1.     The present Complaint is filed by a Society, namely, “Unitech Welfare Society”, registered under the Societies Registration Act, 1860, through its President, on behalf of 11 Members, who had purchased flats from the Opposite Party in the Project called “Unihomes – 3”, Sector 113, Noida, Uttar Pradesh. The said Project was launched in the year 2010 by the Opposite Party with the assurance that the flats would be handed over to the Buyers within 30-36 months from the date of signing of the Buyer’s Agreement.  

2.     The Members of the Complainant - Society individually applied for different flats in the said Project and allotted flats at different floors of the Towers. The details of the allotted flat, booking date, agreement date, total consideration, total payments made is given at Annexure A-3 of the Complaint.  The Members of the Complainant Society have already deposited 90-95% (i.e. ₹3,10,41,799/-) of the consideration amount with the Opposite Party on different dates.  For the said purpose, they had taken loans from Banks/Financial Institutions and are still paying instalments against the same.  It is the case of the Complainant Society that after the expiry of the stipulated period, the possession of the flats has not been delivered till date.  Hence, the Complainant Society has filed the present Consumer Complaint on behalf of its Members, seeking a direction to the Opposite Party to refund the deposited amount, along with 18% compounded interest per annum from the date of such deposit; further to pay due compensation to the Consumers against the appreciation of the market price of such flats/units, which were similarly placed with the flats/units involved in the instant Complaint, for the lost opportunity of having invested elsewhere at the time; and pay ₹5,00,000/- to each of the Members towards compensation for mental agony and harassment.   

3.     The Opposite Party has not filed Written Version within stipulated period.  Therefore, its right to file the Written Version was closed vide order dated 21.12.2018.

4.       We have heard Mr. Manjit Singh Ahluwalia, Learned Counsel for the Complainant, and Mr. Babanjeet Singh Mew, Learned Counsel for the Opposite Party. 

5.       A preliminary objection has been raised by Mr. Babanjeet Singh Mew, Learned Counsel for the Opposite Party, that the present Complaint is not maintainable on behalf of Unitech Welfare Society through its President, as it is not a Consumer Association.  He further submitted that earlier a Buyers’ Union, namely, Unihome-3 Buyers Union (Regd.) through its President Shri Ajay Kumar Rohilla S/o Shri Ram Swarup Verma, Office at LP-2F, Maurya Enclave, Pitam Pura, New Delhi-110034, had filed a Complaint, being Consumer Case No. 2622 of 2017, against the present Opposite Party and its Managing Director, purporting to be under Section 12(1)(c) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) and, therefore, even if it is held that the Complaint is maintainable, then, in view of the judgment and order passed by the Larger Bench of this Commission in the case of ­Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. – I (2017) CPJ 1 (NC), the second Complaint for the same cause of action or reliefs is not maintainable and is liable to be dismissed.  

6.       In reply, Mr. Manjit Singh Ahluwalia, Learned Counsel for the Complainant, stated that the Complainant is a Welfare Society duly registered under the Societies Registration Act, 1860 on 14.03.2016 and one of the objectives of the Society is to make efforts in order to solve the common problems of the residents of the area by making coordination with the concerned departments.  Thus, seeking refund of the deposited amount by its Members for non-completion of the Residential Project and handing over the flats, despite payment of substantial amount, would be covered under the objectives, for which the Complainant Society has been formed.  He further submitted that Consumer Case No. 2622 of 2017, filed by Unihome-3 Buyers Union (Regd.) through its President (supra), also related to the Project in question and was filed by the Complainant therein under Section 12(1)(b) of the Act and not under Section 12(1)(c) of the Act and, therefore, the principles laid down by this Commission in the case of ­Ambrish Kumar Shukla (supa) are not applicable and the present Complaint is maintainable. 

7.       In order to decide as to whether the present Complaint is maintainable or not, we consider it appropriate to reproduce below some of the provisions of the Act, namely, Sections 2(1)(b), 2(1)(d), 2(1)(m) and Section 12, which read thus:

“2.      Definitions. - (1) In this Act, unless the context otherwise requires,—

(b)     "complainant" means—

(i)       a consumer; or

(ii)      any voluntary consumer association registered under the Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or

(iii)     the Central Government or any State Government,

(iv)     one or more consumers, where there are numerous consum­ers having the same interest;

(v)      in case of death of a consumer, his legal heir or representative; who or which makes a complaint; 

(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 purposes;

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; 

 (m)    "person" includes,—

(i)  a firm whether registered or not;

(ii) a Hindu undivided family;

(iii)          a co-operative society;

(iv)          every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;

12.     Manner in which complaint shall be made.—(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by –

(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;

(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;

(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or

(d) the Central Government or the State  Government, as the case may be,  either in its individual capacity or as a representative of interests of the consumers in general. 

