1. The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Parklands Pride Buyers Association registered under the Haryana Registration and Regulation of Societies Act, 2012 (hereinafter to be referred to as the “Complainant Association”), on behalf of its Members against the Opposite Parties, M/s. BPTP Ltd. and M/s. BPTP Parklands Pride Ltd. (hereinafter referred to as “the Developer”) alleging deficiency in service on their part in not handing over the possession of the Apartment booked by the Members of the Complainant Association in terms of Agreement. 02. The facts leading upto the present Complaint are that in the year 2011 the Members of the Complainant Association had booked Apartments/Flats in the Project, namely “Parklands Pride” (hereinafter referred to as the “Project”) proposed to be developed by Opposite Party Developer at Sector 77, Faridabad. Thereafter, Identical Allotment Letters were issued in favour of the Members of the Complainant Association allotting the Units to them. It is stated that after 15-18 months of the booking and paying of more than 30% of the total Sale Consideration by the Allottees, they were forced to sign on dotted line the one-sided Floor Buyers Agreement (hereinafter referred to as the “Agreement”) in the year 2013. As per Clause 5 of the Agreement, the possession of the allotted Apartments was to be handed over to the Members of the Complainant Association within a period of 30 months from execution of the Agreement with an additional 180 days as “Grace Period”. Clause 5 of the Agreement reads as under:- “5. Subject to Clause 13 herein or any other circumstances not anticipated and beyond the control of the Seller/Confirming Party or any restraints/restrictions from any courts/authorities but subject to the purchaser having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this Agreement including but not limited to timely payment of Total Sale Consideration and other charges and having complied with all provisions, formalities, documentation etc. as prescribed by the Seller/Confirming party, the Seller/Confirming Party proposes to offer the handing over the physical possession of the Floor to the Purchaser(s) within a period of thirty (30) months from the date of execution of Floor Buyer’s Agreement. The Purchaser(s) agree and understands that the Seller/Confirming Party shall be entitled to a grace period of (180) one hundred and eight day, after the expiry of thirty (30) months, for filing and pursuing the grant of an occupation certificate from the concerned authority with respect to the building consisting of the three independent residential floors including the floor. The Seller/Confirming Party shall give a notice of possession to the Purchaser(s) wherein the Purchaser(s) will be granted 30 days period to complete the formalities and payment of amount demanded.” 03. It is averred in the Complaint that in terms of afore-extracted Clause 5 of the Agreement, the physical possession of the allotted Apartments, complete in all respect, was supposed to be handed over in or around July 2015 to most of the Members of the Complainant Association. However, all the Allottees have been waiting for the shelter over their head and they have already paid almost 80% to 90% of the total Sale Consideration to the Developer and moreover they have been paying heavy interest on the amount borrowed from the Banks/Financial Institutions for payment of the instalments. It is further stated that almost all the Clauses of the Agreement are unjust, unfair, unilateral and arbitrary. The Developer is at liberty to change the Layout Plan, inter-se area of the Project, increase the super area etc. without the consent of the Allottees. Clauses 2.8 and 5.3 of the Agreement highlight penalty of interest @ 18%p.a. payable by the Allottees in the event of delayed payments and further mentions cancellation of allotment/forfeiture of 20% of the Earnest Money if the arrears continue, however, on the contrary, the Developer is only liable to pay compensation @₹10/- per sq. ft p.m of the Built Up Area for the period of delay in handing over possession in terms of Clause 3.3 of the Agreement. Clauses 9.4 and 9.5 stipulate that the Developer at its own shall designate a Maintenance Agency and the Allottees shall execute a Maintenance Agreement with the said Agency. The Club and the Car Parking area have been illegally excluded from the “Common Area” vide Clause 1.9. 04. On 16.07.2018, the Developer issued “Offer of Possession” to the Allottees of the Project on the basis of so-called “Occupation Certificate” dated 19.06.2018 demanding the outstanding amounts plus stamp duty. However, the so-called Letter of Offer itself states that the Flat is not complete and the Developer is offering possession of “Fit-Outs” and upon payment of the demand, they would issue NOC for the “Fit-Outs” within a period of 60 days. It is averred that the Developer was required to first complete the construction work of the Project and thereafter only they can demand the rest of the amount, if any due. 05. Having been frustrated and feeling cheated by the Developer, the Allottees of the Project formed an Association and in the meeting held on 20.07.2018 with the Developer, the illegal demands regarding escalation of cost, GST Charges, Possession, Enhanced Area, Electricity Electrification and STP charges were discussed and the Developer promised for an amicable solution. Further, the Allottees sent the communications to the Developer protesting the illegal and huge demands as well as to ascertain the exact date of completion of the Project and handing over the physical possession of the booked Apartments. In response, the Developer informed that on the basis of