1.      Heard Mr. Nitendra Sharma, Advocate for the complainants and Mr. Sukumar Pattjoshi, Senior Advocate assisted by Mr. Vipul Ganda, Advocate, for the opposite parties.

2.      Initially the complainants filed the above complaint for directing the opposite parties to (a) pay simple interest @15% per annum on the amount paid by them for the delay period to each complainant and also pay future interest till realization; (b) pay Rs.10/- lacs for physical and mental agony suffered by the complainants; (c) pay Rs.255000/- towards litigation cost; and (d) any other order which this Commission deems fit. The complainants filed IA/6412/2017, under Section 12(1)(c) of the Consumer Protection Act, 1986 for grant of leave to file the complaint as a representative complaint, which was allowed on 14.11.2018. During the pendency of the complaint, on the direction of the Central Vigilance Commission, the opposite parties appointed Indian Institute of Technology, Delhi (IIT Delhi) to examine the structural condition of the building “NBCC Green View” at Section-37D, Gurgaon. IIT Delhi submitted its preliminary report on 29.12.2020, pointing out various deficiencies in the structure of the building. IIT Delhi submitted its final report on 02.02.2021 and follow-up reports on 18.09.2021 and 06.10.2021, observing that the building is not in a habitable condition and advised for vacation of the building within a period of two months in view of the safety of the occupants. Based on the reports of IIT Delhi, NBCC issued notices dated 03.10.2021, 13.10.2021 and 18.11.2021 to the occupants to vacate the building. NBCC wrote a letter dated 20.11.2021 to the Deputy Commissioner, Gurugram, seeking for directions to the occupants to vacate the building which was in demolishing condition. On 17.02.2022, District Magistrate-cum-Chairperson, District Disaster Management Authority (DDMA), Gurugram in exercise of his powers under Section 144 of Criminal Procedure Code, 1973 and Section 34 of Disaster Management Act, 2005 directed all the residents of the building to vacate it within 15 days.

3.      In view of the aforesaid fact, the complainants filed IA/3393/2023 for amendment of the complaint, which was allowed on 17.03.2023 and they filed an amended complaint for directing the opposite parties to (i) refund the entire amount of sale consideration paid by them with interest @15% per annum from the date of respective payment till date of refund; (ii) refund the stamp duty, registration charges and lawyer’s fee  paid on the conveyance deed; (iii) refund the amount spent on repair/rectification work and two years advance maintenance with interest @15% per annum from the actual date of payment till the date of refund; (iv) pay compensation for the damages sustained by the complainants based on difference in the price index prevalent during 2012 and 2022 or the market rate of similar property in the vicinity on date when actual compensation becomes payable; (v) pay actual monthly rent paid by the complainants; (vi) pay a sum of Rs.50/- lacs for mental agony, hardship and discomfort sustained by the complainants (vii) pay the amount of interest paid by the complainants to the bank from the date of possession till refund; (viii) pay Rs.5/- lacs as litigation cost; and (ix) any other order which this Commission deems fit. By the order dated 17.03.2023, fresh leave under Section 12(1)(c) of the Consumer Protection Act, 1986 was granted in respect of the amended prayer. The complaints get the notices published in respect of amended prayer as per Section 13(6) of the Consumer Protection Act, 1986. 

