1. The present Consumer Complaint has been filed under Section 21(a) (i) read with Sections 2(b) (iv) and 12(1)(c) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants, in the representative capacity, agitating their joint, personal as well as collective grievance against the Opposite Parties, M/s. Ansal Housing and Construction Ltd. and M/s. Samyak Projects Pvt. Ltd. (hereinafter referred to as the ‘Developer’) for the inordinate delay in handing over possession of the Flats booked by them in the Project under the name and style of “’Ansal Heights” (hereinafter referred to as the “Project”) proposed to be developed by the Developer at Sector 92, Gurgaon, Haryana.
2. Vide Order, dated 11.07.2017, the Complaint initially filed on behalf of the 12 Complainants, was allowed to be treated as a Joint Complaint u/s 12 (1) (c) of the Act on behalf of all the Allottees of the said Project. Further, vide Order dated 10.05.2019, a notice was also directed to be published u/s 13(6) of the Act in the Newspapers. During the proceedings of the case, I.A.Nos. 23100 of 2018, 13243 of 2019, 15844 of 2019, 16899 of 2019, 3567 of 2020, 1383 of 2021, 103 of 2021, 2312 of 2021, 6876 of 2021 and 10557 of 2021 were filed by the Allottees of the same Project seeking impleadment in the present Consumer Complaint. The Applications were allowed by this Commission by various Orders and the Applicants were allowed to join the proceedings as Co-Complainants.
3. According to the Complainants, the facts of the case are that in the year 2012, the Opposite Parties Developer launched a Group Housing Complex, christened as “Ansal Heights” supposed to be developed by them in Sector 92, Gurgaon, Haryana. The Project was advertized widely and many lucrative offers were promised. Complainants allured by the wide publicity of the Developer, booked their respective Residential Flats/Apartments in the said Project by paying the initial booking/application amount. Identical Allotment Letters containing the details of Flat/Apartment allotted to the Complainants and the payment schedule, were issued to them. Further, Identical Flat Buyer’s Agreements (hereinafter referred to as the Agreement) were executed in respect of allotted Apartments between the 12 initial Complainants and the Developer during the period from 12.03.2012 to 31.07.2012.  As per Clause 29 of the Agreement, the possession of the allotted Flat/Apartment was to be handed over to the Complainants within a period of 36 months plus grace period of 6 months, from the date of the execution of the Agreement. The Clause 29 of the Agreement is reproduced as under:-
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4. It is averred in the Complaint that some of the Complainants are the subsequent buyers who had purchased the Apartments from the Original Allottees on payment of premium. The Opposite Parties acknowledged the transfer of the Apartment after payment of transfer charges and assured that the committed date of delivery of the Apartment would remain unchanged as prescribed in the Agreement. The amount received from the Original Allottee was also credited in the account of the Subsequent Buyer by the Opposite Parties.
5. It is further stated that the Complainants visited the site of the Complex regularly but were shocked and surprised to see that the construction was never in progress. No one was even present at the construction site to address the concern/query of the Complainants. The site seemed to be an abandoned piece of land with only a skeleton structure of semi conducting building. It is alleged that most of the Complainants had paid hefty amount, i.e. about 95% of the total Sales Consideration of their Flats/Apartments to the Developer but they have miserably failed to complete the Project and hand over the possession of the Apartments, complete in all respect to them within the committed date. According to the Complainants, the price of the Car Parking was fixed at ₹2,00,000/- and the Club Membership Charges were to be charged at ₹50,000/- but the same arbitrarily enhanced to ₹3,00,000/- and ₹75,000/- respectively. At the time of booking, it was also informed that the costs of the Apartment was including the Fire Fighting installation etc. It is further alleged that some of the Clauses contained in the Agreement, were unjust, unfair, unreasonable, arbitrary and in favour of the Developer and the Complainants were forced to sign the Agreement under the threat of forfeiture of the earnest money. The Developer has intentionally delayed the execution of the Agreement from the date of application of booking of the Apartment to extend the period of completion of the Project. The demand raised by the Developer in June 2016 for amount approximately @₹60/- per sq. ft. towards proportionate charges on account of fire fighting installation was unjustified and could not be paid. Further, the expected demand @₹150/- per sq. ft. towards payment of proportionate charges for external electrification, sewerage/effluent treatment plant/ pollution control devices, cost of installation of substation/ power house/ transformer/pumping station, cost of DG set and other related costs were also on the higher side, illegal and without any justification. It is also stated that location of the School in the Project was a vital factor but the location of the school was changed by the Developer arbitrarily without the knowledge and consent of the Complainants. The Complainants have suffered huge losses inasmuch as they had deposited their hard earned money with the Developer in the hope that they would get the possession of the Apartment on the promised date of delivery.  Some of the Complainants have also obtained home loan from the Bank/financial institutions to pay the installment of the Sale Consideration. According to the Complainants, in terms of Clause 34 of the Agreement, the Developer was under an obligation to pay delayed compensation @₹5/- per sq. ft per month for the period of the delay but the said compensation was not paid to the Complainants. As the Developer were charging interest @24% p.a. in terms of the Clause 22 of the Agreement for the delayed payment of installment from the Complainant, therefore, to maintain the parity and equity between the parties, they ought to be directed to pay same rate of interest for the delayed period.  Hence, alleging Unfair Trade Practice and deficiency in service on the part of the Opposite Party Developer, the Complainants have filed the present Complaint u/s 12 (1) (c) of the Act with following prayer:-

