1.      Heard Mr. Aditya Parolia, Advocate, for the complainants.

2.      The complainants have filed IA/1771/2022, for condoning the delay in filing their evidence. IA/1771/2022 is allowed. Evidence is taken on record. Vishnu Shankar and Archana Sharma, allottees of Flat No.A-702, in the project “Red Apple Residency” have filed IA/10038/2021, for their impleadment as the complainants. They have stated that they had same interest as is being agitated in the above complaint. No reply/objection has been filed in this application. IA/10038/2021 is allowed. Vishnu Shankar and Archana Sharma be impleaded as the complainants in above complaint.

3.      40 sets of the flat allottees in “Red Apple Residency” have filed above complaint, for directing the opposite party to (i) refund total amount realized from each flat allottee to them with interest @18% per annum from the date of respective deposit till the date of its realization, (ii) pay Rs.500000/- to each flat allottee, as  compensation for mental agony and harassment, (iii) pay Rs.100000/- to each flat allottee as cost of the litigation; and (iv) any other relief which may be deemed fit and proper in the facts and circumstances of the case be granted to each flat allottee. The complaint has been filed under Section 12(1)(c) of the Consumer Protection Act, 1986, for which, leave has been granted by this Commission vide order dated 24.07.2019.

4.      The complainants stated that M/s. Idea Builders Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Red Apple Residency” at Khasra No.998, NH-58, Raj Nagar Extension, Ghaziabad, in the year 2012 and made wide publicity of the facilities and amenities of the project. The opposite party also promised to pay EMI on the loans taken from the bank for the purposes of payment of sale consideration of the flat, till issue of letter of possession. Believing upon the representations and tall promises of the opposite party, the complainants booked 2BHK/3BHK flats during 2012-2013 and deposited booking amount. After booking, the opposite party allotted flat to the complainants and executed Allotment Letter cum Flat Buyer Agreement in their favour during 2013-2014. Allotment Letter cum Flat Buyer Agreements provide 30 months period from the date of agreement, for delivery of possession. The complainants diligently followed payment plan and all the complainants paid about 85% to 95% of basic sale consideration, within one year of the agreement. Some of the complainants have taken loan from bank for payment of consideration. Development Plan was sanctioned for ground + 11 floors in Towers A and B and ground + 6 floors in Tower-C but the opposite party allotted flats to various complainants on the floor, for which plan has not been sanctioned. 30 months period from the date of agreement expired for every complainants in the year 2016. The opposite party could neither completed the construction nor offered possession to the complainants on due date. The opposite party wrote a letter to State Bank of India, mentioning therein that the expected date of possession would be August, 2016. This date also expired. The opposite party wrote a letter dated 10.03.2018 to Punjab National Bank, mentioning therein that the expected date of possession would be 28.06.2018. This period has also expired but the opposite party could neither complete the construction and nor deliver possession. The complainants used to inquire from the office of opposite party about exact date of possession but all the time some evasive reply used to be given but failed to give any deadline. The purpose of booking the flat and making payment has been frustrated. The complainants are bearing double burden i.e. paying rent and also paying EMI of the bank loan. The opposite party is committing deficiency in service. Thereafter, this complaint was filed on 20.08.2018.        

5.      Vide order dated 04.09.2018, the notices were issued to the opposite party in IA/15483/2018, under Section 12(1)(c) of the Consumer Protection Act, 1986, which was served and the opposite party put appearance through counsel but failed to filed reply in the application. This Commission, vide order dated 24.07.2019, allowed IA/15483/2018 and admitted the complaint under Section 12(1)(c) of the Consumer Protection Act, 1986 and granted 30 days time to opposite party to filed written reply in the complaint. But the opposite party did not file written reply. As such, vide order dated 14.12.2021, right to file written reply was closed and the case was directed to proceed ex-parte against the opposite party. The complainants filed an Affidavit of Evidence of Anand Kumar Tyagi (complainant-1) and written synopsis.             

6.      We have considered the arguments of the parties and examined the record. Allotment Letter cum Flat Buyer Agreement in favour of the complainants were executed during 2013-2014. Allotment Letter cum Flat Buyer Agreements provide 30 months period from the date of agreement, for delivery of possession. The complainants diligently followed payment plan and all the complainants paid about 85% to 95% of basic sale consideration, within one year of the agreement, which is proved from statement of account as maintained by the opposite relating the complainants. Due date of possession expired in the year 2016. The opposite party could neither complete nor obtained “occupancy certificate’ till toady.

7.      Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period. In Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117 (SC) held when interest is awarded as compensation then awarding additional compensation was not justified. In Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that 9% interest is just compensation.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants along with interest @9% per annum from the date of respective deposit till the date of actual payment, within a period of two months from the date of this judgment. While refunding the amount the opposite party will be entitled to pay bank loan of the complainants first and return the balance amount to the complainants.