JUSTICE V.K. JAIN, PRESIDING MEMBER

          The complainant claims to be an Association formed with the object to express/raise the common grievances and concerns of the allottees of the flats in a project namely Parsvnath Exotica, which the opposite party is developing in Ghaziabad.  As many as 39 members of the complainant society booked residential flats in the Tower B to D of the aforesaid project, which was approved by Ghaziabad Development Authority on 17.02.2007.  31 members of the said Association booked flats in Tower E and F, which have not been approved till date.  Complaint No. 45 of 2015 pertains to those members, who had booked flats in Towers B to D, whereas complaint No.46 of 2015 pertains to the members who had booked flats in Towers E and F of the said project.   The construction was likely to be completed within 36 months from the date of commencement of construction of the particular tower in which the flat was to be located, on receipt of sanction of building plans / revised building plans and approvals of all concerned Authorities as might be required for commencing and carrying on construction.  According to the complainants, the time for completing the construction ended in June, 2011.

2.      The complaint has been filed against three companies namely Parsvnath Developers Ltd., Parsvnath Buildwell Pvt. Ltd. and M/s. Devidayal Aluminium Industries (P) Ltd.  The possession of the flats however, has not been offered to the complainants.  Being aggrieved they are before this Commission, seeking the following reliefs:

In Consumer Complaint No. 45 of 2015

1. Direct the opposite parties to hand over the possession of flats to the Allottees (named in Annexure-1) immediately, complete in all respects and execute all required documents for transferring / conveying the ownership of the respective flats;
2. Direct the opposite parties to pay interest at the rate of twenty four percent (24%) per annum compounded quarterly, on the total amount  paid by the Allottees (named in Annexure-1) to the opposite party No.1 towards their respective flats, from the expiry of thirty six (36) months (computed from the date of payment of the booking amount) until the actual physical possession of the respective flats;
3. Direct the opposite parties to complete and seek necessary governmental clearances regarding infrastructural and other facilities including road, water, sewerage, electricity etc. before handing over the physical possession of the flats;
4. Direct the opposite party to hand over the club house and car parking complete in all respects while handing over of the flats;
5. Refund with interest the charges collected under the heads of ‘parking’, ‘club membership’ and ‘administrative charges’ towards transfer of flats, to the respective allottees (named in Annexure-1);
6. Direct the opposite parties to provide for third party audit to ascertain / measure accurate areas of the flats and facilities, more particularly, as to the ‘super area’ and ‘built up area’;
7. Direct the opposite parties to pay a sum of Rs. Fifteen (15) lacs towards undue hardship and injury both physical and mental caused to each of the allottees (named in Annexure-1) due to the acts of omission / commission on the part of the opposite party;
8. Direct the opposite parties to pay at least a sum of Rs.Ten(10) lacs to the complainant towards the cost of litigation;
9. Direct the opposite parties to refrain from giving effect to the unfair clauses unilaterally incorporated in the Flat Buyer Agreement.

In Consumer Complaint No. 46 of 2015

1. Direct the opposite parties to hand over the possession of flats to the Allottees (named in Annexure-1) immediately, complete in all respects and execute all required documents for transferring / conveying the ownership of the respective flats; or in alternative,
2. Refund the entire amount to each of the member Allottees (named in Annexure-1) along with interest at the rate of twenty four percent (24%) per annum compounded quarterly from the date of payment till the payment is actually made by the opposite party No.1’
3. Refund with interest the charges collected under the heads of ‘parking, ‘club membership’ and ‘administrative charges’ towards transfer of flats, to the respect allottees (named in Annexure-1);
4. Direct the opposite parties to pay a sum of Rs. Five(5) lacs towards undue hardship and injury both physical and mental caused to each of the allottees (named in Annexure-1) due to the acts of omission / commission on the part of the opposite party;
5. Direct the opposite parties to pay at least a sum of Rs. Ten(10) lacs to the complainant towards the cost of litigation;
6. Direct the opposite parties to refrain from giving effect to the unfair clauses unilaterally incorporated in the Flat Buyer Agreement.

