1.       The present joint Complaint has been filed under Section 12(1)(c) of the Consumer Protection Act, 1986, as a class action on behalf of and for the benefit of all the allottees in the project “ANTRIKSH SANSKRITI” situated at NH-24, Indirapuram, Ghaziabad (U.P.). Alongwith the Complaint, the Complainants also filed IA/9267/2017, an application for permission to file joint Complaint. This Commission, vide order dated 11.04.2018, allowed the application. Complainant No.1 is the authorized representative for other Complainants as stated in the affidavit.

2.       The case of the Complainants is that in 2011 through advertisements Opposite Party No.1 expressed their intention to the General Public to develop the aforesaid project and to handover the flats to all purchasers within 30 months from the date of signing the Agreement with a grace period of 6 months. The allottees booked their respective flats in the Project and they were issued allotment letters. All allottees signed separate Agreements with the Opposite Party. According to the Complainants, the construction is still incomplete, even after passage of ten years from the date of the signing of the Agreement. The Opposite Party kept demanding payment of installments from the allottees without completing the project. Most of the Allottees, however, had deposited substantial amount for the flat, including other charges as per the demands raised by the Opposite Party. The Opposite Party never intimated the allottees any reason, whatsoever, for delay in completing the project. The flat purchasers made numerous visits to the office of the Opposite Party, sent various letters and e-mails enquiring the status of the project, but the Opposite Party did not respond to any request of the allottees. Further, the Opposite Party, without seeking consent from the allottees of the Project, increased the number of flats/units from 8 floors to 22 floors which was against the promise made in the brochure. This act of the Opposite Party reduced the common area and facilities in the Project. Alleging deficiency in service and unfair trade practice on the part of the Opposite Party, the Complainants approached this Commission by filing the instant Consumer Complaint with the following prayer:

“a) issue notice/public advertisement in the leading newspaper regarding institution of the present class action complaint to all the persons/buyers/consumers so interested in the “ANTRIKSH SANSKRITI” project situated at NH-24, Indirapuram, Ghaziabad (U.P.)” having same interest/common grievance and seeking the same/identical relief against the Opposite Parties;

b) hold the opposite parties guilty of deficiency in service and unfair trade practice against all the allottees of the said project named "ANTRIKSH SANSKRIT!" situated at NH-24, Indirapuram, Ghaziabad. (U.P.)”;

c) allow the present consumer complaint and direct the opposite parties/builder to deliver the actual and legally valid physical possession of the fully developed allotted flats in a habitable condition to all the allottees of the said project as per the terms and conditions of the Agreement and sale brochures within a short stipulated time limit to be determined by this Hon'ble Commission or in the alternative, if the subject project is likely to be delayed enormously or indefinitely, direct the opposite parties/builder to refund the entire deposited amount of all the allottees of the subject project alongwith compound interest @ 18% calculated quarterly from the date of respective deposit till the actual payment of the same by the opposite parties/builder to an the allottees of the subject project;

d) direct the opposite parties/ builder to complete the development of all the basic amenities and facilities at the project site as promised in the sale brochures and the agreement;

e) direct the opposite parties/builder to execute the conveyance deed and other necessary documents with respect to specific and fully developed allotted flats in favour of all the allottees of the subject project only after completing the development of the said project as per the agreement and sale brochures and after obtaining the completion certificate and all the mandatory clearances from the Competent Authority for the said project;

f) direct the opposite parties/builder to pay an interest @18% per annum on the deposited amount to all the allottees calculated from the date on which the opposite parties were actually bound to deliver actual and legally valid physical possession of the allotted flat to the actual date of delivery of legally valid physical possession of the allotted flat and payment of entire compensation amount as prayed for in the complaint, on account of failure on the part of the opposite parties/builder to deliver actual and legally valid physical possession of the allotted flats on time;

g) quash the service tax and car parking charges received by the opposite parties/builder from all the allottees and the same may be directed to refund alongwith interest @18% p.a. from the date of deposit till realization;

h) direct the Opposite Party No. 3 i.e. GDA not to withhold the issuance of the completion certificate to the subject project after the opposite parties/builder complete the development of the said project as per the agreement and settled rules;

i) direct the Opposite Parties/builder to furnish to all the allottees all the relevant documents issued to the said project by the Competent Authority and permission of the said project from the concerned Authority, approved Building Plan and all other documents pertaining to the subject project in general and the flats of all the allottees in particular;

