would be every modern facility in the Project and the physical Possession would be handed over within stipulated period, the Complainants booked respective residential Units in the said Project in the year 2010-2012 by filing up the Application Form but copy of the Forms were supplied to some of the Complainants only. The Application Forms contained the Standard Terms and Conditions which were to be followed by both the Parties. It is further averred that certain terms and conditions mentioned in the Application Form were unfair and biased. Complainants were allotted distinct Units through Provisional Allotment letters by the OP Developer. In the Provisional Allotment letters, it was assured that the possession of the booked Units would be handed over within a period of 42 months. It was alleged that at the time of issuance of Provisional Allotment Letters, when the Complainants asked the OP Developer to execute Builder Buyer Agreement (hereinafter referred to as the Agreement), they were assured that the Agreements would be executed soon and the legal Department of the OP Developer is in the process of execution of the Agreement. During the passage of time when the Agreements were not executed, on enquiry made by the Complainants, the OP Developer kept delaying execution of Agreement on one pretext or the other. Despite several repeated requests and having received a lot of money from the Complainants, the OP Developer had not executed the Agreement with them till the date of filing of the Complaint. Relying upon the name and reputation of the OP Developer, the Complainants kept on depositing the amount as per demand made by the OP Developer against the payment receipts as well as Statement of Account issued by the OP Developer. Some of the Complainants have obtained Housing Loan from several financial institutions in order to make the timely payment to the OP Developer. It was also stated that in some cases, even the late payment charges @18% p.a. were also deposited alongwith demanded amount in case of late payment. The details of the Complainants, Unit Allotted, Amount deposited and expected date of delivery of the Units, is reproduced in the following table:-

Date of

Purported

Complainant Name of the Provisional Total Amount

Unit Allotted date of

No. Allottee Allotment Paid

delivery

letter

1.OC Mrs

Mamta Maurya and

LD1 -16-1103 13.09.2012 12.06.2016

₹41,52,322./- Mr

2.OC Ram Pukar Maurya 3.OC Mrs Meenakshi Gupta and

LD1-05-901 14.12.2011 13.09.2015

₹25,97,196/- Mr.Sanjeev Gupta

6

Mr. Sunil Kumar

16.OC LD1-14-303 27.09.2012 26.06.2016

₹22,54,579/- Sharma

7

17 Deleted

18 Deleted Mrs BhartiMoudgil

19 OC

and

LD1-02-1701 30.03.2012 29.01.2016 ₹30,09,788/-

20 OC

Mr DiveyMahajan

21 OC Dr.AnkitVerma and LD1-18-802 27.10.2012 26.07.2016

₹24,60,999/-

22 OC Ms Snigdha Kumar

23 OC Mr AshishMurgai And LD1-16-1204 13.09.2012 12.06.2016

₹21,23,808/-

24 OC Ms NehaMurgai

25 Mr Rajkumar And LD1-16-1102 24.12.2011 23.12.2015

₹38,49,390/-

26 Ms PratibhaMonga

27 Mr Harendra Singh And LD1-17-1602 12.03.2013 11.12.2016

₹20,92,963/-

28 Mrs Mithilesh

29 Major Vivek Kumar And LD000151101 15.06.2013 14.03.2017

₹42,03,783/-

30 Major RituJaiswal

8

Mr Sunny Harsh

31 LD1-12-2004 21.12.2012 20.09.2016

₹20,12,803/- Bhatia

9

Mr Gurdarshan

43 Singh LD1-17-1503 03.12.2012 12.11.2016

₹21,73,282/-

44

Mr Anuj Jain And LD1-12-303 14.12.2011 13.09.2015

₹18,62,911/-

45

Mrs Anju Jain

10

11

Mr Sachin vide letter

Dated 23.01.2012) Mr.Ravinder Gupta

63

And Not Not

Mrs Vinita Gupta Not provided provided Not provided 64 provided

4. It is alleged that the Complainants followed the payment plan and made the payment to the OP Developer as per its Demand. Despite that the OP Developer had failed to deliver the possession of the Units within stipulated period, within 42 months along with 90 days (3 months) grace period, as mentioned in the Provisional Allotment Letter. The Complainants raised query for actual date of possession but the OP Developer without assigning any reason for the delay, kept postponing the delivery date of the said Units on one pretext or the other. Being aggrieved, some of the Complainants personally visited the site for inspection and they were shocked and surprised to see that despite lapse of stipulated period, even the basic structure of the said Project has not been completed and it was completed only till the roof slab of the ground floor and the construction work on the site had been completely stopped and seeing the pace of construction it could be concluded that there was no possibility of completion of the said Project in the next five years. The Photographs of the site are attached as Annexure C-9 with the Complaint.

