PER MR SUBHASH CHANDRA, MEMBER

                This is a complaint under section 21 (a) (1) of the Consumer Protection Act, 1986 that has been filed by 22 members of the complainant association which is a registered association registered under the Societies Registration Act, 1860 against the opposite party – Jaiprakash Associates Ltd., under section 12 (1) (b) of the Act, with respect to the respective apartments booked by individual members of the association in the project “Kasablanca” Jaypee Wish Town, Sector 128 Noida, promoted and developed by the opposite party alleging deficiency in service and unfair trade practice and seeking refund of their money along with interest and compensation.

2.     The brief facts of the case are that in the year 2012, the opposite party had promoted the above said project as a part of an integrated township called Jaypee Greens being developed by it. The members of the association had booked the apartments in the said project on various dates between 2012-2013 for varying sale considerations based upon the super built areas of the respective flats with varying components such as PLC, parking etc. Provisional allotment letters were issued to individual allottees and the opposite party promised the delivery of the respective flats within 45 months plus six months grace period from the date of allotment. According to the complainants, the flats have not been delivered individually as per the commitment whereas they should have been delivered during 2016-2017. It has been stated that as per clause 9.1.5 (a) allottees were entitled to cancel the booking, on the failure of the opposite party to deliver the flat within time with 12% interest. Complainants have claimed that non-delivery of the flat amounts to deficiency in service and by continuing to demand and accept payments, the opposite party is also guilty of unfair trade practice. The complainants are before this Commission with the following prayer:

1. Direct the opposite party, to refund the entire amount paid by each member of the complainant society, along with compensation in the form of interest @ 18% per annum, from the date of deposit till the date the amount is refunded to the concerned member;
2. Direct the opposite party to pay compensation of Rs.10.00 lakh to each member of the complainant society for the harassment, mental agony and anguish caused to them;

3. Direct the opposite party to pay a sum of Rs.50,000/- to each member of the complainant society, towards litigation costs; and

4. Pass any other and further relief which the Hon’ble Commission thinks fit and proper in the facts and circumstances of the case in favour of the complainant and against the opposite party.

3.     The opposite party has contested the complaint through evidence and by way of affidavit. It has been denied that there is any deficiency in service on the part of the opposite party. It is averred that some members have been defaulters as they have failed to pay the instalments as per the plan of payments. Further, it is alleged that the complaint is liable to be dismissed on account of non-joinder of parties, since Jaypee Infratech Ltd., (JIL) has not been impleaded by the complainants. It has also been averred that the complainants are not “consumers” within the purview of section 2 (1) (d) of the Consumer Protection Act, 1986, since they have booked more than one apartment which is clearly for the reasons of speculating in the real estate market as some complainants are Directors in Real Estate firms. The opposite party has relied upon the judgment of National Consumer Disputes Redressal Commission/ Hon’ble Supreme Court in Anil Dutta vs BPTP – IV (2013) CPJ 349 (NC) wherein reference has also been made to Chilkuri Adarsh vs Ess Vee Constructions – III (2012) CPJ 315 and Indrajit Dutta vs Samriddhi Developers Pvt. Ltd., and Ors. – 11 (2015) CPJ 342 (NC) wherein it has been held that:

“6.    Learned counsel for respondent has placed reliance on judgment of this Commission in [III (2012) CPJ 315] Chilkuri Adarsh v. Ess Ess Vee Constructions in which it was held that when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for commercial purposes. This Commission in [IV (2007) CPJ 199] Jagmohan Chabra and Anr. v. DLF Universal Ltd. also observed that when complainant has booked two flats on 2 floors he does not fall within the purview of the consumer. This Commission in Consumer Complaint No. 5 / 2014 and 6 / 2014, Sunil Gupta vs. Today Homes & Infrastructure (Pvt.) Ltd. observed that consumer cannot book two different villas. In the light of the aforesaid judgments it becomes clear that as complainant has purchased two flats, it cannot be said to be for his residential purpose but amounts to be investment for commercial purpose and complainant does not fall within purview of the consumer. Learned State Commission has not committed any error in allowing application and dismissing complaint as not maintainable.”

4.     It has also been averred by the opposite party in his evidence that the delay is clearly attributable to force majeure reasons such as shortage of labour, restrictions of use of ground water and overall economic slow-down. It has been stated that the National Green Tribunal (NGT) vide its order dated 11.01.2013 had restrained the builders to use ground water for construction activity and subsequently on 14.08.2013 the NGT ordered stoppage of construction within 10 km radius of the Okhla Bird Sanctuary.  It has also contended that the NGT thereafter, vide its order dated 28.10.2013, banned Noida from issuing any occupation certificates. Finally, it has also averred that as per clause 7.1 and 7.2 of the allotment letter, time was not of the essence in the agreement and that the opposite party had only committed to make its ‘best efforts’ to deliver the possession in 45 months with six months grace period. Despite the constraints the opposite party has completed 7300 apartments, a 500 bedded hospital, Higher Secondary School and a 9 and 18 Hole Golf Course, shopping complex etc., in the township. Therefore, the delay is only on account of the intervening orders of the NGT and the Hon’ble Supreme Court.