1. Grant permission U/s 12(1)(c) of the Consumer Protection Act to the Buyers/Allotees/Purchasers of houses in the above complex to jointly present the compliant for the benefit of all the Buyers/Allotees in the said Project;

2. Direct the Opposite Party to handover the possession of the respective apartments complete in all respects to the Buyers/Allotees immediately as per the Buyer’s Agreement and execute all the necessary and required documents in respect of the respective Apartments in favour of the Buyers/Allotees or in alternative provide a ready to move in apartments to the Buyers/Allotees which is of identical size and in similar locality or in alternative pay a sum calculated as per sq. area multiplied by Rs. 8500/- per Sq feet being the available market rate of the similar house to each of the Buyer/Allotees to enable to respective Buyers/Allotees to purchase another house on their own;

3. Direct the Opposite Parties to pay a sum in form of interest @24% p.a. as compensation from the committed date of possession till the actual possession of the Apartment.

4. Direct the Opposite Parties to waive the illegal charges that they have proposed to collect from the buyers towards proportionate cost of the fire-fighting equipment, external electrification, sewage/effluent treatment plan/pollution control devices, cost of installation of sub-station/power - house/ transformer/pumping station, cost of DG set and other related cost. Further, waive the additional one lakh rupees charges towards the Car Parking and Rs.25,000/- charged towards Club Membership for all the Buyers/ Allotees/ Purchasers of the houses in the present Project;

5. Grant immunity to the Buyers/Allotees from payment of any charges incurred due to any escalation in cost including enhanced Service Tax or Stamp Duty/Registration Charges and other escalation due to delay on the part of the Opposite Parties;

6. Direct the Opposite Parties to pay a sum of Rs.30,000/- (Rupees thirty thousand only) to each of the buyers/allotees/purchasers of houses in the above complex towards the cost of litigation.

7. Any other order(s) as may be deemed fit and appropriate may also kindly be passed.

06.     Upon notice, the Opposite Party Developer has filed its Written Version denying the contents of the Complaint and inter-alia raising the preliminary issues that; the Complaint filed by the Complainants is not maintainable under Section 12(1)(c) of the Act as there is lack of community and common interest and two initial complainants have already been offered possession in the year 2017; (ii) the Opposite Party Developer is not engaged in the business of re-sale of Units and have not engaged any Broker for the same purpose as alleged by the Complainants and it has only given approval for transfer of ownership rights subject to payment of transfer charges; some of the Complainants have purchased the Apartment in re-sale;