4.      The complainants stated that National Building Constructions Corporation Limited (the NBCC) (OP-1) is a government company incorporated under the Companies Act, 1956 and working under control of Ministry of Housing & Urban Affairs, Government of India and dealing in construction and sale of apartments to the employees  of central/state government, public sector undertaking, bank/insurance company. OP-1 invited Expression of Interest for residential project in Gurgaon in the year 2009, having the features of 24 meter wide road, 18 meter green belt, easily approachable from the proposed Northern Peripheral Dwarka Expressway, green and open land scaped area, provision of natural light and cross ventilation in all rooms as every apartment was three side open, single entry and single exit with fencing for security, trees plantation with internal pathway and roads, convenient shopping and nursery school, high speed elevators and dedicated car parking, community centre with multi-purpose hall and swimming pool, earthquake resistant structure, rain water harvesting, fire safety equipment and reliability of the government undertaking. The eligibility for applying in the project inter alia was that the applicant should be an employee of central/state government, central/state PSU, Bank/ Insurance Companies in autonomous bodies. Allured by the lucrative offer of OP-1, the complainants applied for allotment of flats in the group housing project “NBCC Greens View”, at Sector-37D, Gurgaon in the year 2012. OP-1 allotted the respective flats to the complainants by holding lottery draw on 17.10.2012 and allotment letters were issued in November, 2012. Clause-19 of General Terms & Conditions of the allotment letter provided 30 months period from the date of the allotment, for handing over possession. Sale consideration was payable in 8 instalments i.e. first instalment was payable within 45 days of allotment, 7^th instalment was payable within 27 months of allotment and 8^th instalment was payable on offer of possession. Due date of possession was from 02.05.2015 to 17.12.2015. The complainants made the payments of instalments as and when demanded by OP-1 but possession of the flats was not handed over within the stipulated period. As per clause 16 of the General Terms & Conditions, OP-1 charged interest @15% per annum for delay in the payment.  The complainants sought for information regarding delivery of possession under RTI Act, 2005. OP-1 replied to the RTI application on 27.09.2016 informing that the possession would be handed over within 30 months from the date of allotment letter. The complainants again sought information under RTI from OP-1 relating to the date of possession. OP-1 vide reply dated 23.01.2017 informed that the project is completed and they have started giving interim possession to the allottees vide notice dated 14.12.2016. The complainants alleged that OP-1 had received the payments as per payment schedule and failed to deliver the possession within stipulated period. There was no reason beyond the control of OP-1 to handover the possession in time and the ground of force majeure conditions taken by them is false. Ministry of Housing & Urban Affairs in the annual report for the year 2013-14 stated that NBCC is constructing “Group Housing Project, Sector-37D, Gurgaon” which is likely to be completed by June, 2015. OP-1 offered interim possession in January, 2017 and that too without obtaining the “occupation certificate” which was obtained in August, 2017. OP-1 offered valid possession in September, 2017. Technical Wing of Central Vigilance Commission (CVC) conducted a technical examination of the project and submitted its report in June, 2019 and called for the comments on the report from the Executive Director of OP-1. In December, 2019, Technical Wing of CVC again pointed out various deficiencies in construction and directed OP-1 to obtain a report relating stability of the structure from IIT Delhi. Thereafter, IIT Delhi submitted its preliminary report, final report and follow up report on 29.12.2020, 02.02.2021, 18.09.2021 and 06.10.2021 respectively observing the structural defects as mentioned above. On 20.11.2021, OP-1 wrote a letter to the Deputy Commissioner (DDMA), Gurugram for vacating the building. District Magistrate-cum-Chairperson, District Disaster Management Authority, Gurugram vide order dated 17.02.2022, directed the occupants to vacate the building. OP-1 was also directed to refund the amount to the flat owners with interest as per law. In compliance of the orders of DDMA, Gurugram the complainants vacated the flats. OP-1 also appointed an expert committee of two Scientists from Central Building Research Institute (CBRI), Roorkee and Indian Institute of Technology (IIT), Roorkee. This committee also concluded that the building structure is unsafe for habitation and the building may be demolished. Many home buyers made complaint to the CVC. After examination of the building, CVC issued charge sheet to three board level executives and seven other executes. OP-1 started refunding principal amount + interest @6% per annum from 27.07.2022 to the home buyers. The complainants refused to accept the amount offered by OP-1 as they have suffered loss which is much more than the amount offered by OP-1. The complainants are entitled to the amounts included the consideration, charges for delay payment, stamp duty and registration charges for conveyance deed with interest @15% per annum as charges by OP-1 and the compensation. Therefore, they filed the above complaint on 20.04.2017.

