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Judgment
Justice Sudip Ahluwalia, Member
This Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 seeking refund along with other ancillary reliefs.
The brief facts leading upto the present Complaint are that the Complainant is an Association duly registered under the Societies Registration Act, 1860, with an object to express common grievances and concerns of the Allottees, who have invested their money in booking their respective Apartments. The Opposite Party No.1 is a Group Housing Society registered under the Group Housing Societies Registration Act, 1860. The Opposite Party No.2 has all the rights to construct the Residential Group Housing namely, IRIDIA and the Opposite Party No.3 are Real Estate Builders who were successful bidders with regards to the residential development tender floated by Kaveri Sahakari Avas Samiti Limited. The Opposite Parties had launched a Group Housing Project namely, ‘IRIDIA’ bearing Khasra Nos. 123 and 155 situated at village Illahabans, Sector- 86, Noida, Gautam Budh Nagar, which was to be completed within a period of 36 months from the date of execution of the Agreement. Based on the Opposite Parties’ representations, a substantial number of allottees applied for allotment of residential Units and the Opposite Parties had allotted Flats to them. It is contended that the Opposite Parties had collected around 60% of the total consideration as the booking amount from the allottees without sharing or executing the Builder Buyer Agreement at the very threshold and regardless of statutory clearances not being in place.
It is the further case of the Complainant that the Opposite Parties caused inordinate delay in commencing the Project’s construction which was duly protested by the Complainant along with a demand of interest @ 24% p.a. for the delay. Further, the demands by the Opposite Parties for payment of instalments were opposed due to delay in handing over of the possession of the Flats as the Opposite Parties continued making demands irrespective of the Construction Stage, and under threats of cancelling the allotments, and imposing interest @24% p.a. towards delayed payment. It is further submitted that the Opposite Parties promised in December, 2015 that the first Phase of the Project would be delivered by April, 2016. However, the Complainant realising in January, 2016, that the Opposite Parties had failed to keep up their commitment, sought response from the Opposite Parties as to why the Project’s construction work had come to a standstill. The Complainant had again approached the Opposite Parties in March, 2016 raising concerns about the construction work at the Project which was nowhere completion even after 4 years of its launch and demanding of compensation @ 24% p.a.
It is further claimed by the Complainant that the Opposite Party No.1’s title on the land on which the said Group Housing Project was being constructed is not clear, and the Project’s Building Plans and lay-out were still pending approval from the New Okhla Industrial Development Authority and other concerned Authorities. The Opposite Parties kept raising demands for payment of instalments despite being aware that the Project had not received required clearances. The development work in the Project was at a standstill and due to some legal problems, the development activities at the site had been suspended. The Opposite Parties informed that the New Okhla Industrial Development Authority was not issuing N.O.C. regarding the construction of the said Project. The Complainant had also approached the New Okhla Industrial Development Authority to gather knowledge about the Project and it was informed that the said Project is an unapproved one as the land of the Opposite Party No.1 Society is within the development area of the New Okhla Industrial Development Authority and it is against the land use as declared by the New Okhla Industrial Development Authority in its Master Plan. A Notice dated 09.01.2013 and again a show-cause Notice dated 23.09.2014 regarding non-issuance of NOC had been sent to the Opposite Party No.1 along with an order for representation dated 27.05.2015. Thereafter, the Complainant received an evasive response from the Opposite Parties in April, 2016 with excuses for the delay, and same hollow promises.
Therefore, it is the grievance of the Complainant that the Opposite Parties have failed to handover the physical possession of the Flat as per the Contracts, and have committed the aforesaid acts causing mental agony and financial losses to the Complainant. Moreover, the Builder-Buyer Agreement for the allottees is totally unfair and one-sided. Hence, the Complainant requested the Opposite Parties to refund the deposited amount along with 24% p.a. interest as assured by them at the time of booking. However, the Opposite Parties failed to pay heed to the requests/demands of the Complainant. Therefore a Legal Notice was sent on 07.06.2016.
The present Complaint has since been filed by the Complainant being aggrieved by the deficiencies in service, and unfair trade practices of the Opposite Parties in failing to handover the physical possession. Hence, the Complainant has prayed as follows:
“a)Direct the Respondents to refund the deposited amount against the purchase of flats to the Complainant immediately
(b) Direct the Respondents to pay interest at the rate of twenty four percent (24%) per annum compounded quarterly, on the total amount paid by the Complainant to the Respondents towards their respective flats, and computed from the date of payment of the booking amount till realizations of the payment.