Occupation Certificate they are entitled to recover the outstanding amount even without completion of the entire project and it was further stated that the Units shall be handed over post completion of the final finishing on receipt of the offer of possession payments which includes CP fittings, wooden flooring, switches, final coat of paints etc. It was also informed to the Allottees that since the Occupation Certificate for the Project had been obtained there is no necessity to register the project under RERA. It is stated by the Complainant Association that in the year 2013, the Developer abandoned the Project by stopping the construction work despite having received 70 to 80% of the total Sales Consideration from the Allottees and after a long gap of 42 months the construction work was resumed in the year 2017 which resulted into the abnormal delay in completion of the Project. It is alleged that Developer had collected Preference Location Charges (PCL) on the basis that there would be a beautiful park and good ambience but in reality, there is hardly any park on the boundary of the Project. There are private residential units in place of the Park and the Allottees have paid PLC. The basic amenities like road, electricity sub-station, water connection have also not been provided by the Developer. The promised Recreational Club equipped with a swimming pool, gymnasium, restaurant, spa and sports facilities for table tennis, badminton, squash and poof/billiards has also not been provided by the Developer. It has been alleged that the Allottees of the Project have been left at total mercy of the Developer with a hope that they will be handed over the possession and also paid the compensation for delay thereof. Hence, feeling aggrieved, the Complainant Association has filed the present complaint with the following prayers:- “(a) direct the Opposite Parties to forthwith handover the possession of apartments to the Allottees, complete in all respects and execute all the documents requisite for transferring/conveying the ownership of the apartments to the member Allottees; (b) direct the Opposite Parties to ensure that the construction is completed strictly as per the quality and specification as agreed upon and handover these apartments in habitable conditions and an independent third party audit may be directed to ensure that specifications and quality standards are adhered to by the Opposite Parties. (c) direct the Opposite Parties not to raise demand in the name of increase in the super area till a third party audit ascertains the correct position. (d) direct the Opposite Parties to pay interest at the rate of eighteen percent (18%) per annum compounded quarterly, on the total amount paid by the Allottees to the Opposite Party towards their respective Floors from the date of booking until the actual physical possession of the respective apartments is handed over; (e) direct the Opposite Parties to pay the rent w.e.f. the schedule of date of delivery to the member Allottees who are residing in the rental premises; (f) direct the Opposite Parties to complete and seek necessary governmental clearances including but not limited to infrastructural and other facilities including road, water, sewerage, electricity, fire safety, environmental, etc., before handing over the physical possession of the Floors; (g) direct the Opposite Parties to hand over the club house and car parking complete in all respects while handing over of the Floors; (h) direct the Opposite Parties to refund with interest the charges collected under the heads of “parking”, “club membership” and “administrative charges” towards transfer of apartments, to the respective Allottees; (i) direct the Opposite Parties to provide the third party audit to ascertain/measure accurate areas of the apartments and facilities, more particularly, as to the “super area” and “built-up area”; (j) direct the Opposite Parties to pay an additional sum of Rs. Fifteen (15) Lacs towards undue hardship and injury both physical and mental caused to each of the Allottees due to the acts of omission/commission on the part of the Opposite Parties. (k) direct the Opposite Parties to pay at least a sum of Rs. Ten (10) lacs to the Complainant towards the cost of litigation. (l) direct the Opposite Parties to refrain from giving effect to the unfair clauses unilaterally incorporated in the Standard Terms and Conditions for Provisional Allotment; (m) pass such order or further order as this Hon’ble Commission deems fit and proper in the facts and circumstances of the present case.” 6. The Opposite Party Developer has filed its Written Version and has denied the contents of the Complaint, further raising the Preliminary Issues that the Members of the Complainant Association are not entitled to file joint complaint and claim pecuniary jurisdiction of this Hon’ble Commission by adding the value of the claim of each allottee; each member has entered into separate Floor Buyer’s Agreement on different dates for different floor size under different payment schemes; Complainant is not a Voluntary Consumer Association for the purpose of Section 12 of the Act; the matter has to be referred to the Arbitration Proceedings in terms of the Clause 33 of the Agreement which provides redressal of disputes through arbitration; there is no privity of contract between the Complainant Association and the Developer and the Members of the Association has to file a separate complaint. 