1. The present Consumer Complaint (CC) has been filed by the Complainants U/s 12(1)(c) read with Section 21 of Consumer Protection Act, 1986 against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OPs to:-

1. Opposite Party 1, 2 and 3 to commit to a delivery date for handing over physical possession of the dwelling units to each class member and provide for penalties to be imposed on them in the event of the said date not being met;

2. Opposite Party 1 and 2 to compensate the class members for the inordinate delay in offering possession by awarding interest at the rate of 18% on the sums of money enjoyed by the Opposite Party 1 to the detriment of each class member, from the date of possession first promised to every class member by the Opposite Party 1;

3. Opposite Party 1 and 2 to pay damages of Rs.10,00,000/- to every class member for mental agony, harassment, and hardship suffered by the Complainants at the hands of the Opposite Party 1;

4. Opposite Party 1 and 2 to pay Rs.10,000/- towards litigation expenses to every class member;

5. Opposite Party 1 and 2 to refund the escalation cost collected by them from every class member on account of a risk and expense contract with a new contractor;

6. Opposite Party 1 and 2 not to demand and recover any additional monies from the class members on account of escalation in cost of the dwelling units as the same would amount to taking advantage of their own wrongs;

7. Opposite Party 1 and 2 to compensate the class members for the loss of notional rent calculated at a nominal rate of Rs.20,000/- per month from the date of possession first promised to each class member;

8. Impose exemplary costs on the Opposite Party 1 and 2 for misusing its dominant position vis-à-vis the class members for its unjust enrichment;
9. Direct and bind the Opposite Party 2 to stand guarantee for the relief awarded by this Hon'ble Court against the Opposite Party 1 and in favour of the class members, it being the body exercising direct control over the affairs of the Opposite Party 1.

2. Notice was issued to the OPs. Permission to file complaint U/s 12(1)(c ) on behalf of or for the benefit of all allottees of residential flats of the project in question was allowed vide this Commission’s order dated 11.10.2017.  It was also ordered that allotment made to persons on whose behalf or for whose benefit the complaint has been filed, shall not be cancelled without prior permission of this Commission.  Vide order dated 16.01.2018, it was ordered that the draw of lots if held by the OP will be subject to final decision of this Commission. IA 2138/2018 and IA 2139/2018 for impleadment of parties was allowed vide order dated 12.06.2018.  Vide order dated 19.11.2019, considering that OP-2 is neither necessary nor proper party to the complaint, was deleted from the array of parties. During the pendency of the complaint, possession has already been taken by the complainants.  Hence, only following three issues were pressed for adjudication:-

1. Delay compensation.
2. Cost escalation.
3. Parking charges.

3. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant No.1/other relevant details of the case, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.

4. It is averred/stated in the Complaint that:

1. The complainant (class representative) applied for a dwelling unit in the project of the OP by paying a registration amount of Rs.90,500/- on 05.10.2010.  The OP issued booking letter dated 20.12.2010, wherein probable date of completion was to be December 2013.  The OP issued a second booking letter dated 12.07.2012, revising the total consideration and probable date of completion from December 2013 to December 2014.

2. The complainant has filed this Complaint in the representing capacity on his own behalf and on behalf of all the allottees of Raman Vihar Project of Army Welfare Housing Organization (AWHO) in Coimbatore,   aggrieved by inordinate delay in offering the possession by the OP and also frequent and arbitrary increases in total consideration of the unit and also by frequent and arbitrary revisions in the date of handover which was December 2013 to begin with and now stands at December 2017. 

5. The OPs- 1 & 3 in their written statement/reply stated that:

1. First booking letter was issued on 20.12.2010.  At that time it was planned to complete the project by the end of year 2013.  However, it was a very tentative date and the date with some amount of accuracy could only be anticipated after the award of the contract.  The completion date given to the contractor was 09.04.2014. Seeing no hope of completion of the project as promised, the contract was cancelled.  Thereafter, other contractors were awarded fresh contract on 05.02.2016 and given date of completion as 18.05.2017.  The delay in the project has been caused due to reasons beyond the control of AWHO. 

