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

(i) release the principal amount of claim submitted by the complainants alongwith interest @18% from the date of submission of claims till the date of actual payment;

(ii) pay a sum of Rs.20,00,000/- to each of the complainants towards undue hardship and mental agony caused to the complainants.

(iii) to pay a sum of Rs.20,00,000/- to the complainants towards cost of litigation.

2.       Notice was issued to the OP.  Parties filed Written Statement/Reply, Rejoinder, 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.       Brief facts of the case, as emerged from the pleadings of the parties and other case records are that: -

The complainants had purchased the unit for residential use in the Project namely, “Raheja’s Shilas” of the OP for total consideration of Rs.1,00,74,553/- along with maintenance, external development charges, club membership, registration charges.The complainants were allotted Apartment No. IF15-03 admeasuring 2102 sq.ft. vide allotment letter dated 21.10.2011. Flat Buyer Agreement was executed between the parties on 21.10.2011. As per the agreement the possession was to be delivered by the OP within 24 months from the date of agreement, i.e. 21.10.2013 plus grace period of 6 months, that expires on 21.04.2014. As per complaint, the complainant paid Rs.89,44,345/-.The OP failed to deliver the possession within the stipulated period and continues to remain in the same state of affairs, as on visit to the site the complainants saw that there is no construction work taking place.After a delay of more than five years, the complainants issuedlegal notice dated 23.01.2020 for refund of the principal amounts paid by the complainants along with 18% interest.The OP did not respond to the Legal Notice. Hence, the complainants filed complaint before this Commission.

