1.       The present First Appeal (FA) has been filed by the Appellants against Respondent as detailed above, under section 19 of Consumer Protection Act 1986, against the order dated 15.05.2017 of the State Consumer Disputes Redressal Commission, U.P., (hereinafter referred to as the “State Commission”), in Consumer Complaint (CC) no 149 of 2015 inter alia praying to:-

(a)      Restrain the respondent from creating any third party interest/right with respect to the Appellants’ flat No. 06091, 6^th Floor, having built up area 910 sq.ft. (super area 1110 sq.ft.), in group housing residential complex “Mahagun MIPL-My Woods, Phase-1”, situated at GH-04, Sector-16C, Greater Noida, Uttar Pradesh during the pendency of the appeal;

(b)     Grant ad-interim ex-parte stay order, staying the operation of impugned final judgment and order dated 15.05.2017 passed by the State Commission.

2.       Notice was issued to the Respondent on 16.06.2017.  Respondent/OP was directed to maintain the status-quo over the disputed property subject to Appellant depositing Rs.15 lacs with the State Commission.  The Appellants and the Respondent filed their Written Arguments/Synopsis on 27.07.2022 and 29.07.2022 respectively.  

3.       Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that-

(i)      On February 15, 2011, the complainants entered into an agreement to purchase a flat in the Mahagun My Woods Scheme, located at GH-04, Sector-16C, Greater Noida, U.P. with a built-up area of 910 square feet and a super area of 1110 square feet for consideration of Rs. 23,58,373/-. They submitted an application along with a cheque dated 12.02.2011, amounting to Rs. 1,00,000/-. On 16.02.2011, the OP issued a letter confirming the booking of Flat No. 0609/MIPL. Following the initial agreement, the complainants provided a cheque of Rs. 1,30,000/- to the OP and OP sent an allotment letter dated March 3, 2011. On 04.04.2011 the OP sent a demand letter for an additional amount of  Rs.8,31,269/- . Subsequently, a tripartite agreement was executed among the complainants, the OP, and H.D.F.C. Bank. A deed of agreement was also executed in connection with this tripartite agreement. Pursuant to this agreement, the complainants applied for a loan of Rs.18,00,000/- from H.D.F.C. Bank, which was sanctioned as per the bank's letter dated May 10, 2011.

(ii)     As per application, the committed period of possession was 36 months from the date of sanction of plans, which was changed to 42 months as per allotment letter.  Original plans were sanctioned on 09.03.2011, which were later on revised on 13.08.2014.  The construction of project got struck due to some disputes relating to land acquisition and the possession of unit was not delivered as per committed date.  After resumption of the construction, on account of failure on the part of Petitioner to pay the demanded  instalments, the unit was cancelled by OP on 11.03.2015 and allotted to a third party on 30.05.2015.  Aggrieved by the action of Respondent, Petitioner filed a consumer complaint before the State Commission. Vide Order dated 12.05.2016, the State Commission dismissed the complaint and Complainants were ordered to pay  Rs.10,000/- as cost.

4.       Aggrieved by the order passed by the State Commission the Complainants (Appellants herein) have filed the Appeal before this Commission, mainly on the following grounds:-

(i)      The impugned order is legally and factually unsustainable. The records clearly demonstrate that the appellants were always ready and willing to fulfill their payment obligations. They promptly obtained a loan, entered into a tripartite agreement with the respondent, and made a substantial payment of Rs.11,80,121/- (out of the total sale consideration of Rs.23,58,373/-). The appellants consistently requested the respondent to provide the necessary payment details. The appellants made arrangements to cover the entire sale consideration through a loan. However, due to the loan being tied to the construction progress, there was a delay in paying Rs.3,88,060/-, which the appellants were prepared to pay along with applicable interest.