2. Complainant has admitted that he was continuously kept informed about the progress and cost escalation of the project vide various letters and updates on the website of AWHO. Complainant was duly informed from time to time about revision in probable date of completion as well as cost escalation.

3. The present project is being developed at Coimbatore, Tamil Nadu.  Because it is convenient to the complainant he has filed the complaint at New Delhi before this Commission.  All the other allottees of Ram Vihar, who have booked flat at Raman Vihar, Coimbatore, Tamil Nadu would be forced to come all the way to New Delhi to be part of a litigation started by complainant without even consulting a single other allottee.

6. Heard learned counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

7. OP has contended that AWHO (OP-1) is a society registered under Societies Registration Act, 1860, a welfare society committed to provide structurally sound, economically viable dwelling units to Armed Forces personnel including service personnel, retired veterans, war widows and family members of battle casualty.  AWHO functions on ‘no profit no loss basis’, under self-financing model, it is not a commercial builder in any manner, it keeps 3% of total collections as establishment charges meant for salaries, office expenses, establishment expenses etc., Unlike commercial builders, AWHO primarily runs on the contributions by the allottees without any profit motive.  The income and property of the society, whenever derived shall be applied by the society towards promotion of the objects of the society, no proportion by way of dividend or bonus or otherwise shall be paid to any person who at any time are or have been members of the society or to any person claiming through them.  AWHO maintains separate accounts of each project, and also refunds the allottees in case any surplus is collected upon closure of project accounts. It is not engaged in commercial activities for generating profits.  Any surplus of more than 3% is used to procure land for future use of the Army Personnel.  If surplus amounts are more than the audited expenses then it is returned to the allottees as well. In the last 45 years AWHO has delivered about 120 projects for Army personnel involving construction of more than 33,500 dwelling units, the residential units delivered by AWHO are much cheaper when compared to private builders and of sound construction quality. AWHO is overseen by a Board of Governors comprising of the Chief of Army Staff, the Vice Chief of Army Staff, the Army Commanders and Adjutant General. The day to day management of AWHO is run by its Managing Director, who is an officer with requisite experience (serving/retired) in the rant of Lt. General or Major General of the Army.  

8. Before we go further into the merits of the instant case, it would be essential to discuss here whether in the light of above stated contentions of OP about AWHO, can it claim total immunity for any wrong doings or inefficiencies or negligence or deficiency in service, whether intentional, or unintentional, on its part or on the part of its officials.  As a project developer, can it delay the project(s) unreasonably without any accountability and answerability and compensation  to the allottees, unless it establishes  beyond reasonable doubt that such delay was on account of force majeure causes or reasons beyond its control and whether on account of its claim of working on ‘no profit no loss basis’, demand unreasonable enhancement in price of units from the one promised at the time of booking, can it pass on the burden of its  inefficiencies/negligence or those of its officials to the allottees, especially when by its own admission such allottees happen to be armed forces personnel, serving as well as retired, war widows and members of battle casualty.  In our considered opinion, such bodies like AWHO, notwithstanding their character of being a non-profit oriented organisation, being managed and supervised by senior army officers, many of whom have vast experience and technical expertise in the area, must show much higher standards of performance and efficiency and come true to the expectations of their clientele group by ensuring proper project planning and execution without unreasonable cost and time overruns and set an example for other similar construction agencies/bodies in civil government system  as well as developers in the private sector. In fact issues relating to liability of AWHO to pay compensation to its allottees in some of its projects at different locations came up for consideration of this Commission in various cases, some of which went in appeal before the Hon’ble Supreme Court.  It was held in these cases that AWHO is liable to pay delay compensation to its allottees where it could not deliver the possession as per the stipulated/committed timelines and could not establish that such delays were attributable to force majeure reasons.  Some of these cases are briefly stated below:-

(i)      First Appeal No. 2013 of 2018, Managing Director, AWHO and Anr. Vs. Brig. Pradeep Kumar Kaushik (Retd.) and connected matters decided on 16.03.2023 in which orders of State Commission ordering compensation for delay in project completion/delivery of possession was upheld, with a partial modification in the rate of interest.

