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

1. Refund Rs.51,60,120/- interest @18% p.a. from respective dates of each payment made to the OP-1 till the date of complaint amounting to Rs.57,97,635/-.

2. Refund Rs.1,60,00,000/- alongwith rate of interest charged by OP-3 from the date of disbursal i.e. 22.01.2014 till date of payment or to refund it to Indiabulls Housing Finance Ltd. (OP-3) directly;

3. Pay compensation of Rs.50,00,000/- towards mental agony and distress.

4. Pay costs of the litigation amounting to Rs.1,00,000/-.
5. Pay pendent lite and future interest @18% p.a. from the date of filing of this complaint till the time of whole of the amount is paid to the complainants by the OPs.

2.       Notice was issued to the OPs on 15.12.2021.  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given as per Table below.  The details of the flat allotted to the Complainants/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table below.

3.       It is averred/stated in the complaint that: -

1. OP-2 issued a brochure for residential project namely, ‘Enigma’, at Sector 110, Gurugram, Haryana and invited applications for allotment with the assurance that possession would be delivered by December 2014.  In the year 2012-13 the complainants expressed interest in buying an apartment Project ‘Enigma’.  It was represented to the complainants that since the Indiabulls Group is the umbrella organisation, they would also finance/grant a loan to the complainants, through one of its subsidiary companies namely Indiabulls Housing Finance Ltd. (‘IHFL’) –OP-3.  It was specifically represented that the financing was linked to the project due to common management of the financer/builder.  Flat was sold to the complainants on the pretext that no payments apart from the booking amount and a part of the initial instalment would have to be made till the date of possession and a tripartite agreement would be signed incorporating the Subvention Scheme.

(ii)     On 28.09.2013, complainants paid Rs.5,00,000/- as booking amount to OP-1.  On 15.10.2013, sum of Rs.10,00,000/- paid by the complainants to OP-1, on 18.10.2013 the complainants paid an additional amount of Rs.26,60,120/- and the complainants paid Rs.10,00,000/- to OP-1 on 25.11.2013.  Flat Buyer’s Agreement was executed between the parties on 24.12.2013.  As per Agreement the construction of the building was to be completed within three years from the date of execution and at the latest, within three years and 6 months, i.e. 24.06.2017.  The complainants were allotted Flat No. D-181, in Tower D of the Project ‘Enigma’.  Agreement provides for only the loan amount to be disbursed, apart from initial payments made and  no other payment is required till date of possession.  It also specifically provides that the builder can suspend payment of monthly instalments (EMIs) in case of delay beyond two months.   On 11.01.2014, a Tripartite Agreement was executed between OPs-1, 3 and the complainants.  It was provided that Rs.1,60,00,000/- would be paid by OP-3 to OP-1 in the next few days and the complainants will start paying pre-EMI charges, which were, however to be paid by OP-1, till possession was granted to the complainants. On 16.01.2014, OP-3 and complainants executed a Loan Agreement and a ‘Loan Sanction Letter’ was issued to the complainants as part of the said Agreement and in line with the Tripartite Agreement. 

(iii)    On 22.01.2014, as per Tripartite Agreement and the Loan Sanction Letter, an amount of Rs.1,60,00,000/- was transferred to OP-1 by OP-3.

(iv)    In April, 2015 , the complainants visited the site and found that for the tower in which their flat was to be constructed, even the base construction had not commenced.  No information was forthcoming from the Builder regarding the expected date of delivery of possession.  OP-1 ought to have delivered the flat latest by 24.06.2017, but no updates were given and no extension was sought from the complainants. 

(v)     On 31.12.2018, suddenly and to the shock of the complainants, OP-1 issued a notice offering possession to the complainants.  The notice required possession to be taken by 15.03.2019 and due amount of Rs.78.2 lakhs approx.. to be paid within 45 days.

(vi)    In January 2019, the complainants vised the site of their apartment and found that the Tower in which the flat was being offered to them was still under construction.  The approach roads were not constructed and construction of basic amenities had not yet been completed.  The apartment was unfit for residential purposes.  The possession letter was obviously premature and only issued to prevent further delay charges. 