5.      The opposite party-1 filed its written reply on 27.07.2017 wherein booking of the apartments, allotment of the apartment, payments made by the complainants and delayed delivery of possession to them, have been admitted. OP-1 filed written reply to the amended complaint on 22.05.2023, in which subsequent facts and reports as well as letters dated 03.10.2021, 13.10.2021 and 18.11.2021 to the occupants of the building to vacate it and direction of DDMA dated 17.02.2022, directing the occupants to vacate the building and vacation the building by them, have been admitted. OP-1 stated that initially Supreme Infrastructure India Private Limited was given contract for construction of the project building, who caused unreasonable delay in starting the construction. Then its contract was terminated on 24.12.2014 and fresh contract was given to Ramacivil India Construction Private Limited, who completed the construction in September, 2016. Then OP-1 applied for issue of “occupation certificate” on 22.10.2016. The Director, Town and Country Planning, Haryana granted “occupation certificate” on 02.08.2017. Thereafter possession was offered from 03.08.2017. The delay was caused due to the reasons beyond its control. OP1 is constructing houses to the employees on “no profit no loss” basis as such is not liable to pay delay compensation. OP-1 received complaints from various allottees in respect of quality of the construction as done by the contractors. Therefore, OP-1 engaged IIT Delhi on 11.09.2020 for assessment of structural soundness of the building, who after inspection submitted its report in October, 2020. OP-1 again called for a report from IIT Delhi exploring feasibility of comprehensive repair methodology, who in its report dated 02.02.2021, suggested some repairs. However, IIT Delhi in its follow up reports dated 18.09.2021 and 06.10.2021 noted continuing deterioration at an accelerated pace in the building. In order to avoid any risk to the occupants, OP-1 issued notices dated 13.10.2021, requiring the occupants to vacate the building. Subsequently IIT Delhi submitted another report dated 17.11.2021 noting continued cracks at an accelerated pace and suggested extensive repair in almost all structural elements. In view of this report, OP-1 issued another notice dated 17.11.2021, requiring the occupants to vacate the building and asked the occupants to contact at Help Desk at the site. OP-1, vide letter dated 25.11.2021 provided help of rent @Rs.12.50 per square foot, in the line with the size of their flat and assistance in packer, mover and transport. In order to avoid any risk and ensure safety of the occupants, CCMA issued order dated 17.02.2022 for vacating the building. As advised by IIT Delhi a committee of experts comprising of delegates from IIT Roorkee and Central Building Research Institute Roorkee was constituted to review the feasibility of repair of the building. Expert Committee submitted its report in March, 2022, recommending demolition of the building. This Commission, vide order dated 27.12.2021, directed OP-1 to explore the terms of settlement. OP-1 vide letter dated 29.07.2022, offered the allottees to repurchase their flats and refund the amounts deposited by them including interest paid on delayed payment, stamp duty and registration charge. OP-1, vide another letter dated 04.02.2023, offered refund @Rs.5100/- per sq.ft. (except PLC), stamp duty and registration charge. Circle rate of the locality is Rs.4200/- per sq.ft. The complainants did not agree for above proposal and demanded compensations in various heads. Supreme Infrastructure India Private Limited and Ramacivil India Construction Private Limited have committed gross deficiency in construction due to which, OP1 and the allottees are suffering huge loss. The complaint raises civil dispute and is not maintainable as the conveyance deed executed in favour of the complainants cannot be cancelled by this Commission. None of the complainant has disclosed factum of the loan taken by him for purchasing the flat although in case of the loan, money has to be refunded to the bank first. Amended complaint does not satisfy the ingredients of Section 12(1)(c) of the Consumer Protection Act, 1986. Some of the complainants filed complaints before other forum. The complaint is liable to be dismissed.

6.      The complainants filed the Rejoinder, Affidavit of Evidence of various complainants and Affidavit of Admission/Denial of documents and documentary evidence, before amendment of the complaint. After amendment, the complainants filed fresh Rejoinder, Additional Affidavit of Evidence of various complainants and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents and documentary evidence and fresh Affidavit of Evidence, annexing copy of the letter dated 21.10.2023, by which, OP1 has offered refund of total amount (except stamp duty and registration charges) with interest @6% per annum from the date of deposit till 18.08.2023. Both the parties have filed their written arguments.

7.      I have considered the arguments of the counsel for the parties and examined the record. OP-1 issued notices dated 03.10.2021, 13.10.2021 and 18.11.2021 to the occupants to vacate of the building. OP-1 wrote a letter dated 06.10.2021 to the Commissioner, Municipal Corporation, Gurugram, seeking for directions to the occupants to vacate the building. In pursuance thereof District Magistrate-cum-Chairperson, District Disaster Management Authority, Gurugram vide order dated 17.02.2022, directed the occupants to vacate the building. Thereafter, all the complainants vacated the building. The experts committee comprising of the delegates from IIT Roorkee and Central Building Research Institute Roorkee submitted its report in March, 2022, recommending demolition of the building “NBCC Green View”. Thereafter, OP-1 vide letter dated 29.07.2022, offered to repurchase the flats and refund the amounts deposited by the allottees including interest paid on delayed payment, stamp duty and registration charge. OP-1, vide another letter dated 04.02.2023, offered refund @Rs.5100/- per sq.ft. (except PLC), stamp duty and registration charge. By the letter dated 21.10.2023, OP1 has offered refund of total amount (except stamp duty and registration charges) with interest @6% per annum from the date of deposit till 18.08.2023. Although possession of the flats were offered in August, 2017, delivered thereafter and the complainants lived in it till October, 2021 or till February, 2022 but OP-1 is refunding the amount deposited by the complainants (except stamp duty and registration charges) with interest @6% per annum from the date of deposit till 18.08.2023. Supreme Court in Experion Developers (private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that in case of refund, 9% interest is just compensation, which amounts to restitutory and compensatory both. The judgments of this Commission contradictory to the judgment of Supreme Court are no more good law to follow as the precedent.         

