1.       As the dispute involved in aforesaid three Consumer Complaints is same, they are disposed of by a common order. The project is same; cost of the flat and the Flat Buyers Agreement are also same. Consumer Complaint No.1988 being lead case, facts are taken from this case.

2.       Case of the Complainant is that on 30.03.2011, she booked a residential apartment of 4835 sq. ft in a project, La Tropicana, Khyber Pass, Delhi, launched by the Opposite Parties by paying an advance of Rs.20 lakhs. The cost of the apartment was Rs.5,35,15,394 plus one covered car parking at Rs.6 lakhs and one open car parking at Rs.4 lakhs. Apart from the sale consideration, an amount of Rs.5,64,652/- was demanded by the Opposite Parties against VAT, vide demand letter dated 25.02.2014, which was also deposited by the Complainant vide cheque No.033116 dated 28.02.2014. The Complainant was told that possession of the apartment would be given in March, 2014. The Complainant was surprised when she was called by the Opposite Parties to sign a Flat Buyer’s Agreement (FBA) on 19.05.2014 after expiry of two months of schedule date of possession. On going through the FBA, the Complainant found that it contained unfair and arbitrary clauses in favour of the Opposite Parties. Clause 11 (a) of the FBA mentioned that possession of the flat would be given within 36 months from the date of booking with six months grace period. The Complainant came to know that similarly placed Consumers had filed CC/148/2014 before this Commission seeking refund of the amount with interest, the Complainant also joined in the said Consumer Complaint. In the said Consumer Complaint, this Commission, vide order dated 09.07.2015, directed the Opposite Parties to pay at least interim compensation. Pursuant to the said order, the Complainant also received an amount of Rs.19,69,400/-. Thereafter, the Complainant filed IA/11271/2016 in CC/148/2014 seeking to withdraw herself from the Complainants and filed separate Consumer Complaint No.1601/2016 seeking refund of the deposited amount with 24% interest. As IA/11271/2016 was still pending, the Complainant withdrew CC/148/2014. This Commission, vide order dated 22.11.2016 dismissed CC/148/2014 as withdrawn with liberty to the Complainant to file a fresh Consumer Complaint as per law. Thereafter, this Commission, vide order dated 25.11.2016, allowed IA/11271/2016 in CC/148/2014 and deleted the name of the Complainant from the array of the Complainants. The Complainant, therefore, filed the instant Consumer Complaint before this Commission with following prayer:

“(a)   direct the Opposite Parties to refund Rs.5,84,83,816.53 to the Complainant;

(b)     Direct the Opposite Parties to pay interest of Rs.7,29,43,507.79/- (calculated @ 24% per annum from the date of respective instalments upto 12^th September, 2016- Rs.20,79,050/- received as interim compensation);

(c)      Direct the Opposite Parties to pay a sum of Rs.15 lacs towards opportunity to loss caused to Complainant due to the acts of omission/commission on the part of the Opposite Party.

(d)     Direct the Opposite Party to pay a sum of Rs.3 lacs towards undue hardship, injury and agony both physical and mental caused to the Complainant.

(e)      Direct the Opposite Party to pay at least a sum of Rs.2 lacs to the Complainants towards the cost of litigation.

(f)      Pass such order or further order as this Hon’ble Commission deems fit and proper in the facts and circumstances of the present case.”

3.       The Complaint was resisted by the Opposite Parties by filing written statement. The Opposite Parties took the preliminary objection as to the maintainability of the Complaint. It was stated that the Consumer Forum has no jurisdiction to adjudicate the dispute and the same is triable by the Civil Court. The dispute between the Parties involved complicated questions of facts and law which required copious evidence. The Complainant filed the Consumer Complaint in order to avoid Court fee. It was also stated that the Complainant is not a Consumer under Section 2 (1) (d) of the Consumer Protection Act, 1986.

4.       On merits, it was stated that the Opposite Parties got the land for the project by way of bid from Delhi Metro Rail Corporation. The Opposite Parties submitted their bid, vide application form dated 12.02.2004. The land was transferred in the name of Opposite Party No.1, vide transfer deed dated 01.09.2006. Thereafter, the Opposite Parties submitted the layout plans to the MCD for approval and the same was granted, vide letter 28.02.2008. After receipt of approvals from various authorities, the Opposite Parties started the construction work in few towers in September, 2009. The construction was done in a phased manner and the work in the last tower commenced in 2012. As per clause 11 (a) of the Flat Buyer Agreement, the construction of the flat was to be completed within 36 months from the commencement of the construction, with a grace period of 6 months, subject to force majeure. It was further stated that the construction in few towers was completed and possession for carrying out the fit out work had been offered to the respective allottees. It was also stated that the Opposite Parties sent the Flat Buyer Agreement on 10.10.2011 and again on 12.03.2012 to the Complainant, which was signed by her on 19.05.2014. The Complainant wilfully delayed signing the agreement. It was denied that the possession was to be handed over within 36 months from the date of booking. In the agreement no specific date of possession was given. Time was not the essence of the agreement. There is no evidence of the allegations made by the Complainant. The Complaint is, therefore, liable to be dismissed.