(vii)   On 20.02.2019, the OP-3 also issued a notice claiming pre-EMI interest of Rs.2,80,000/- to be paid within 7 days, else it was threatened that legal action would be taken.  On 25.02.2019, the OP-3 also issued another notice for the amounts allegedly payable to them.  Between 31.12.2018 and 25.02.2019, the complainants did not receive any request in their bank for any cheque clearance or EMI electronic clearance, even though there were standing instructions for such clearance. 

(viii)  On 25.02.2019 the complainants issued cancellation notice to the Builder and requested for refund of their money on the ground of delay in possession and other violation of the Flat Buyer’s Agreement. 

(ix)    On 26.02.2019, OP-2 refused to accede to the complainants’ request for cancellation without giving any reason for the same.   The complainants issued a Legal Notice to the OPs-1 & 3 on 28.02.2019.

(x)     On 11.03.2018, OP-3, marking a copy to OP-1, issued a notice recalling the loan facility, which also stated that if the dues of Rs.1,60,00,000/- are not cleared within 15 days, then the security interest would be enforced i.e. the booking of the flat in favour of the complainants would stand cancelled. 

(xi)    On 16.03.2019, the complainants issued another notice, in reply to the notice dated 11.03.2019 of OP-3, requesting the OPs not to precipitate the issue as the complainants were in the process of registering a complaint with the Haryana Real Estate Regulatory Authority (‘HRERA’). On 19.03.2019, even though loan facility was recalled and OP-3 was informed that the complainants are approaching the HRERA, Gurugram.  OP-3 continued harassing the complainants for payment of the insallments/interest.   In April, 2019, the complainants approached the HRERA by filing RERA-GRG-1725-2019 seeking refund of their money and interest as delay charges.  On 04.09.202019, the HRERA directed the complainants that an amended complaint be filed as the applicable rules have been amended and complainants were directed to file another amended complaint as the applicable RERA rules.  Despite the amended complaint, the matter was simpliciter adjourned and it was orally informed that all matters seeking refund would be taken up on the next date.  Hence, the present complaint.

4.       The OP-1 in their written statement/reply stated that: -

(i)      OP-1 contends that the National Commission has the pecuniary jurisdiction where the value of the goods of service paid as consideration exceeds rupees ten crore.  Hence in the present case the prayer sought by the complainants is less than Rs.10.00 crore. Hence this Commission has no jurisdiction.  The complaint filed by the complainant is wholly misconceived, frivolous, untenable, not maintainable and is liable to be dismissed with exemplary cost as there is no cause of action arose against the OP-1 and in favour of the complainants.  It is also contended by the OP that complainants have already filed a complaint before HRERA, Gurgaon, which is pending. Therefore, the present complaint is liable to be dismissed on this ground alone. The complaint is also barred by limitation. The complainants are not consumers within the definition under section 2(d) of the Consumer Protection Act, 1986. The complainants are mere investors and have booked the property in the project of the OP having a speculative intent with the sole purpose of investment and monetary gains out of the said investment in the real estate which can be evident from the pleadings and the documents on record.  This Commission also lacks jurisdiction under Section 79 of RERA.  In support of his contention, the OP has cited judgment passed by the Hon’ble Supreme Court in Fair Air Engineers Private Limited Vs. N.K. Modi (1996) 6 SCC 385 and in Canara Bank Vs. Nuclear Power Corporation of India Limited 1995 Supp (3) SCC 81. 

(ii)     It is also contended by the OP that due to adverse market conditions viz delay due to reinitiating of the existing work orders under GST regime, by virtue of which all the bills of contractors were held  between, delay due to the directions by the Hon’ble Supreme Court and National Green Tribunal whereby the construction activities were stopped, Non-availability of the water required for the construction of the project work & non-availability of drinking water for labour due to process change from issuance of HUDA slips for the water to totally online process with the formation of GMADA, shortage of labour, raw materials etc., which continued for around 22 months, starting from February 2015.  Due to these reasons the project of the OP was severely affected.  It is further contended by the OP that as per the license to develop the project, External Development Charges were paid to the State Government and the State Government in lieu of the EDCs was supposed to lay the whole infrastructure  in the licensed area for providing the basic amenities such as drinking water, sewerage, drainage including storm water line, roads etc.  The State Government failed to provide the basic amenities due to which the construction progress of the Project was badly hit.  Furthermore, the Ministry of Environment and Forest (MoEF) and Ministry of Mines (MoM) had imposed certain restrictions which resulted in a drastic reduction in availability of bricks and availability of Kiln which is most basic ingredient in the construction activity.  In view of the ruling by the Hon’ble Apex Court directing for suspension of all the mining operations in the Aravalli Hill range in State of Haryana, which led to  a situation of scarcity of the sand and other materials which derived from the stone crushing activities, which directly affected the construction schedules and activities of the Project.