5.     The admitted facts of the case are that the individual members of the complainant’s association had booked the apartments on various dates with the opposite party and had been making deposits as per stage wise construction programme. As per the allotment letter, possession had been committed during 2016-2017 i.e., after 45 months plus six months grace. However, neither has the occupation certificate been produced nor the offer of possession been made by the opposite party even on date.

6.     The opposite party admits that possession has not been offered but has taken the plea that the same is due to force majeure reasons and the orders of the NGT and the Hon’ble Supreme Court. Apart from that, delay is because some members were defaulters in making payments.

7.      Parties led their evidence. We have heard the learned counsels for both the parties and perused the records carefully.

8.     It is the OP’s contention that the members of the complainant association are engaged in the business of purchase and sale of flats being Directors in firms engaged in real estate and are, therefore, not ‘consumers’ under the Act. In Kavita Ahuja vs Shipra Estates Ltd., and Jai Krishan Estate Developers Pvt. Ltd.,  - I (2016) CPJ 31 (NC), it has been held by this Commission that the onus of proving that allottees are not consumers is upon the opposite party. It has also been held in Anish Singhal vs Jaiprakash Associates Ltd., - CC/2194/2016, wherein it has held as under:

13.    “……………………..The contention of the learned counsel for the opposite party that the complainant is not a ‘consumer’ and that he has booked the subject flat for earning profits is completely unsustainable in the light of the judgment of this Commission in Kavita Ahuja vs Shipra Estate (Supra).”

In the light of the above judgments, if multiple units are booked in a project by a person, it does not, per se, amount to his being considered to be not a consumer. The OP has failed to substantiate his contention that the complainants purchased these flats for the purpose of sale and purchase. The fact that some of the complainants are directors in real estate firms cannot, ipso facto, be accepted as such proof. This contention of the opposite party is, therefore, liable to be rejected.

9.     As regards the defence of the OP on the grounds of force majeure, it is apparent from the documents on record that there was no stay on construction. While NGT had passed certain orders, the OP was not restrained from undertaking construction activity. In Developers Township Property Owners Welfare Society vs Jaiprakash Associates Ltd., (CC 1479 of 2015) it has been held by the NCDRC that in such a situation it was open to the OP to continue with the construction. From the contentions of the OP, it is apparent that it did proceed with the construction of apartments, hospital, school, golf course etc., all of which required construction inputs such as water and labour. At no time during the period of operation of the NGT’s order did the OP stop demanding or accepting deposits from allottees, including the present complaints, some of whom are alleged to be defaulters in payments (no details of which have been provided by the OP). This contention of the OP cannot therefore sustain or be accepted.

10.   In the case of Kolkata West International City Pvt. Ltd., vs Devasis Rudra in Civil Appeal no. 3182 of 2019 decided on 25.03.2019 the Hon’ble Apex Court has laid down that an allottee cannot be made to wait indefinitely for the possession of apartments booked by him and is entitled to refund of the money deposited. In the case of Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan and connected matter in CA no. 12238 of 2018 decided on 02.04.2019 – (2019) 5 SCC 705 the Hon’ble Apex Court laid down that one sided clauses are not binding on the complainants and constitute an unfair trade practice under section 2(r) of the Consumer Protection Act, 1986 [in the light of ruling of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd., vs Devasis Rudra  (Supra) [II (2019) CPJ 29 (SC)]. It is not disputed that the occupation certificate and consequently the offer of possession are not yet available. The complainants are, therefore, correct in their averment that delay is continuining and is indeterminate in the light of no offer of handing over of the flats by the Opposite Party.

11.   With regard to the issue of delay in handing over of possession of the flats booked, it is seen that a period of 45 months with an additional 6 months of grace was indicated by the opposite party in the Apartment Buyers Agreement. In view of the catena of judgements of this Commission and the Hon’ble Supreme Court where it has been held that when the developer/opposite party commits to a specific date by which possession is assured, the resiling from this commitment due to delay which is inordinate, is an unfair trade practice and deficiency in service. It has also been held that time is of the essence in such Agreements. The delay in possession is also not minor but inordinate with no likelihood of closure in view of neither an OC nor an offer of occupancy on the horizon. In light of this, the averment of the complainant regarding delay is liable to be accepted.

12.   In the instant case, the members of the Complainant’s Association have been waiting since 2016 – 2017 for being handed over possession of the respective flats booked by them. Despite having indicated a date of handing over possession, along with a grace period of 6 months, i.e., a total of 51 months in the Apartment Buyer’s Agreement, the OP has neither produced an occupancy certificate for the said flats nor come forward with a proposal to hand over possession by the specified date. It has also continued to accept deposits without progressing with the construction of the flats although, as per its own admission, it did complete many other apartments and other buildings. It has, instead, contested the complaint and prayer for refund on the grounds that are not sustainable either on facts or merits. This is both deficiency in service as well as amounts to unfair trade practice.

13.   We are, therefore, inclined to find merit in the complaint. The complaint is allowed and accordingly disposed off with the following directions:

(a)    The Opposite Party shall refund the entire amounts deposited by the 22 complainants from the respective dates of deposit with interest @ 9% till the date of repayment;

(b)    Opposite Party shall pay litigation cost of Rs.25,000/- to the individual complainants before us;

(c)    Compliance of this order shall be done within three months failing which penal interest @ 12% simple interest shall be paid till the date of payment.