07.     On merits, it is contended that (i) the Complainants have concealed the material facts and they were provided absolute opportunity to inspect the site Plans, Location Plan, Building Floor Plan, Ownership Record and other documents relating to the Title and no untrue picture was portrayed to the buyers either before or after submitting of the Application Form for purchase of the respective Apartment; (ii) in the Application Form and in the Clause 8,9,10,11,12 and 13 of the Agreement, it is specifically mentioned that the Total Unit Cost Price is inclusive of Basic Sale Price and the Preference Location Charges but exclusive of External Development Charges (EDC), Internal Development Charges (IDC), Car Parking, Club  Membership Fee, External Electrification, Fire Fighting Charges, Power Back Up Charges, Interest Free Maintenance Deposit, Maintenance Charges, Stamp Duty, Registration Charges, Service Tax and any other Government levies and other allied charges payable as per the terms and conditions of Application and Apartment/Buyer’s Agreement/Allotment Letter; (iii) an exclusive amount of ₹3,00,000/- for Covered Car Parking Space and ₹75,000/- for Club Charges was fixed; (iv) delay, if any,  in completion of the Project has occasioned solely due to force majeure circumstances such as ban on ground-water extraction imposed by the High Court vide Order dated 16.07.2012, 31.07.2012 and 21.08.2012 passed in CWP No. 20032/2008, titled Sunil Singh vs. MOEF & Ors, ban on mining of sand in Haryana and Rajasthan imposed by National Green Tribunal, Jaat Agitation in Gurgaon, Order of NGT to stop construction in April, 2015 and November, 2016 due to emission of dust, demonetization, etc and all of which cumulatively resulted in a delay of about 18 months in the execution of work at site; (v) there was no inefficiency or inaction on the part of the Opposite Party Developer; (vi) the delay in completion of the Project was duly communicated to the Complainants by the Opposite Party  Developer vide Letter dated 08.02.2017; (vii) Complainants have deliberately suppressed factual position and status of the Project and the construction work is going on in full swing; (viii) possession of the respective Apartments to the Complainants would be handed over within short span of time; (ix) the construction of the Project has been done by the Opposite Party Developer as per the Sanctioned Plan and there is no deviation from the same, (x) as per Clause 30 of the Agreement, the Buyers or the Flat Allottees are not entitled for any compensation if the delay in offering the possession of the allotted Apartment to them is due to force majeure circumstances or the reasons beyond the control of the Developer; (xi) the possession of the booked Apartments was to be delivered to the Complainant by the Developer latest by December 2015 in terms of the Agreement and as such they are liable to bear the escalation of the service tax as the same were revised only in the year 2015; and (xii) the complaint is pre-mature and deserves to be dismissed. The booking, allotment of Apartment and consideration paid by the Complainants, have not been disputed by the Developer.

08.     We have heard the Learned Counsel for the Parties at some length and also perused the material available on record as well as the Written Arguments filed by the Opposite Parties

09.     During the proceedings of the Complaint, I.A. No. 7323 of 2021 was filed on behalf of the Opposite Party Developer seeking dismissal/rejection of the present Complaint on the ground that Vide Order dated 10.05.2019, the Complaint was directed to be treated as Joint Complaint u/s 12(1)(c) of the Act and notice u/s 13 (6) of the Act was also published in the Newspaper.  Thereafter, various Interim Applications were filed by the Allottee of the said Project seeking their impleadment as Co-Complainants. Subsequently, on 15.04.2021, amended Memo of Parties was filed wherein 92 numbers of the Persons were mentioned as Complainant. It is further stated that 30 Complainants out of the 92 Complainants are Joint Applicants with respect to 15 Units in the Project and as such the effective number of Units in respect of these Complainants is only 77. It is further submitted that following 21 Complainants have settled the matter with the Opposite Party Developer and had given “NOC” in favour of the Opposite Party with respect to 16 Units out of the 77 Units involved in the present Complaint:-

10.     Vide Order dated 11.10.2021, the I.A No. 7323 of 2021 was allowed and name of the 21 Complainants mentioned in the aforesaid Table, was directed to be deleted from the array of Memo of Parties.

11.     We have given our thoughtful consideration to the rival contentions of the Learned Counsel for the parties. Mr. Sushil Kaushik, learned Counsel appearing for the Complainants strenuously submitted that the Complainants are facing great hardship and financial loss due to deficient service and Unfair Trade Practices adopted by the Developer. The Opposite Party Developer has failed to honour the terms of the Agreement, most pertinently, Clause 29 of the Agreement whereby they were under an obligation to hand over the possession of the allotted Apartments to most of the Complainants in the present Complaint by December 2015 as admitted in the Written Version. Learned Counsel has further urged that most of the Complainants had already paid approximately 95% of the total Sale Consideration to the Developer but still they are still awaiting the possession even after lapse of six years from the committed date of delivery. Some of the Complainants had obtained Home Loan from the Bank/Financial Institutions for payment of the Sale Consideration at the higher rate of interest and they are still paying the huge EMIs.