(iii)    The OP further contended that due to Commonwealth Games organized in Delhi in October 2010, construction of several big projects including the construction of Commonwealth Games Village took place in 2009 and onwards in Delhi and NCR region, which led to an extreme shortage of labour in the NCR region as most of the labour force got employed in the said projects required for Commonwealth Games. Moreover, due to activity implementation of social schemes like National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru National Urban Renewal Mission (JNNURM), there was a sudden shortage of labour/workforce in the real estate market as the available labour preferred to return their states due to guaranteed employment by the Central/State Government under NREGA and JNNURM Schemes.  This created shortage of labour in the NCR region.  Due to slow pace of construction, pressure was put on the contractors engaged to carry out various activities in the project due to which there was a dispute with the contractors resulting into foreclosure and termination of their contracts and we had to suffer huge losses which resulted in delayed timelines.  Despite the best efforts, the ground realities hindered the progress of the Project.  The Project of the OP is registered under The RERA Act, 2016.  The OP has already completed the construction of the tower wherein the Unit was booked by the complainants.  The OP has already obtained the OC from the competent authority and have already offered possession of the unit to the complainants vide letter dated 31.12.2018.  The OP has made huge investments in obtaining requisite approvals and carrying on the construction and development of Tower D in Indiabulls Enigma project not limiting to the expenses made on the advertising and marketing of the said project.  The complainants have failed to make a case against the OP-1.  The complainants have alleged in their complaint about delay on the part of OP-1 in handing over the possession but the actual fact is that the complainants have defaulted in making the payment of sale consideration as agreed between the parties vide FBA dated 23.12.2013.  There is no cause of action in favour of the complainants to institute the present complaint.   The complainants have not approached the Commission with true and correct facts.  They have suppressed the material facts from the Commission.  Hence, the complaint is not maintainable against the OP-1 and is liable to be dismissed with exemplary cost.

5.       The OP-2 in their written statement/reply stated that: -

(i)      as the complainants have paid only Rs.51,60,120/- to OP-1 against the total sale consideration and the  National Commission has the pecuniary jurisdiction where the value of goods or service paid as consideration exceeds rupees ten crore. As the prayer sought by the complainants is less than Rs. Ten crore, hence, the National Commission does not have the jurisdiction to entertain the present complaint.  The complaint filed by the complainants is wholly misconceived, frivolous, untenable, not maintainable and is liable to be dismissed with exemplary cost as there is no cause of action arose against OP-2 and in favour of the complainants.  It is also contended by the OP that complainants have already filed a complaint before HRERA, Gurgaon, which is pending. Therefore, the present complaint is liable to be dismissed on this ground alone.It is against the principle of “Lis alibi Pendens” as such the complainant is liable to be dismissed.

(ii)     it is contended that the complainants have no locus standito institute the present complaint and seek relief against OP-2 since the complainants are not consumers under Section 2(d) of the C.P. Act, 1986.  The complainants have not paid single penny of the sale consideration against the unit to the OP-2, therefore, the complainants are not the consumer qua OP-2. Hence, the complaint is liable to be dismissed qua OP-2.