(ii)     R.P. No. 167 of 2017, Managing Director, AWHO and Anr. Vs. Lt. Col. Ranjit Singh (Retd.), decided on 15.11.2022 vide which orders of State Commission ordering delay compensation was upheld (with partial modification in rate of interest).

(iii)    Although in CC 221 of 2021, Major Sandeep Vinayak and Ors. Vs. AWHO & Ors., which was dismissed by single Member of this Commission on 06.06.2022 holding that complainants are not entitled for delay compensation, considering inter alia that AWHO is working on ‘no profit no loss’ basis and is not a profit making organisation etc., in appeal which was preferred by several complainants, Hon’ble Supreme Court in Civil Appeal No. 8251 of 2022 decided on  12.12.2022, modified the above stated order of this Commission and directed that the appellants (complainants) be paid a sum of Rs.2.0 lakh each by respondents (AWHO) towards lump sum compensation for the delay in handing over the possession.  Of course, it was observed by the Hon’ble Supreme Court that present order is passed in the peculiar facts and circumstances of this case and same may not be cited as precedent.

4. In RP No. 1982 of 2014 titled Lt.Col. Ajmer Singh (Retd.) Vs. Adjulant General and Ors. decided on 16.02.2015, orders of State Commission were set aside and complainants were granted delay compensation @15% interest.  The SLP and subsequently Review Petition filed by AWHO against the said order was dismissed by Hon’ble Supreme Court vide orders in SLP NO. 15118 to 15122 of 2015 dated 06.04.2016 and 11.08.2016 respectively.  Thus the division bench decision of this Commission in Lt.Col. Ajmer Singh (supra) attained finality.

5. It was observed by this Commission in Brig. Pradeep Kumar Kaushik (Retd.) (supra) and connected cases that ‘decision of this Commission in Major Sandeep Vinayak (supra) is per incuriam because earlier decision of division bench of the Commission in Lt. Col. Ajmer Singh (Retd.) (supra) was neither referred to nor discussed by Ld.  Single Member.

9. It was held by the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 “The Consumer Protection Act, 1986 has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen. The Commission/Forum must determine that such sufferance is due to mala fide or capricious or oppressive act. It can then determine the amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of the law. It acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the officer/public servant. No authority can arrogate to itself the power to act in a manner which is arbitrary. Matters which require immediate attention should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation, and also direct recovery from those found responsible for such unpardonable behaviour. Where there is a specific finding of misfeasance in public office, compensation for mental agony can be granted.” 

10. It is pertinent to note that while at one point OPs state that it keeps 3% of total collections as establishment expenses etc. and any surplus of more than 3% is used to procure land for future use of Army personnel, at another place it states that if surplus amounts are more than the audited expenses then it is returned to the allottees as well.  These two statements are inconsistent to some extent as if surplus amount more than 3% is used to procure land for future use, allottees of a particular project will not have the benefit of cost of units of their project being determined on ‘no profit no loss’ basis, as it is not clear whether surplus, if any, of their project will be used for procuring land for future projects or returned to them.

11.  In view of foregoing discussion and keeping in view various judgments of this Commission and Hon’ble Supreme Court, We are of the view that AWHO is liable for its actions of poor project management leading to project’s cost and time overruns unless it establishes that delay in project completion and delivery of possession was on account of force majeure causes and/or reasons beyond its control and for any unreasonable delay on the part of AWHO, the allottees shall be entitled to claim delay compensation.  In the subsequent paras, we will discuss the rival contentions of the parties on the issues raised by complainants and reliefs sought in the complaint as well as contentions of OP on merits in the facts and circumstances of present case.