12.     On the contrary, Mr. Shivkant Arora, learned Counsel appearing for the Opposite Party Developer rigorously urged that it has been very clearly stated in the terms of the Agreement that the total Cost Price of the Apartment would be exclusive of EDC, IDC, Car Parking, Club, Power Back, External Electrification, Maintenance, Stamp Duty and Registration Charges. Further, a fixed sum of ₹3,00,000/- for exclusive right to use one covered Car Parking Space and ₹75,000/- for Club house was fixed. He also emphatically contended that the Complainants are not entitled for any compensation, as claimed, inasmuch as the delay in completion of the Project and handing over the possession of the Apartments to the Complainants was due to force majeure reasons such as Orders of the Hon’ble High Court of Punjab and Haryana whereby ground water extraction was banned in Gurgaon, Orders passed by the National Green Tribunal wherein mining of sand in the States of Haryana and Rajasthan was banned, Reservation agitation in Haryana; Orders of National Green Tribunal to stop construction to prevent emission of dust in the month of April, 2015 and again in November, 2016, demonetization etc.  The reasons of the delay were duly communicated to the Complainants and as the delay was due to force majeure conditions, the Developer is entitled for extension of time of the agreed date for delivery of possession. It is submitted by him that numbers of the Complainants in the present Complaint have already settled the alleged dispute with the Developer and already withdrawn their name. As there is no community of interest the Complaint, in its present form, is apparently ill-conceived, frivolous and not maintainable. The Project is almost complete and offer of possession is being made to the Allottees. Learned Counsel very ardently argued that investment in the Units by the Complainants was made keeping in mind the price escalation in the real estate and to re-sale the booked Unit but as the real estate market was going downward, the Complainant has filed the present Complaint praying refund of the deposited amount.

13.     On careful consideration of record, it is undisputed that Complainants were allotted respective Apartments and as per Clause 29 of the Flat Buyer’s Agreement executed between the Parties, the Opposite Party Developer had agreed to deliver possession of subject Apartments to the respective Complainants within a period of 42 months including 6 months grace period from the date of respective dates of Agreements to the Complainants. It is also undisputed that the Complainants had already paid the major part of the Total Sale Consideration to the Developer. It is also not disputed that Opposite Party Developer has failed to deliver possession of the allotted Apartments to the Complainants despite of expiry of more than six years form the respective dates agreed for delivery of possession between the parties.

14.     With regard to the plea taken by the Opposite Party Developer that the Complaint is not maintainable u/s 12 (1)(c) of the Act as there is no community of interest in the Complaint, we are of the view that the said contention does not hold any water as the question regarding maintainability of the present Complaint as Joint Complaint U/S 12 (1)(c) has already been decided by this Commission as noted hereinabove. 

15.     The contention of the Learned Counsel for the Opposite Party Developer that the Complainants are not the ‘Consumers’ as they have invested the money in the Project keeping in mind the price escalation in the real estate and to re-sale the allotted Apartments, 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, we hold that the Complainants are the Consumers as defined under Section 2 (1)(d) of the Act.

16.     Only defence taken by the Opposite Party Developer for failure to deliver possession of respective Apartments to the Complainants is the plea of Force Majeure. On careful perusal of Written Statement filed by the Developer and according to the submissions made by their Learned Counsel, the delay in offering the possession has been tried to justify due to Force Majeure circumstances on four counts (a) restriction imposed by the Orders of Punjab and Haryana High Court on user of underground water for construction activity (b) shortage of sand due to suspension of mining activities by the Orders of the National Green Tribunal (c) Reservation Agitation in Haryana and (d) ban on construction activities to prevent emission of dust imposed by the Orders of the National Green Tribunal in April, 2015 and again in November, 2016 and (d) demonetization.

17.     In our considered view, the Opposite Party Developer has failed to substantiate the pleas in support of delay on account of force majeure circumstances.

18.     So far as plea of shortage of water for construction purpose due to restrictions imposed by the Orders of Hon’ble Punjab and Haryana High Court is concerned, the aforesaid issue has been decided by the coordinate Bench of this Commission in the matter of Cap. Gurtaj Singh Sahni & Anr. Vs. The Manager, Unitech Ltd. & Anr. – Consumer Complaint No. 603 of 2014 - decided on 2.5.2016. Relevant observations of the Coordinate Bench are reproduced as under:

“        As far as the prohibition on use of underground water in construction is concerned, the learned Counsel for the complainant has drawn my attention to the order dated 21.8.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section 5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.”

