JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that the Opposite Party launched a Project named “Green Escape” in the year 2011 and invited applications from the general public through newspapers, SMS, and other means, alluring people with promises of uniquely designed high-rise towers offering the best club house facilities and multiple recreational amenities. The Project is situated in Kundli, Sonepat, Haryana, featuring 2, 3, and 4 BHK apartments. The Complainants bought their respective Units, priced from Rs. 39 Lakhs to Rs. 89 Lakhs. However, the Complainants in this case stand on a different footing as they booked Flats in Tower Nos. 16, 21, and 22, where construction has not even commenced. The Opposite Party also promised to refund the amount paid by the Complainants and others with interest, but it failed to fulfill its promise. As per the Agreements executed by the Opposite Party in the year 2012, the Flats were expected to be delivered within 42 months, which would be the year 2015. The Complainants sent various letters to the Opposite Party requesting a refund of the amount deposited along with interest due to the delay in possession, but there was no reply. The Opposite Party then held a meeting on 25.05.2018 with the buyers and promised that where there is no construction of the tower, the buyers would get a refund of their money with interest at the rate of 10% p.a. from the date of booking. However, the Opposite Party neither provided possession nor refunded the amounts deposited by the Complainants. Aggrieved with the deficiency of service on the part of the Opposite Party, the Complainants have filed the present Complaint under Section 12(1)(c) of the Consumer Protection Act.

3. In view of the aforesaid facts, the Complainants have prayed as following - 

“It is therefore most respectfully prayed that this Hon'ble Commission may be pleased to:

 

a. admit the present complaint under section 21 read with section 12 (1) (c) of the Consumer Protection Act, for the benefits of all the buyers of "Green Escape Project" who booked flats in Tower no. 16, 21 and 22.

 

b. Direct the Opposite Party to refund the amount of money already paid by all the aggrieved allottees of the project to the Opposite Party along with interest @18% from the date of receipt of payment by the Opposite Party till final orders passed by this Hon'ble Commission.

 

c. direct the Opposite Party to pay the delay compensation to the aggrieved allottees of the project at the rate of Rs. 5/ sq. ft. per month along with interest @18% from the due date of delivery till final orders passed by this Hon'ble Commission.

d. direct the Opposite Party to pay the compensation of Rs. 10,00,000/- (Rupees Ten Lakhs) to each buyers of the "Green Escape Project" who booked flats in Tower no. 16, 21 and 22 as mental agony and harassment caused.

 

e. direct the Opposite Party to pay the legal expenses of Rs. 1,00,000/- (Rupees One Lakh) to each buyers of the "Green Escape Project" who booked flats in Tower no. 16, 21 and 22 as mental agony and harassment caused.

 

f. Pass such order(s) as this Hon'ble Commission may deem fit.”

 

4. The Complainants- Ms. Babita, Girish Grover, Nitin Sharma, Rakesh Verma, Jyoti Bhola, Charanjeet Kaur, Renu Batra have filed their individual Affidavits in support of their Complaint.  Evidence by way of Affidavit has been filed on behalf of Opposite Party by Mr. F.N Rai, Authorized Representative, M/s Pioneer Urban Land & Infrastructure Ltd.

5. Ld. Counsel for Complainants has argued that the construction for Tower Nos. 16, 21, and 22 has not even commenced yet, for reasons best known to the Opposite Party. The Complainants have written various letters requesting a refund, but there was no reply to any of the letters. The Opposite Party has admitted its fault in not commencing any construction and also promised to refund the amount paid by the Complainants with interest but failed to fulfil its promise; That it was held by the Hon’ble Apex Court in “Fortune Infrastructure and Anr. v. Trevor D’lima and Ors. II (2018) CPJ 1 (SC)” that homebuyers cannot be expected to wait indefinitely for possession. Many buyers of the same project approached the State Commission, Delhi, seeking refunds, and the same was allowed in each and every complaint along with interest, compensation, and costs of litigation against the same Opposite Party; That the State Commission, Haryana, vide Order dated 09.10.2015 in “Santosh Chaudhary v. Ansal Properties & Infrastructure Limited CC/14/2015” directed refund along with interest, compensation, and litigation costs due to a delay of more than 9 years in the delivery of possession. The Opposite Party then filed an appeal against this Order before this Commission, which was subsequently dismissed. The Opposite Party itself has admitted that buyers will be entitled to a refund along with interest at the rate of 10% p.a., as mentioned in Page 269, Row 3, 2nd Table in the Paper Book.

