JAYPEE KOVE BUYERS ASSOCIATION v. JAIPRAKASH ASSOCIATES LIMITED

that the Project is part of Jaypee Green Sports City adjacent to 8 Lane Taj Expressway, there would be every modern facility available and the physical Possession would be handed over within 42 months from the date of booking, the Members of the Complainant Association booked respective Residential Units in the said Project in the year 2010-2013 by filing up the Application Form. Some of the Members of the Complainant Association directly purchased the Units from the Opposite Party Developer and some Units were purchased on resale. The payment of the Sale Consideration of the Unit was to be made in four different plans i.e. Down Payment, Partial Down Payment, Construction Link and Subvention Plan. The total Sale consideration was including of Basic Sale Price (BSP), Preferential Location Charges (PLC), External Development Charges (EDC)/International Development Charges (IDC), Maintenance Advance, Club Membership, Parking, Lease Rental Charges and Interest Free Maintenance Advance. It is averred that the Opposite Party Developer has collected 90% to 95% of the total Sale Consideration from the Flat Purchases only by lying of the top floor roof of the Shell and the remaining 5% to 10% is payable at the time of possession. The funds entrusted by the Flat Purchasers for construction of the Project have been misappropriated by the Developer. It is alleged that the Application Forms contained the Standard Terms and Conditions which were unfair, biased, arbitrary, unjust and the Flat Buyers were required to sign the same without any negotiation and reservation. Further, the Members of the Complainant Association were allotted respective Units through Provisional Allotment letters by the Opposite Party Developer. According to the Provisional Allotment Letters, the possession of the booked Units was promised to be delivered within a period of 42 months from the date of its issuance. However, despite several repeated requests and having received a huge amount from the Members of the Complainant Association, the Opposite Party Developer has miserably failed to hand over the possession of the respective Units, complete in all respect to them, within the stipulated period.

03. It is stressed that relying upon the name and reputation of the Opposite Party Developer, the Members of the Complainant Association kept on depositing the amount as per demands made by them against the payment receipts as well as Statement of Account. It is also alleged that by different emails giving wrong information about the exact status of the construction of the Project, the Opposite Party Developer has persuaded to the Flat Buyers to make the payments as demanded by them. The Complainant Association had various meetings with the Opposite Party Developer about the slow pace of the construction, however, the Developer has failed to give the exact date of completion of the Project and to hand over the possession. Vide email dated 22.02.2016, one of the Member of the Complainant Association was informed by the Developer that the possession would be handed over by second quarter of 2018 which itself substantiates the fact that the construction of the Project would not be completed and the Developer would not be in a position to hand over the possession of the respective Units to the Flat Buyers till the said date. It is also stated that the Developer was charging exorbitant interest @18% for the delayed payment by the Flat Buyers in terms of the Clause 5.6. of the Standard Terms and Conditions, however, they are liable to pay delayed compensation @ ₹5/- per sq. ft per month as per Clause 7.2 of the terms and conditions. Complainants have also alleged that the Super Area of the Unit was increased by the Developer without their consent and in violation of the provisions contained in Section 4 of the UP Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010. Most of the Members have borrowed money from the Financial Institutions

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for payment of Sale Consideration and they are paying the huge EMI. It is alleged that the construction is stalled and abandoned since last 2-3 years and they have lost the trust in the Developer inasmuch as there is no possibility of completion of the Project in the near future. The details of the Complainants, Unit Allotted, Booking Date, Area of Flat, Date of Issuance of Provisional Allotment Letter (PAL) and Expected Date of Delivery of Units, is reproduced in the following table:-

Area Date of Expected Sl. Name of the Booking of ProvisionalFlat No. Date of No. Allottee Date Flat Allotment

