In what could be the game changer for the real estate in India, The National Consumer Disputes Redressal Commission (NCDRC) ripped apart the Jaypee Group’s claims on delays in its recent order.
The Hon’ble judge quoted the famous lines to begin with his order:
Home is a name, a word, it is strong one, stronger than magician, ever spoke or spirit, ever answered to, in the strongest conjuration (The act of calling or invoking a sacred name or Emanating from God)”. - ‘Charles Dickens’.
We are happy to share that “The Logical Buyer” team worked as Consultants for the buyer’s association.
The NCDRC came heavily on the Jaypee Group for delays in the project called “Kalypso Court” at Jaypee Greens, Sector 128, Noida. Aggrieved with the delay in construction, an arbitrary increase in Super Area and others, the buyers filed a case in NCDRC. The Court made following observations:
(i) It imposes a delayed penalty of 12% per annum (as opposed to 2-3% that the builder provides in the agreement) for the period of delay.
(ii) It imposes a further penalty of Rs. 5,000 per day per flat if the builder cannot offer possession by 21st July this year.
(iii) It holds that a builder has no right to claim excess amount from buyers on the pretext of increase in super area, where such increase in without the consent of the buyer
(iv) It holds that a builder has no right to charge an additional amount car parking spaces.
The Case brief
Aggrieved by the delay in the handing over of the apartment, the 10 homebuyers of “Kalypso Court” at Jaypee Greens, Sector 128, Noida filed a case through their registered association Developers Township Property Owners Welfare Society. Breaking all the myths, the NCDRC delivered the judgement within 5 months of filing the case.
- Homebuyers alleged that their homes were to be delivered within 39 months of booking. The grievance of the buyers is that their case has further delayed by four years and the Opposite Party has violated to make any headway towards their houses. Only structure has been raised within the span of eight years. The date of possession of apartments was revised many times and the question of handing over the possession is lingering on for the last 4 years. The buyers have paid the amounts to the extent of nearly 90%.
- The said increase in super area was made without the consent and knowledge of members of the complainant society.
- The further grouse of the buyers is that there has been the unlawful sale of stilt/open parking slots.
- We faced ‘force majeure’ conditions because of which the possession could not be offered to buyers on the stipulated date. The developer also contended construction of the apartment is almost complete and the possession would be offered very soon.
- On super area, the members of the complainant society understood that the plan was only tentative and subject to change, if necessary.
- Builder also mentioned the NGT issue, Labour shortage etc as the reason for delay.
- He also mentioned that the buyers defaulted in making the timely payments to him.
On super area: Although, the internal area has not been changed, even by an inch, yet, the builder is claiming that the super area of the apartments has increased on account of increase in common areas, a consequence of which, would be a financial burden on Home Buyers. The alleged increase in super area was done without the consent of the allottees or even in the knowledge of the members of the complainant Society.
We find enough force in the arguments submitted by the counsel for the complainants. If there is any increase in the internal area, the developer is entitled to get the additional amount, that too, at the rate fixed at the time of booking. However, no such proof has been produced on record. Consequently, we hereby hold that the developer is not entitled to any additional amount.
The commission referred to the U.P Apartment Act 2010 which doesn’t allow the change in layout plans without the prior consent of flat buyers.
On Stilt/Open Parking: Builder has no right to sell the stilt parking spaces and decide this point in favour of the complainant Society.
On delay: This is an indisputable fact that no stay was granted by the National Green Tribunal at any time. There was no rub in constructing the houses/flats. The builder has failed to bolster its case with any kind of evidence. It should have produced solid and unflappable evidence to show that there was shortage of labour, scarcity of water, restrictions in excavations, etc.
The developer did not come to grips with the real problem but touched the unimportant ones. The story advanced by the developer does not just stack up. The developer does not have a bone to pluck with the complainants. He has raised copious objections, merely for the sake of cavil. He has made a vain attempt to tilt at windmills (to contend against imaginary opponents).
- Handover the flats within three months, otherwise, it will pay penalty in the sum of Rs.5,000/ per flat / per allottee/allottees, per day, till the needful is done;
- For the delayed period, the developer is directed to pay interest @ 12% p.a., on the amount(s) deposited by the respective buyers w.e.f. 39 months’ from the date of respective provisional allotment letters, till the actual physical possession as per prayer clause (a), is handed over by the developer. All the necessary documents, common areas and facilities be also provided.
- The developer is further directed to provide adequate car parking spaces in the project for the complainants therein and refund the excess amount, if any, collected from the members of the Complainant Society towards car parking slots, with interest @ 12% p.a., from the date(s) of charging, till its realization.
- We further impose costs in the sum of Rs.50,000/ payable to each of the flat allottee/allottees, total being Rs.5,00,000/, for all the flat owners.
Copy of the order: Jaypee Kalypso Court – NCDRC Judgement
I am glad some relief has come to homebuyers who have been suffering for years, says Sahil Sethi, the lawyer for the homebuyers.
The Logical Buyer welcomes this judgment from the Hon’ble NCDRC. Against all odds, the NCDRC delivered the judgement in five months from the date of filing. It would be interesting to know if the Supreme Court also upheld the same. One thing is for sure, this would give jitters to thug builders.