(iii)    The complaint is also barred by limitation.  The complainant is liable to be dismissed at the threshold being filed superfluously impleading the OP-2 as a party to the complaint.  The complaint is devoid of any merits, which has been preferred with the sole motive to harass the OP-2.  There is no privity of contract between the complainants and OP-2, hence the contentions taken in the complaint by the complainants against the OP-2 are false, baseless and without and veracity and the complaint against OP-2. The complaint is liable to be dismissed on this very sole ground.  The allegations made in the complaint against OP-2 are wrong, incorrect and baseless in the fact and laws.  OP-2 denies them in toto.  The bare perusal of the complaint sufficiently elucidates that the complainants failed to make a case against OP-2.  The complainants have merely alleged in their complaint about delay on the part of OPs, but have failed to substantiate the same against OP-2.  The OP-2 has been impleaded as a party in the complainant with a mischievous intention to take illicit benefits from the OP-2.

(iv)    This Commission also lacks jurisdiction under Section 79 of RERA.

6.       Heard counsels of both sides.

7.       In this case, the prayer is for refund of Rs.51,60,120/-, which is the amount paid by the Complainants directly to Opposite Party No.1/Builder. The loan of Rs.1,60,00,000/-, disbursed by Opposite Party No.3 to Opposite Party No.1, has already been settled by Opposite Party No.1 and this is admitted by Counsel for Opposite Party No.3. Hence, the issue to be decided is with respect to the refund of the amount paid by the Complainants directly to Opposite Party No.1. The committed date of possession as per the Flat Buyer Agreement dated 24.12.2013 was three years, with a grace period of six months, which comes to 24.06.2017. Admittedly, possession was offered on 31.12.2018 (with OC). However, the Complainants did not take possession, stating that the unit in question was not complete. However, the Complainants have not been able to show their any of their communication or other document, wherein they after having received offer of possession on 31.12.2018 have written to Opposite Party No.1/Builder about incompleteness of the unit offered. The Complainants have claimed that the unit in question has since been sold to third party.

8.       The Counsel for Opposite Parties No. 1 and 2 has stated that as per Clause 10 of the Agreement, in the eventuality of the cancellation, earnest money being 15% of the selling price is liable to be forfeited. However, the said Opposite Parties have not been able to show any letter or communication or cancellation letter issued by them to the Complainants, cancelling the unit in question. The only communications, which the said Opposite Parties have been able to show, are: (1) letter dated 11.03.2019, which is actually from Opposite Party No.3, addressed to the Complainants regarding notice for loan recall and enforcement of security; and (ii) letter dated 02.05.2019 addressed to the Complainants, in which it is stated that the Complainants may make the payment within the time stipulated by IHFL (Opposite Party No.3) and in the notice dated 11.03.2019. It is stated that in the eventuality of failure to make the payment, the Company will be constrained to cancel the booking/allotment of the said unit. However, subsequent to this communication, no formal cancellation has been done by Opposite Party No.1.

9.       The Complainants have contended that they have not defaulted in any payments rather Opposite Party No.1/Builder has defaulted in fulfilling his promise of delivery by 24.06.2017 as possession was offered after a delay of 18 months on 31.12.2018. It is admitted that the Complainants had sent a request by email for cancellation and refund in February, 2019 only.

10.     Opposite Party No.3 states that they have also intimated to the Complainants about the loan having been settled in full vide letter dated 16.09.2019.

11.     The contention of OP(s) 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(s) have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The plea of OPs that delay was due to force majeure circumstances is not valid. 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 OPs that the parties are bound by the agreement is also not acceptable.

12.     In the instant case, there is a delay of one and a half years in handing over the possession of flat by the OP(s). However, the complainant sought refund in February 2019.  As OPs have not cancelled the Unit in question, they cannot forfeit the earnest money. Hence, the complainants in the present circumstances have a legitimate right to claim refund with interest. A perusal of FBA dated 24.12.2013 shows that it is a ‘Indiabulls Enigma’ Project.  Similarly, the offer of possession letter dated 31.12.2018 shows that it is issued on the Letter Head of Indiabulls.  Hence, we hold OP-1 & OP-2 to be liable jointly & severally for refund.

13.     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 OPs (OP-1 & OP-2) shall refund the entire principal amount of Rs.51,60,120/- to the complainants, alongwith 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) (OP-1 & OP-2) shall pay a sum of Rs.10,000/- as cost of litigation to the complainants.                 

(iii) The liability of the OP(s) (OP-1 & OP-2) shall be joint as well as several.

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

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