 (in short, 'the Act') seeking refund with compensation of the amount deposited in respect of flat booked with the opposite party in its project "Wish Town", Jaypee Greens, Noida promoted and developed by them alleging deficiency in service and unfair trade practices.

(2.) In brief, the facts of the case are that the complainant had booked a residential flat with the opposite party in Kasablanca Tower 3, Jaypee Greens Wish Town, Noida and was allotted Unit Ref. No. KSB0032002 on 28/3/2013 based on his application dtd. 20/8/2013 for a sale consideration of Rs.3,33,40,450.00. A provisional allotment letter dtd. 17/4/2013 was issued in respect of the above residential unit with a super area of 329.8030 sq. mtr., indicating that the said apartment would be delivered within a period of 45 months from the date of allotment. The complainant has submitted that she has made a total payment of Rs.1,37,26,146.00 till 25/2/2014 by way of instalments. However, it is averred by the complainant that no substantive work was visible at the project site and the opposite party, who was expected to hand over the possession by January, 2017 reckoned from the date of allotment on 17/4/2013, has been deficient in service. It is also stated that the opposite party had announced on its website that the project Kasablanca was scheduled to be completed by March, 2021 which is contrary to the assured date of completion. Since approximately 1/3rd of the sale consideration had been paid and no offer of possession had been made, the complainant is before us with the following prayers:

(3.) The complaint has been contested by the opposite party by way of a reply wherein it has been contended that the complaint is devoid of merits as there is no deficiency or unfair trade practices by it. It is contended that the complainant has no locus to complain as she is presently residing in Noida and it is not contended that this is a rented house. It is also contended that the complainant has defaulted in making payments and that she is not a "consumer" under the Act having invested in this apartment for speculative purposes. It is further contended that the complainant had booked the apartment in January, 2013 after approximately one year from its launch and was therefore aware of the slow construction of the project. In view of the Arbitration Clause in the application form signed by the complainant, it is contended that the complainant needs to agitate the matter in the appropriate Civil Court and not before this Commission. It is also contended that there was no commitment of completing the project by January, 2017 since Clause 7.1 and 7.2 of the terms and conditions only provide that the company shall make its "best efforts". Lastly, it is contended that the project was delayed on account of force majeure reasons which were beyond the control of the opposite party as there were serious law and order problems in various land parcels due to agitation by farmers, orders of the National Greens Tribunal (NGT) dtd. 11/1/2013 prohibiting utilisation of underground water for construction activities and order of the NGT in application No. 158 of 2013 dtd. 14/8/2013 in Amit Kumar Vs. Union of India and Ors., which imposed a ban on construction within the radius of 10 kms. from the Okhla Bird Sanctuary. Accordingly it is contended that there has been no negligence on the part of the opposite party and delay is attributable to the orders of the NGT which has placed impediments in progress of the construction.