(Sq.Ft.) DeliveryLetter

1. Satish Kumar LD-01-304 23/12/2011 23/09/2015 Y Prachi

2. LD1-01-2004 17/12/2012870 08/01/2013 08/10/2016 Shenoy

3. Manoj Khatana LD1-01-101 05/12/2011 05/09/2015

4. Naresh Tondon LD1-01-1401 06/06/2012 06/10/2015

5. Rahis Singh LD1-01-401 25/11/2011 24/08/2015

6. Shyam Patro LD1-01-1405 30/11/2011870 30/12/2011 30/09/2015

7. Abhay Gupta LD1-01-804 09/01/2012870 23/01/2012 23/10/2015

8. Shikha Singh LD1-01-901 13/09/2012 13/06/2016 Ashutosh

9. LD1-01-806 09/01/2012870 24/01/2012 24/10/2015 Mishra

10. Navneet Sota LD1-01-1602 07/12/2011870 14/01/2012 13/10/2015

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Kuldeepak

11. Singh LD1-02-105 10/11/2012870 07/01/2013 06/10/2016 Bhandari

21. Sanjay Handa LD1-03-604 15/10/2011870 03/02/2012 NOV.2015 Akhil Bansal &

22. LD1-03-1406 02/10/2011870 26/11/2011 25/08/2015 Kunti Bansal

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Jesu Kumar

25. LD1-05-1102 15/03/20121365 07/07/2012 2016 Bose

26. R K Abhishek LD1-05-1401 17/09/20111365 23/11/2011 23/08/2015

27. Rachit Sahijani LD1-05-1201 17/11/2011 17/08/2015 Shagun

28. LD1-06-603 15/09/20111580 15/11/2011 15/08/2015 Ahluwalia

29. Vivek Kumar LD1-06-203 19/03/20121580 14/05/2012 14/02/2016 Chander Jeet

30. LD1-06-1403 12/11/2011 12/08/2015 Rai

Anil Kumar

31. LD1-07-203 07/01/2012 06/08/2015 Gupta

32. Anuj Malhotra LD1-08-1204 31/03/20111060 28/02/2013 28/11/2016

JANUARY

33. Amit Mahajan LD1-08-1603 03/05/20121175 25/05/2012

2016

34. Syed Akhtar LD1-11-1002 29/09/20111698/227523/03/2012 22/06/2015

35. Deepit Saraf LD1-12-1003 1200 09/10/2012 09/07/2016

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62. Manas Gandhi LD1-04-1201 14/11/2016- 27/10/2012 27/07/2016

63. Shalu Sharma LD01-03-2003 14/11/2016- 23/01/2012 24/09/2015

64. Sachin Sharma LD01-15-2001 14/11/2016- 24/12/2011 24/08/2015

65. Vikas Mishra LD01-03-905 14/11/2016- 16/12/2011 07/10/2015

66. Kulvijay Singh LD01-03-1506 14/11/2016- 08/09/2012 08/05/2016

67. Umesh Kumar LD01-02-1506 14/11/2016- 23/02/2013 22/11/2016

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Soni

69. Neeraj Chawla LD00121104 14/11/2016- 09/07/2013 09/03/2017

70. Manoj Dang LD00051201 14/11/2016- 10/07/2013 09/03/2017

71. Satya Jaiswal LD1-06-103 14/11/2016- 17/01/2012 16/10/2015

4. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant Association has filed the present Consumer Complaint seeking following Reliefs:-

(1) Direct the Opposite Parties to complete construction of the project ''The Kove'' at Jaypee Greens Sports City, Gautam Budh Nagar (U.P) strictly in accordance with the rules, regulations, sanctioned plans, lay out and development plans, along with necessary common facilities and services, and specifications promised in the Provisional Allotment Letter, and handover possession of their respective flats to the Complainant members of the Complainant Society, within such time as the Hon'ble Commission may deem fit;

IN THE ALTERNATIVE

(2) In the event the Opposite Parties fail to handover possession within the time stipulated by the Hon'ble Commission:-

(a) direct the Opposite Parties to refund the monies paid by the Complainant Members of the Complainant Society along with interest @24% per annum from the dates of payment of instalments till the full refund is made;

(b) Declare that the Clause 5.6 of the Standard Terms and Conditions is an act of Restrictive Trade Practice, and further direct the Opposite Parties jointly or severally, to pay compensation to the Complainant Members of the Complainant Society for delay in handing over possession of the flat @ 18% p.a. on the monies paid by the Complainant Members of the Complainant Society, from the date of booking till the possession is handed over to them in terms of prayer (a) above;