5. Alleging deficiency in service and Unfair Trade Practice on the part of the OP Developer, the Complainants have filed the present Consumer Complaint seeking following Reliefs:-

a) Direct the Respondents to handover possession of the respective Units to each allottee of the said Project immediately along with delayed interest @ 18% per annum from date of respective due date of possession till date of actual possession; or

b) Direct the Respondents to refund the entire consideration amount paid by each Allottee of the said Project to the respective Allottee, alongwith interest @ 18% per annum from the date of respective payments made by the respective Allottee till its actual realization; and

c) Direct the Respondents to pay an amount of ₹5,00,000/- (Rupees Five Lakh Only) to each of the Allottee of the said project for mental agony, anguish and harassment suffered by the Allottees, including but not limited to the Complainants on account of the gross breaches committed by the Respondents

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herein; and

d) Award legal cost of ₹6,00,000/- (Rupees Six Lakh Only) for filing and prosecuting the present complaint;

e) Pass any other or further order as is deemed necessary by this Hon'ble Commission, in the facts and circumstances of the present case."

6. The Complaint was resisted by the OP Developer. It was stated that they have filed IA No. 1010 / 2022 for recalling the Order dated 18.09.2017, vide which the Complaint was allowed to be filed under Section 12(1)(c). It was stated that there is no 'sameness of interest' of all the Complainants in the present case. It was further stated that some of the Complainants have filed Complaint cases before UP RERA; the Units allotted to Complainant No. 5 & 6, Mr. Babar Shakeel and Seemin Shakil and Complainant No. 19 & 20, Mr. Bharti Moudgil and Mr. Divey Mahajan, have been cancelled by the Bank under DRT Proceedings and Bank has asked refund from the OP Developer; Complainant Nos. 8 & 9, Mr. Anand Madhukar, Mr. Anuradha Madhukar, Complainant Nos. 10 & 11, Mr. V.B. Prasad and Ms. Urmila Kumari, Complainant Nos. 38 & 39, Sweety Aura and Mr. Ashwani Saini and Complainant Nos. 57 & 58 Mr. Rajesh Kumar & Mr. Pushpa Kumari have requested to cancel the Allotment of the Unit booked by them and their Allotment of the units have been closed, which shows that they are not having same / similar cause of action, sameness of interest or common grievance against them. It was further submitted that IA No. 2155 / 2017 was allowed vide Order dated 18.09.2017 for the limited purpose of possession. There are 800 Allottees in the Project but in the Complaint there is no averment made that all the 800 allottees are seeking cancellation and refund of the subject Unit. Several Allottees have sought various reliefs before various forums, i.e, before High Court of Allahabad, UP RERA etc., which is not permitted under the Act. The initial purpose of Application 12(1)(c) was to give possession. However, keeping in view the latest developments, possession is impossible at this stage since Proceedings are pending before Allahabad High Court in Writ Petition No. 6049 / 2020. It was further submitted that there is no 'sameness of interest' or 'benefit of all', and therefore, prayed that the Order dated 18.9.2017 allowing the Complaint to be filed under Section 12(1)(c) be recalled. In support of his contentions he relied upon the Order dated 17.12.2021 passed by the Hon'ble Supreme Court in "Civil Appeal No. 1779 / 2021 of Brigade Enterprises Limited vs. Anil Kumar Virmani & Ors."

7. It was also submitted that Complainant No. 7, Complainant No. 16 and Complainant No. 33 have booked more than one Unit in the Project, while some of the Complainants are residing far, like Denmark, Abu Dhabi, Jharkhand, Haryana and they have not mentioned in their Complaint that they are presently residing in rented house and have not disclosed the purpose of booking of the Unit, Complainant No. 46 is a Company M/s. Agarwal Agencies Ltd., therefore, booked the Units only for investment & financial benefit purpose, thus, they cannot be termed as Consumers under the Act; some of the Complainants have defaulted in making the payment as per payment plan opted by them as such they have breached the terms and conditions of Allotment and thus, do not have any right to file the instant Complaint and the present Complaint is liable to be dismissed on this ground alone. It was also stated that as per Standard Terms and Conditions, in

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case of force majeure events, the OP Developer is entitled to extension of time without incurring any liability. However, in case of delay the Complainants are not entitled more than the liquidated damages in the form of ₹5/- per sq. ft. in terms of Clause 7.1 of the respective Standard Terms and Conditions. It was further stated that the delay has occurred in the Project due to Farmer's Agitation; Government's decision to not to handover the Noida-Greater Noida Expressway for collecting the toll, which resulted in substantial loss of revenue to OP Developer; Restriction by NGT restraining all the Builders of Noida and Greater Noida from extracting any quantity of underground water for the purpose of construction and economic slow-down.