07. On merits, it is, inter-alia, pleaded that; construction of the Project is complete and possession has been offered of 54 Units from amongst 63 Members of the Complainant Association; they are making best efforts to conclude construction activities and to hand over possession of the units to the respective Allottees; the Members of the Complainant Association were well aware that the independent floors were purchased on the basis of total built up area to be finalised at the time of offer of possession; in terms of the Agreement, the Allottees are bound to pay Basic Sale Price (BSP), External Development Charges (EDC), Preferential Location Charges (PLC), Infrastructure Development Charges (IDC), Value Added Tax (VAT), Maintenance Charges, Interest Free Maintenance Security (IFMS) and Security Deposit and other charges including Enhanced External Development Charges, or any tax levied by the Government, Super Built Up area has not been increased and the Members of the Association were aware that the final Super Built Up area will be determined at the time of offer of possession; the Developer had completed the Internal Development Work in the Colony and laid roads, storm water line, water lines, sewerage network, street light etc. and only after completion of the said work, applied for Occupation Certificate.; there is no delay in completing the project; offer of possession has been made to the 54 Allottees before filing the Complaint but they are not coming forward to take possession; 08. All other averments made in the Complaint have been specifically denied by the Developer and prayed dismissal of the Complaint with exemplary costs. 09. It would not be out of place to mention here that during the pendency of the Complaint, I.A. No. 7724 of 2019 was filed seeking impleament of 11 new Member Allottes and the said application was allowed vide order dated 14.05.2019. Further, I.A. No. 1491 of 2021 and I.A.No. 4373 of 2021 were filed by Mr. D.L. Sharma and Mr. Anuj Kaushik, respectively seeking deletion of their names from the Members of the Complainant Association. For the reasons stated in the application, the same are allowed and their names stand delated. 10. For ready reference, the necessary details of Name of Allottee, Unit Number, Date of Booking, Date of execution of Agreement, Date of Occupation/Completion Certificate and Date of Offer of Possession, as provided by the Developer alongwith written submissions, are given below:- Sr. No. | Name of the Allottee | Unit No. | Booking Date | BBA/FBA Execution date | OC/CC Date | OOP sent date | 1 | Sushil Kumar Sharma | PB-188-FF | 23-Apr-2011 | 28-Feb-2013 | 23-May-18 | 16-Jul-18 | 2 | Munish Dewan | PB-234-SF | 12-May-11 | 18-Spt-2012 | 23-May-18 | 19-Jul-18 | 3 | Anju Kaul | PB-220-SF | 11-Apr-11 | 15-Sept-15 | 23-May-18 | 16-Jul-18 | 4 | Sachit Kumar | PA-160-FF | 9-Apr-11 | 05-Dec-12 | 23-May-18 | 16-Jul-18 | 5 | Susmita Guru | PB-246-FF | 19-Jul-12 | 10-Dec-12 | 23-May-18 | 19-Jul-18 | 6 | Sheilender Singh Chouhan | PA-157-FF | 7-Jun-11 | 08-Oct-12 | 23-May-18 | 16-Jul-18 | 7 | Bhawna | PB-186-GF | 13-Apr-11 | 19-Sept-12 | 23-May-18 | 16-Jul-18 | 8 | Prem Lata Chugh | PB-87-SF | 1-Sept-11 | 15-Oct-12 | 27-Dec-19 | 18-Mar-20 | 9 | Himali Kaw | PB-202-SF | 24-Nov-11 | 26-Nov-12 | 23-May-18 | 17-Jul-18 | 10 | Tarun Malhotra | PB-189-GF | 9-May-11 | 14-Jan-13 | 23-May-18 | 16-Jul-18 | 11 | Sukhada Chaturvedi | PB-187-GF | 13-Apr-11 | 04-May-12 | 23-May-18 | 16-Jul-18 | 12 | Bijender Singh | PB-195-GH | 17-Jun-11 | 14-Dec-12 | 23-May-18 | 16-Jul-18 | 13 | Sitaram Kashyap | PB-221-GF | 20-Apr-11 | 16-Jan-13 | 23-May-18 | 16-Jul-18 | 14 | Deependra Dwivedi | PA-163-SF | 14-Apr-11 | 19-Aug-13 | 23-May-18 | 16-Jul-18 | 15 | Vishal Vishwas | PB-201-FF | 17-Aug-11 | 27-Sept-12 | 23-May-18 | 17-Jul-18 | 16 | Vivek Choudhary | PB-214-FF | 31-Aug-12 | 07-Jan-13 | 23-May-18 | 19-Jul-18 | 17 | Annu Sehra | PB-200-FF | 20-Apr-11 | 19-Nov-12 | 23-May-18 | 17-Jul-18 | 18 | Rahul Tyagi | PB-246-GF | 02-May-11 | 27-Sept-12 | 23-May-18 | 19-Jul-18 | 19 | Harish Chander Khatri | PB-245-FF | 11-Apr-11 | 11-Jun-13 | 23-May-18 | 19-Jul-18 | 20 | Lokesh Chandra | PB-218-SF | 28-Jul-12 | 03-Jan-13 | 23-May-18 | 17-Jul-18 | 21 | Renu Gupta | PB-214-GF | 04-May-11 | 10-Oct-12 | 23-May-18 | 19-Jul-18 | 22 | Ajay Malhotra | PB-186-SF | 03-May-11 | 31-Jul-12 | 23-May-18 | 16-Jul-18 | 23 | Ajay Malhotra | PB-227/SF | 10-May-11 | 06-Dec-12 | 23-May-18 | 16-Jul-18 | 24 | Popinder Singh Rao | PB-212-FF | 22-Jun-12 | 12-Dec-12 | 23-May-18 | 19-Jul-18 | 25 | Usha Chopra | PB-200-SF | 20-Apr-11 | 09-Nov-12 | 23-May-18 | 16-Jul-18 | 26 | Usha Chopra | PB-200-GF | 20-Apr-11 | 09-Nov-12 | 23-May-18 | 16-Jul-18 | 27 | Ravi Bhushan | PB-77-SF | 09-Nov-11 | 27-Sept-12 | 23-May-18 | 17-Jul-18 | 28 | Amrinder Singh Gill | PB-213-GF | 03-May-11 | 27-Sept-12 | 23-May-18 | 16-Jul-18 | 29 | Anjana Dinesh | PB-242-FF | 09-Nov-11 | 23-May-12 | 23-May-18 | 19-Jul-18 | 30 | Satya Parkash Gupta | PB-202-GF | 13-Apr-11 | 18-Sept-12 | 23-May-18 | 16-Jul-18 | 31 | Anil Kumar Dugaya | PA-202-SF | 23-Apr-11 | 03-Oct-12 | 02-Jun-18 | 16-Jul-18 | 32 | Narinder Kumar | PA-160-SF | 05-Jul-11 | 27-Sept-12 | 23-May-18 | 19-Jul-18 | 33 | Rajesh Kumar Sharma | PB-82-SF | 11-Apr-11 | 24-Jul-13 | 23-May-18 | 17-Jul-18 | 34 | Neha Aggarwal | PB-187-FF | 19-Jan-12 | 17-Mar-15 | 23-May-18 | 16-Jul-18 | 35 | Sachin Mehta | PA-153-FF | 11-Jun-11 | 03-Oct-12 | 23-May-18 | 16-Jul-18 | 36 | Param Jeet Kaur | PA-22-FF | 11-Apr-11 | 23-Oct-12 | 23-May-18 | 16-Jul-18 | 37 | Rahul Kumar Mittal | PB-71-SF | 14-Jun-11 | 12-Jan-15 | 23-May-18 | 16-Jul-18 | 38 | Medha Gupta | PB-243-FF | 12-Apr-11 | 26-Nov-12 | 23-May-18 | 04-Aug-18 | 39 | Kulbir Singh | PA-154-FF | 11-Apr-11 | 18-Sept-12 | 23-May-18 | 16-Jul-18 | 40 | Mansi Behl | PB-193-SF | 13-Apr-11 | 25-Nov-12 | 23-May-18 | 16-Jul-18 | 41 | Apporv Prakash Srivastava | PB-190-SF | 07-Apr-12 | 10-Dec-12 | 23-May-18 | 16-Jul-18 | 42 | Deepak Dass | PA-170-SF | 30-Jun-11 | 25-Sept-12 | 