12. Delay Compensation

1. It is argued by complainants that as per booking letter dated 20.12.2010, the committed date of possession (probable date of completion) was December 2013 which was subsequently changed to December 2014 vide booking letter dated 12.07.2012, which was further changed to June 2015 as per letter dated 22.07.2014, to January 2016 as per letter dated 27.11.2014, to July 2016 as per letter dated 09.04.2015, to February 2017 as per letter dated 27.11.2015, to June 2017 as per letter dated 11.03.2016, to December 2017 as per online update dated 07.03.2017 and finally to 05.10.2018 vide letter dated 06.07.2018.  The possession was finally handed over on 01.11.2018.  Hence, the complainants seek delay compensation from 01.01.2015 to 01.11.2018 at the rate determined by this Commission.

(ii) Explaining the reasons for delay, OP contended that the contract for construction was initially awarded to the M/s. Sreedevi Infra Constructions Pvt. Ltd. on 03.04.2012 and the tentative date of completion was indicated as December 2014. However, on seeing no hopes of completion of project by the contractor, the contract was cancelled and fresh tender was issued, after which M/s. Silppi Constructions was given the contract. The Opposite Party No. 1 ought to give warning and chance to perform the contract before cancellation. The previous contractor was warned multiple times and final notice was served vide letter dated 20.03.2015. The Opposite Party No. 1 has informed all the allottees about changes in the probable date of completion and reasonable exit options have been provided to them at all time. Further, the contract of defaulting contractor has been cancelled on risk and cost basis to avoid any further loss to the allottees. Complainants on the other hand argued that from the pleadings of the OP it is evident that the due date of completion given to the contractor by the OP was 09.04.2014. Admittedly, until 09.07.2014, the contractor was not confronted with slow progress.  Contract termination notice was sent by the OP only on 20.03.2015 and finally the contract was terminated on 09.04.2015 i.e. 4 months after the due date communicated to the complainant/class representative and one year after the due committed  due date by the contractor.  New contract was awarded only in February 2016 i.e. 8 months after termination of the contract. Admittedly the due date of completion was given as 18.05.2017 to the contractor but the OP continued misleading updates as to the date of completion. The unfair trade practice is apparent on the face of the record. Clause 74 of the master brochure of the project clearly contemplates payment of compensation for delay. The argument that the OP is purportedly a non-profit organization is not tenable. Clause 74 of the brochure states “No compensation will be paid by AWHO to the allottee in case handing over of a dwelling unit is delayed for the reasons beyond the control of AWHO.” Payment of consideration is the sine qua non of a consumer and service provider relationship. It is only in cases where no consideration is paid for rendering of the services that the issue of seeking compensation for deficiency in service or on account of unfair trade practices of the OP would not arise. This commission in Col. SK Chauhan v AWHO and Anr., has negated this argument and awarded 15% interest for delay in handover of possession, which if not paid in 90 days would be enhanced to 18%.  Relying on judgments of this Commission in Col. SK Chauhan Vs. AWHO and Anr. (2015) SCC online NCDRC 1188, the complainants contended that this Commission has awarded compensation for delay in compensation. 

(iii) On going through the rival contentions of parties on this issue, we find that reasons for delay advanced by OP cannot be construed as force majeure.  It was held by Hon’ble Supreme Court in NBCC (India) Ltd. Vs Shri Ram Trivedi (2021) 5 SCC 273 that “dispute with the contractors over termination does not constitute force majeure as the appellant being an experienced developer, must be conscious of routine delays caused by business exigencies.  This would not frustrate the contract or absolve the appellant of the obligations assured under the terms of the agreement.” It was held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”. Hence, we are of the view that OP is liable for delay in completion of the project and delivery of possession.  However, keeping in view the entirety of facts and circumstances of the case, we would like to give OP a benefit of one year from the committed date of December 2014 conveyed vide its letter dated 12.07.2012.  Hence, the complainants will be entitled to delay compensation from 01.01.2016 to the date of handing over possession viz 01.11.2018.