j) direct the opposite parties/builder to pay to each of the allottees who had availed bank loan facilities, the monetary benefits that would have accrued to the allottees which is presently calculated at Rs.2,50,000/- p.a. per allottee under the income tax benefits clause on the loan which is available on payment of EMI if the actual and legally valid physical possession of the allotted flats were handed over by the opposite parties on time;

k) direct the opposite parties/builder to bear the entire cost of increase in the circle rate of the area by the government for registration of the conveyance deed/sale deeds of the flats due to delay in handing over actual and legally valid physical possession of the flats and consequently, execution of the title deeds in favour of all the allottees as and when the same is done by the opposite parties;

l) direct that all the allottees of the project herein are individually entitled from the opposite parties/builder punitive damages of Rs.50,000/- per month from the date of the singing of the Agreement/ Allotment letter between the opposite parties and all the allottees, till the date of delivery of the actual and legally valid physical possession of the allotted flats to all the allottees;

m) direct the opposite parties to pay damages and compensation @ Rs. 10 lakhs individually to all the allottees and extend this benefit to all the other allottees of the project, on account of intense mental pain and agony, unending harassment, deficiency in service, deceptive and restrictive and unfair trade practice suffered by all the allottees due to the illega1 act and conduct of the opposite parties since the date of booking of their flats which is continuing till date;

n) direct the opposite parties to pay a sum of Rs.2,00,000/- individually to all the allottees and extend this benefit to all the allottees of the said project herein, towards cost of present litigations; and

o) pass such other order/orders, as may be deemed fit and proper in the facts and circumstances of the case in favour of the humble Complainants. ”

3.       Opposite Party resisted the Complaint by filing the written statement by raising preliminary objection that this Commission had no jurisdiction to entertain the Complaint, as the project was registered with the Real Estate Regulatory Authority (RERA). On merits, it was stated that the Complainants approached this Commission with unclean hands, suppressed material facts. The Complaint was, therefore, liable to be dismissed. It was also contended that the Complaints did not qualify for class action suit as the flats were booked by the Complainants on different dates and the amounts were also deposited on different dates. It was also stated that some of the Complainants booked their flats in 2014 and their claim was pre-mature. Some of the Complainants had also cancelled their bookings and rebooked their flats afresh in 2017. It was stated that the Complainants did not make their respective payments on time. They were, therefore, not liable for any compensation. It was also stated that the Irrigation Department issued conditional NOC dated 29.04.2013 that possession of the flats in the project would not be handed over till completion of the construction work of embankment to hold the flood water as the project area was a low lying area. The embankment work was not completed by the Government till filing of the Compliant, due to which possession of the flats could not be handed over to the Complainants. Further, the drawings of the project were cancelled by Ghaziabad Development Authority in 2011, resubmitted on 23.08.2013 and sanctioned only on 23.09.2015. Due to the above cancellation and re-sanctioning of the drawings, considerable time was taken affecting the construction of the project as a force majeure condition. The Complaint is malafide and is filed to extract money from the Opposite Party, hence liable to be dismissed.

4.       Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainants submitted that the Opposite Party completely stopped construction work of the project. It was submitted that J & K Towers of subject project were constructed and sold by the Opposite Party without approval of layout/map from the Competent Authority. The Project was subsequently sealed by the Competent Authority due to lapse on the Part of Opposite Party/Builder. The buyers of the said towers were compelled to live in rental accommodations and pay EMIs to the Bank. It was submitted that the Project has been totally abandoned by the Opposite Party/Builder. The Builder also violated the terms of the Allotment Agreement. The Complainants, therefore, sought refund of the entire amount paid by them alongwith compound interest with Compensation and Cost of Litigation. 

5.       Learned Counsel for Opposite Party submitted that as the project was registered with the Real Estate Regulatory Authority (RERA), Consumer Forum had no jurisdiction to entertain the Consumer Complaint. He also submitted that the Complaints did not qualify for class action suit as the flats were booked on different dates and the amounts were also deposited on different dates by the Complainants. The Complainants also defaulted in making timely payments. They were, therefore, not liable for any compensation. Irrigation Department issued NOC dated 29.04.2013 with the condition that possession of the flats would not be handed over till completion of the construction work of embankment to hold flood water as the project was in a low lying area. The embankment work had not been completed by the Government till filing of the Compliant, due to which possession of the flats could not be handed over to the Complainants. The drawings of the project were cancelled by Ghaziabad Development Authority in 2011, which were resubmitted on 23.08.2013 and sanctioned on 23.09.2015. Due to the above cancellation and re-sanctioning of drawings, a considerable time was taken affecting the construction of the project as a force majeure condition. Learned Counsel further submitted that some of the Complainants booked their flats in 2014 and their claim was, therefore, pre-mature. Some of the Complainants cancelled their bookings and rebooked their flats afresh in 2017.

