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Judgment
R.K. Agrawal, J., President
This Complaint, under Section 21 read with Section 2(b)(ii) and Section 12(1)(b) of th Consumer Protection Act, 1986 (for short "the Act"), has been filed by Ansal API Megapoli Buyer's Association: a voluntary Consumer Association registered under The Societie Registration Act, 1860, having Registration No. S/1350/2015 along with 16 individua Complainants being Allottees/flat buyers in the project "Megapolis Green Hi-Tec Township" (for short "the Project"), launched by the sole Opposite Party, namely, Ansa Hi-Tech Townships Ltd. (for short, "the Developer") in Bulandshahar, adjoining Greate Noida, UP.
According to the Complainants, since all the Complainants have booked their respective flat in the same Project of the Opposite Party; entered into identical Agreements to Sell with them and the issues regarding their allotment such as delay in handing over possession, deficiency i construction, illegal demands by the Developer and huge gap in super area and carpet area, ar identical and resultantly almost same reliefs have been prayed for by all the Complainants; th Complaint is proposed to have been filed in a representative capacity under the aforesai provision.
The Complainants have sought to place reliance on Order dated 28.08.2015 passed by thi Commission in CC No. 120 of 2015, wherein it has been held that the Complainant, being Society registered under the Societies Registration Act, 1860, consists of apartment buyers, i therefore a recognized Consumer Association and since the Reliefs claimed are of the sam nature and against the same Person, such an Association is competent to file a Complain Against the said order dated 28.08.2015, the Builder had approached the Hon'ble Suprem Court by way of Civil Appeal No.8423 of 2015 and the Hon'ble Supreme Court vide its Orde dated 16.10.2015 was pleased to dismiss the said Appeal thereby upholding the order thi Commission.
Factually, the Opposite Party Developer is engaged in the business of construction and rea estate.Allured by the representations and assurances given by the Developer that they have th international repute of developing and selling residential and commercial complexes; they ha successfully launched several residential and commercial complexes in different part of th country; they deliver high quality structures with superior functionality within the agreed tim frame; necessary approvals for the Project have been arranged and the Project will b developed with assistance of internationally renowned Architects, thus the Complainant booked their respective flats. At the time of booking of the flats, the Complainants wer informed about the different sizes of the flats which were offered by the Opposite Party, with number of world class facilities in the said Hi-Tech township. The said Project was suppose to be spread over an area of 2504 acres. Thus the Complainants chose the flat size as per thei budget and made the booking accordingly. Builder-Buyer's Agreement/Apartment Allottee' Arrangements (for short, "Agreement") were executed from the year 2009 onwards.
As per clause 4.1 of the Agreement, the possession of flats was supposed to be handed ove within 42 months from the date of signing of the Agreement. As stated by Complainants requisites with respect to property details along with area of the flat, date of booking, date o execution of agreement, proposed date of possession, total sale consideration and total monie paid towards sale consideration is as follows:
Sr. No.
Allottee's name
Flat Number
Date of Booking
Date of Execution of
Agreement
Date of Possession
Total Sale Consideration (Rs.)
Amount Paid (Rs.)
1
Prashant Kumar Singh & Anr.
H-0552
23.02.2009
23.02.2009
23.09.2012
27,53,159/-
12,97,122/-
2
S R Unithan
G-0147
04.02.2009
04.02.2009
03.08.2012
31,83,875/-
6,21,537/-
3
PawanVerma
H-0850
28.04.2009
28.10.2012
25,97,240/-
7,82,404/-
4
Jasbir Singh &Anr.
F1-379
06.11.2009
06.09.2009
2012
16,32,674/-
15,25,000/-
5.
Atul Aggarwal &Anr.
F-0841
09.02.2009
09.02.2009
08.07.2012
18,18,356/-
15,40,273/-
6
Syed Fazal Hayat Anr.
I-0856
04.04.2009
04.04.2009
04.10.2012
25,55,402/-
19,70,216/-
7.
TarakNathHaldar&Anr
F2-987
03.11.2009
03.02.2013
13,40,575/-
9,42,187/-
8
Pramoda Kumar T &Anr.