3.      In their reply / written version to the complaint, opposite party No.1 has not disputed bookings made by the members of the complainant association nor has it disputed the payments made by them for the Apartments booked with them.  It is alleged that opposite party No.1 Parsvnath Developers Limited and opposite party No.3 Devidayal Aluminium Industries (P) Ltd. had entered into a development agreement wherein opposite party No.1 had agreed to carry out development, construction and sale of areas on the land owned by opposite party No.3 in Ghaziabad.  A Special Purpose Vehicle in the name of opposite party No.2 Parsvnath Buildwell was then created to speed up the construction and development activities.  It is further alleged that the building plans and site plans were duly approved by Ghaziabad Development Authority on 17.03.2007 but later on, revised building plans were submitted to the said Authority which are still under consideration of the Authority.  The Developer, according to the opposite parties, is still awaiting approval of the revised plans.  The delay in completion of the construction is sought to be explained on account of the economic meltdown and consequent financial sluggishness and recession in the market.  It is stated in the written submissions filed by the developer that they shall offer possession of the flats in Towers A, B, C and D within 18 months from the date of receipt of the approval of the revised building plans.  According to them, the status of construction in Towers A-D is as under:

Tower E and F were launched by the developer in the first quarter of 2012 but the building plans in respect of the said towers have not been approved till date.

4.      Consumer Complaint No. 45 of 2015

          As noted earlier, this complaint pertains to those members of the complainant association who had booked residential flats in Sector B to D of the project Parsvnath Exotica in Ghaziabad.  As per Clause 10 (a) of the Agreements executed between the opposite party No.1 Parsvnath Developers Ltd., and the flat buyers, the construction was likely to be completed within a period of 36 months from the commencement of the construction after sanction of building plans and accord of all the necessary approvals.  This is the case of the opposite parties that the said approvals were granted by the Ghaziabad Development Authority on 17.3.2007.  The construction therefore, should have been completed by 17.3.2010.  Admittedly, the construction is far from the complete and the developer has submitted revised plan to Ghaziabad Development Authority, which are yet to be approved.  It is stated in the written synopsis filed by the developer that they deposited a sum of Rs.11,30,000/- with the Authority on 13.4.2011 and obtained the Fire NOC on 25.3.2013.  It is thus evident that the revised plans were submitted after the time stipulated in the Buyers Agreement for completion of the construction had already expired on 17.6.2010.  The developer therefore, not only failed to complete the construction by the stipulated date, it has further prolonged the said delay by submitting a revised plan to the Ghaziabad Development Authority. The submission of the revised building plans was bound to result in further delay in completion of the flats which had already sold.  Being aware of its contractual obligation to complete the construction within 36 months and the fact that the said construction had already been delayed, the opposite party ought not to have sought revision of the building plans which it had earlier got approved from the Ghaziabad Development Authority,   without prior approval of the flat buyers, who had made booking on the basis of the time period committed by the said developer for completion of the Apartments.  In fact, the reply provided by the Ghaziabad Development Authority under Right to Information Act, shows that since the time limit for completing the construction has expired, the construction work has been altogether stopped by the Authority.  Therefore, the developer is squarely responsible for the delay in completion of the apartments which it had sold to the members of the complainant association.

5.      As regards, the alleged sluggishness in the real estate and economic slowdown, they are not valid reasons for the delay in completion of the construction and is in any case the developer has failed to establish how the alleged sluggishness and economic slowdown had prevented it from completing construction of the apartments which it had sold to the members of the complainant association.  Though, Clause 10(a) of the Buyers Agreement contains a Force Majeure Clause, no factual situation attracting the invocation of the aforesaid Force Majeure Clause has been established by the developer.  There is no evidence or even allegation of any Court / Authority having stopped or restrained the construction.  There is no evidence of the building material not been available in the market.  There is no evidence of the developer having any dispute with the contractor or the workforce of this particular project.  Therefore, the delay in completion of the construction cannot be justified.

6.      Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.

7.      Consumer Complaint No. 46 of 2015

          Such members of the complainant Association who were allotted residential flats in Sector E and F are in a worse position since even the building plans for construction of the aforesaid towers have not been approved so far and therefore, no construction at all has started.