20-Jan-20 | 18-Mar-20 | 43 | Amit Kanti Maiti | PB-95-FF | 21-Apr-11 | 05-Jun-12 | 20-Jan-20 | 18-Mar-20 | 44 | Dinesh Kumar Sharma | PA-173-GF | 09-Apr-11 | 03-May-13 | 20-Jan-20 | 18-Mar-20 | 45 | Jasbir Singh | PA-159-FF | 03-May-11 | 25-Sept-12 | 23-May-18 | 16-Jul-18 | 46 | Vikram Chopra | PA-127-SF | 13-Apr-11 | 04-May-18 | 23-May-18 | 16-Jul-18 | 47 | Vikram Chopra | PA-125-GF | 15-Apr-11 | 05-Feb-14 | 23-May-18 | 16-Jul-18 | 48 | Ripun Kapur | PA-207-FF | 18-Apr-11 | 22-Nov-12 | 02-Jun-18 | 16-Jul-18 | 49 | Shan Ahmed Quadri | PA-156-SF | 17-Aug-11 | 28-Jan-13 | 23-May-18 | 16-Jul-18 | 50 | Charitra Vir Singh | PB-243-SF | 30-Sept-11 | 24-May-12 | 23-May-18 | 21-Aug-18 | 51 | Dharam Vir Maan | PA-21-FF | 12-Apr-11 | 25-Sept-12 | 23-May-18 | 16-Jul-18 | 52 | Santosh Kumar Gupta | PB-74-SF | 07-Jul-11 | 14-Sept-12 | 23-May-18 | 19-Jul-18 | 53 | Prateek Sagar | PB-229-SF | 09-Dec-11 | 21-Feb-13 | 23-May-18 | 17-Jul-18 | 54 | Surender Kumar Malik | PA-167-SF | 30-Jun-11 | 01-Aug-12 | 20-Jan-20 | 31-Oct-19 | 55 | Ashwani Sharma | PA-176-FF | 10-May-11 | 25-Dec-12 | 27-Dec-19 | 19-Mar-20 | 56 | Satyender Verma | PB-54-SF | 05-Aug-11 | 08-Jan-13 | 02-Jun-18 | 25-Jul-18 | 57 | Pankaj Sikdar | PA-178-FF | 14-Jul-11 | 20-Dec-12 | 27-Dec-19 | 19-Mar-20 | 58 | Laxman Singh | PB-55-GF | 13-Apr-11 | 04-Jan-13 | 02-Jun-18 | 25-Jul-18 | 59 | Amrinder Singh Mainee | PB-51-SF | 10-May-12 | 05-Dec-12 | 23-May-18 | 25-Jul-18 | 60 | Pradeep Kumar Bajaj | PA-186-SF | 10-Apr-12 | 30-May-13 | 27-Dec-19 | 19-Mar-20 | 61 | Rev Victor Peter | PA-185-GF | 24-Dec-12 | 26-Feb-13 | 25-Mar-21 | 18-Jan-20 | 62 | Veena Bharti | PA-27-FF | 28-Apr-11 | 10-Sept-12 | 23-May-18 | 16-Jul-18 | 63 | Beenu Sharma/Tek Chand | PB-217-GF | 13-May-11 | 25-Jul-12 | 23-May-18 | 16-Jul-18 | 64 | Ram Chander Sharma | PA-22-GF | 12-Apr-11 | 25-Sept-12 | 23-May-18 | 16-Jul-18 | 65 | Ruchi Rajgarhia | PB-242-GF | 12-Apr-11 | 09-Jul-14 | 23-May-18 | 16-Jul-18 | 66 | Parveer Singh | PA-183-SF | 22-Apr-11 | 20-Dec-12 | 25-Mar-21 | 17-Jan-20 | 67 | Suman Devi/ Santosh Yadav | PA-165-FF | 31-May-11 | 10-Dec-12 | 02-Jun-18 | 16-Jul-18 | 68 | Pulkit Joneja | PB-114-FF | 09-Apr-11 | 29-Dec-14 | 27-Dec-19 | 11-Jun-19 | 69 | Ashish Dubey | PB-72-SF | 10-May-11 | 19-May-13 | 23-May-18 | 16-Jul-18 | 70 | Kamlesh Bajaj | PB-239-SF | 31-May-11 | 25-Sept-12 | 23-May-18 | 16-Jul-18 | 71 | Neeraj Sharma/Neeti Arora | PB-64-SF | 22-May-12 | 05-Dec-12 | 02-Jun-18 | 25-Jul-18 | 72 | Vinish Bhatiya | PB-67-SF | 19-Oct-11 | 25-Mar-13 | 02-Jun-18 | 16-Jul-18 |
11. We have heard the Learned Counsel for the parties at some length and also perused the material available on record as well as the evidence adduced by the parties and the Written Submissions filed by them. 12. Learned Counsel appearing for the Complainant Association strenuously submitted that as per Clause 5.1 of the Agreement, the possession of the booked Apartments was to be handed over within a period of 30 months from the date of execution of respective Agreements whereby the Developer very shrewdly added another period of 15-18 months by delaying the execution of the Agreement from the date of booking. The Developer was charging interest @18% p.a. for the delayed payment but was liable to pay the meagre compensation @₹10/- per sq. ft p.m of the Built Up Area for the period of delay in handing over possession. As the Project was not complete in time, the Allottees requested the Developer for registration of the Project under the provisions of RERA but the said request was rejected by them. The Developer issued Offer of Possession to some of the Allottees on 16.07.2018 demanding outstanding/enhanced amount and stamp duty but the said Offer Letter itself conceded that the Flat was not complete and possession was being offered for “Fit Outs” and upon payment of demand, they would issue “No Objection Certificate” for the Fit Outs within a period of 60 days. It is urged by him that demand of ₹24,00,000/- was made by the Developer against the due of ₹10,00,000/- payable on delivery of habitable Flat, complete in all respect. The Developer deliberately avoided the specific requests of the Allottees for site visit to ascertain the exact ground reality of the Project and also threatened them with cancellation of the Flats for non-payment of dues. The Allottees have taken the loan from the Bank/Financial Institutions and paying the interest at higher rate. No bifurcation has been given by the Developer for charging the EDC/IDC to ascertain whether the same have been charged as per the rules/guidelines framed by the State Government or the Developer on its own. The Opposite Party Developer has also made undue demand on account of escalation of cost, GST charges, PLC, Enhanced Area, Electricity, Electrification and STP charges. Further, the basic amenities like road, electricity sub-station, water connection and swimming pool, gymnasium, restaurant, spa, sports etc. as promised in the Brochure, have not been provided by the Builder. 