13. Cost Escalation

1. Complainants have contended that admittedly the reason for cost escalation is the termination of the contract with the earlier contractor. The contract itself was terminated by the OP, 1 year after the date when the contractor was supposed to handover. Then OP took another 8 months to finalize the contract, leading to an escalation. The OP cannot escalate costs after the due date has passed. This would amount to taking advantage of its own wrongs. The OP has admittedly culled out the reasons for escalation in cost in its technical brochure issued in May 2012 "increase in prices due to market variation and other changes which may be necessitated due to technical/architectural/functional considerations". Termination of contract with the contractor well past the due date is not and cannot be the reason for cost escalation. The cost escalation charged from the class members needs to be refunded with interest.

2. OP on the other hand has argued that the price indicated by the Opposite Party No. 1 was always tentative and subject to revision. In the booking letter dated 12.07.2012, it was clearly stated that the prices are likely to be increased by 5 to 7% p.a. as per technical brochure. The contract for construction was initially awarded to M/s. Sreedevi Infra constructions Pvt. Ltd., however, was cancelled on 09.04.2015 due to non- performance. Thereafter, a fresh contract was entered into with M/s. Silppi Constructions Contractors at the risk and cost of defaulting contractor. An additional expenditure of Rs. 19.91 Crore was incurred out of which Rs. 8.99 Crore was recovered from defaulting contractor. An additional amount of Rs. 10.91 Crore was still to be met. The Opposite Party No. 1 functions on self-financing and No Profit, No Loss basis and due to this, the amount initially had to be loaded on the allottees till the amount it realized from the contractor by appropriate legal proceedings. Further, it is important to note that the AWHO has already invoked the commercial arbitration for the recovery of the risk and cost amount from the defaulting contractor. The amount will be returned to the allottees once the recovery is made.

3. Complainants have stated in the complaint that for the Row House (RH) the total consideration has increased from Rs.39.95 lakh as per 1^st booking letter dated 20.12.2010 to Rs.43.60 lakh as per 2^nd booking letter dated 12.07.2012, again to Rs.46.55 lakh due to risk and expense on 29.02.2016 and to Rs.57.19 lakh as per update on AWHO website dated 12.09.2016.  Similar escalation in cost has happened for other category of housing; for Luxary Apartments (LXA) from Rs.42.20 in 2010 to Rs.55.11 lakh in March 2017, for Super Deluxe Apartment (SDA) from Rs.36.90 lakh to Rs.55.11 lakh, for Deluxe Apartment (DA) from Rs.29.90 lakh to Rs.44.77 lakh, for Modern Apartment (MDA) from Rs.23.50 lakh to Rs.35.50 lakh and for Small Family Apartment (SFA) from Rs.16.60 lakh to Rs.25.17 lakh during the period 2010 to March 2017.    The Opposite Party 1 has recovered from the Complainants sums described in the below table on account of escalation in price due to a risk and expense contract that was put in place with a new contractor. In doing so the Opposite Party 1 did not substantiate how this escalation in price was arrived at. The recovery of escalation price is thus arbitrary and unreasonable and amounts to recovering monies from the Complainants for poor and incompetent project and contract management done by the Opposite Party 1.

(iv) On going through the rival contentions of the parties, we are of the view that it was not a fixed price offer project, in the brochure itself it is mentioned that price is tentative and likely to be increased by 5 to 7% per annum.  However, such escalation cannot be open ended and unreasonable, further if such cost overrun is attributable to time overruns, and/or poor project management or inefficiencies on the part of OPs, it cannot be loaded to the complainants.  Considering that we have granted a benefit of one year grace period for project completion, and keeping in view the entire facts and circumstances of case, we limit the cost escalation to a maximum of 7% p.a. on the original price conveyed vide booking letter dated 12.07.2012 i.e. maximum p.a. escalation as mentioned in the technical brochure, till the date of completion given to the new contractor i.e. 18.05.2017, subject to actual cost escalation, whichever is lower, on final project accounts closure, including inter alia, recovery from the earlier contractor, whenever it happens and/or receipts under the arbitral award or accounting for any other receipts/payments relating  to  project in question.