8.      Though, in Consumer Complaint No.45 of 2015, the main prayer made by the complainant is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the tile deed in their favour, when this matter came up for hearing on 27.4.2016, the learned counsel for the complainant stated on instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them.  The learned counsel for the opposite party submitted in this regard that no prayer for refund has been made in Consumer Complaint No.45 of 2015.  In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief which is justified and warranted in the facts and circumstances of the case.  These allottees booked the flats way back in the year 2007-08.  The possession of the flats was to be delivered to them by June, 2001.  Almost five years have expired since the date by which the construction was to be complete.  Since the revised building plans have not been approved as yet, it cannot be known when the opposite party will be able to complete the construction of these four towers and deliver possession to the allottees.  In fact, as stated in the written submissions filed by M/s. Devidayal Aluminium Industries (P) Ltd., even the development contract with the builder has been cancelled by them.  Therefore, at present neither the builder has valid building plans which would enable it to resume the development nor does it have a subsisting development agreement with the land owner.   In these circumstances, the allottees cannot be made to wait indefinitely for the possession of the flats booked by them and they are entitled to seek refund of the entire money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them by keeping their money with the opposite party.  The money which they paid to the opposite party may have been borrowed or may be their own money.  In case, they had taken loans, they would have paid interest on the said loan.  In case, they have given their own money to the opposite party, the very same money would have been used by them either by way of a financial investment or in purchase of some other flat the value of which would have appreciated substantially with the passage of time and in which they would also have been able to live.

9.      As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads.  Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them.  They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them.  In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own.  Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together.

10.    During the course of hearing on 27.4.2016, the learned counsel for the complainants, stated on instruction, that with a view to avoid further litigation and to give a closure to the issue, the complainants are ready and willing to accept refund, along with compensation in the form of simple interest @ 12% per annum from the date of each payment till the date on which the said refund is paid to them along with compensation but they would certainly press for award of independent compensation for the mental agony and harassment suffered by them at the hands of the opposite parties.

11.    The next question which arises for our consideration is as to from whom the aforesaid allottees are entitled to refund.  The written synopsis filed by opposite party No. 3 M/s. Devidayal Aluminium Industries (P) Ltd., shows that no money was paid to them and the entire payment was made only to Parsvnath Developers Ltd. and Parsvnath Buildwell Pvt. Ltd.  Though, the Flat Buyers Agreement purport to be signed by opposite party No.3 as well, the same has been signed by someone from Parsvnath Developers Ltd. and Parsvnath Buildwell Pvt. Ltd., as authorized signatory of opposite party No.3.  Since no payment was made to opposite party No.3 the allottees are not entitled to refund form the said opposite party and they must necessarily claim it only from those to whom payment was made by them.

12.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(i)      The opposite party No.1 in Consumer Complaint No.45 of 2015 namely Parsvnath Developers Ltd. is directed to refund, within four weeks, the entire amount paid by the 39 allottees in Towers B-D who are the members of the complainant Association, along with compensation in the form of simple interest calculated @ 12% per annum with effect from the date of each payment till the date the said refund is paid, along with entire compensation in terms of this order;

(ii)      The opposite party No.2 in Consumer Complaint No.46 of 2015 namely Parsvnath Buildwell Ltd. is directed to refund, within four weeks, the entire amount paid by the 31 allottees in Towers E & F who are the members of the complainant Association, along with compensation in the form of simple interest calculated @ 12% per annum with effect from the date of each payment till the date the said refund is paid, along with entire compensation in terms of this order;

(iii)     The opposite party No.1 in Consumer Complaint No.45 of 2015 namely Parsvnath Developers Ltd. and opposite party No.2 in Consumer Complaint No.46 of 2015 namely Parsvnath Buildwell Pvt. Ltd. are also directed to pay within four weeks, Rs. 3,00,000/- as compensation to each of their respective allottees, who are members of the complainant Association, failing which the said amount shall carry interest @ 12% from the date of this order till the date of payment / recovery;

(iv)    The opposite party No.1 namely Parsvnath Developers Ltd. in Consumer Complaint No. 45 of 2015, shall pay Rs.25,000/- as the cost of litigation to the complainant;

(v)     The opposite party No.2 in Consumer Complaint No. 46 of 2015 namely Parsvnath Buildwell Pvt. Ltd. shall pay Rs.25,000/- as the cost of litigation to the complainant.