13. Per contra, Learned Counsel appearing for the Developer rigorously pleaded that the Project consisting of 663 Units was completed in all respect in the early 2018 including roads, storm water line, water lines, sewerage network, street lighting etc. The Occupation Certificate of different floors started coming from the month of May 2018 onward and accordingly Offer of Possessions was made to the Allottees and presently about 270 families are residing in the said project. He further submitted that out of 72 Members, 15 Members have other Units at BPTP and 10 Members are Subsequent Allottees and as such they are not the Consumers and not entitled for any relief. The delay, if any, in the completion of the Project is due to change in the Government policies. On 16.03.2010, a notification regarding self-certificate scheme was issued by the Town and Country Planning, Govt. of India wherein any person could construct building in the licensed colony by applying for approval of Building Plans by giving 15 days’ notice to the Director or office of the Department concerned. The Developer applied for the Building Plan under Self Certificate Scheme, however, they never received any objections from the Department. Further, on 08.01.2014, the Department issued a notice granting 90 days to submit requests for regularization of construction and the Developer resubmitted the Building Plans to expedite the process. However, on 08.07.2015 it was clarified by the Department that the policy of self-certification was not applicable to the Project in question. The compensation for the delay, if any, in completion of the Project has to be awarded in terms of Clause 5.3 of the Agreement which was signed by the Allottees without any dispute. It is submitted by him that all the Apartments are in habitable condition which can firstly be established from the photographs produced on record and secondly at present 611 families are residing in the said Project. All the necessary and basic amenities have been provided by the Developer. As per the terms of agreement, the EDC/IDC forms part of the total Sale Consideration and it was also agreed to pay by the Allottees. Learned Counsel for the Developer further urged that the Allottees specifically agreed to pay BSP, EDC, PLC, IDC, VAT, Maintenance, IFMS, EEDC and STP and further there is no change by the Developer on the IDC demand, VAT, TDS, EDC/IDC as all these are statutory charges. He further stated that the demand towards Preferential Location Charges was made as per the terms of the Agreement executed between the parties starting from the year 2011. It is submitted that as per Clause 20.15, it was agreed between the parties that the cost of built up Unit is based on the cost of construction rates applicable in December 2010 and there may be some escalation in the actual costs. He categorically submitted that the Occupation Certificates of the respective Units have been obtained by the Developer after completion of the construction and payment of all the statutory dues. 14. We have given our thoughtful consideration to the Arguments advanced by Learned Counsels. 15. So far as, the preliminary issue raised by the Developer that the Complainant Association is not entitled to file joint complaint and claim pecuniary jurisdiction is concerned, we do not find any substance in the said submission. Section 2(d) of the Act defines “Consumer” as under:- "(d) consumer' means any person who— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes; Explanation:------------------------------------------------------------ -------------------------------------------------------------------------------------------- As per Section 2(m) ‘person includes:- "(i) a firm whether registered or not; (ii) a Hindu undivided family; (iii) a co-operative society; (iv) every other association of persons whether registered under the Societies Registration Act 1860 (21 of 1860) or not;" 16. Reading Section 2(d) with Section 2(m), it becomes clear that every Association of Persons whether registered under the Societies Registration Act, 1860 or not, can file a complaint before the Consumer Forum. In the present case, the Complainant Association is registered under the Haryana Registration and Regulation of Societies Act, 2012. The objection raised in this regard is, therefore, rejected. 17. With regard to the contention of the Developer that as per Clause 33 of the Agreement, the matter has to be referred to Arbitration proceedings only, the Hon’ble Supreme Court in M/S Emaar MGF Land Limited vs.Aftab Singh – I (2019) CPJ 5 (SC), has laid down the law that an Arbitration Clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the objection raised is unsustainable. 18. Another objection raised on behalf of the Developer is that out of the total 72 Members of the Complainant Association, 15 Members have other Units at BPTP and 10 Members are subsequent Allottees and as such they are not the Consumers. With regard to the objection that 15 Members of the Complainant Association have other Units at BPTP and they are not the Consumers as defined u/s 2 (1)(d) of the Act, the said objection is 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 of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore, the said objection is ruled out. Further, so far as the objection that the subsequent purchasers are not the Consumers, is concerned, a reference can be made to the decision of the Hon’ble Supreme Court in “Laureate Buildwell Pvt. Ltd. vs. Charanjeet Singh” [2021 SCC OnLine SC 479], in which it has been held that subsequent purchaser who takes over the obligation of the Original purchaser to pay the balance amount, would not per se exclude them from the description of a Consumer. 19. The main thrust of the Arguments of the Learned Counsel for the Complainant Association is that the Developer was not justified in demanding the enhanced amount along with the Offer of Possession and no bifurcation has been provided by the Developer for charging the EDC/IDC, as to whether these charges were demanded according to the rates prescribed by the State Government or the same have been arbitrarily imposed by the Developer. It is further energetically argued that the Developer has made undue demands on the pretext of escalation of Costs, GST Charges, Preferential Location Charges, enhanced Area, Electricity, Electrification, STP Charges, Parking Charges and Club Membership Charges. However, Learned Counsel for the Developer has urged that as per Clause 2 and other terms of the Agreement which were duly signed by the Allottees, the EDC and IDC are the part and parcel of the Total Sales Consideration and reimbursable to the State Government by the Developer on the basis of proportionate cost incurred on account of infrastructural development. The Allottees have also agreed to pay the BSP, EDC, PLC, IDC, VAT, Maintenance, IFMS, EEDC and STP and further there was no change by the Developer on the IDC demand, VAT, TDS, EDS/IDC as these are the Statutory charges. 