(ii)     The State Commission made an error by deeming the appellants in default of payment, leading to the respondent's cancellation of the flat under paragraph 2.1 of the agreement. However, the State Commission failed to acknowledge the significant harm caused to the appellants by the cancellation and the respondent's unfair trade practices aimed at unjustly depriving them of the flat. The cancellation was based on communications that were never even sent to the appellants, indicating the respondent's pursuit of unjust profits.

(iii)    The respondent's conduct is questionable as they concealed information regarding land acquisition proceedings from the appellants. Moreover, despite the appellants' willingness to pay interest for the payment delay, the respondent made no effort to resolve the dispute. The return of the loan amount from HDFC without consulting the appellants further highlights the respondent's dubious behavior in this matter.

(iv)    The State Commission, after considering the appellants' arguments, issued an order on 12.05.16 to prevent the respondent from creating any third-party interest. This order was passed after hearing both parties and rejecting the respondent's claim to cancel the unit. The order was later extended. The State Commission should have taken into account the availability of the flat and the appellants' willingness to make payments before issuing the contested order. The cost imposed by the State Commission is unwarranted given the facts and circumstances of the case.

5.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the FA, based on their FA/Reply, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.       Respondent herein contended that Appellants herein had committed default in making payments towards instalments for the subject flat, hence Respondent was within its rights as per Clause 2.1 of the agreement to cancel the allotment, and the same was cancelled on 11.03.2015.  The Appellants to their benefit have duly accepted the impugned order and complied with the directions of State Commission.  In compliance with order of State Commission, Respondent issued a demand draft (DD) for Rs.2,19,298/- after adjusting cost of Rs.10,000/- imposed on Appellants.  This amount was full and final payment, setting all claims and disputes amongst parties.  The DD was encashed by Appellants on 17.06.2017.  The Respondent at the time of passing the order by State Commission had already redeemed the loan taken by the Appellants from the Bank upon making payment of Rs.9,50,823/-, the subject flat was got released from the Bank and the transaction was closed conclusively.  After cancellation of the flat in the name of Appellants, it was allotted to a third party vide allotment letter dated 30.05.2015.

7.       It is admitted by Appellants that out of total sale consideration of Rs.23,58,373/-, the Appellants had paid Rs.11,80,121/-, an amount of Rs.9,50,121/- had been refunded to HDFC and that DD of Rs.2,19,298/- issued in lieu of earlier expired DD of Rs.2,29,298/- was encashed on 17.06.2017 i.e. after filing of the present appeal. 

8.       From the above, it emerges that the Appellants paid a total sum of Rs.11,80,121/- to the Respondents and Respondent-1 has refunded an amount of Rs.11,79,419/- (Rs.9,50,121/-  to the Bank and Rs.2,29,298/- (after deducting Rs.10,000/- towards costs ordered by State Commission).  Hence, barring minor variation in the above two figures, it is seen that principal amount paid by the Appellants have been refunded by Respondent without any interest.

9.       Respondent admits that due to some disputes relating to land acquisition proceedings, the progress of construction at site was impacted for short duration, and during this period allottees were given relaxation from making payment of their instalments. On resumption of construction, they were asked to resume making payments.  The Appellants defaulted in making payments despite various reminders, leading to cancellation of allotment.  Appellants on the other hand contended that instalments of loan amount were to be disbursed considering the need and progress of construction.  This Commission while issuing notice to the Respondent on 16.06.2017 asked Appellants to deposit a sum of Rs.15.00 lakh with State Commission and the Appellants deposited the same.  In view of litigation, since the Respondent had not furnished the requisite documents for disbursal, HDFC declined to disburse the loan.  The Respondent did not provide the requisite documents till December 2012.  It was only sometime in January 2013 when the documents were sent to HDFC, the Respondent sent demand reminder on 17.01.2013.  Appellants, forthwith on 23.01.2013 deposited cheque amounting to Rs.9,50,121/- directly into the account of Respondent towards outstanding instalments.  Appellants wrote a letter dated 04.04.2014 to HDFC requesting for disbursal of instalment of Rs.3,88,060/-, as demanded by Respondent, but it was informed that this amount has to be paid by Appellants from his own resources and was not to be paid by HDFC.  Appellants made a request to Respondent to grant some time for making arrangements for paying the outstanding amount.