K-665
20.08.2009
31.08.22009
20.02.2013
21,82,980/-
18,36,641/-
9
Satwant Kaur & Jasbir Singh
A-202
16.04.2009
N/A
2012
9,00,718/-
4,89,478/-
10
Syed Qais Hayat &Anr.
I-0855
20.02.2009
20.02.2009
20.08.2012
25,55,402/-
19,78,399/-
11
Rohit Kumar Sharma
H-0752
26.11.2009
01.12.2009
26.05.2013
27,04,736/-
12,77,562/-
12
VN Narayanan &Anr
C-722
12.05.2009
13.05.2009
13.11.2012
18,61,487/-
18,77,022/-
13
Avsiek Rishi &Anr.
H-551
17.03.2009
17.03.2009
17.09.2012
26,72,127/-
13,99,057/-
14
Shahid Akhtar &Anr.
G-747
16.10.2009
22.10.2009
22.04.2013
31,78,125/-
9,54,735/-
15
Hareesh A &Anr.
F2-890
26.10.2009
26.10.2009
26.04.2013
13,58,400/-
9,04,117/-
16
Amit Chaudhery
F2- 1193
09.03.2010
09.03.2010
09.11.2013
15,46,216/-
8,34,160/-
3,48,41,452/-
2,02,29,910/
The Complainants allege that the Project has not been completed till date even after about years from the date of the booking. The Opposite Party Developer has indulged in unfair trad practices by utilizing the money collected from the Complainants, for its personal gains an benefits and has further diverted the funds collected from the Complainants to its othe projects. The Project has not even reached 50% completion stage, which clearly shows that th Opposite Party has no intention in developing/completing the Project.
It is further averred that most of the clauses of the Buyer's Agreement prepared by th Opposite Party were one-sided and the Complainants were compelled to sign the agreemen along with its unfair and unreasonable clauses; and in the event if any Complainant raise objection to any such unfair clause, then they were threatened with cancellation of thei allotment and the earnest money paid by that person being forfeited, therefore, the buyers wer forced to sign the agreement under compulsion.
The Complainants allege to have repeatedly, both orally as well as in writing enquired abou the status of construction of the project and their unit from the Opposite Party. Th Complainants wrote emails/letters to the Opposite Party expressing their concerns over th extent of enormous delay in completing the construction of the project and the delay i handing over the possession of their unit, however, their queries and efforts have gon unaddressed.
It was further averred that the Complainants have invested their lifetime savings on the basis o tall claims and promises made by Opposite Party and now the Complainants are left in miserable financial loss since many of the Complainants took huge loans for payment toward the flat and are paying EMIs with heavy interest to the banks and despite having made th payments to the Opposite Party towards the sale consideration, they are further forced to bea and pay heavy monthly rent for alternate accommodation.
More so, the Opposite Party vide its letter dated 22.07.2011, had informed the Complainant that the title of the Project is clear and free from litigation and furthermore that the project ha not been affected in any manner by the farmer's agitation. The same was also advertised by th opposite party in leading newspapers at the time of launch of project.
It was also stated that as per clause 1.12 of the Buyer's Agreement, an interest @ 18% p.a. wa charged by the Opposite Party in case of any delay in payment of any installment by th Complainants. The Opposite Party has even charged interest @ 18% p.a. towards delaye payments by few of the Complainants. Whereas, the Opposite Party has been indulged i unfair/restrictive trade practices by mentioning a compensation clause 4.5 according to whic the Opposite Party has offered compensation @10% p.a. for delay in handing over possessio to the Complainants and that too is subjected to certain conditions, which is unjust and th Opposite Party has exploited the Complainants by firstly taking their money and no completing the construction of the project within time. Therefore, the Opposite Party shoul also be held liable to pay pendente lite and future interest @ 18% p.a. to each of th Complainants, till the date of its realization, or such higher interest.