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

The complaint is based on vague misconceived notions and baseless assumptions of the complainants.  The complaint is devoid of any cause of action.  In the entire complaint, there is no plea with regard to any alleged cause of action having arisen in favour of the complainants and against the OP.  The complaint is liable to be dismissed on this ground alone.  The complainants are not the consumers as defined under Section 2(1)(d)(ii) of the Act and the controversy involved in the complaint is not a “consumer dispute”. The complainants are not consumers but investors who applied for allotment of property in question in order to obtain better returns and appreciation in value, which was expected at the time of booking of the unit.  The complainants are claiming for refund of their entire money with exorbitant rate of interest and not for possession of the Apartment.  The complainants have nowhere in the entire complaint, substantiated that the unit has been booked by them for their personal use for residential purposes, they have failed to substantiate as to how they fall within the ambit of the definition of consumer as per the Consumer Protection   Act, 1986.  The complainants have concealed the fact regarding the number of properties they own.  The complainants have merely invested in a property located in Gurugram for speculative gains.  The complainants are permanent resident of Flat No. 1504, Mayflower Hiranandani Meadows, Thane West.  Accordingly, the unit in question has been booked by the complainants for commercial reasons.  The question of lack of jurisdiction is liable to be decided at the very first available opportunity since it goes to the very root of the matter and any judgment passed without jurisdiction would be a nullity.   Hon’ble Supreme Court has held in K. Sagar, Managing Director, Kiran Chit Fund, Musheerabad vs. A. Bal Reddy & Anr. (2008) 7 SCC 166, that the issue relating to deciding the jurisdiction of the Consumer Fora has to be decided first.  The complainants willingly and voluntarily signed the application for allotment, after carefully reading and understanding the terms thereof and agreed to be bound by the terms and conditions of the Booking Application Forum.  The complainants were neither forced nor pressurized to apply for the allotment of the unit.  The agreement executed between the parties was duly signed by the complainants after going through the same and understanding each and every clause contained in the Agreement as well as the Application Forum.  It is a trite law that the terms of the agreement are binding between the parties (Relied upon- judgment passed by the Hon’ble Supreme Court in Bharti Knitting Co. v. DHL Worldwide Courier (1996) 4 SCC 704 and Secretary, Bhubaneshwar Development Authority v. Susanta Kumar Mishra (2009) 4 SCC 684) .  The OP had only endeavored to complete the construction of the independent floor within 30 months from date of execution of agreement.  Clause 4.2  of the Agreement clearly shows that the company has merely held out a hope that it will try to give the possession within specified time.  However, no unequivocal promise was made to the prospective buyers that possession of the unit will be delivered at the end of a particular period.  If the terms and conditions incorporated in the application form and various clauses of the Agreement are read together, it is impossible to draw an inference that the OP had undertaken an obligation to handover possession of the independent floor to the complainants at the end of 30 months period.  The OP had not made any false or misleading representation to the complainants on the issue of delivery of possession. OP has acted in terms of the Agreement. After completion of construction, the OP applied to the Director General, Town & Country Planning, Haryana on 27.04.2017 for the grant of Occupation Certificate.  The District Town Planner, Gurugram, on 31.07.2018 sent a report to the Senior Town Planner, Gurugram Circle, Gurugram, wherein it was evident that the construction of the Project had already been completed.  Vide email dated 05.09.2016, the OP informed the complainants that “the construction has already been completed and finishing work is in progress, which will be installed once the possession is offered because once these fittings are installed, the defect liability period starts, further we have to apply for OC and the same will be immediately applied once we receive the sewage, water and electricity connections  etc. which are still pending from Government side….” .  Hon’ble Apex Court through multiple judgments have in unambiguous language held that even where the parties have expressly provided that time is the essence on the contract such a stipulation will have to be read along with other provisions of the contract  and such other provisions may, on construction of the contract, exclude the inference that the completion of the  work by a particular date was intended to be fundamental, for instance, if the contract were to include causes providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clauses would be construed as rendering ineffective the express provision relating to the time being of the essence of contract.  (Relied upon- Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs.  (1993) 1SCC 519). There is no deficiency in service or unfair trade practice on the part of the OP Company.  The dispute, if any, can be referred to Arbitration and in absence, can be tried only in a Civil Court. The complaint is barred by the provisions of Limitation as stated under section 24A of the C.P.Act, 1986.  The Consumer Fora shall not admit a complaint unless it is filed within two years form the date on which cause of action has arisen.  In the present case, the complaint has been filed in the year 2020, whereas the reliefs sought are such that the alleged cause of action in relation thereto arose more than two years prior to the filing of the complaint.  The complaint is barred by limitation. The complainant has submitted that a substantial part of payment has already been paid, which is wrong.  The total consideration is Rs.1,00,74,553/-, the complainants have paid Rs.89,44,345/-.  The other allegations in the complaint are denied by the OP.