(c) Direct the Respondent No.4 to stop the recovery of EMIs from the Complainant including all principle and interest amount thereon & not to issue any demand letter to Complainant for recovery of any instalment regarding loan or interest there up on and freeze the loan account till all the problems of the matter are resolved legally
(d) Direct the Respondents to pay a sum of Rs. Fifteen (15) Lacs towards undue hardship and mental caused to each of the Complainant (each member) due to the acts of omission/ commission on the part of the Respondents
(e) Direct the Respondents to pay at least a sum amount of Rs. Ten (10) Lacs to the Complainant towards the cost of litigation
(f) Pass such order or further order as this Hon’ble Commission deems fit and proper in the facts and circumstances of the present case.”
In addition to the aforesaid pleadings, it has been argued by the Complainant that the Members mentioned from Serial No. 01 to 19 and 36 to 38 had entered into agreements with the Opposite Party No.1, members of Complainant at Serial Nos. 20, 24, 25, 26, 27, 28, 35 had entered into agreements with the Opposite Party No.2 and Members from Serial Nos. 21 to 20, 29 to 34 had entered into agreements with Opposite Party No.3. It has been further submitted that proceedings against the “Horizon Group of Companies” i.e., Opposite Party No.3 are pending before the NCLT, Delhi, having Petition Nos. IB No. 266 (ND) 2019 and IB No. 84 (ND) 2019. Therefore, the Complainant submits that it is entitled for refund along with interest @ 18% per annum from the date of payment and further pendentelite and future interest @ 18% p.a. from the date of institution of Complaint till actual payment along with damages of Rs.5,00,000/- and Cost of litigation of Rs.50,000/-.
Vide Order dated 17.07.2017, the Opposite Party No.4 was deleted from array of parties. Vide Order dated 12.07.2018, Opposite Party Nos.1 and 2 were proceeded against Ex-parte for non-appearance. Vide Order dated 28.11.2018, Opposite Party No.3 was proceeded against Ex-parte for non-appearance.
Affidavit in Evidence has been filed by Mr. Sukhdev Singh on behalf of the Complainant.
Heard the Ld. Counsel for the Complainant. Perused the material available on record.
It may be mentioned that alongwith the original complaint a complete list of the Members of the Complainant-Association was filed which is Annexure-M and placed on Page 141 onwards of the Paper Book. From the complete list of various Members which is part of Annexure-M, it is seen that such Agreements as well as allotments for the various allottees took place over a period of time between 23.12.2011 to 21.8.2014.
From the unrebutted evidence of Mr. Sukhdev Singh, the Authorised Representative of Complainant, it transpires that inspite of having accepted huge amounts of money from the various allottees, construction work in the Project was not started by the Opposite Parties, although they kept on giving verbal assurances that the first phase would be delivered by April, 2016. But the same was not done and there was altogether no progress in the matter of construction or completion of the Project. The Complainant was therefore constrained to seek information from the office of the New Okhla Industrial Development Authority (NOIDA), and from there it was learnt that the residential Group Housing Project of the Opposite Parties was an unapproved Project because the land sought to be utilised by the Opposite Parties for that purpose was itself unauthorised and unapproved, on account of which the necessary permissions were not granted to the Opposite parties for proceeding ahead with the Project.
Such conduct of the Opposite Parties would certainly amount to an unfair trade practice since they had shown very attractive dreams to the prospective flat buyers and accepted huge amounts of money towards the consideration price in each case, without having approval for the Project for several years thereafter, on account of which there was no question of the Opposite Parties of being actually able to deliver possession of the promised Units.
Consequently, this Commission finds no impediment for granting the basic relief(s) as claimed by the Complainant-Society which has filed a list of its 26 Members whose Affidavits in support of the Complainant have also been filed subsequently.
The Complaint is therefore allowed and the Opposite Parties/Developers are directed to refund to the individual allottees, the sum paid by each of those 26 individual allottees alongwith interest @ 9% p.a. from the respective dates of each deposit till realisation, within three months from the date of passing this Order;
In addition, the Opposite Parties shall also pay Rs. 25,000/- to each individual allottee, towards compensation cum litigation costs;
In the event of non-compliance of this Order by the Opposite Parties within the stipulated time, the outstanding amount to be paid shall attract a penal interest of 12% p.a. thereafter till actual realisation.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.