20. In Clause 2.13 of the Agreement, it is mentioned that “the final Built-up Area of the Floor shall be determined after completion of construction of the Building consisting of three independent residential Floors. After accounting the changes, if any, on the date of possession, the final and confirmed area shall be incorporated in the Conveyance Deed. Any increase or decrease in the Built Up Area of the Floor shall be payable or refundable as the case may be without any interest. As such the Allottees cannot deny to pay the charges on account of any increase in the area of the Built Up Area. Even in the case of DLF Home Developers Ltd. and Ors. Vs. Capital Greens Flat Buyers Association and Ors. - (2021) 5 SCC 537, the Hon’ble Supreme Court has held that the Developer is entitled to charge the additional amount on account of any increase in the Super/Built Up Area, if any. However, it is made clear that charging of additional amount on this account would be subject to any increase in the Built Up Area as prescribed in the terms and conditions of the Agreement. Similarly, the Developer is entitled to charge the amount on account of cost escalation in terms of Clause 20.12 of the Agreement whereby it has been specifically mentioned that “the cost of “Built UP Unit” is based on the cost of construction rates applicable on December 2010 and in case actual cost of the construction upon completion of the Project escalates or decreases the proportion of more than 5% then the difference in the cost will be charged for refunded to the Applicants. As such the Developer is entitled to charge the enhanced costs as per the formula given in Clause 20.12 of the Agreement. With regard to the electrification and STP Charges, Clause 2.3. of the Agreement authorises the Developer to claim such charges from the Allottees. As such, the Allottees are liable to pay the said charges. So far as the enhanced demand on account of Service Tax, GST and Value Added Tax is concerned, the Clause 2.3 of the Agreements specifies that the Purchasers agree that in fresh incidents of Statutory dues by any of the Authority or increase on such account even if it is with retrospective in effect, shall be borne by the Purchaser in proportion to the Built Up area of the Floor. In catena of the judgments, it has been held by the Hon’ble Supreme Court that these are the statutory demands and the Home Buyer cannot escape from paying the same. We are also of the view that in terms of the provisions contained in Clause 2.3 of the Agreement, the Developer is justified in charging the amount on account of Preferential Location Charges as per the rates given thereof, Club Membership Charges, enhanced External Development Charges and Development Charges. However, we make it clear here that before demanding the aforesaid charges from the Allottees, the Developer shall furnish the details of all the charges to the Allottees and also give the reasons for enhancement of the charges, if any. 21. Now, adverting to the question of delay in completion of the Project, a bare perusal of the afore-extracted Chart would reveal that most of the Members of the Complainant Association had booked their Flats/Apartments during the period from April 2011 to July 2012 and the respective Agreements were executed between the Parties during the period from September 2012 to July, 2013. As per Clause 5.1 of the Agreement, the Developer was under an obligation to complete the Project with all facilities and amenities and to hand over the possession of the booked Apartments to the Allottees, complete in all respect, within a period of 30 months from the date of execution of the Agreement with a grace period of 180 days for the purpose of applying and obtaining Occupation Certificate. However, the Developer has miserably failed to complete the Project by the commitment period of July 2015 despite having received the huge amount i.e. about 80% to 90% of the total Sale Consideration from the Allottees of the Project. There is no denial to the fact that the Offer of Possession was made by the Developer to the Allottees on 16.07.2018 after obtaining the Occupation Certificate dated 19.06.2018. Admittedly, there is delay of 3 years in completion of the Project. The only defence taken by the Developer for the delay of the Project is that there was confusion with regard to the Self-Certificate Scheme issued by the Town and Country Planning, Government of India on 16.03.2010 and the confusion was cleared by the concerned Department only in the year 2015. The said circumstance, according to the Developer was beyond its control therefore, the Allottees are not entitled to any compensation for the period the possession has been delayed on account of the aforesaid factors. In our view, the said ground cannot be construed as a force majeure circumstance and there is deficiency in service on the part of the Developer. Apart from this, the Developer has failed to adduced any other documentary evidence justifying the delay in completion of the Project and handing over the possession to the Allottees. As such, the Allottees are entitled for a reasonable compensation on account of delay of 3 years in the completing the Project in question. 