8. It was also submitted that the OP Developer is in financial crisis as in compliance of the Order dated 11.09.2017 passed by the Hon'ble Supreme Court to protect the interests of the Homebuyers who have purchased the Flats in the Projects of JIL, a subsidiary company of OP Developer, against whom Moratorium has been issued under Insolvency & Bankruptcy Code, deposited a sum of ₹750 Crore with the Registry of Hon'ble Supreme Court. The Hon'ble Supreme Court vide its final Judgment in 'Chitra Sharma vs. Union of India' reported in (2018) 18 SCC 575, directed that the said amount of ₹750 Crores be transferred to the Adjudicating Authority and continue to remain invested under the supervision and direction of the Adjudicating Authority. It was submitted that the controversy pertaining to the said ₹750 Crores is still pending adjudication before the NCLT, New Delhi pursuant to the Judgment dated 24.03.2021 passed by the Hon'ble Supreme Court in the case 'Jaypee Kensington Boulevard Apartments Welfare Association vs. NBCC Ltd. & Ors.' Reported in 2021 SCC online SC53.

9. I have heard Mr. Sonam Sharma, learned Counsel for the Complainants, Mr. Sukumar Pattjoshi, learned Senior Counsel appearing on behalf of the OP Developer, perused the material available on record and have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.

10. For the reasons stated in the Application IA No. 1010 / 2020, the present Order will apply only to the Complainants, who have approached this Commission by way of the present Complaint or have got themselves impleaded in the instant Consumer Complaint. IA No. 1010/2020 stands disposed off in above terms.

11. The contention of the OP Developer that some Complainants have booked more than one Unit in the Project; while some Complainants are residing far and the Unit has also been booked by a Company M/s. Agarwal Agencies Ltd., therefore, booked the subject Units for earning profits is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots / flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore we are of the considered view that the Complainants are 'Consumer' as defined under Section 2 (1)(d) of the Act.

12. As far as the plea that some of the Complainants defaulted in making timely payment as

14

per payment plan chosen by them, which ceased them to file the present complaint, is concerned, the OP Builder could have exercised options available under the Standard Terms and Conditions of the Application Form either to cancel the Agreement or charge delay interest. The OP Builder cannot take shelter under the lame excuse that the Complainant defaulted in making payment which ceased them to file the present Complaint.

13. The contention of the OP Developer that they have closed the Allotment of some of the Complainants on their request of cancellation, does not hold water because it has not been made clear whether the deposited amount by the said Complainants has been refunded or not. If the amounts deposited by the said Complainants are not refunded, it is a clear case of deficiency in service on the part of the OP Developer because after accepting the request of cancellation the OP Developer cannot sleep over the matter for a long time. It is the duty and responsibility of the OP Developer to refund the amount to the said Complainants within a reasonable time. In the instant case, when the Project has not taken off, the OP Developer is duty bound to refund the amount to the said Complainants alongwith appropriate interest.

14. The next contention of the OP Developer is that the present Complaint is not maintainable as during the pendency of the Complaint some of the Complainants had filed Complaint before UPRERA. The Doctrine of Election is applicable in the present case, as has been laid down by the Hon'ble Supreme Court in "M/s. Imperia Infrastructure Ltd. vs. Anil Patni and Anr." reported in 2020 10 SCC 783, in which it has been held that it is always open to a person either to approach the fora under the Consumer Protection Act, 1986/2019 or to approach any other Authority under Real Estate Regulatory Authority Act, 2016 or NCLT under the provisions of Insolvency and Bankruptcy Code, 2016 for redressal of his grievance. The person who has approached to any of the Authorities referred to above, at the first instance, is estopped from approaching other two Authorities as Doctrine of Election applies. Admittedly, in the present case, the Complainants have filed the present Complaint before this Commission in the year 2017, whereas some of the Complainants had approached to the RERA in the year 2020. Thus, strictly speaking the Doctrine of Election has to be applied and the present Complaint is maintainable before this Commission.

15. So far as the contention that the Project delayed due to Farmers' Agitation and the Government Policy is concerned, it is the dispute between OP Developer and Government and for that the innocent Complainants, who have deposited their hard- earned money with the OP Developer to have a dream house, cannot be made victim. I do not find any force in this contention and the same is rejected.