Complainants have further submitted that they suffered loss of opportunity as the prices of th residential units have increased to more than 100 percent since the year 2007-2008 and today the Complainants wish to purchase any other property of a similar size/specification, the would never be able to purchase the same at the prices which were prevailing at the time o booking the property in question.
It was also alleged that even after 8 years, the construction of the Project is not even close t completion, there are no laying of roads, utility supplies, access/service roads, facilities, clubs no sign of rail over bridge etc. It was further alleged that the unexpected, unreasonable an inordinate delay in developing and constructing the project, and facilities and also the delay i handing over possession of the flat, clearly amounts to deficiency in services.
Thus the Complainants are left with no other recourse but to file the present Consume Complaint before this Commission with the following relief:-
"(a) Grant refund of a sum of Rs. 2,02,29,910/- to the Complainants toward principal amount, together with compensation in the form of interest at the rate o 18% per annum along with pendente lite and future interest at the same rate o such higher rate of interest which this Hon'ble Commission may deem fit in th interest of justice, from the date of making payments till the date of actua realization of the payment ;
(b) Grant a sum of Rs.5 lakhs to each of the Complainants towards mental agon and damages, due to the arbitrary acts of the opposite party as detailed above in th complaint ;
(c) Grant cost of Litigation to each of the Complainants; and
(d) Any other order, relief or direction which this Hon'ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favou of the Complainants and against the Opposite Party."
Upon notice, the Opposite Party has filed its reply to the Complaint.It is, inter-alia, contende that the present Complaint is not maintainable in light of Clause 33 of the Agreement execute between the Parties, according to which, all or any disputes arising out of or touching upon o in relation to the terms of the Agreement including its interpretation and validity and th respective rights and obligations of the parties have to be settled amicably by mutua discussion failing which the disputes have to be settled through arbitration. The Opposite Part has further submitted that the Complainant No. 1 has no privity of contract with the Opposit Party and no relief can be granted to the said Buyer's Association. Since the Association wa only registered on 12.10.2015, no cause of action has arisen in its favour and therefore, thi Complaint qua the Complainant No. 1 must be dismissed. It was also contended that the sam Association has been claiming different reliefs from the Opposite Party in different cases wit respect to the same Project. In addition to the instant Consumer Complaint, the Association i also a Complainant in CC No.57 of 2016 and CC No.1538 of 2015 seeking distinct and, to a extent, contradictory reliefs. The Complainant No. 1 does not have the 'same interest' a Complainants No. 2 to 17 and have been roped in as a party in these proceedings merely t frustrate the arbitration clause, to overcome the hurdle of limitation, of pecuniary jurisdictio and of misjoinder of causes of action. The Opposite Party has also refuted the reliance place on the Order dated 28.08.2015 passed by this Commission in CC No. 120 of 2015. It i submitted that in the said case, only the consumer association was a party and the same ha been formed with the common objective of the welfare of its allottees as opposed to the presen Complainant Association that is formed with the ulterior objective of filing different Consume Complaints claiming different reliefs for different members. Further, the allottees were no parties in their individual capacities in the said complaint and the nature of reliefs sought b the Complainant Association was generic in nature and common to all its members, which i not the case here.
It is further stated that the Complaint qua Complainant Nos. 2 to 17 is not maintainable as the have failed to establish that they are Consumers within the meaning of Section 2(1)(d) of th Consumer Protection Act, 1986 and that certain Complainants herein are not consumers, viz the Complainant Nos. 5 and 10 have purchased two flats in the Project with the intention o investment/commercial purpose; Complainant No. 6 is a regular investor because when th Project was in its initial phases of development, on 24.07.2010, he had emailed the Opposit Party to transfer funds from Megapolis to another Project of the property in Gurgaon Complainant No. 8 has no locus standi to file the present complaint as the allotment of the sai Complainant already stands cancelled on 11.02.2015 due to default in making timely paymen despite several show cause notices were issued to him from time to time; Complainants No. by letter dated 09.09.2011 had requested that all funds paid by him for Flat No. C-422 initiall allotted to him, should be transferred to Flat No. K--665 which the he presently owns, whic proves that the said Complainant regularly purchases apartment for investment purposes unles proved to the contrary; Complainant No. 12 defaulted in making payment despite Show Caus Notices dated 11.07.2014 and 14.01.2015 and the Complainant No. 14 as per the informatio available with the Opposite Party, appears to own least three other properties, in their names viz., (i) A-II, 102, Eldeco Golf View Apartments, Omega - 1, Greater Noida, U.P.; (ii) Flat No S-901, Amrapali Zodiac, Sector 120, Noida, U.P. and (iii) Flat No. 201, Sanyal Enclave Buddh Marg, Patna.Since the Complainants have not established their locus to file the subjec complaint evidencing that the apartments purchased by the said parties were for their own us and not for commercial purposes, therefore, the said complaint is not maintainable.