(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed.

(3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected:

Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the complainant:

Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received.

(4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act:

Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force.

Explanation. -  For the purpose of this section “recognised consumer association” means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force”.

8.       From a perusal of Section 2(1)(b)(ii), it is absolutely clear that any voluntary consumer association registered under the Companies Act, 1956 or under any law for the time being in force will be considered as a Complainant.  Under Section 2(1)(d), a ‘consumer’ can be any person who has purchased any goods for consideration or has hired or availed of any service for consideration but does not include a person who obtains such goods for resale or for commercial purposes as also avails of service for commercial purposes.  Under Section 2(1)(m)(iv), every other association of persons whether registered under the Societies Registration Act or not is included in the definition of the word ‘person’ whereas under Section 12(1)(b) of the Act, any recognized consumer association is empowered to file a Complaint under the Act.  Under Explanation to Section 12 of the Act, a recognized consumer association means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force.  Thus, the Complainant Society, which is registered under the Societies Registration Act, will be entitled to file the present Complaint as it falls under Sections 2(1)(b), 2(1)(d), 2(1)(m) and Section 12(1)(b) read with the Explanation.  Further, we find that Consumer Case No. 2622 of 2017, filed by Unihome-3 Buyers Union (Regd.), has been filed under Section 12(1)(b) of the Act and not under Section 12(1)(c) of the Act and, therefore, the principles laid down by the Larger Bench of this Commission in ­Ambrish Kumar Shukla (supra) would not apply to the case at hand.  We, therefore, reject the preliminary objection raised by the Learned Counsel for the Opposite Party.     

9.       During the course of arguments, Learned Counsel for the Complainant submitted that this Commission in Consumer Case no. 1141 of 2017 – Indar Dhawan & Anr. vs M/s Unitech Limited (Habitat), decided on 17^th April 2018, allowed the Complaint and directed for refund of the deposited amount with interest @ 10% per annum and in the present case the Complainant confined its prayer to the said relief only and prays for no other relief.  We find that decision/order of this Commission in the aforementioned case has been followed subsequently by this Commission in Unihome-3 Buyers Union (Regd.) through its President Vs. Unitech Ltd. & Anr. (Consumer Case No. 2622 of 2017), decided on 26.10.2018, and a Coordinate Bench in respect of the same Project, where the Buyers were not handed over possession of the flats, had allowed the Complaint by directing the Opposite Party therein, which is the same Opposite Party as in the present case, to refund the entire amount deposited by the Complainant within six weeks with simple interest @ 10% per annum from the date of payment of respective amount till realization of the amount and costs of ₹10,000/-.  

10.     From a perusal of the material available on record, it is apparent that the Opposite Party has failed to hand over possession of the flats to the Members of the Complainant Society within the stipulated period and, therefore, the present Complaint is squarely covered by the decision rendered by this Commission in Unihome-3 Buyers Union (Regd.) (supra), in which, as noted above, the Opposite Party therein was directed to refund the amount deposited along with simple interest @ 10% per annum from the date of payment of respective amount till the realization of the amount and to pay litigation costs of ₹10,000/- to the Complainant within six weeks from the date of passing of the order.  The Complainant is entitled to the same relief. 

11.     In view of the foregoing discussions as also decisions of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [II (2019) CPJ 29 (SC)] and ­Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan [II (2019) CPJ 34 (SC)], which are somewhat similar matters inter-alia relating to non-delivery of possession of the flat/house, the Members of the Complainant Society cannot be made to wait for a long period and, therefore, they are entitled for refund of the deposited amount, along with interest at the rate awarded to the Buyers in Unihome-3 Buyers Union (Regd.) (supra).  While arriving at this conclusion, we have also kept in mind the principles of restitutio in integrum, which provides for restoration of an affected party to the situation which would have prevailed had no wrong or injury been sustained.      

12.     Accordingly, we allow the present Consumer Complaint with the following directions:

1. The Opposite Party shall refund the entire deposited amount so paid by the Members of the Complainant Society along with simple interest @ 10% per annum from the date of payment of respective amount till the realisation of the amount within six weeks from today.

2. The Opposite Party shall pay a sum of Rs.10,000/- as costs of litigation to the Complainant.