1.      Heard Mr. Gagan Gupta, Advocate, for the complainant and Mr. Praveen Mahajan, Advocate for the opposite parties.

2.      Nitishree Vitim’s Welfare Association is a society registered under the Societies Registration Act, 1860. The aim and object of the society, inter alia, is to file complaints/ suits/writs/special appeals at various legal forums in Delhi or any other State on behalf of its members and do follow ups etc. It is a “voluntary consumer association” within the meaning of Section 12 (1)(b) of the Consumer Protection Act, 1986. The details of the names and other particulars of members of the complainant association are given below:-

CHART OF COMPLAINANTS AS PER ORDR DTED 24.09.2019

3.      Above complaint has been filed for directing M/s. Shourya Towers Pvt. Ltd. (the builder) to demarcate the plots of the members of the society, delivered its possession and execute the conveyance and necessary documents after taking balance amount in accordance with the allotment letter; (ii) to declare the demand towards EDC, CDC and IFMS charges and interest on these heads as illegal, null and void and is not binding upon the members association; (iii) direct the builder to pay interest @24% per annum from the date of respective deposits till the date of giving possession of the plot/flat to the respective members of the association; (iv) to award a compensation of Rs.5000000/-  towards mental agony, harassment as well as loss of rental income due to delay in handing over the possession; (v) to award punitive damages against the builder for indulging in unfair trade practices; and (vi) any other relief which is deemed fit and proper, in the facts and circumstances. 

4.      The facts, as stated in the complaint and emerged from the documents attached with the complaint are that Shourya Towers Pvt. Ltd., (opposite party-1) (the builder) is a company, registered under the Companies Act, 1956 and engaged in developing and constructing the residential plot and group housing etc. and selling its unit to prospective buyers. The builder launched a project in the year 2005 in the name of “Shouryapuram” at village Bamheta, Shampur, NH 24, Delhi Hapur Highway, Ghaziabad and gave lucrative advertisement of the project. The members of the complainant’s association were attracted with the advertisement made by the builder. They booked their respective plots/flats in the year 2006-2007. They deposited various amounts as and when demanded by the builder. As advertised, the builder had to develop the residential plot/flat within three years and had to give possession over it to the prospective buyers.The members of the association used to inquire from the builder about the completion of the project and delivery of possession, time to time, then always a new date of completion of the project and delivery of possession was assured/informed. In the year 2011, the builder showed a letter dated 30.11.2010 issued by the Assistant Engineer (Master Plan), Ghaziabad Development Authority, to the effect that site plan for integrated township scheme was sanctioned in the name S.M.V. Agencies Pvt. Limited (Consortium) by the Vice Chairman of Ghaziabad Development Authority on 29.11.2010. On coming to know about the letter dated 30.11.2010, the members of the association sought to know that lay out plan was sanctioned in the name S.M.V. Agencies Pvt. Limited (Consortium) and not in the name of the builder.  The members of the association tried to ascertain from the builder as to what share/interest in the property of S.M.V. Agencies Pvt. Limited (Consortium), the builder had? But the builder avoided to give correct information and threatened the member to cancel the allotment and forfeit their money. It was also noticed that till 2011 there was no progress in respect of development of the project on the spot.

5.      After sanctioned of lay out plan, the builder started issuing demand letters/reminders for payment of balance amount of the allotment. In the absence of any actual development work on the spot as well as title of the builder, the members of the complainant association were in doubt. They repeatedly visited the office of builder and demanded information in respect of their title in the project. In some of the information, the builder informed that development work of Phase -1 to Phase -3 were going on, but on the ground only the work in Phase-1 was found while existence of  phase -2 and 3 were totally absent. In the demand letters as well as reminders, the builder used to give threating regarding cancellation of the allotment and forfeiture of the money deposited by the members of the complainant. In the meantime, the members of the complainant came to know that one Nitishree Vitim’s Shouryapuram NH 24, allottees Welfare Association filed CC/182/2010. When the notices on the aforesaid consumer complaint was issued to the builder, they settled the dispute with the members of  Nitishree Vitim’s Shouryapuram NH 24, allottees Welfare Association and the complaint was disposed of by order dated 28.08.2012 in terms of the settlement. 

6.      It was learnt by some members of the complainant that the builder will give possession to those members only who had paid 80% of the basic sale price in first phase, while the builder went on issuing the demand letters as well as reminders for depositing the balance consideration. The members of the complainant association also came to know that the builder had entered into collaboration agreement with third parties and started creating irreversible third party right in the project in question and the builder were in hurry to quickly dispose of the plots of prime location to third party. In order to protect the interest of the members, the members formed association and got it registered on 30.01.2013 under the Societies Registration Act, 1860, thereafter they filed CC No.70 of 2013, in which, there were various defects. It was got dismissed as withdrawn with liberty to file fresh complaint on 11.04.2013 and this complaint was filed on 13.05.2013. It has been alleged that the members of the complainant association had booked the plot /flat in the year 2006 and 2007 and deposited the substantial amount and more than six and seven years have passed. They are entitled for possession over the allotted plots and flats. The builder was demanding huge amount as EDC, CDC and IFMS, which was legally not payable. On these allegations, complaint was filed.