22. According to the learned Counsel for the Developer, the Allotters are bound by the terms and conditions of the Agreement and Compensation, if any, should not be whimsical and mythical and it has to be granted @₹10/- per sq. ft p.m of the Built Up Area for the period of delay in handing over possession in terms of Clause 3.3 of the Agreement. On the contrary, learned Counsel for the Complainant Association emphatically submitted that since the Developer was charging interest @18% p.a. for the delayed payment, they are also liable to pay compensation at the same rate for the delayed possession to maintain the balance of equity. 23. At this juncture, we are of the considered view that it is a fit case to place reliance upon the decision of the Hon’ble Supreme Court of India in the case of "Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors." [Civil Appeal No. 5785/2019 & other connected Appeals decided on 11.01.2021 whereby in the similar circumstances, the Apex Court with regard to the terms of conditions of the Agreement, has observed as under:- " We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An unfair contract has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement" 24. The Hon'ble Supreme Court on the issue "Whether the Apartment Buyers are entitled to terminate the Agreement, or refund of the amount deposited with Delay Compensation" held as under:- " In the present case, the allottees before this Court in the present batch of appeals, can be categorised into two categories:- i) Apartment Buyers whose allotments fall in Phase 1 of the project comprised in Towers A6 to A10, B1 to B4, and C3 to C7, where the Developer has been granted occupation certificate, and offer of possession has been made, are enlisted in Chart A; ii) Apartment Buyers whose allotments fall in Phase 2 of the project, where the allotments are in Towers A1 to A5, B5 to B8, C8 to C11, where the Occupation Certificate has not been granted so far, are set out in Chart B below. ........... Chart A allottees (i) We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees. ........ Chart B allottees (i) Insofar as the allottees in Chart B are concerned, they have paid part consideration, in most cases up to the 4th instalment till 2017, when they found that there was no progress being made in respect of the Towers in which the apartments had been allotted to them. It is an admitted position that Occupation Certificate for Towers A1, A2, A3, B7, C9 and C11, in which the allotments have been made for this category has not been issued by the Municipal Corporation. The apartments have not been ready for allotment even as on 30.06.2020, as per the date fixed before the RERA Authority. (ii) The allottees submitted that they were facing great hardship since they had obtained loans from Banks for purchasing these apartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they were constrained to file consumer complaints before the National Commission, and then discontinued payment of further instalments. (iii) The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks. Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them. (iv) In so far as award of compensation by payment of Interest is concerned, clause 13.4 of the Apartment Buyer's Agreement provides that the Developer shall be liable to pay the allottee compensation calculated @ 7.5 per sq. ft. of the Super Area for every month of delay, after the end of the Grace Period. The compensation will be payable only for a period of 12 months. The Apartment Buyers in their Complaint filed before the National Commission made a prayer for refund of the amount deposited alongwith Interest @ 20% p.a. compounding quarterly till its realisation. The Apartment Buyers, in their submissions have stated that they have obtained home loans on which Interest @ 7.90% p.a. is being paid, even as on date. We have considered the rival submissions made by both the parties. The Delay Compensation specified in the Apartment Buyer's Agreement of 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on the amount deposited by the Apartment Buyer cannot be accepted as being adequate compensation for the delay in the construction of the project. At the same time, we cannot accept the claim of the Apartment Buyers for payment of compound interest @ 20% p.a., which has no nexus with the commercial realities of the prevailing market. We have also taken into consideration that in Subodh Pawar v. IREO Grace, this Court recorded the statement of the Counsel for the Developer that the amount would be refunded with Interest @ 10% p.a. A similar order was passed in the case of IREO v. Surendra Arora. However, the Order in these cases were passed prior to the out-break of the pandemic. We are cognizant of the prevailing market conditions as a result of Covid-19 Pandemic, which have greatly impacted the construction industry. In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fair play that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount. The refund will be paid within a period of three months from the date of this judgment. If there is any further delay, the Developer will be liable to pay default interest @ 12% S.I. p.a. (v) The Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC." 25. In the Abhishek Khanna’s case (supra), the Hon’ble Supreme Court has categorized the Allottees/Home Buyers in two Charts. Chart ‘A’ pertains to those towers/Buildings where the Occupation Certification has been granted to the Developer and the Apex Court has held that since the Occupation Certificate has been obtained by the Developer, the Allottee cannot seek the refund of the deposited amount and they are bound to accept the offer of possession. Chart ‘B’ belongs to those Towers where the Occupation Certificate has not been obtained by the Developer and the Hon’ble Supreme Court has directed the Developer to refund the amount deposited by the purchasers with interest @9% p.a as the Purchasers cannot be asked to wait indefinitely for delivery of the possession of the booked Apartments/Flats. 