5.       Heard counsels of both sides. 

5.1     It is contended by the complainants that complainants fall squarely within the definition of ‘consumer’ as set out in Section 2(7)(i) of the C.P. Act, 2019.  Complainant has had to spend a majority of his life living in a rented accommodation due to the delay on the part of the OP and the hardship caused to the complainants can never be undone. The complainant had purchased the unit purely for residential use. In support of their contention the complainants relied upon Laxmi Engineering Works v. P.S.G. Industrial Institute, 1995 SCC (3) 583.  The allotment letter was issued to the complainant on 21.10.2011. Clause 4.2 of Agreement states that OP were to complete construction within a period of 24 months from the date of execution of Agreement with a grace period of 6 months unless hindered by force majeure conditions.  Clause 4.2 of the Agreement has been breached since the 30 month period lapsed on April 2014.  It is further contended that the complainants sought refund since they have completely lost hope from the OP.  The Hon’ble Supreme Court has observed in a catena of rulings that this Commission has the power to entertain complaints relating to the compensation to flat purchasers who have been offered possession after more than 2-4 years.  In support of their contention they relied upon Pioneer Urban and Infrastructure Ltd. V. Govindan Raghavan (2019) 5 SCC 725 and BDA v. Syndicate Bank (2007) 6 SCC 711.   It is further contended that the obligation of the OP under Clause 4.2 is binding on the OP since there has been no Force Majeure event.  Instead, the OP has caused the inordinate delay due to it’s operational and financial mis-management ruining the lives of hundreds of bona fide home buyers.  It is also contended that as per the definition of deficiency as defined in Section 2 (11) of the C.P.Act, 2019 if there is any fault, imperfection, shortcoming or inadequacy in the manner of performance undertaken by a person of a contract in relation to any service then there is a deficiency in service.  In the present case, there has been a deficiency in providing service to the complainants as the possession of the unit has been delayed for more than 6 years due to which the complainants had to suffer agony, harassment and loss.  The complaint is not time-barred and the claims of the OP are frivolous and devoid of any merit.  As per section 69 of the C.P. Act, 2019 there is limitation of two years from the date on which the cause of action has arisen.  However, as per Section 69(2) of the Act, a complaint can be entertained even after the expiry of two years if the complainant satisfies the Commission that he had sufficient cause for not filing the complaint within such specified period.  In the present case the cause of action arose continuously on numerous occasions.  The cause of action arose when the  OP induced the complainants to purchase the unit in the said project.  The cause of action further arose on each and every date that the complainants paid the consideration amount.  The cause of action then arose on 21.10.2013, when the possession of the said apartment was to be handed over to the complainants.  The cause of action further arose on each and every date that the complainants contacted the OP and enquired about the date of completion of the  said apartment and handing over of possession of the unit and got false assurances in person and telephonically every time they tried to reach the OP about completion of the unit and about OC being under process.  The cause of action then arose on January 02, 2018, June 2014, 2019 and June 28, 2019 when the complainant again inquired about completion of project and false assurances being given by the OP on January 03, 2018, December 18, 2018 and June 17, 2019.  The cause of action also arose on 24.01.2020 when the complainant sent a legal notice to the OP seeking refund of the consideration amounts.  The cause of action arose on each and every date that the OP has delayed the delivery of possession of the said apartment to the complainants based on the illegal and unjust repudiation.  Therefore, the cause of action is a continuing one.  The complainants relied upon the following judgments:

1) Vishesh Sood & Anr. V. Raheja Developers Limited, 2019 SCC Online NCDRC 1491.

2) Mayur Sarafa V. Raheja Developers Limited, 2019 SCC Online NCDRC 628.

5.2 On the other hand it is contended by the OP that the present case is fully covered by the decision of this Commission passed in the following cases:

a) Raj Kumar Mittal Vs. M/s Raheja Developers Ltd. –CC No. 186 of 2020

b) Ekta Gupta Vs. Raheja Developers Ltd. – CC No. 635 of 2020 (reference in aforesaid judgment)

In both the above cases direction is given to the OP to handover the possession within a period of 9 months from the date of the order with delayed compensation at 6%.In case possession is not handed over in the aforesaid time frame then amount has to be refunded with 9%.OP seeks parity with the aforesaid decision.

It is further contended by the OP that claim for compensation only payable as per section 14(1)(d) of the CP Act, 1986.Compensation under the CP Act is only payable if (i) there is negligence on the part of OP (ii) loss or injury suffered on account of negligence. There is no averment in the complaint about the negligence of the OP.Further compensation so sought by the complainant is on account of mental tension.No evidence placed on record to prove loss in any form on account of “negligence” of OP. Referred to - Consumer Unity & Trust Society Jaipur Vs. Chairman & Managing Director, Bank of Baroda, Calcutta and Another (1995) 2 SCC 150, followed in –(a) Union of India V. Seppo Rally (1999) 8 SCC 357 (b) Kushal K Rana Vs. DLF Commercial Complexes Limited MANU/CF/0811/2014.It is also contended that burden of proof with evidence is on complainant. It is settled law that burden of proof is on the person who will be benefited with the allegation (Section 101 of Evidence Act, 1872). It is also contended that claim for refund not tenable when delay is accepted without any protest as it does not amounts to unfair trade practice.The complainant had never raised any protest with respect to delay in delivery of possession.No evidence has been placed on record by the complainants in this regard.Not even single correspondence has been placed on record to support the said contention.It is also submitted that the construction is completeOC applied on 27.04.2017.Possession can be immediately handed over in alternate Units if desired until possession of booked units are handed over of which construction is also complete.

