1.     Case of the Complainants is that by the allurement and enticement given by Opposite Party No1, they booked residential apartment No.T7-1102 having an approximate 2530 sq. ft. saleable/super built area alongwith proportionate undivided, unidentified, impartible leasehold rights in the land at a basic price of Rs.2,94,49,200/-, calculated at the rate of Rs.11640/- per sq. ft. The basic price included club membership fee, 100% power back up, external electrical charges, firefighting installations and maintenance charges of common areas of the complex for two years from the date of offer of possession. The Complainants also booked one covered car parking for Rs.6,00,000/-. At the time of booking, the Complainants paid a sum of Rs.9,74,896.42 to Opposite Party No.1. The Complainants opted for construction link payment plan. The Complainant paid a total amount of Rs.2,05,18,894/-. The Flat Buyer Agreement was executed on 19.11.2010. As per Flat Buyer Agreement, construction work was to be delivered within 36 months. Opposite Party No.1 failed to fulfil its commitment even after expiry of about 5 years. The Complainants, therefore, sought refund of the deposited amount with interest @ 24% per annum. Alleging deficiency in service on the part of Opposite Party No.1, the Complainant filed the Consumer Complaint with the following prayer: -

“It is, therefore, prayed that this Hon’ble Commission may be pleased to pass the following award in favour of the Complainants and against the opposite party:

1. Directing the respondent no.1 to refund the entire amount as   deposited by the complainants, to the tune of Rs.2,05,18,894/- (RUPEES TWO CRORES FIVE LAKHS EIGHTEEN THOUSAND EIGHT HUNDRED AND NINETY FOUR), to the complainants.
2. Directing the respondent no.1 to pay a compounded rate of interest @ 24% per annum on the said entire deposited amount of Rs.2,05,18,894/-  (RUPEES TWO CRORES FIVE LAKHS EIGHTEEN THOUSAND EIGHT HUNDRED AND NINETY FOUR), from the date of its deposit till the date of its refund to the complainants.
3. Directing the respondent no.1 to pay damages and compensation of Rs.40,00,000/- to the complainants for mental agony, harassment and inconvenience.
4. Fix and impose a punitive liability upon the respondent no.2/DMRC for its non-action against the said misconduct of the respondent no.2 and showing its collusion with the respondent no.2.
5. Costs towards the litigation expenses of the complaint be also awarded in favour of the complainants and against the respondents.
6. Any other order as deemed fit and proper be also passed in favour of the complainant and against the opposite party.”

2.       The Complaint was contested by the Opposite Parties by filing separate written statements. On behalf of Opposite Party No.1 it was stated that the Complainants have raised a dispute of civil nature, which required elaborate evidence and cannot be adjudicated in summary jurisdiction by the Consumer Court. The Complaint was liable to be dismissed as not maintainable.

3.       On merits, it was stated that the land was handed over by Opposite Party No.2 in favour of Opposite Party No.1, vide transfer deed dated 01.09.2006. Thereafter, Opposite Party No.1 applied for requisite approvals from the concerned Government authorities. After approval of layout plan from Opposite Party No.2, it was submitted for approval by MCD. In 2007 there were major changes in the master plan for Delhi which changed the total scheme of the complex and Opposite Party No.1 had to make changes in the layout and building plans. Layout plan was finally approved, vide letter dated 28.02.2008 and building plan was approved, vide letter dated 27.05.2009, by the MCD. Opposite Party No.1 started construction work of few towers in September, 2009. Construction work in the last tower could be commenced in 2012. Opposite Party No.1 never promised that the flats would be completed within 36 months. It was stated that construction of the flat was likely to be completed within 36 months with a grace period of 6 months, subject to force majeure conditions. Opposite Party No.1 could not complete construction of the flats due to circumstances which were beyond their control.

4.       Opposite Party No.2 filed separate reply stating that Complainant is not a Consumer qua Opposite Party No.2 as there was no relationship of Consumer and service provider between them. No cause of action arose in favour of the Complainant against Opposite Party No.2. Complainants sought punitive damages against Opposite Party No.2 which cannot be paid as there was no privity of contract between the Complainant and Opposite Party No.2. The Complaint was liable to be dismissed qua Opposite Party No. 2 as not maintainable.

5.       On merits, Opposite Party No.2 stated that they have not received any consideration from the Complainant. They were not liable towards any loss sustained by the Complainants. There was no deficiency in service on their part. Opposite Party No.1 was responsible for deficiency in service, if any.

6.       Heard the Learned Counsel for the Complainants and Complainant No.1 in person as also Learned Counsel for Opposite Party No.1. Opposite Party No.2 was deleted, vide order dated 18.11.2022, at the request of the Complainants. Learned Counsel for the Complainants submitted that Opposite Party No.1 misrepresented to the Complainants that the layout plan had been approved by Opposite Party No.2, vide letter dated 20.07.2004. Opposite Party No.1 applied for registration of the project with RERA. RERA rejected the application of Opposite Party No.1 with the observation that Opposite Party No.1 failed to file copy of valid sanctioned layout and building plans which was a mandatory requirement for registration with the RERA. Complainants deposited a sum of Rs.2,05,18,894/- with Opposite Party No.1 The Complainants had taken huge loans from the Bank and were paying interest for the same. Opposite Party No.1 was enjoying the money deposited by the Complainants. Construction was to be completed within 36 months. Opposite Party No.1, however, failed to complete the construction even after expiry of 5 years.