(c) Direct the Opposite Parties jointly or severally, to refund the late payment interest charged by them from the Complainant Members of the Complainant Society;

(d) Direct the Opposite Parties to bear the additional Service Tax, Registration

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Charges, that shall be levied on sale of flats at a higher rate at the time of registration, than the rate prevalent in the respective years when the flats were promised to be delivered to the flat owners;

(e) Restrain the Opposite Parties from enhancing Super Area of the flats already sold to the Complainant Members of the Complainant Society;

(f) Direct the Opposite Parties to pay compensation of Rs. 1 Lacs each to the Complainant Members of the Complainant Society, for not providing the promised infrastructure in 'Jaypee Green Sports City, Gautam Budh Nagar (U.P)', in which the Project is stipulated;

(g) Direct the Opposite Parties to pay compensation of Rs 5 Lacs, to each Complainant Members of the Complainant Society, for mental agony and harassment;

(10) Award costs;

05. Upon notice, the Complaint has been resisted by the Developer by filing its Written Version and, inter-alia, raising the preliminary issues that; the Complaint is not maintainable before this Commission for want of pecuniary jurisdiction as the costs of each apartment involved in the present disputes is below ₹60,00,000/-; the matter is ceased with the Hon'ble Supreme Court of India as some of the Members of the Complainant Association has filed Writ Petition (Civil) No. 744 of 2017 for redressal of their grievances and vide order dated 10.01.2018, the Apex Court has directed Mr. Pawan Shree Agrawal, Amicus-Curie to create an independent web-portal in respect of home buyer of the Developer; many of the Members of the Complainant Association are chronic defaulters and they cannot claim the compensation for their own wrong doing; the dispute involved in the present case has to be referred to an Arbitrator for an amicable settlement in terms of Clause 10.09 of the Standard Terms and Conditions; some of the Members of the Complainant Association are not the Consumers as defined u/s 2 (a) (d) as they have booked the one/two flats for only investment purpose and for speculation in Real Estate Market;

06. On merits of the case, it is contended that; the delay in the Project has occurred for the reasons which were completely beyond the control of the Developers, i.e. due to force majeure events such as shortage of labour, scarcity of water, restriction in excavations, villagers' agitation as well as legal impediments and Orders issued by NGT imposing ban on extracting any quantity of underground water for the purpose of construction and hence, the Developer is entitled for extension of time; some of the Members of the Complainant Association who had timely paid the installment of balance consideration, have been paid the delayed compensation by the Developer; refund, if any on request, has to be paid to the Flat Buyers as per Clause 9.1.5 of the Standard Terms and Conditions; the proper Authority for adjudication upon the subject matter is Real Estate Regulatory Authority (RERA); in the absence of execution of a valid/registered agreement for sale, the expected date of delivery of possession of the

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respective Units mentioned in the Provisional Allotment Letter, has no consequence; the layout plan of the Project has been duly sanctioned by NOIDA Authority upto 30.06.2022 and the same date has also been fixed for completion of the Project by RERA and under these circumstances, the Developer cannot be held liable for any deficiency in service and Unfair Trade Practice; the Developer has not abandoned the construction of the Project in question and work on the Towers is in full swing and the possession of the subject Apartments shall be given to all the allottees very soon;

07. During the proceedings of the Complaint, the Opposite Party Developer has moved an Interim Application No. 2204 of 2022 on 15.03.2022 seeking leave of the Commission to place on record the following additional facts:-

(i) At present, the total number of the Complainants involved in the present complaint is 71;

(ii) the allotment of the Apartments to the Members of the Complainant Association, namely, Nikhil Bansal, Akhil Bansal, Rajiv Balyan and Mr. Jasbir Singh Sodhi has been cancelled on their request and the matter has been settled with them;

(iii) Mr. R.K. Abhishek, Mr. Umesh Kumar and Mr. Dinesh Kumar Soni have filed complaints before the U.P RERA for refund of the deposited amounts;

(iv) The Axis Bank and the ICICI Bank have initiated the proceedings for recovery of their debts before the DRT against Mr. Navarun Shome and Mr. Manas Gandhi respectively;

