MADHU DWIVEDI Vs. JAIPRAKASH ASSOCIATES LIMITED

JUDGEMENT

(1.) This complaint has been filed under sec. 21 of the Consumer Protection Act, 1986 (in short, 'the Act') alleging deficiency in service and unfair trade practice on account of delay in handing over the possession of the flat booked with the opposite party in a project promoted and developed by it.

(2.) The facts of the case in brief are that the complainant had booked a flat no. I 1-504 in 'Imperial Court' at Jaypee Greens, Noida a project of the opposite party for a sale consideration of Rs.1,67,75,600.00 on 11/10/2010. An apartment measuring 3440 sq ft was provisionally allotted vide provisional allotment letter dtd. 22/1/2011 which indicated the date of delivery of the apartment within 30 months from that date, i.e., by 21/7/2013. The opposite party offered possession of the said flat on 29/7/2016 and a sale deed was executed on 24/9/2018. The complainants have taken possession of the apartment and sought compensation for the delay in handing over the flat along with contesting the increased super built up area by 8.39%, i.e., 3728.65 sq ft as against 3440 sq ft indicated at the time of booking of the flat. The complainants paid the sale consideration by way of various instalments from time to time. The complainant has approached this Commission with the following prayer:

(3.) The complaint was resisted by way of a reply filed by the opposite party. The opposite party has stated that as there was no deficiency in service or any unfair trade practice in view of the applicability of force majeure conditions. It is contended by the opposite party that in view of the clause relating to arbitration, this complaint is not maintainable. It is further contended that indication of 30 months for the completion of the project was only indicative, subject to 'best effort'. In view of the serious law and order problem due to the agitation by farmers, overall economic slow-down, orders of the National Green Tribunal (NGT) dtd. 11/1/2013 restraining all builders from utilising ground water for construction activities and orders of the NGT dtd. 14/8/2013 in the case of Amit Kumar vs Union of India and Ors., restraining construction within 10 kms of the Okhla Bird Sanctuary, the project was delayed due to reasons not attributable to the opposite party. It is submitted that despite these constraints the opposite party has completed nearly 5000 apartments, a 500 bedded hospital, school, golf course, shopping complex, roads, security infrastructure, temporary club and parks. It is also contended that as per the letter of offer of possession dtd. 29/7/2016, a discount of Rs.9,38,696.00 was given to the complainant as compensation for delay in advance and that the opposite party was prepared to provide higher compensation at the rate of Rs.10.00 per sq ft., stipulated as per the clause 7.2 of the application for provisional allotment to the complainant.