It was also stated that the Complainants have filed the instant Complaint by combining severa distinct and independent causes of action which cannot be done. In order to establish thei cause of action, each of the Complainants will have to prove the facts that have given them cause to approach this Commission. The rights of each of the Complainants are distinct an fact specific. The relief, if any, which would be granted to the Complainants, woul necessarily involves an independent and distinct investigation into the facts relating to each o the Complainants. Pertinently, a few Complainants had admitted that a force majeure doe exists on account of the farmer agitation, some have defaulted in making payments time an again and some have also had their allotment cancelled. Since each Complainant's case peculiar and fact specific, if the Complaint, as filed, is entertained any further, the Opposit Party will have to prove all the facts in its defence in one consolidated and chaotic tria resulting in immense burden and inconvenience to this Commission as well as the Opposit Party. The proposed joinder of causes of action in one Complaint will embarrass and delay th trial and is otherwise extremely inconvenient. The Complainants are abusing the process o law by filing the present Complaint jointly in order to confer jurisdiction on this Hon'bl Commission. Section 21(a)(i) of the Act confers jurisdiction on this Hon'ble Commission onl for Complaints where the value of the goods or services "exceeds rupees one crore". The valu of the services provided to each of the Complainants does not exceed Rupees One Crore. I fact, in some cases the relief does not even amount to 20 lakhs. Therefore, the Opposite Part has contended that the Complaints be returned to each of the Complainants, in order to b presented before the appropriate District or State Commissions, as the case may be.
The Opposite Party has further stated that the Complaint is premature and contrary to the term of the Agreement, since as per clause 4.1.a, possession of the units was supposed to be hande over to Complainants No. 2 to 13 within a period of 42 months from the date of signing of th Agreement, however the said clause is subject to clause 4.1.b which states that in the event of force majeure event, the date of possession shall get extended accordingly. Further claus 4.1.b.i also authorizes the Opposite Party to suspend the construction of the apartment for suc period as it may consider expedient during the pendency of a force majeure event and th Complainants voluntarily agreed to not claim compensation for the period of suspension operation of the force majeure event. Opposite Party has submitted that force majeur conditions continue to exist. That the construction has been delayed on account of event which are beyond the control of the Opposite Party, such as agitation by farmers wherein a efforts were made by the Opposite Party to resolve issue by seeking help from the High Cour of Judicature of Allahabad and District Administration, further time was consumed in takin assistance from the government authorities in order to complete legal obligations and therefore in view of the prevailing force majeure circumstances, the Opposite Party is not liable t refund or pay compensation to the Complainants.
The Opposite Party Developer stated to have made all efforts to complete the construction a the towers that are the subject matter of the present dispute, however, the agitation an disturbances at the Project Site have critically hampered the construction work of the facilitie common to the entire Project. That since the Complainants had opted for a "construction linke payment plan", no prejudice would be caused to them for the delay being caused i constructing the project.
Further, in view of Clause 4.4, the Complainants had to serve a notice upon the Opposite Part within 90 days from the expiry of the period of 42 months, however, no such notice has bee served upon the Opposite Party. That the complainants are bound by the terms of the Contrac thus cannot override the conditions as stipulated in the Agreement and approach thi Commission. Moreover, the Complainants also failed to make timely payments, which wa quintessential for the Opposite Party to continue construction in a timely fashioned manner.