(v) Considering the financial possession of the Developer pre and post Covid-19, the Learned UP RERA has passed various orders with respect to the Project in question and neighboring Projects awarding interest @MCLR+1% to the Complainants payable in 24 monthly equal installments;

(vi) Due to Farmers' agitation in the year 2010 in respect to additional compensation for acquisition of their land and without support of the State Government to control law and order despite repeated requests, the Developer was neither in a position to develop the lands nor in a position to sell it to raise finances to cater for the development of the Project in Noida;

(vii) The Report of the Chaudhary Committee was implemented by the U.P Government vide its Order dated 29.08.2014 and the said demand was sought to be recovered from the allottees including Jaiprakash Association Ltd.;

(viii) The National Company Law Tribunal, Allahabad imposed a moratorium upon Jayee Infratech Ltd., (JIL) a subsidiary company of the Developer, u/s 14 of Insolvency and Bankruptcy Code, 2016 and Insolvency Resolution Professional (IRP) was appointed for managing the affairs of JIL by suspending the Board of the Directors;

(ix) On the Home Buyers of JIL approaching the Hon'ble Supreme Court of India by way of Writ Petition (Civil) No.744/2017 titled as Chitra Sharma Vs. UOI, vide Order dated 11.09.2017, the Apex Court directed the Developer to deposit ₹200/- crores with its Registry to protect the interest of the Homebuyers, however, due to financial

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crunch, the Developer could not deposit the entire amount and deposited only a sum of ₹750/- crores. Subsequently, the Apex Court, vide its final Order in Chitra Sharma's case (supra) directed that the amount of ₹750/- crores shall be transferred to the adjudicating authority and continue to remain invested under their supervision;

(x) The issue with regard to use of amount of ₹750/- crores is still pending with the Hon'ble Supreme Court

(xi) Vide judgment dated 24.03.21 in Civil Appeal No.14741 of 2020 titled as Jaypee Kensigton Boulevard Apartments Welfare Association Vs. NBCC Ltd., the Hon'ble Supreme Court held that sum of ₹750/- crores is the property of JAL and shall not be used in the CIRP of JIL; etc.

08. I have heard the learned Counsel for the parties at some length and also perused the material available on record as well as evidence adduced by the parties.

09. The preliminary issues raised by the Developer and the defence taken by them for delay in completion of the Project in question have already been dealt with by this Commission in the case of Mrs. Mamta Maurya & Ors. Vs. Jai Prakash Associates Ltd. - Consumer Complaint No. 405 of 2017 decided on 22.03.2022 which relates to the same Project, namely,

"Kove" and the same Opposite Party. While rejecting all the afore-mentioned contentions of the Opposite Parties, this Commission has held as under:-

" 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 Seem in 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

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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."

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 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. 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.

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

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material available on record and have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.

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.

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. As far as the plea that some of the Complainants defaulted in making timely payment as 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. 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 along with appropriate interest. 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

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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. 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.

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 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

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

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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:

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

During the course of proceedings, learned Counsel Mr. Sukumar Pattjoshi,

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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. 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. 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.

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.

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

10. Respectfully following the judgement passed by this Commission in the case of Mrs. Mamta Maurya (Supra) I partly allow the Consumer Complaint filed by the Complainant Association on behalf of its Members and direct the Opposite Party Developer to refund the entire amounts deposited by the Members of the Complainant Association alongwith simple interest @9% p.a. from the respective dates of deposits till the date of actual payment together with costs of ₹50,000/- to be paid to the each of the Members of Complainant Association, within a period of six weeks from the date of passing of this order failing amount the amount shall attract interest @ 10% p.a. for the same period. However, it is made clear that the Members of the Complainant Association who had already settled the matter with the Opposite Party Developer shall not be entitled for any benefit under the aforesaid directions. So far as, the Members of the Complainant Association who had obtained the home loan from the Financial Institutions, is concerned, they must clear their outstanding loan first and then utilized the balance amount for their own use.

11. The Consumer Complaint is allowed in above terms. The pending applications, if any, also stand disposed of.

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

R.K. AGRAWAL

PRESIDENT

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