6.       Brief facts of the case are that the Complainants purchased residential flats in a Project named “Antariksh Sanskriti” situated at NH- 24, Indirapuram, Ghaziabad, U.P. of the Opposite Party Builder Company. The Complaint had been filed by the Complainants as the said Project in general and the allotted flats of the Complainants in particular was incomplete. The Opposite Party/Builder was not able to complete the Project for more than 8 years from the due date of possession.

7.       It is settled law that the remedy under the Consumer Protection Act is an additional remedy and is not curtailed due to any specific law. The jurisdiction under RERA Act does not curtail the power of this Commission. The argument of the Opposite Party that the Complaint is not maintainable is rejected. Claim of some of the Complainants was pre-mature and some of the Complainants got their booking cancelled and rebooked afresh in 2017. In this regard, it is important to mention that this Commission, vide order dated 11.04.2018 allowed the application for permission to file joint Complaint under Section 12 (1) (c) of the Act. Order dated 11.04.2018 reads thus:

“The application has been opposed by the learned counsel for the OP on the ground that the interest of all the allottees are not common as some of them have not made payment of the full sale consideration. He however, admits that no allotment has been cancelled on account of such non-payment. I have perused the prayers made in the application. The prayers made in the application appear to be in conformity with the requirements of Section 12(1)(c) of the Consumer Protection Act as laid down by a three-Members Bench of this Commission in 07.10.2016 in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. The application is therefore, allowed and the complainants are permitted to file this complaint on behalf of or for the benefit of all the allottees of the aforesaid project who are interested in all the reliefs sought in this complaint, who have no other grievance against the OP, whose allotments have already not been cancelled and who have already not approached either this Commission or any other Court/Forum for the redressal of the their grievances.”

8.       There are 108 Complainants in the instant Complaint. It is obvious that they had booked their respective flats on different dates and also deposited the amount on different dates. The objection raised by the Opposite Party that the Consumer Complaint is not maintainable as some of the Complainants booked their respective flats in 2014 and 2017 is, therefore, rejected as substantial amounts were paid and construction of the project and flats with all amenities is not complete.

9.       Another objection raised by the Opposite Party Builder was that they have not been able to complete the Construction due to force majeure conditions beyond their control. The drawings were cancelled by Ghaziabad Development Authority in 2011 and sanctioned on 23.09.2015. The Opposite Party also took the stand that the Irrigation Department issued conditional NOC that possession of the flats would not be handed over till embankment work was not completed, which was not done till filing of the Complaint, due to which possession could not be handed over. It is inter se dispute between the Opposite Party on one hand and Ghaziabad Development Authority and the Irrigation Department on the other. The Complainants have nothing to do with the same. If the project got delayed due to cancellation of drawings and non-completion of embankment work, the Opposite Party had not produced any evidence that they give an alternative option to the Complainants. The Complainants could not be made to wait for an indefinite period. Attention is drawn to Sivarama sarma jonnalagadda & anr vs. M/s Maruthi Corporation Limited & anr, CC 379 of 2013 decided on 21.09.2021 where it was held that:

 “…keeping in view the Order in the case of Emmar MGF Land Ltd. & Ors. Vs. Amit Puri- {(II 2015 CPJ 568 (NC)}, decided on 30.03.2015 wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation as construction is not complete. We are of the view that that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the Complainant , is not on only an act of deficiency of service but also amounts to unfair trade practice.”

From the above, it is clearly seen that there has been inordinate delay on the part of the Opposite Party/Builder in completing the project. Most of the Complainants paid substantial amount of the total consideration. As per Clause 30 of the Agreement, possession was to be delivered within 30 months from the date of allotment, with 6 months grace period. Opposite Party/Builder failed to construct the Project and handover possession even after expiry of about 6 years. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., Civil Appeal No. 3533-3534 of 2017, decided on 12.3.2018, Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him/her, and is entitled to seek refund of the amount paid by him, along with compensation. Hon’ble Supreme Court in Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, had held as follows:-

“when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.”

10.     In view of the above, we find that the Opposite Party is guilty of deficiency in service as they were not able to deliver possession. The Complainants are therefore entitled for refund of the amount deposited with interest.

11.     In the facts and circumstances of the case, the Opposite Party is directed to refund the entire amount deposited by the Complainants with interest @ 9% p.a. from the date of respective deposits till the date of realization within 3 months, failing which the Opposite Party shall pay the principal amount with interest @ 12% p.a. The Complaint stands disposed on the above terms.