14. Car Parking Charges

1. Complainants have argued that stilt parking and open to sky areas are not garages and cannot be charged separately. The stipulation in the booking letter that parking is to be paid extra can only be understood to mean parking which partakes the meaning of a garage and not open to sky areas or stilt areas which have already been paid for. Members pay the total consideration in two parts - cost of land and cost of construction. When both of these components have been recovered, there is nothing left to be recovered for cost of parking. There is no construction raised separately for the parking space. Charging for parking would amount to double charge. Charges levied are arbitrary (vary from 2.25 lakh to 6 lakh). A non-commissioned officer has been forced to pay Rs.3,46,042/- as parking charges for a smaller accommodation than a commissioned officer who is an allottee of a bigger apartment. The unfair trade practice is apparent on the face of the record. This warrants refund of parking charges recovered by the OP to all class members.

2. OP argued that at the time of oral arguments on 27.01.2023, an issue was raised regarding the payment of cost of parking collected from the Complainant, but there is no prayer to this effect in the Consumer Complaint. Thus, no such averment can be raised at the time of Final Argument. During the pendency of Consumer Complaint, an IA No. 644 of 2018 was filed by the same Complainant praying for stay on parking charges. This was rejected vide order dated 12.06.2018 passed by this Hon'ble Commission.

3. We have gone through the rival contentions of parties on this issue.  The relevant portion of order dated 12.06.2018 in IA 664/2018 is as follows:-

“The learned counsel for the OP states that as far as row houses are concerned, no separate charges are payable for the parking.  As regards the parking for the other allottees, he has drawn my attention to the technical brochure which clearly shows that the cost of car parking in case of apartments will be extra and the allotments of the same will be done later.  The contention of the learned counsel for the complainant is that the cost of car parking cannot be charged extra from the allottees of the apartments.  However, neither the agreement between the parties provides for free car parking nor my attention has been drawn to any statutory provision requiring the builder to provide free car parking of this nature of the allottees.  If an apartment owner is not interested in taking allotment of the said parking at the cost demanded by the OP, it is open to him not to accept the allotment.  But, such a car parking cannot be provided free of cost.   The learned counsel for the applicants refers to the decision of the Hon’ble Supreme Court in Nahalchand Laloochand Private Limited Vs. Panchali Cooperative Housing Society Limited (2010) 9 SCC 536, decided on 31.08.2010.  I have perused the said judgment.  Nowhere does the aforesaid judgment say that the car parking will be provided free of cost to the apartment owner.   The learned counsel for the complainants states that the complainants are also disputing the preferential location charges.  I have perused the guidelines for filling up of options which are Annexure-B to the reply filed by the OP.  As per the guidelines to the option letter for specific floor and parking space, the allottees, while exercising option with respect to row houses were to keep in mind that ground floor row houses will carry a preferential location charge of Rs.1.5 lacs extra.  In view of the aforesaid stipulation, any allottee who has opted for a ground floor row houses is required to pay the aforesaid preferential location charges.  The learned counsel for the complainant submits that the row houses can be allotted only to disabled persons.  I however, find no such stipulation in the guidelines.  In this regard, guidelines only provide that request for preferential allotment of floor from the allottees suffering from disability would be considered only in respect of those who are covered by the provisions of the liberalized pension conditions in terms of Government of India, Ministry of Defense letter dated 02.11.1995 and should submit the mandatory medical/pension documents alongwith their options. For the reasons stated hereinabove, I find no merit in the application and the same is accordingly dismissed.”  

4. It is to be noted that the above said orders were challenged by the complainants before the Hon’ble Supreme Court, but the Civil Appeal was dismissed vide order dated 17.08.2018.

5. In view of above, I tend to agree with the contentions of OPs.  Therefore, complainants are not entitled to any relief on this count. 

15. Other contentions raised by OPs

1. Non-Maintainability on grounds of lack of pecuniary jurisdiction-complaint not maintainable as a class action U/s 12(1)(c).