6.       The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. The objection that the Complaint is barred by limitation is also not accepted. The OP have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant(s) is/are not a consumer as they has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard.  It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) 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 houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 10 years from the committed date given in the FBA, possession of flat has not been given.  There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OP that the parties are bound by the agreement is also not acceptable. Plea of the OP for Arbitration as per conditions in the Agreement is also not accepted as the remedies under the Consumer Protection Act are in addition to the remedies available under special statue.

7.       Consumer Complaint has been filed seeking, interalia, refund of amount of Rs.89,44,345/-. Flat Buyer’s Agreement was signed between the parties on 21.10.2011, as per which the committed date of possession was 24 months, with additional 6 months grace period. Hence, committed date of possession was 21.04.2014. Although OP has applied for OC sometime in 2017, till today, they have not obtained the OC. The complainant for the first time sought refund through its legal notice dated 21.01.2020. These facts are not disputed from other side. Learned counsel for OP argued that they are likely to get OC in another two months and hence would be in a position to hand over the possession as project is otherwise complete in all respects. However, complainant is not willing for possession at this stage and wants refund of its money on the ground of inordinate delay on the part of the OP to hand over the possession. OP has relied upon the judgment of this Commission in CC no. 186 of 2020 Raj Kumar Mittal Vs. Raheja Developers Ltd. decided on 06.07.2023, in which OP was directed to complete the construction of the unit allotted to the complainant and obtain the requisite OC on its own cost and responsibility and give the possession of the respective unit to the complainant before the end of end of March 2024. This order, however, states that if OP fails to deliver the possession by such time and complainant desires refund of money, then OP shall refund the deposited amount. Learned counsel for the complainant on the other hand argued that CC No. 186 of 2020 relied upon by the OP, main prayer was for possession with refund as alternate prayer while in his case, the main and only prayer is for refund as after such inordinate delay they are no more interested in the possession. He further states that even in the case relied upon by the OP, direction was to obtain OC and deliver possession before the end of March, 2024 and by OP’s own admission, OC has not been obtained yet.

8.       It was held by 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, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”.  The Hon’ble Supreme Court In Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr. (2021) 3 SCC 241 held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them”.  The Hon’ble Supreme Court also held "Developer cannot compel apartment buyers to be bound by one-sided contractual terms contained in apartment buyers agreement".  In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan  (2019) 5 SCC 725, Hon’ble Supreme Court held that “flat purchaser could not be compelled to take possession of the flat, when it was offered almost 2 years after the grace period under the agreement expired” and Hon’ble Supreme Court also observed 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.” In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra- (2020) 18 SCC 613, Hon’ble Supreme Court observed that “A buyer can be expected to wait for possession for a reasonable period.”  It was held by Hon’ble Supreme Court in Banglore Development authority Vs Syndicate Bank (2007) 6 SCC 442 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422 "Home buyers cannot be made to wait for possession of the flat for indefinite period". In the instant case, there is an inordinate delay in handing over the possession of flat by the OP(s). The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants 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 off with the following directions/reliefs: -

(i) The OP shall refund the entire principal amount of Rs.89,44,345/-  (Rupees eighty nine lakhs forty four thousand three hundred and forty five only) to the complainants, 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(s) shall pay a sum of Rs.50,000/- as cost of litigation to the           complainants.                 

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

(iv) In case the complainants 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. In case Complainant(s) have not taken any such loan and/or no such loan is outstanding, Complainants shall submit a requisite affidavit in this regard to the OP within four weeks.

10.     The pending IAs, in the Consumer Complaint, if any, also stand disposed off.