6. Ld. Counsel for Opposite Party has argued that the National Company Law Tribunal (NCLT), vide its Order dated 16.11.2022 in “Bibhuti Bhushan Biswas and Ors. v. APIL (IB)-330(ND)/2012”, admitted the application under Section 7(5) of the Insolvency and Bankruptcy Code (IBC) and declared a moratorium for the Opposite Party. Subsequently, in an appeal filed by “Ajai Kumar Gupta & Anr. v. Bibhuti Bhushan Biswas and Ors.”, the National Company Law Appellate Tribunal (NCLAT) issued an interim Order that confined the NCLT's order to the ‘Fernhill’ Project in Gurgaon. This interim Order is still in effect. The NCLT then issued another interim Order on 06.10.2023 in IA/3620/2023 in Company Appeal (AT)(Insol) No. 41 of 2013 regarding another project, ‘Versalia’, consistent with the interim Order dated 13.01.2023 in Appeal No. 41/2023; That the appeal against the NCLT Order dated 16.11.2022 is still pending before the NCLAT, which has not passed any final order regarding the non-applicability of the Order dated 16.11.2023 for other projects. Therefore, a clarification application filed by the Interim Resolution Professional (IRP) vide IA/282/2023 is still pending before the NCLT. Since IA/282/2023 is still pending and the interim order has not attained finality, the order passed by the NCLT for the Opposite Party cannot be read as applicable only to the ‘Fernhill’ project. There is no provision in the Act for applying the Order solely to a particular project; That the present complaint was filed by seven allottees who may have a common grievance. However, their application under Section 12(1)(c) of the Consumer Protection Act lacks the required sameness/community of interest. The creation of a subclass out of a class of all the consumers is not the intent of the Act. The complaint must necessarily be filed on behalf of or for the benefit of all persons having a common grievance, seeking a common relief, and must include all the consumers of the project who may have a community of interest in the subject matter of the complaint; That the Hon’ble Apex Court’s in “Vikrant Singh Malik v. Supertech Ltd. (2020) 9 SCC 145”, has held that the purpose of a class action under Section 12(1)(c) is to include every person who has a community of interest, and a complaint on behalf of only some of them will not be maintainable. The Complainants have not provided any reason for excluding other towers of the same project, which are also delayed. There are other towers at different stages, but there are no averments against those towers; That the Opposite Party offered an internal swapping of flats during the minutes of a meeting held on 24.05.2018, in which it was agreed that 10% interest would be given on the deposited amount for Towers 14-17 and 20-22. This interest calculation was for adjustment purposes only. Although the Allottees agreed to internal swapping during the meeting, none of the Complainants requested an internal swapping of the flat. Swapping was also offered in another project named Ushay Towers, where a number of Allottees have shifted. The Opposite Party owns the project land and has taken only 30% of the flat cost, which constitutes the land cost, from the Complainants. The remaining amount was to be paid at different stages of construction in instalments. No other Allottee has joined the Complainants despite the issuance of a notice in the newspaper, which indicates that no other Allottee than the present Complainants are interested in a refund of their booking amount and are still willing to continue with the project or exercise their option of shifting to other Projects as offered by the Opposite Party. 

 7. This Commission has heard both the Ld. Counsel for Complainants and the Opposite Party, and perused the material available on record.

8. It is a matter of record that on 13 November 2019, IA No. 7063 of 2019 filed on behalf of the Complainants U/S. 12 (1) (C) of the Consumer Protection Act, 1986 had been allowed.  Such Order has since attained finality, as it was never challenged on behalf of the Opposite Parties at any stage. So their contention that the present seven Complainants cannot be representatives of all the Allottees concerned, at this stage becomes redundant.

9. The Principal Bench of the National Company Law Applicable Tribunal, New Delhi, in Company Appeal (A) (Insolvency) No. 77 of 2023 and IA No. 319 of 2023, in para No. 2 of its Order passed on 18 August 2023, had specifically noted, “By an interim Order passed by this Tribunal on 13 January 2023, Order of Adjudicating Authority admitting Section 7 Application was confined “Fernhill project” situated at Gurugram.” In view of such specific observation of the NCL 80, which is the competent Forum in the concerned proceedings, this Commission has no scope to read any other meaning in the observation than what has been specifically mentioned therein.  Consequently it is held that the moratorium declared for the Opposite Party by the NCL T, applies only to its ‘Fernhill project’, on account of which, there is no bar to continuation of the present Complaint which pertains to the project ‘Green Escape’.

10. It is seen that the various Builder Buyer Agreements were executed between the parties between 5th May 2012 to 1st February 2013. It was stipulated in those Agreements that the Apartments would be delivered within 42 months thereafter along with a grace period of 6 months. As such the Apartments in question ought to have been delivered latest by 1st February 2017. But, as it transpires, no construction of the concerned toppers could be started. From Annexure -C/6, it is seen that a meeting was held in the corporate office of the Opposite Party on 24th of May 2018, in which it was decided that, “Clients of those Towers whose construction has not commenced so far i.e. Tower No. 14, 15, 16, 17, 20, 21 and 22, Green Escape will be entitled to get interest @10% p. a…..”

11. The Complaint was filed almost a year after the aforesaid meeting on 2nd May 2019, and admittedly the Opposite Party was and has been in no position even thereafter to offer possession to the Complainants/Allottees.

 

12. It is well settled that the Complainants are entitled to refund with interest in view of the decision of the Hon‘ble Supreme Court in “C.A No. 3182 of 2019 dated 25.03.2019, Kolkata West International City Pvt. Ltd. Vs.  Devasis Rudra”, observing inter alia -

“…..It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession.  By 2016, nearly seven years had elapsed from the date of the agreement.  Even according to the developer, the completion certificate was received on 29 March, 2016.  This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement.  A buyer can be expected to wait for possession for a reasonable period.  A period of seven years is beyond what is reasonable.  Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC.  There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified…….”.

 

13. The Complainants have claimed interest @ 10% p.a. in view of the meeting held in the Corporate office of the Opposite Party as noted above.  This Commission is, however, of the opinion that the Minutes of such meeting are an internal matter of the Opposite Party, and the Complainants would be entitled to refund only with reasonable compensation by way of interest, in terms of the decisions of the Apex Court in the case of “Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 With Civil Appeal No. 7149 of 2019, decided on 7.4.2022”. The relevant observations in this regard are as follows -

“…32. We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts.  The Commission in the Order impugned has granted interest from the date of last deposit.  We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.

33. At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest……”

 

14. To sum up, it is held that the Complainants are entitled to seek refund of the total money paid by them to the Opposite Party alongwith interest @ 9% p.a. from the respective date of each deposit till payment, within two months from the date of passing of this Order.  In the event of non-compliance of this Order, the outstanding amount(s) to be paid shall attract a penal interest of 12% till the date of final realization.

15. In addition, an amount of Rs. 10,000/- is awarded to each Complainant towards litigation costs.

16. Pending application(s), if any, also stand disposed off as having been rendered infructuous.