1. OP argued that present complaint filed under section 12(1) (c) is not maintainable. The project comprises of total 400 dwelling units. However, apart from the Complainant Brig. J.S. Dharmadheeran, no other Complainant came forward. Two Applications for Impleadment were filed during the pendency of the Complaint, however, these Impleaded Complainants (Col. Manoj A.R., Indu S/o Sreedharan Nair) never came after filing the applications. They were also not present at the time of Final Arguments. This matter does not have the character of a class action. Hon'ble Supreme Court in the Judgment of Brigade Enterprises Limited Vs. Anil Virmani (2022) 4 SCC 138 has clearly held that that persons having distinctive interest and claim cannot be clubbed in a petition under Section 12(1)(c) (Section 35(1)(c) under the 2019 Act). In so far as the sole Complainant is concerned, this complaint is not maintainable for lack of pecuniary jurisdiction of the Hon'ble National Commission. The sale consideration for the Row House allotted to the sole Complainant was Rs. 46,08,500/-, even after inflating the claim with interest at the rate of 18%, compensation of Rs. 10,00,000/-, notional rent of Rs. 7.20 Lakhs and refund of Rs. 2.95 Lakhs, the claim does not cross the pecuniary limit of Rs. 1 Crore.

2. The complainant on the other hand argued that the issue of maintainability of the Complaint as well as the class action under section 12(1)(c) was decided by the Hon'ble Commission vide order dated 11.10.2017 by dismissing the application IA/8890/2017 filed by the OP. The order has attained finality and there can be no interference with the said order. Brigade Enterprises (supra) is not applicable to the facts of the present case for two reasons:- (i)The sameness of interest of class members is specifically pleaded in para 2 of the Complaint. Also, there are specific pleadings on behalf of class in the complaint. The prayer is also on behalf of all class members.(ii) The class representative filed declarations by way of affidavit on behalf of as many as 29 class members (18 class members vide diary number 32251 on 04.08.2017 and by 11 class member vide diary number 38955 on 19.09.2017) covering all possible types of dwelling units in the project. The same were taken on record vie order dated 11.10.2017 by allowing the application IA 14193/2017.

3. After going through the rival contentions of the parties on this issue and going through the order dated 11.10.2017 vide which IA 4141/2017 filed by complainants seeking permission to file complaint u/s 12 (1) (c ) was allowed, and IA 8890/2017 filed by OP seeking dismissal of complaint on the ground of maintainability as class action (u/s 12 (1) (c ) was dismissed, along with dismissal of IA 8891/2017 seeking reference to arbitration and IA 14193/2013 filed by complainants to place additional documents was allowed and said documents were taken on record with liberty to OP to file additional documents in order to rebut the aforesaid documents of the complainant, We do not find any reason to revisit the earlier order of this Commission to allow the complaint as class action U/s 12 (1) (c). 

2. Filing of complaint premature as pre-condition of Arbitration has not been fulfilled.

1. OP argued that present Consumer Complaint filed by the Complainant is premature as the remedy of Arbitration as mandated by the Master Brochure has not been fulfilled yet. The Master Brochure has an Arbitration Clause in it which states that the disputes relating to registration, booking, allotment and cancellation and in all such other matters may be referred to the Chairman of the Organisation who shall appoint the Sole Arbitrator under the provisions of Arbitration and Conciliation Act, 1996. With regard to the court litigation, the Clause states that if all other avenues of redress including Arbitration is exhausted then recourse to the courts can be taken. OP further argued that Section 8 of the Arbitration and Conciliation Act, 1996 states that the judicial authority shall refer the matter to arbitration unless it is found that prima facie, no valid arbitration agreement exists. In the present case, there is a valid arbitration agreement and hence, the disputes shall be resolved through Arbitration.

