1.      Heard Mr. Shreenath A. Khemka, Advocate, for the complainants and Mr. Vineet Sinha, Advocate, for the opposite party.

2.      Above complaint has been filed for directing Parsvnath Developers Ltd. (the opposite party) to (i) refund the entire amount of Rs.2700000/- deposited by the complainants with interest @12% per annum from the date of deposit till the date of payment, (ii) pay Rs.500000/- as compensation for mental agony and harassment, (iii) pay Rs.50000/- as cost of litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case. 

3.      The complainants stated that Parsvnath Developers Ltd. (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. Affinity Solutions Private Limited was a real estate broker. The complainants applied for a 4BHK flat in an upcoming project of the opposite party through Affinity Solutions Private Limited and deposited Rs.2700000/- on 09.03.2011. The opposite party got an application form headed as ‘Expression of Interest for a Residential Apartment’ signed from the complainants and issued receipt dated 11.03.2011 for Rs.2700000/-. Thereafter, the complainants made enquiry from the opposite party from time to time but no satisfactory reply was given. As per newspaper report, a Development Agreement dated 31.05.2013 was executed by Railway Land Development Authority in favour of the opposite party. The opposite party, thereafter, assured that the project would be started shortly thereafter, but the opposite party neither started the project nor gave any information in this respect to the complainants. After waiting for a long time, the complainants approached Railway Land Development Authority to get their dispute settled but nothing was done. Then, the complainants gave a legal notice dated 15.05.2019 for refund of the money. Inspite of the service of the notice, the opposite party did not respond. Then this complaint was filed on 28.05.2019.

4.      The opposite party filed its written reply on 03.12.2019, in which, payment made by the complainants as well as the filing of the application form ‘Expression of Interest for a Residential Apartment’ have not been denied. The opposite party stated that the complainants were not consumers within the meaning of ‘consumer’ as defined in the Consumer Protection Act, 1986 and rather investors for a profit motive, as such, the complaint on their behalf, is not maintainable. The complaint was barred by limitation inasmuch as the money was deposited on 11.03.2011 and according to the complainants, the land was allotted to the opposite party on 31.05.2013, two years limitation as provided of Section 24A of the Consumer Protection Act, 1986 has expired on 31.05.2015. The opposite party never gave any commitment to the complainants to allot any flat within stipulated period. The application form was headed as ‘Expression of Interest for a Residential Apartment’, which means it was a voluntary investment in an upcoming project, which is clarified under clause-(i) of the application. Clause (e) of the application provides for interest @6% per annum in case of refund. The claim of interest @12% per annum is highly excessive. In the nature of investment, the complainants, did not suffer any injury as such no compensation is payable. The opposite party has neither committed unfair trade practice nor deficiency in service.

5.      The complainants filed Rejoinder Reply and Affidavit of Evidence and Affidavit of Admission/Denial of documents of Ms. Rachna Jain (complainant-1). The opposite party filed Affidavit of Evidence of Sh. Madan Dogra. Both the parties filed their written synopsis.

6.      I have considered the arguments of the counsels for the parties. So far as the preliminary objection raised by the opposite party that the complainants are not consumers and rather investors, is concerned, it is without basis inasmuch the opposite party was not engaged in the banking business rather engaged in the business of development and construction of group housing projects, which falls within the definition of ‘service’ as defined under the Consumer Protection Act, 1986. The complainants applied for a 4BHK flat. As such, there was no question of investment of money with the opposite party. “Expression of Interest for a Residential Apartment” provides for allotment of residential apartment in an upcoming group housing project. The opposite party issued the receipt in which ‘expression of interest for a residential apartment’ has been mentioned. From these facts, it is proved that the complainants deposited money for a 4BHK flat in upcoming project of the opposite party and not for investment. The opposite party did not adduce any evidence to prove that the complainants were engaged in the business of purchasing and selling immovable property.  

7.      So far as limitation is concerned, Supreme Court in Transport Corporation of India Vs. Veljan Hydrair Ltd., (2007) 3 SCC 142, held that so long as right of the complainant is not denied by the opposite party, there would be no cause of action for the complainant for filing a consumer complaint before the Consumer Forum. In the present case, the opposite party never denied allotment of flat or refund of money as such limitation for filing consumer complaint never begun to run. This Commission in CC/398/2015 Shipra Thomes Vs. Bengal Unitech Universal Infrastructure Pvt. Ltd. decided on 19.05.2016, has held that the cause of action arises on the date when the buyer asks the builder for the refund of the money paid by him. In the present case, through the legal notice dated 15.05.2019, the complainants for the first time, asked for refund of the money. The preliminary objections raised by the opposite parties have no force. 

8.      Admittedly, the opposite party collected Rs.2700000/- from the complainants on 11.03.2011, although at that time, no group housing project was available with of the opposite party. Without there being a project or land being acquired by the opposite party, collecting money from general public amounts to unfair trade practice. Therefore, the opposite parties are bound to return that money. The counsel for the opposite party submits that under clause (e) of ‘Expression of Interest for a Residential Apartment’, rate for refund has been fixed as 6% per annum. But the opposite party has committed unfair trade practice, therefore, the rate of interest would be 9% per annum. Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 Live Law (SC) 352, held that award of interest @9% per annum in case of refund is restitutory and compensatory. 

ORDER

In the result, the complaint is allowed with cost of Rs.one lac.  The opposite party is directed to refund the amount of Rs.2700000/- collected from the complainants along with interest @9% per annum from 11.03.2011 till the date of actual payment to the complainants, within a period of two months from today. If the opposite party fails to refund as directed above within two months, it shall be liable to pay interest @12% per annum after two months from this judgment.