7.       Learned Counsel for Opposite Party No.1 submitted that the Complaint involved dispute of a civil nature, which required elaborate evidence which can be taken up only by a Civil Court and not by the Consumer Forum in its summary jurisdiction. The Consumer Complaint was, therefore, not maintainable and liable to be dismissed.

8.       Learned Counsel for Opposite Party No.1 further submitted that the delay in construction was due to the circumstances beyond their control. They applied for requisite approvals from the concerned authorities. Opposite Party No.2 took time to approve the layout plan. Thereafter, Opposite Party No.1 submitted the layout plan for approval by MCD. There were major changes in the master plan of Delhi in 2007, due to which Opposite Party No.1 got the layout plan reapproved from the concerned authorities which took further time. It was on 28.02.2008 only, that the layout plan was approved by MCD. However, building plan was approved only on 27.05.2009. After approval of plan and building plans and completing other formalities, Opposite Party No.1 started construction work in 2012. Learned Counsel further submitted that there was possibility of completion of construction work within 36 months with a grace period of 6 months and there was no promise that the construction work would definitely finish within 36 months. The construction work got delayed only due to force majeure conditions and there was no deficiency in service on their part.

9.       Admitted facts of the case are that the Complainants booked residential apartment No.T7-1102 having about 2530 sq. ft. saleable/super built area alongwith proportionate undivided, unidentified, impartible leasehold rights in the land at a basic price of Rs.2,94,49,200/-, at the rate of Rs.11640/- per sq. ft. The basic price included club membership fee, 100% power back up, external electrical charges, firefighting installations and maintenance charges of common areas of the complex for two years from the date of offer of possession. The Complainants also booked one covered car parking for Rs.6,00,000/-. At the time of booking, the Complainants had paid a sum of Rs.9,74,896.42 to Opposite Party No.1. The Complainants opted for construction link payment plan. The Complainant paid a total amount of Rs.2,05,18,894/-. The Flat Buyer Agreement was executed on 19.11.2010. As per Flat Buyer Agreement, construction work was to be completed within 36 months, with grace period of 6 months. Opposite Party No.1 failed to fulfil its commitment even after expiry of about 5 years. The Complainants, therefore, sought refund of the deposited amount with interest @ 24% per annum.  

10.     Regarding maintainability of the Complaint, the Opposite Parties submitted that the Complaint involves the dispute of civil nature which requires elaborate evidence and cannot be adjudicated in a summary proceeding under Consumer Protection Act, 1986. Hon’ble Supreme Court in CCI Chambers Coop. HSG. Society Ltd. v. Development Credit Bank Ltd., Appeal (Civil)  7228 of 2001 observed as follows:

“It cannot be denied that Fora at the national level, the State level and at the district level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Fora have been established and conferred with the jurisdiction in addition to the conventional Courts. The principal object sought to be achieved by establishing such Fora is to relieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved.”  

From the above, it is clear that even if elaborate evidence is required, this cannot be a ground for shutting the doors of the Consumer Forum. Moreover, we find that the facts of the case are very clear and no elaborate evidence is required as alleged by the Opposite Parties. The Complainants sought refund the amount deposited by them. This Commission is, thus, fully competent to adjudicate the instant Consumer Complaint.

11.     Regarding delay in handing over possession of the flat, in Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., Civil Appeal No. 3533-3534 of 2017, decided on 12.3.2018, Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him/her, and is entitled to seek refund of the amount paid by him, along with compensation. The Flat Buyer Agreement was executed on 19.11.2010, according to which construction was to be completed within 36 months, with a grace period of 6 months. The Complainants had deposited total amount of Rs.2,05,18,894/-. They had taken loans from the Bank and paying EMI with interest. Opposite Party No.1 had not stated anywhere either in the reply or in the written arguments about the status of the construction and delivery of possession. Only a possibility of completion of construction in 36 months with a grace period of 6 months was indicated in the arguments, at this belated stage.

12.     Opposite Party No.1 took the ground of force majeure conditions. There is no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the construction of the project. The Opposite Party merely narrated a set of events and obstacles, routinely faced by project developers. Opposite Party No.1 failed to prove that there was any unforeseen and unexpected event which prevented the completion of the Project within the stipulated time period. 

13.     From the aforesaid facts, we find Opposite Party No.1 guilty of deficiency in service in not completing construction of the flat within the stipulated time and delivering possession. The Complainants are entitled for refund of the deposited amount with interest.

14.     In view of the above, the Complaint is partly allowed. Opposite Party No.1 is directed to refund the entire amount deposited by the Complainants with interest @ 9% p.a. from the date of respective deposits till the date of realization within two months, failing which the Opposite Party shall pay the principal amount with interest @ 12% p.a. There will be no order as to costs.