1. The present Consumer Complaint CC/1304/2018 is filed under Section 21 of the Consumer Protection Act 1986 (for short the Act) by Apartment Buyer’s Consumer Association (Dallas), represented through its President (hereinafter referred to as the Complainant) against M/s TGS Constructions Pvt. Ltd. (hereinafter referred to as the Opposite Party) seeking – (i) refund of the respective amount paid by the members of the Complainant Association with interest at the rate of 18% per annum from the date of the payment till its realization. (ii) award of Rs. 50,000/- to each member of the complainant towards mental harassment (iii) award of Rs. 10,000/- per month to each member of the complainant as cost incurred towards rents on account of non-delivery of units.
2. The brief facts as per the Complaint are that the Complainant Association comprised 86 allottees (buyers), who booked the Units (flats) in the project of the Opposite Party called “TGS Dallas” situated at Hongasandra Village, Begur Hobli, Bengaluru South Taluk, Bengaluru between the year 2014-2016. The members of the Complainant Association entered into respective Memorandum of Understanding (for short, MoU) on different dates and paid various booking amounts to the Opposite Party. The Opposite Party did not execute any further documents, such as the Agreement of Sale and Construction Agreement. The Complainant stated that many members had signed the Memorandum of Understanding with the Opposite Party even before the Opposite Party acquired the land for construction.
3. The Complainant further stated that the Opposite Party promised to deliver and handover the Units within 20 months (including 3 month grace period) from the date of the MoU.  If he failed to do so, the Opposite Party agreed to refund the paid amount with 8% interest and compensate as to rent.
4. Later on, it was noticed by the Buyers that the representations made by the Opposite Party regarding the sanction plan to be false. When the Complainant raised this issue with the Opposite Party, they were assured that the construction work would start soon. During a meeting in March 2017, the Opposite Party threatened the Buyers with the possibility of selling the property. In fear of property being disposed of by the Opposite Party, some members filed a suit in the Civil Court, praying for a Permanent Injunction. An application for Temporary Injunction was also filed. The Civil Court issued notice to the Opposite Party but refused to grant an interim injunction as prayed. Aggrieved by the order of the Civil Court, the Complainant filed a Writ Petition before the Karnataka High Court. The Karnataka High Court granted ex parte, ad-interim Order of temporary injunction restraining the Opposite Party from alienating or creating encumbrances on the Project land. 
5. The Complainant recognized that construction had stalled, and the Opposite Party had no intention of completing the project. Aggrieved by the above acts of the Opposite Party, the Complainant filed a Complaint in this Commission with prayer as under:-

1. Direct the Opposite Party to refund the respective amounts paid by the consumers as per the claim sheet contained at para 3(iv) above p. 4 to 9 as also amounts paid by any other person who has paid money to the Opposite Party towards allotment/purchase of sites/plots/apartments in its various projects; and,

2. Award interest on the amount due to each of the Consumers at the rate of 18% per annum from the date of the payment till its realization; and,

3. Award a sum of Rs. 50,000/- to each consumer and other persons similarly situated towards mental harassment; and,

4. Award a sum of Rs. 10,000/- per month to each consumer and other persons from the date when possession became due as per the chart at para 3(iv) till the date of payment, for costs incurred towards rents etc. on account of non-delivery; and,

5. Pass any such directions or orders as may be necessary in the facts and circumstances of the case and in the interest of justice.