< >, Opposite Party has denied the contentions as raised in the Complaint in toto. The Opposit Party has thus prayed that the consumer complaint in toto. The Opposite Party has thus prayed that the consumer complaint be dismissed.
The Complainants filed Rejoinder to the Reply filed by the Opposite Party Developer in whic they denied the contentions of the Opposite Party Developer and stated that the Complainan No.1 is the Registered Association of the Complainants, who has filed the present Complain seeking similar reliefs as they are identically placed and thus have same cause of action an thus falls within the ambit of Section 21 r/w Section 12(1)(b) of the Act.It was further state that by Consumer Protection Act, provides additional remedy to the Consumers in addition t the provisions of any other law for the time being force, therefore, despite having a Arbitration clause in the Agreement they are provided with additional remedy to file complaint under the Consumer Protection Act. In support of their contentions, they relie upon judgment dated 02.05.2016 passed by this Commission in CC No. 346 / 2013 'Lt. Co Anij Raj & Anr. Vs. Unitech Ltd.' It was also stated that the Project consists of residentia flats, plots, floors etc. therefore, the Association has filed different case of each unit, i.e separate case of flat, separate case for plot and separate case for flat for members havin common grievance and are claiming similar reliefs. They relied upon Order dated 07.10.201 passed by larger Bench of this Commission in "Ambrish Kumar Shukla & Ors. Vs. Ferrou Infrastructure Pvt. Ltd." (CC No. 97 / 2016) and stated that their booking on different dates different towers, different rates etc. would not bar them from filing a common case. It wa also stated that through various newspapers the Developer advertised that the land is free from all sorts of litigation and vide letter dated 20.07.2011 the Opposite Party Developer als re-assured and re-affirmed that they have purchased the lands on market rates with the consen of the land owners and farmers and there is no dispute on the lands in Project. The Develope collected huge money from the Complainants and utilised the money and now at the time o giving possession, taking excuse of farmers' litigation for delay in possession. The Develope has referred a writ petition for showing the dispute between the Developer and the farmers, i response to this it was stated that the dispute related to only some piece of land which was t be developed as a part of Phase III of the Project, whereas the units allotted to th Complainants fall under Phase I of the Project. It was also stated that the Developer entere into MoU with Bulandsahar Development Authority (hereinafter referred to as BDA) and was decided that Project will be completed in phased manner and the units allotted to th Complainants fall under Phase I of the Project, the possession of which was to be delivered b 06.07.2013 yet till date, the Developer has failed to complete the Project. This is a clear cas of unfair trade practice on the part of the Opposite Party Developer. This was also submitte that as per clause 20 of the Development Agreement signed by the Developer with BDA it wa agreed that 'if any time during the continuance of this agreement, the performance in whole o part by either party of any obligation under this Agreement shall be prevented or delayed b reasons of any war or riot or natural calamities, the Second Party within 7 days of occurrenc and cessation of each Force Majeure conditions shall intimate the First Party by a registere letter, the beginning and end of the above causes of delay. But as per information receive under RTI Act, BDA has categorically denied of having such document in their possession tha were received from the Opposite Party Developer intimating any force majeure incident. Thus it is clear that the Opposite Party Developer is indulged in Unfair Trade Practice in no completing the Project on time and taking lame excuse of farmer's litigation. It was furthe stated that as the construction of the flats was at a standstill, the Complainant No. 3 due to fea of blocking further amounts, did not pay until they were threatened for cancellation an forfeiture of amounts already paid by him. The Complainant No. 5 and 10 had purchased flats - one for his self-residence and other for his children as they wanted to live close to thei son in their old age but at the same time give privacy to their children. This does not mak them an investor. As far as Complainant No. 6 is concerned, he asked the Developer t transfer his flat to another project as he had changed his plan and wanted to shift to Gurgaon This switching does not make him investor. As there was no construction/development at th Project, Complainant No. 8 had withheld the payment, this does not bar him to become consumer. The Complainant No. 9 had initially purchased 2 flats but later on get the payment made towards the other flat merged into the flat which they had purchased earlier, it does no make him investor as per assumptions made by the Opposite Party.
