1. The present Consumer Complaint (CC) has been filed by the Complainant(s) against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-

1. Grant a sum of Rs. 1,53,32,871/- towards principal amount of Rs. 59,77,713/- paid to OP, along with compensation in the form of interest at the rate of 18% per annum amounting to Rs. 93,55,158/- as calculated upto 31^st July 2017, or such amounts at the same rate of 24% per annum which is being charged by OP, along with pendent lite and future interest, till date of actual realization of payment.
2. Grant cost of litigation to complainants.

2. Notice was issued to the OP on 04.09.2017. Parties filed Written Statement/Reply and Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.

3. It is averred/stated in the Complaint that:

1. The complainants booked a flat in OP’s project “Parsvnath Privilege”, to be developed on plot no. 11, sector- Pi, Greater Noida. Flat buyer agreement was entered between the parties on 20.09.2007 and it was stipulated by OP that construction of flat was to be completed within a period of 36 months from date of commencement of construction.

2. Construction of tower T-1 commenced in August 2008 as admitted and confirmed by OP vide its letter dated 25.05.2009 and has to be completed by August 2011 but the construction has not been completed. Complainants have paid the total amount of Rs. 59,77,713/- to OP. Even after shifting from original allotted location to another location (from tower T-1 to tower T-16), OP has been unable to give possession of the same.

3. Many clauses of the agreement prepared by OP were one sided and complainant with other buyers were compelled to sign the agreement along with its unreasonable and unfair clauses. That the complainants have lost confidence and hope in OP and is therefore no more interested to wait any further to get their flat.

4. The OP in their written statement/reply stated that:

1. That the complainants have invested money for economic purposes and is therefore, not a consumer. That the parties are bound by the terms in Flat Buyer Agreement. Hence the amount/ relief as sought for by complainants in complaint are inflated and are highly exaggerated and not borne out by material placed on record.

2. That the delay in construction of project was caused due to recession in real estate sector, which largely affected Indian economy  and reduced number of bookings along with fact that several allottees of project either defaulted in making payment of instalment or cancelled booking in project, resulted in less cash flow to the OP.

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

6. The contention that complainant(s) are not a consumer as they have invested money for economic purpose is rejected as no such evidence has been adduced by the OP in this regard. It has been observed by the Commission in various cases that purchase of a house can only be for a ‘Commercial Purpose’ if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such house. Reasons for delay cited by OP cannot be construed as ‘Force Majeure’. The contention of the OP that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan  (2019) 5 SCC 725 held 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.”

7. It has been argued by the OP that delay is due to recession in the real estate sector, project is underway and not abandoned by the OP, money deposited by the complainant has been utilised in the construction activities and withdrawal from the project will cause unsustainable harm to other consumers. However, still the OP is not in a position to give any firm commitment/ timeline for completion of the project, obtaining OC and delivering possession to the complainant. It was held by Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. vs Abhishek Khanna (2021) 3 SCC 241 that allottees can not be made to wait for possession indefinitely, nor can they be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them.

8. In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. Even now OP is not in a position to give any firm timeline for delivering possession with OC. The complainant(s) cannot be made to wait for an indefinite time and suffer financially. 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 and in Ireo Grace Realtech Pvt.Ltd. (Supra), held that failure of the developer to comply with contractual obligations to provide flats within contractually stipulated period would amount to deficiency in service. Hence, the complainant(s) in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.

9. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed of with the following directions/reliefs: -

1. The OP shall refund the entire principal amount of Rs. 59,77,713 (Rupees fifty nine lacs seventy seven thousand seven hundred and thirteen only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

(ii) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the           complainants.    

3. The payment in terms of this order shall be paid within three months from today.

(iv) In case the complainant(s) has/have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.  The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.

*  Subsequently the complainant was transferred from original allotted location to another location (from T-1, 2002 to T-16, 1403)