16. As far as the plea of the learned Counsel for the OP Developer that the Complainants are bound by the terms of the Standard Terms and Conditions and they are liable to compensate the Complainant for delay in terms of Clause 7.2 of the Standard Terms and Conditions, we have gone through various clauses of the Standard Terms and Conditions. For example, Clause 5.6 and 7.1 of the Standard Terms and Conditions reads as under:-

"5.6 Notwithstanding anything stated herein and without prejudice Company's right to cancel the Provisional Allottment or to refuse execution of the Indenture of Conveyance by JSIL, as provided herein, and without, in any manner condoning nay delay in payment of Consideration and other dues, the

15

Allottee shall be liable to make payment of interest of the rate of 18% per annum on the outstanding amounts of Consideration and other dues from the dues date(s) upto their payment or cancellation of the Provisional Allotment. The payment made by the Allottee shall first be adjusted against and/or any penalty, if any due from the Allottee to the JSIL under the terms herein and the balance available, if any, shall be appropriated against the installment(s) due from the Allottee under the Standard Terms & Conditions and the Provisional Allotment Letter.

7.1 Nothing contained herein shall be construed to give rise to any right to a claim by way of compensation/damages/loss of profit or consequential losses against the Company/JSIL on account of delay in handing over possession for any of the aforesaid conditions beyond the control of the Company/JSIL. If however the Company/JSIL fails to deliver possession of the Said Premises within the stipulated period as mentioned herein above, and within the further grace period of 90 (Ninety) days thereafter, the Applicant shall be entitled to a discount in Consideration for delay thereafter @ Rs.5/- per sq. ft. ( Rs.54/- per sq. mtr.) per month for the Super Area of the Said Premises (''Rebate''). The time consumed by the occurrences of Force Majeure Event shall be excluded while computing the time delay for the delivery of possession of the Said Premises

17. A bare perusal of above Clauses makes it clear that as per Clause 7.2 of the Standard Terms and Conditions, in case of delay the Opposite Party Developer is liable to pay ₹5 per sq. ft., whereas in terms of Clause 5.6 in case of late payment, the Complainants/Buyers are liable to pay interest @18% p.a. This shows that the Standard Terms and Conditions are wholly one-sided and unfair. Therefore, the Complainants cannot be made bound to the Standard Terms and Conditions, which are one-sided and unfair in the light of the recent Judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:

18.

17. "6.7. A terms 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 contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes 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 the flats by the Builder.

7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."

18. It is not in dispute that the Complainants had booked their respective Units with the OP

16

Developer between the year 2010 to 2012 and the agreed period of handing over the Possession was 42 months, i.e., between 2014 to 2016. But the Project could not take off and there is no possibility of giving possession of the Units by the OP Developer in the near future. The Hon'ble Supreme Court in 'Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), has observed as hereunder:

"……….It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the Opposite Party, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."

19. In the instant case also the Complainants cannot be made to wait indefinitely for possession of the Units. As a period of more than 12 years has lapsed from the date of allotment and the Project is still incomplete, we are of the considered view that the Complainants are entitled for refund of the respective deposited amount along with reasonable interest.

20. During the course of proceedings, learned Counsel Mr. Sukumar Pattjoshi, learned Senior Counsel appearing on behalf of the OP Developer relied upon the various Orders passed by RERA and submitted that the Project has not taken off and the OP Developer is ready to refund the amount to the Complainants alongwith interest @8% p.a. preferably within one year.

21. Keeping in view the catena of Judgments passed by the Hon'ble Supreme Court in which the Hon'ble Apex Court has awarded interest @9% p.a. on the deposited amount, the submissions made by the learned Senior Counsel appearing on behalf of the OP Developer is not acceptable.

22. For the reasons stated hereinabove, the OP Developer is directed to refund the entire deposited amount to the respective Complainants alongwith interest @9% p.a. from the respective date of deposit till the date of payment within a period of 3 months from today, failing which the rate of interest shall increase from 9% p.a. to 10% p.a.

23. However, it is made clear in the event if any Complainant(s) has taken Housing Loan from the Banks / Financial Institutions then the Complainant(s) shall first repay the entire outstanding amount to the Banks/Financial Institution and after repaying the due amount, balance amount shall be used for their self purpose.

24. The Consumer Complaint is partly allowed in above terms. The pending application, if any, also stands disposed off.

......................J

R.K. AGRAWAL

PRESIDENT

17