6. The notice issued by this Commission in the Complaint was returned with the postal remark as ‘left’. Thereafter, the notice was once again issued on the fresh address, which was returned unserved with the remark “Unreadable postal remark”. Thereafter, the Complainant sought permission for Substituted Service to the Opposite Party vide IA/7193/2019. The said application was allowed by this Hon’ble Commission vide Order dated 03.03.2020. Thereafter, the notice was published in the English Newspaper viz. Indian Express and in a vernacular local daily which had vide circulation in Karnataka viz. Kannada Prabha.  It is evident from the records that ample opportunities were provided to the Opposite Party to appear before this Commission. However, it failed to do so. Therefore, the Complaint was proceeded ex parte.
7. Heard learned Counsel for the Complainant and have gone through the Complaint and material available on record.
8. Learned Counsel for the Complainant argued that the Complaint is filed under Section 12(1)(b) of the Act on behalf of 86 allottees. The Opposite Party is a Company registered under the Companies Act.  All the MoUs with the 86 Buyers were executed on different dates and for different considerations. These were executed between 2014-16. Out of 86 Buyers, the case of Aarthi Thiyagarajan is taken as lead case. As per Clause 8 of the MoU executed between Aarthi Thiagarajan and the Opposite Party, the due date of possession was 28.01.2018 (i.e. 30 months, including a grace period of 6 months).  The project is not completed and no Occupancy Certificate has been obtained from the concerned authority.  In the meantime, the High Court of Karnataka also granted ex parte Order restraining the Opposite Party from alienating the alleged property.  Learned Counsel of the Complainant argued that the present Complaint was covered in the Order of this Commission in Apartment Buyers Consumer Association vs. M/S Dreamz Infra India Pvt. Ltd. passed in CC/2358/2017 decided on 09.02.2023, wherein the Complaint was allowed, and the Builder was directed to refund the deposited amount on the ground of delay in construction of the Project.  M/s Dreamz Infra is a sister concern of the Opposite Party.
9. The details of 86 Buyers regarding their payments, agreement dates, sale consideration etc. have been listed in the Complaint.  The details of the Unit of Ms. Aarthi Thiyagarajan, who is the Allottee/ Complainant at Serial No. 1 of the list, is as under:-

10. The possession date mentioned in Clause 8 of the above-mentioned MoU is January 2018. The construction and possession were to be given within 30 months, including 6 months grace period from the date of execution of the MoU.  The same has not happened.  There is no doubt that there has been an unreasonable delay from the beginning. The earliest booking was done in 2014 and the latest in 2016. There is a continuous delay of more than 6 years from the date mentioned in the MoUs and the Buyers have been waiting for possession for over 4 to 6 years from the respective dates of booking. The delay and status of construction are further affirmed by the fact that no Occupation Certificate has been obtained.  Even after this length of time, the project remains incomplete as on this date.  The Opposite Party has definitely committed deficiency of service under the Act on the ground of inordinate delay and for not giving possession.  Thus, the Complainants are entitled to get refund of their deposited amount alongwith reasonable delay compensation. There are a number of case laws wherein the Hon’ble Supreme Court has decided favourably on the right of the buyers for getting refund of their money in case of undue and unreasonable delay by the Developer/ Builder.
11. In the present case, it is fit to put reliance on the Order of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan, II (2019) CPJ 34 (SC), decided on 02.04.2019, wherein it was held as under:

“We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation.

In Bangalore Development Authority v. Syndicate Bank,5 a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund.

The National Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission’s final Order till the date on which the amount is refunded with Interest.

We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the  Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest”.

12. The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, decided on 25.03.2021 observed as hereunder:

“.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified. 

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified. Having regard to all the facts and circumstances of the case, we modify the order of the NCDRC by directing that the appellant shall pay interest at the rate of 9% per annum to the respondent instead and in place of 12% as directed by the NCDRC. Save and except for the above modification, we affirm the directions of the NCDRC.”

13. The Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No. 6044 of 2019, decided on 07.04.2022, held as under,

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the dates of deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by the purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposit.

At the same time, we are of the opinion that the interest of 9% granted by the commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest.”

14. In view of the discussion above, the Complaint is allowed with directions to the Opposite Party as under:

1. Refund the entire amount deposited by each of the Complainant members to them along with delay compensation @ 9% p.a. from the respective dates of deposit till realization within six weeks of this Order. Any delay beyond six weeks, will attract interest of 12% p.a. for the same period.
2. Pay Rs.1,00,000/- as litigation cost to the Complainant Association.

15. Pending applications, if any, stand disposed of.