26. In the case in hand, there is no dispute that the Offer Of Possession was made by the Developer to the Members of the Complainant Association on 16.07.2018 after obtaining the Occupation Certificate dated 19.06.2018. However, it is urged by the learned Counsel for the Complainant Association that the basic amenities like road, electricity sub-station, water connection have not been provided by the Developer. The promised Recreational Club equipped with a swimming pool, gymnasium restaurant, spa and sports facilities have also not been provided by the Developer. As against this, learned Counsel appearing for the Developer submitted that the Project was completed in all respects including roads, storm water line, water lines, sewerage network, street lighting etc. and at present 270 families are residing the in the said Project. 27. During the pendency of the Complaint, I.A No. 3452 of 2021 was filed by the Complainant Association seeking permission to place on record Affidavits of some Home Buyer residing in the Project. In one of the said Affidavits sworn on 17.01.2011 by one Ms Shalini David, it is stated as under:- “3. I say that the following facilities were not constructed/available at the time of deriving the position of my flat and the Responded promised and assured that the facilities would be created and given position thereof very shortly. Even after 24 months, neither the facilities have been constructed nor till date is there any sign of construction of these facilities at the Parklands pride complex: (i) Club (Gym and swimming pool as part of club) (ii) Sports arena at PB Block (iii) STP and WTP (iv) Approved sanctional load for electricity (v) Water connection from HUDA & Sewer connection to main line (vi) Rain Harvesting system (vii) High school and Junior School (viii) Temple/Religious Building (ix) Shopping complex (x) Milk and vegetable Booths (xi) Volleyball Court, Cricket pitch & Rubber flooring in 2 parks (xii) Three tier security (Boundary walls, Entry Gates, Boom Barrier, CCTV to be made functional 4. I say that non construction/provision of the above facilities is a glaring example of the deficiency of service on the part of the Respondent. 28. Similar Affidavits of some other Home Buyers residing in the Project, namely, “Parklands Pride” have been filed by the Complainant Association stating that the basic facilities are yet to be provided by the Developer. Even, on going through the record, we also find that the Occupation Certificate obtained by the Builder on 19.06.2018 has not been placed on record. Under these circumstances, we have been left with no option except to accept that the Project is still not complete and the Allottees as has been held by the Apex Court in Abhishek’s Khanna case (supra), cannot be asked to wait indefinitely for handing over the possession of the booked Apartment, complete in all respects as per the terms and conditions of the Agreement. Therefore, if the Allottees are not interested to take the possession of their respective Apartments as the Project is still not complete they are very much within their right to seek refund of the amount deposited with the Developer with some reasonable compensation despite of the fact that no such prayer of refund has been made by them. 29. Respectfully following the principle laid down by the Hon’ble Supreme Court in the case of “Abhishek Khanna’s case (supra) the present Consumer Complaint stands disposed off in following terms:- (i) The Members of the Complainant Association are directed to take possession, if they so desire, of the booked Apartments after completion of the Project as per the terms of the Floor Buyer’s Agreement; (ii) The Opposite Party Developer shall furnish the complete details of the outstanding amount to the Allottees with the reason of enhancement, if any; (iii) The Opposite Party Developer is directed to pay Delay Compensation in the form of simple interest @9% p.a. on amount deposited by the Allottee for the period of delay which has occurred from the committed date of possession including grace period till the date of the offer of possession, i.e., 16.07.2018 as the Occupation Certificate (O.C.) had been issued on 19.06.2018. (iv) The Opposite Party Developer shall work out the Delay Compensation after making adjustment of the outstanding charges payable by the Complainants and make payment of the Compensation to the Complainants within six weeks from today; (v) After adjusting the Delay Compensation, if any amount remains payable by the Allottee, then the Allottee will make the payment of the shortfall to the Opposite Party Developer within six weeks from today; (vi) The Opposite Party Developer shall deliver the possession of the allotted Apartments to the Allottees, if not already delivered, within eight weeks from today; and (vii) In case, the Allottee is not interested to take possession of allotted Apartment, the Developer shall refund the entire deposited amount with interest @ 9% p.a. from the respective date of deposit till 16.07.2018, i.e., the actual date of offer of possession, within a period of six weeks from today failing which the amount shall carry interest @ 12% p.a. for the same period. The Allottee shall also be entitled for a sum of ₹50,000/- as costs of litigation. 30. Interim application, if any pending, also stands disposed off. | 