2. It was held by Hon’ble Supreme Court in Imperia Structures Ltd Vs Anil Patni and Anr (2020)10 SCC 783 "remedies available under the provisions of CP Act are additional remedies over and above other remedies, including those made available under any special statutes - availability of alternate remedy is no bar to entertaining complaint under the Consumer Protection Act. In Emaar MGF Land Ltd Vs Aftab Singh (2019) 1 CPJ 5  (SC), Hon’ble Supreme Court held "Arbitration Clause does not exclude the jurisdiction of Consumer Fora" It was held by Hon’ble Supreme Court in Ireo Grace Realtech Pvt Ltd Vs Abhisekh Khanna  and  Ors (2021)3 SCC 241 " Consumer Protection Act intends to relieve Consumers of the cumbersome Arbitration Proceedings or Civil Action, unless the Consumer Forums on their own and in peculiar facts and circumstances of a case, come to conclusion that appropriate forum for adjudication of disputes would be otherwise than under the Consumer Protection Act " "Consumer forums are at liberty to proceed with the matter in accordance with the provisions of Consumer Protection Act rather than relegating parties to arbitration pursuant to a contract entered into between the parties" "When two remedies are available for the same relief, party to whom such remedies are available has the option to elect either of them, but that doctrine would not apply to the cases where the ambit and scope of the two remedies is essentially different".

3. Hence, keeping in view the above,  and that IA 8891/2017 seeking reference to arbitration was earlier rejected vide order dated 11.10.2017, we find no merit in the contention of OP in this regard.

3. Complaint is liable to be dismissed for Mis-joinder of parties. 

1. OP argued that the Complainant has wrongly arrayed Opposite Party No. 2 i.e., Adjutant General as party. The Opposite Party No. 2 has no role in planning, construction, handing over and other day to day execution of AWHO projects. The project in question is being developed, executed and is nearing completion by Opposite No. 1 through its Project Director i.e., Opposite Party No. 3.  The Opposite Party No.3, Col. V. Sudhakar, Project Director of the project has been impleaded personally by name. The Opposite Party No. 3 is not liable or answerable personally for actions taken in official capacity. The Complaint is hence liable to be dismissed in limine for misjoinder of parties.

2. Vide order dated 19.11.2019, considering that OP2 is neither necessary nor proper party to the complaint, was deleted from the array of parties.  We agree that the liability of OP-3 need be treated in his official capacity and not in his personal capacity. 

4. Complaint barred under principle of Estoppel

1. OP has argued that the Complainant always had the option of cancellation of their booking without any penalty clause. The price escalation factors were regularly communicated to the Complainant from time to time. However, the Complainant himself choose to  continue the booking at the Project and hence is now estoppled  from bringing up the issue of delay or price escalations which have happened for the reasons beyond the control of Opposite Party. The Master Brochure clearly states that the registrants could cancel the booking, before or after the issuance of booking letters at nominal cost without any penalty.

2. We do not agree with this contention of OPs.  If the complainants having put their hard earned money in such housing projects decides to stay in despite delays, does not debar him from claiming compensation from OP for delays or seek redressal of any other grievances.

16. 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: -

1. OPs shall pay delay compensation in the form of simple interest @6% p.a. from 01.01.2016 till the date of handing over the possession.

2. OP shall be entitled to charge cost escalation upto a maximum of 7% p.a. on the original cost conveyed vide booking letter dated 12.07.2012 upto 18.05.2017 (date of completion given to the new contractor) subject to actual cost escalation, whichever is lower, on final project accounts closure, including recovery from the earlier contractor, and/or receipts/receivables under the arbitral award or accounting for any other receipts/payments/costs relating to project in question.  However, the delay compensation payable under para 16(i) above shall not be charged to project cost for calculating the final project cost for this purpose. OP shall get the project accounts finalized and audited within a maximum of four months.

3. Benefit of this order under Para 16(i) & 16(ii) above shall be available to all the complainants in the present case as well as all other similarly placed allottees of this project for whose benefit or on whose behalf the present complaint in the representative capacity has been filed U/s 12(1) (c) of the Act.

4. Parties to bear their respective litigation costs.

5. The liability of the OP1 and OP3 shall be joint as well as several. Liability of OP-3 shall be in his official capacity only.

6. The payment in terms of this order shall be paid within four months from today.

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