19.     In the present case also, the Opposite Party Developer has not informed the Complainants about passing of the said Orders by the National Green Tribunal and there is no whisper in the Written Statement filed by it in resisting the Complaint as to what efforts were made by the Developer to arrange water from other sources.  In the absence of any documents evidence, we reject the said plea.

20.     The other explanation to substantiate the plea of Force Majeure is shortage of sand due to restrictions imposed by the National Green Tribunal. It can be seen from the record that the Flat Buyer's Agreements were entered into way back in the years 2012-2013 and the orders of NGT to prevent emission of dust in April, 2015 and in November, 2016 cannot be construed to be any substantial reason and definitely not a force majeure condition. Even demonetization and reservation agitation cannot be construed as force majeure. With respect to other reasons there is no documentary evidence on record that they have led to the delay in the delivery of possession.

21.     We find it a fit case to place reliance on the Judgment of the Hon’ble Supreme Court in the case of Wg. Cdr.  Arifur Rahman Khan v. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 decided on 24.08.2020 wherein the Apex Court has observed as under:-

“        A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression service ‟ in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.

For the above reasons, we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities........”

22.     Further, a reliance can be placed to the judgment passed by the Hon’ble Supreme Court in “Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.” -  Civil Appeal No. 5785 / 2019 & other connected Appeals decided on 11.01.2021 , in which it has been held as hereunder :-

“......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….”

23.     With regard to the dispute regarding enhancement in the price of the Covered Car Parking Space and the Club Charges, it is submitted on behalf of the Complainants that ₹2,00,000/- and ₹50,000/- were to be charged for the same respectively but the Developer arbitrarily enhanced it to ₹3,00,000/- and ₹75,000/- respectively. A bare perusal of the Clause 20 of the Agreement would reveal that the Complainants were liable to pay an additional amount of ₹3,00,000/- to the Developer towards grant of exclusive right to use one Covered Car Parking Space. Since, the Complainants has failed to lead any documents in support of their contention regarding charges of ₹2,00,000/-payable for the Covered Car Parking Space and ₹50,000/- towards Club Charges, the said contention is rejected.

24.     A further perusal of the Clause 8, 9, 10, 11 and 13 would reveal that in addition to the Basic Sale Price, the Complainants are also liable to pay charges towards EDC, IDC, cost of external electrification, fire fighting charges, power back up charges, cost of sewerage treatment plant, electric connection, water connection, cost of installing of Sewerage/Effluent Treatment Plant/Pollution Control Devices, proportionate cost of DG set etc.  Therefore, we direct that the Complainants shall be liable to pay all these charges to the Developer in terms of the Agreement.

25.     Respectfully following the principles laid down by the Hon’ble Supreme Court in the cases of Wg. Cdr.  Arifur Rahman Khan’s (Supra) and Abhishek Khanna (Supra), we are of the considered view that the Complainants are entitled for Compensation for delay in delivery of the possession of the Flats. Keeping in mind the peculiar facts and circumstances of the case and respectfully following the catena of Judgments of the Hon’ble Apex Court wherein delay compensation in the form of simple interest has been awarded not more than 9% p.a., we are of the view that the compensation in the form of simple interest @9% p.a. alongwith cost of ₹25,000/- to each of the Complainants would meet the ends of justice. 

26.     Consequently, the Complaint filed u/s 12 (1) (c) on behalf of all the Allottee of the Project is partly allowed with the following directions:-

(i)      the Opposite Party Developer shall complete the construction of allotted flats/Apartments in all respect within a period of six months from today and shall offer possession to the Complainants after obtaining the requisite Occupancy Certificate within the same period;

(ii)     the Opposite Party Developer shall pay delay compensation to the Complainants @9% p.a. from the committed date of delivery till the offer of possession after obtaining the Occupancy Certificate, within a period six months from the date of passing of this order;

(iii)    the Opposite Party shall calculate the amount payable by the Complainants at the time of taking the possession after adjustment of the delay compensation as directed above a copy of the same shall be supplied to the Complainants;

(iv)    the Opposite Party shall pay ₹25,000/- to each of the Complainants towards costs of litigation.

27.     The Consumer Complaint is disposed of as above. The pending application, if any, also stands disposed off.