We have heard Mr. Saurabh Jain, learned Counsel appearing on behalf of the Complainants Mr. Rakesh Kumar, learned Counsel appearing on behalf of the Opposite Party perused th material available on record and have given our thoughtful consideration to the argument advanced before us.
As far as the contention of the learned Counsel for the Opposite Party Developer regardin Arbitration Clause is concerned, we find it a fit case to place reliance on the Judgment passe by the Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs. Aftab Singh - I (2019 CPJ 5 (SC), in which the Hon'ble supreme Court has laid down the law that an Arbitratio clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain th Complaint. Hence, the objection raised by the Learned Counsel for the Opposite Party that th clause of Arbitration bars this Commission from entertaining the Complaint is unsustainable.
The contention of the learned Counsel for the Opposite Party Developer that the Complainant are not 'Consumers' and that the subject Flats were booked for investment purpose i completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus o establishing that the Complainants were dealing in real estate i.e. in the purchase and sale o plots/ flats in his normal course of business to earn profits, shifts to the Opposite Part Developer, which in the instant case the Opposite Party Developer had failed to discharge b filing any documentary evidence to establish their case. The allegation of the Opposite Party i based on its assumptions.Therefore, we are of the considered view that the Complainants ar 'Consumers' as defined under Section 2 (1)(d) of the Act.
The Opposite Party Developer contended that due to farmers' agitation delay occurred i completing the Project.It is not disputed that at the time of booking of the Flats in the Projec through various newspapers, the Developer advertised that the land is free from all sorts o litigation and vide letter dated 20.07.2011 the Opposite Party Developer also re-assured an re-affirmed that they have purchased the lands on market rates with the consent of the lan owners and farmers and there is no dispute on the lands in Project and the Project is no affected by the recent rulings given by the Hon'ble Allahabad High Court as well as b Hon'ble Supreme Court of India. Now at this stage, the Opposite Party Developer cannot tak advantage of lame excuse that the due to farmer's agitation the Project could not be develope within stipulated period. Secondly, the land dispute is regarding the piece of land whic belongs to Phase III of the Project, whereas in the present case, the allotted flats belong t Phase I and II of the Project. Thirdly, as per clause 20 of the Development Agreement signe between the Developer with BDA it was agreed that 'if any time during the continuance of thi agreement, the performance in whole or part by either party of any obligation under thi Agreement shall be prevented or delayed by reasons of any war or riot or natural calamities the Second Party within 7 days of occurrence and cessation of each Force Majeure condition shall intimate the First Party by a registered letter, the beginning and end of the above cause of delay. But as per information received under RTI Act, BDA has categorically denied o having such document in their possession that were received from the Opposite Part Developer intimating any force majeure incident. The delay in developer of the Project by th Developer cannot be justified on such bald allegation without substantiating the same by har evidence. We do not find any force in the defence taken by the Developer.
The learned Counsel for the Opposite Party Developer contended that some of th Complainants are not consumers as they failed to make payment, after due show-cause notic and their allotments were cancelled as per terms of the Agreement and they are bound by th terms of the Agreement.We have gone through the Clauses of the Agreement.Clause 1.1 andClause 4.5 of the Agreement read as under:
"1.19 TIME IS ESSENCE
That the timely payment of instalments as stated in Annexure-1 of the Arrangement an applicable stamp duty, registration fee and other charges payable under this Arrangement i the essence of this Arrangement. In the absence of any notice of demand issued by th Developer/SPV, it shall be incumbent on the Allottee(s) to strictly comply with the terms o timely payment and the other terms and conditions of this Arrangement, failing whic allotment shall stand cancelled and the entire amount of Earnest Money deposited by him shall be forfeited. In exceptional circumstances, the Developer/SPV may at its sole absolut discretion condone the delay in payment by charging an interest @ 18% p.a on the amoun outstanding. In the event of the Developer/SPV waiving the right of forfeiture and acceptin payment of that account, no right, whatsoever, would accrue to any other defaulting th Allottess(s) (The Allottess(s)/Purchaser). The Allotttess(s) agrees and accept that in case o any default /delay in payment as per the schedule of payment as provided in Annexure -1 the date of handing over of possession shall be extended accordingly solely o Developer/SPV's discretion till the payment of all outstanding amounts to the satisfaction o the Deverper/SPV .