7.      The builder filed their written reply on 08.05.2014 and contested the complaint. It has been stated that the present complaint is not maintainable. Inasmuch as some of the members of the association are individual and some of the members were Private Limited Companies. Further some of the members have booked flat, while some of the members have booked the residential plot. Aman Fin Vest Pvt. Ltd, Jindal Securities Pvt. Ltd. and M/s. Supreme Portfolio Pvt. Ltd. who are members of the complainant association or Private Limited Companies and booked two plots, therefore, they cannot be treated as consumer, within the meaning of Consumer Protection Act, 1986. The members of the complainant association had paid very less amount in the range of 3 lakhs to 9.5 lakhs, as such this complaint is not falling within the limits of pecuniary jurisdiction of this Commission. The members of the complainant association are defaulter and are not entitled for any relief. The contracts between the parties show that the members of the complainant association entered into the contract for purchasing immovable property and they are not hiring any service of the opposite party. The complaint has been filed supressing various material facts to exert pressure upon the builder and to escape route to wriggle out their contractual obligations. The complaint is mala fide. The builder has issued a repeated demand letters and reminders for depositing the required amount of instalments and getting the registered agreement for sale executed, but the members of the complainant association were avoiding payment of the instalment and execution of the agreement.

8.      The complainant has filed an IA/1899/2016 for directing the opposite party to reply various interrogatories although the builder took time to file reply to the interrogatories, but no reply has been filed.  This Commission by order dated 31.10.2018 directed for consideration of IA /1899/2016 at the time of final hearing. The complainant filed Rejoinder Reply on 03.12.2014 and Affidavit of Evidence of Dinesh Batra, the President of the complainant Association. The builder filed Affidavit of Evidence of Praveen Chandra Misra. Both the parties filed their written synopsis. 

9.      We have considered the arguments of the counsel for the parties and examined the record. This Commission in Kavita Ahuja Vs. Shipra Estate Ltd. & Ors., I (2016) CPJ 31 (NC), held that mere booking of more than one residential unit does not ipso facto will be taken as a commercial purpose. In the absence of any evidence that the complainant was engaged in sale and purchase of immovable property, the complainant can be held as a consumer. Supreme Court in Karnataka Power Transmission Corporation & anr. Vs.  Ashok Iron Works Pvt. Ltd., (2009) 3 SCC 240 has held that the company can also be a consumer, if the goods are purchased for personal use. Similar view has been taken in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developer, (2020) 2 SCC 265. The builder has not adduced any evidence that the members of the complainant association were engaged in sale and purchase of the immovable property, as such, it cannot be held that they are not consumer. The complainant is a registered voluntary association of the consumers, therefore, the complaint is maintainable under Section 12 (1) (b) of the Consumer protection Act, 1986.

10.    So far as the pecuniary jurisdiction of this Commission is concerned, Section 21 (a)(i) the Consumer protection Act, 1986. provides that the complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore, it will be within the pecuniary jurisdiction of National Commission. Where the complaint has been filed under Section 12(1)(b) and under Section 12(1)(c) of the Consumer Protection Act, 1986, then the valuation of the claim of each members will be jointly considered for determining the pecuniary jurisdiction of this Commission as held by Full Bench of this Commission in Ambrish Kumar Shukla and Ors. versus Ferrous Infrastructure Pvt. Ltd., I (2017), CPJ 1 (NC), therefore, the objections raised by the opposite party relating to pecuniary jurisdiction as well as maintainability of the complaint are rejected. 

11.    It has not been denied by the builder that the members of the complainant association booked the flats/plots in the year 2006-2007, while the lay out plan of the project was sanctioned on 29.11.2010.  There is inordinate delay on the part of the builder in development as well as offer of possession of the plots/flats. Confusion has also been created as the layout plan was sanctioned in the name of S.M.V. Agencies Pvt. Limited (Consortium). In such circumstances the members of the complainant association were justified in not depositing the money in response of demands letters as well as reminders issued by the builder. At present more than 15 years have passed, after booking the plot/flat by the members of the complainant association, therefore, it is in the interest of justice, the builder may complete the project in all respect and offer possession within a period of six months. The builder would be entitled to charge simple interest @9% per annum of the dues, from the allottees.

12.    The arguments that EDC, CDC, Service tax, VAT and IFMS etc. are not payable is not liable to be accepted. The allottees are liable to share in proportion all the statutory deposits.

O R D E R

In the result, the complaint succeeds and is allowed. The opposite parties are directed to complete the project and offer possession and execute conveyance deed after obtaining occupancy certificate from the competent authority within a period of six months. The opposite parties are further directed to pay compensation as interest @6% per annum on the deposit from due date of possession till the date of offer of possession after obtaining occupancy certificate.