5.       The Complainant filed the rejoinder. It was stated that in the agreement dated 30.03.2004 executed between the Opposite Parties and DMRC, the Opposite Party undertook to complete the project within 36 months from the date of the agreement i.e. by March, 2009. Rest of the submissions were reiterated.

6.       Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainants submitted that in spite of receiving the entire consideration, the Opposite Parties failed to handover possession within the stipulated period. In the FBA there were one-sided and unfair clauses favouring the Opposite Parties. Clause 4 (b) of the Agreement empowered the Opposite Parties to charge 24% interest for delayed payment whereas in case of delay in deliver of possession, the Opposite Parties were to pay mere penalty of Rs.10/- per sq. ft. per month.

7.       Learned Counsel for the Opposite Parties submitted that the dispute between the Parties involved complicated questions of facts and law which cannot be adjudicated in a summary manner and requires voluminous evidence. The Consumer Complaint is, therefore, not maintainable before the Consumer Forum. The Complainant filed the Consumer Complaint in order to avoid Court fee. It was also stated that the Complainant is not a Consumer under Section 2 (1) (d) of the Consumer Protection Act, 1986.

8.       On merits, Learned Counsel for the Opposite Parties submitted that the delay in delivery of possession was due to reasons beyond their control. DMRC took time to transfer the land in the name Opposite Party No.1, which was done only on 01.09.2006. Layout plan was approved by the MCD on 28.02.2008. After approvals from various authorities, the Opposite Parties could start the construction work in September, 2009. He submitted that the allegation of the Complainants that possession was to be given within 36 months from the date of the Agreement is false. In fact the possession was to be given within 36 months from the date of commencement of the construction, with a grace period of 6 months, subject to force majeure. Time was not the essence of the agreement.

9.       Booking of the flats is admitted by the Opposite Parties. Payment made by the Complainants is also not disputed. The only dispute relates to the delay in handing over the possession of the flats in question.

10.     On maintainability, the contention of the Learned Counsel for the Opposite Party Developer that the Complainant is not a ‘Consumer.’ To appreciate the contention of the Opposite Parties, it is necessary to go through the definition of “Consumer” given in Section 2 (1) (d) of the Consumer Protection Act, 1986, which reads as follows:

(d) “consumer” means any person who,— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii)  [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person  [but does not include a person who avails of such services for any commercial purpose].

 [Explanation.—For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]

From the above, it is clear that a person who buys goods/avails any service for consideration is a Consumer. It is admitted case of the Parties that the Complainants purchased respective apartments by paying consideration amount. The argument of the Opposite Parties that the Complainants are not Consumers is rejected. The Complainant is a ‘Consumer’ as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.

11.     Another objection of the Opposite Parties was that the Complaint involves complicated facts which cannot be adjudicated in a summary proceeding under Consumer Protection Act, 1986.  From the facts of the case, we find that no complicated question of fact and law is involved in this case and this Commission is fully competent to decide the Consumer Complaint.  Hon’ble Supreme Court in CCI Chambers Coop. HSG. Society Ltd. v. Development Credit Bank Ltd., Appeal (Civil)  7228 of 2001 observed as follows:

“It cannot be denied that Fora at the national level, the State level and at the district level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Fora have been established and conferred with the jurisdiction in addition to the conventional Courts. The principal object sought to be achieved by establishing such Fora is to relieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved.”  

          From the above, it is clear that this Commission is competent to adjudicate the instant Consumer Complaints.

12.     Regarding delay in handing over possession, the Opposite Parties admitted that there was delay in delivery of the possession to the Complainants. They, however, tried to justify the delay on the ground of force majeure. There is no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the construction of the project. The Opposite Party failed to prove that there was any unforeseen and unexpected event which prevented the completion of the Project within the stipulated time period. 

13.     In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., Civil Appeal No. 3533-3534 of 2017, decided on 12.3.2018, Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him/her, and is entitled to seek refund of the amount paid by him, along with compensation. The Complainants alleged that the Opposite Party had not issued the possession letter. In the written statement, nowhere it is stated that the Occupation Certificate has been received or offer of possession to the Complainants has been issued by the Opposite Party. Deficiency in service on behalf of the Opposite Parties regarding delay in delivery of possession of the flats to the Complainants is established. The Complainants are, therefore, entitled for refund of the deposited amount with interest.

14.     In view of the above, the Complaints are partly allowed. Opposite Parties are directed to refund the entire amount deposited by the Complainants with interest @ 9% p.a. from the date of respective deposits till the date of realization within 3 months, failing which the Opposite Party shall pay the principal amount with interest @ 12% p.a. There shall be no order as to costs.

15.     All three Consumer Complaints are disposed of in the above terms.