4.5 FAILURE TO DELIVER POSSESSION REMEDY TO THE DEVELOPER/SPV
The ALLOTTEE(s) agrees that in consequence of the Developer/SPY abandoning th Scheme or becoming unable to give possession within 42 months from the date of sanctio of the lay out plan or such extended periods as permitted under this Arrangement, th Developer/SPV shall be entitled to terminate this Arrangement whereupon th Developer/SPV's liability shall be limited to the refund of the amounts paid by the Allottee(s with simple interest 10% per annum for the period such amounts were laying with th Developer/SPV and to pay not other compensation whatsoever."
A bare perusal of above Clauses makes it clear that as per Clause 4.5 of the Flat Buye Agreement, in case of failure to deliver possession, the Opposite Party Developer is liable t refund of the amounts paid by the Allottee(s) with simple interest 10% per annum for th period such amounts were laying with the Developer/SPV and to pay not other compensatio whatsoever, whereas in terms of Clause 1.19 in case of late payment, the Complainant/Buyer i liable to pay interest @18% p.a. This shows that the terms of the Agreement are wholl one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of th Agreement, which is one-sided and unfair in the light of the recent Judgment of the Hon'bl Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019 CPJ 34 (SC), wherein the Apex Court has observed as follows:
"6.7. A terms of a contract will not be final and binding if it is shown that the fla purchasers had no option but to sign on the dotted line, on a contract framed by the builder The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair an unreasonable. The incorporation of such one-sided clauses in an agreement constitutes a unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since adopts unfair methods or practices for the purpose of selling the flats by the Builder.
In view of the above discussion, we have no hesitation in holding that the terms of th Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to th Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent wit such one-sided contractual terms. "
It is not in dispute that the Complainants were allotted the Flats in the year 2009 and till dat the construction of the flat is not completed.Keeping in view the Judgment passed by thi Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of th Complainant whether he wants to accept the offer of possession, if any, or seek refund of th amounts paid with reasonable interest, it is held that it is well within the Complainant's right t seek for refund of the principal amount with interest and compensation as construction is sti not complete. We are of the view that the Complainant cannot be made to wait indefinitely fo the delivery of possession and the act of the Opposite Party in relying on Farmers' agitation while retaining the amounts deposited by the Complainants, is not only an act of Deficiency o Service but also amounts to Unfair Trade Practice.
We find it a fit case to place reliance on the Judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in whic the Hon'ble Apex Court has observed as hereunder:
" .....It would be manifestly unreasonable to construe the contract between the parties a requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years ha elapsed from the date of the agreement. Even according to the developer, the completio certificate was received on 29 March 2016. This was nearly seven years after the extende date for the handing over of possession prescribed by the agreement. A buyer can b expected to wait for possession for a reasonable period. A period of seven years in beyon what is reasonable. Hence, it would have been manifestly unfair to non-suit the buye merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was i any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by th NCDRC for refund of moneys were justified "
In the instant case also the Complainants cannot be made to wait indefinitely for possession o the Flats, as the construction is not completed. Therefore, we are of the considered view tha the Complainants are entitled for refund of the principal amount with reasonable interes which we quantify @9% p.a. from the date of respective date of deposit till the date of actua refund. Consequently, the Opposite Party Developer is directed to refund the amoun deposited by each of the Complainants alongwith interest @9% p.a. from the date of respectiv date of deposit till the date of actual refund within 6 weeks from the date of passing of thi Order failing which the rate of interest will increase from 9% to 12% p.a.
With the aforesaid directions, the Consumer Complaint stands disposed off.However, ther shall be no Order as to costs.The pending application, if any, also stands disposed off.