10.     State Commission after considering the facts and evidence, came to a conclusion that complainants have committed default in making payments of instalments according to para 2.1 of the agreement, Respondent is entitled for cancellation of allotment.

11.     We have gone through the relevant clauses/terms and conditions of the application form, allotment letter and tripartite agreement.  The unit in question was booked under construction linked plan.  As per the terms & conditions, the time was the essence in respect of all payments to be made by the appellant.  Further, the committed time for completion of construction of the said unit is 36 months from the date of receipt of sanction plan.  Plan was sanctioned originally on 09.03.2011 (as mentioned in the Allotment Letter dated 30.05.2015 in the name of Mrs. Sarika, Vasudev, in whose name the unit in question has been subsequently allotted). Hence, the committed period for possession will be 09.03.2014.  However, the plans were subsequently revised and revised sanction was received on 13.08.2014.  However, for calculating the committed period for possession, one has to go by the original date of sanction of plan.  The project remained struck due to land related dispute(s) from 2009 to 2012 i.e. for about three years (as mentioned in the Disclosure attached to Application Form of subsequent alotteee Mrs. Sarika Vasudev).  The Respondent failed to deliver the possession of unit within the committed period. It was held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”.  In the disclosure statement attached to the application form, the Respondent has stated that they have been allotted the land from Greater Noida Industrial Development Authority on leasehold basis for 90 years for group housing and that there is no encumbrance or charge/lien on the land or building to be contended.  Allotment letter further states that Respondent Company has taken over the possession of said plot on 25.11.2010 after executing the lease deed and got it registered.  Hence, the delay in completion of project due to disputes  relating to land cannot be accepted as valid reason. Allotment letter contains construction stage wise schedule of payment.  As per allotment letter, the committed date of possession was 42 months from the date of receipt of sanction plan.  Hence, even if we take the possession clause as per allotment letter, the committed date of possession comes to 13.02.2015.  Respondent admits that due to litigation pertaining to land the progress of construction  at subject site was impacted and during the  period of hold up of construction process, allottees were given relaxation from making payments of their instalments.  Respondent has not placed on record any documentary evidence to show that delay in completing the construction was due to force majeure reasons.  Builder cannot have an agreement or terms & conditions of allotment which are discriminatory as against the allotee.  If timely payment of instalments is the essence, then timely delivery as per committed date also has to be the essence of any such agreement/terms  & conditions.  In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan  (2019) 5 SCC 725, Hon’ble Supreme Court also observed that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”

12.     Considering all the facts and circumstances of the case, we are of the view that as the unit in question has already been transferred/allotted by Respondent to third party, and OP has already refunded the entire principal amount paid by the Petitioner,  it may not be feasible to order possession of the unit to the Appellants.  However, as Respondent has failed to complete the construction within the committed period and some of the reasons adduced by the  Appellants for not paying the demanded instalments appear genuine, we are inclined to allow refund of entire principal amount paid by the Appellants to Respondent, whether directly or through Bank, with interest @ 9% from the date of each deposit with Respondent till the date of payment by Respondent to the Bank/Appellants.  Hence, the State Commission’s order is modified to that extent.  As the principal amount of Rs.11,79,419/- has already been paid by the Respondent (Rs.9,50,121/- to bank and Rs.2,29,298/- (after adjusting cost of Rs.10,000/- to Appellants), Respondent shall pay the interest as per this order within three months of this order.  If Petitioner has deposited any amount with this Commission in pursuance to orders dated 16.07.2017 of the Commission, the same shall be refunded by the Registry to the Petitioner, alongwith accrued interest, if any, within one month of this order. 

13.     The pending IAs in the case, if any, also stand disposed off.