8.      OP-1 committed deficiency in service in not constructing a stable and strong building, due to which, the complainants are deprived from their houses, for which, they had paid their lifetime savings in 2013-2014. There is no reason for the complainants to bear the expenses on stamp duty and registration charges. Supreme Court in Wg. Camdr. Arifur Rehman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and Debashis Sinha Vs. R.N.R. Enterprises, (2023) 3 SCC 195, held that even after execution of sale deed, the consumer can raise deficiency in service. OP-1 relied upon the judgment of Supreme Court in Rajeev Nohwar Vs. Chief Controlling Revenue Authority Maharashtra, (2021) 13 SCC 754, in which, it has been held that the purpose for which stamp was purchased, had become redundant. Limitation of six months as provided under Section 50 of the Stamp Act, 1899, for refund, must be read from the date of order of Supreme Court. OP-1 may take refund of stamp duty as per law laid down in Committee –GFIL Vs. Libra Buildtech Private Limited, (2015) 16 SCC 31. However, the complainants will sign the necessary application form enabling OP-1 to get refund of the Stamp duty.     

9.      So far as the arguments that some of the original allottees have sold their flat and there is no privity of contract between OP-1 with the transferee and such transferees as they do not have same interest or falling in same class. Judgment in Wg. Camdr. Arifur Rehman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 has been overruled by Supreme Court on this point in Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, AIR 2021 SC 4229, in which, it has been held that a transferee steps in the shoes of original allottee.  

10.    Although Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318 held that the compensation cannot be awarded in multiple heads but Section 14 of the Consumer Protection Act, 1986, authorises this Commission to award punitive damages. Supreme Court in Lucknow Development Authority Vs. M.K. Gupta, (1994) 1 SCC 613 held that the jurisdiction of the court to indemnify a citizen for the injury suffered due to abuse of power by public authorities is founded on principle that an award of exemplary damages can serve useful purpose in vindicating the strength of law. It acts as a check on arbitrary and capricious exercise of power. It may result in improving work culture and help in change of outlook. In McLeod Russel India Limited Vs. Regional Provident Fund Commissioner, (2014) 15 SCC 263, held that modern jurisprudence recognises imposition of punitive damages quintessentially quasi-criminal in character, can be resorted even in civil proceeding to deter wilful wrong doing by making an admonished example of the wrong doer.

          NBCC appoints highly qualified officers to supervise the construction work. They cannot shirk their responsibility on the building contractor, leaving life of thousands of allottees in danger for ever. Due to negligence in performance of the duty now the allottees have been deprived from their houses and will face inflation in price for taking new house. Entire family have suffered with lot of agony and harassment. The study of the students may have been affected due to ejectment from the house. It is a fit case in which every allottee is entitled for exemplary damage of Rs.10/- lacs.

11.    After reserving of the judgment, Pankaj Lathar and Neelam Kumari filed IA/3500/2024 for deleting their names from the complaint. IA/3500/2024 is allowed. The names of Pankaj Lathar and Neelam Kumari are deleted. 

O R D E R

          In view of above discussions, the complaint is partly allowed. Opposite party-1 is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of refund and pay each set of allottee Rs.10/- lacs as exemplary damage, within two months from the date of this order. It shall be open to opposite party-1 to satisfy the bank loan of the allottee first and refund balance amount to the allottee. All the allottees shall return their conveyance deed (if not deposited in bank for taking loan) within a period of 15 days. All the allottees shall sign application form in order to enable OP-1 to get stamp duty refunded, if required by OP-1. All the allottees will give affidavit, giving details of the bank from where loan was taken and encumbrance on the flat was created within 15 days.

          This judgment is not applicable to those allottees who have settled their dispute.