JAIPRAKASH ASSOCIATES LIMITED Vs. FATEH SINGH CHAUHAN

JUDGEMENT

(1.) The present Appeal is filed against the order dtd. 2/8/2019 passed by the U. P. State Consumer Disputes Redressal Commission, Lucknow (in short 'State Commission') in Consumer Complaint No. 225/2016.

(2.) Brief facts of the case are that the Complainant/Respondent applied for the allotment in the Project namely Kassia at Jaypee Greens Sports City, Gautam Budh Nagar, having Unit Reference No. KS2-35-102, on 29/1/2011. After making an application, an agreement was made with the Opposite Party on 29/1/2011. In pursuance of the Agreement, the Complainant deposited a Cheque of Rs.3,00,000.00 in favour of the Opposite Party on 29/1/2011. The Opposite Party issued receipt dtd. 1/2/2011 and acknowledgement dtd. 24/2/2011 for the amount paid by the Complainant. After receiving the aforesaid amount of Rs.3 ,00,000.00, the Opposite Party issued Provisional Allotment letter, dtd. 20/9/2011, in favour of the Complainant and sent a demand notice of Rs.38,56,852.00, on 20/9/2011. The Complainant accordingly paid the amount, vide Cheque No. 465222 on 19/10/2011. The Opposite Party thereafter demanded Car Parking Charges and Service Tax from the Complainant, vide letter dtd. 10/12/2012, and the Complainant, pursuant to it paid Rs.3,863.00. The Opposite Party also demanded Rs.15,013.00 towards Service Tax differential amount, which was also deposited by the Complainant through Cheque dtd. 19/6/2013. Despite a total payment of Rs.41,75,728.00, the Opposite Party had not started the construction work. The Complainant, therefore, demanded refund from the Opposite Party along with interest, but the Opposite Party failed to refund the Complainant. Aggrieved by the deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainants filed Consumer Complaint before the State Commission with the following prayer: -

(3.) The Opposite Party resisted the Complaint by filing reply whereby it was averred that the Complainant had wrongly filed the Complaint. It was stated that the Complainant had invested money in real estate market for obtaining profits and therefore, under Sec. 2(1) (d) of the Consumer Protection Act, the Complainant was not a consumer. The delay in construction was due to force majeure events and there was no deficiency in service on part of the Opposite Party. The project was delayed due to agitations by the farmers. In such situation, the Opposite Party was neither in a condition to develop the land nor in a condition to sell the land. Besides this, as per order dtd. 29/8/2014, the Opposite Party was directed to pay 64.7% additional incentive to the farmers due to which the farmers stopped the construction work. The Opposite Party filed a complaint with the District Administration but no action was initiated in this regard. There was, thus, delay in the construction work. Also, the National Green Tribunal, vide its order dtd. 11/1/2013, restrained all builders of Noida and Greater Noida, including the Opposite Party from extracting any quantity of underground water for the purpose of construction or otherwise, hampering the pace of development of the said project. At the time of booking of the apartment, it was agreed between the parties through 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. It was also submitted that in case the Complainant was not interested in taking possession of the said apartment, he could surrender the provisional allotment of the apartment and seek refund of payment made by him as per Clause 7.2 of the Standard Terms and Conditions agreed between the Parties. Clause 7.1 and 7.2 of the Standard Terms and Conditions agreed between the Parties are as follows: