The complaint was initially filed as a class action under Section 12(1)(c) of the Consumer Protection Act, 1986 (hereinafter referred to as the 1986 Act) on behalf of the 34 flat owners contending that they had common grievances in respect of the alleged deficiencies whereupon the complainants sought further amendment that was allowed on 23.11.2016.  The order dated 23.11.2016 is extracted hereunder:

“I.A. No.10553 of 2016

          The Complainants through above noted Application for amendment of complaint, are seeking introducing the following amended Para 8 in their Complaint, which reads as under:

“ There are 1320 units scattered across 26 Towers in the housing Project-“Saharanam” and out of the total 16 Towers, the construction of 7 towers have been completed. Without obtaining the Occupation Certificate, the Opposite Party has issued possession letters to 40 units, which is illegal. Therefore, legally the Opposite party has not deliver a single unit. The present complaint is being filed in representative capacity on behalf of all the Allottees having common interest and similarly situated in the project with the Complaints herein preliminary praying for delivery of the units with appropriate interests for delayed period. The Complainant Nos.1 to 52 are the Allottees, who have invested their hard earned money in booking their respective apartments in the housing project “ Sharanam” launched in 2010 by the Opposite Party/Builder on Plot No. GH-002, Sector-107, Noida with a firm commitment to complete the construction and hand over the Apartments by March, 2013 for phase-I and by August, 2013 for Phase-II. A complete list of the Complainants with relevant particulars as to their respective(a) flat number, (b) size of flat, (c) date of booking, (d) date of signing of FBA, (f) amount collected before signing of FBA, (f) total amount collected, (g) last payment date, is annexed herewith as Annexure-1. The Complainant Nos. 2 to 52 are represented through their constituted attorney Mr. Aneesh Kapoor (Complainant No.1), in favour of whom each afore-stated Complainant has executed Power of Attorney authorizing him to pursue their cases before this Hon’ble Commission. The Powers of Attorneys executed in favour of Mr. Aneesh Kapoor are annexed herewith as Annexure-2.” 

The Complainants also introduced another amended Para 57-A before Para-58 in their Complaint, which reads as under;

“57-A. The Complainants submit that to intimate all other similarly situated Allottes, a public notice indicating (i0 the subject matter of the complaint including the particulars of the project, (ii) the class of persons on whose behalf or for whose benefit the complaint is filed, (ii) the common grievance sought to get redressed through the class action, (iv) the alleged deficiency in the services and (v) the reliefs claimed in the complaint; may be published in newspaper, if so directed by this Hon’ble Commission.”

          For the reasons given in the I.A. No.10553 of 2016 for the amendment in the Complaint, same is allowed and the amended complaint is taken on record.

          The Counsel for the Complainants seeks time to file an appropriate application under Section 12(1) (c) of the Consumer Protection Act, 1986 with the amended complaint.

List on 09.12.2016.”

          The application under Section 12(1)(c) of the 1986 Act was allowed on 21.01.2019 which is extracted hereunder:

         “Proxy counsel appearing on behalf of the opposite party undertakes to file her Vakalatnama within a week.

          Counsel for the opposite party seeks a last and final opportunity to argue on application under Section 12 (1) (c) of the Consumer Protection Act, 1986.

          Counsel on behalf of the complainants makes a very strong case that all that the opposite party is doing is delaying this matter on one pretext or another.

          We find much substance in the argument put forth by the counsel for the complainants. Our last order dated 23.8.2018 had also been passed in similar circumstances, overruling strong objection of counsel for the complainants and directing the opposite party to file reply to IA/11945/2016, an application for permitting a complaint under Section 12 (1) (c) of the Consumer Protection Act, 1986.

          Despite this, we find that a proxy counsel who has not even filed her Vakalatnama appears and seeks a week’s time to file her reply to the IA. We find no reasonable ground not to consider the application under Section 12 (1) (c) of the Consumer Protection Act, 1986 filed on behalf of the complainants. As the complainants are similarly situated, have commonality of interest and seek common relief, we allow this application under Section 12 (1) (c) of the Consumer Protection Act, 1986.

          Complainants to now take steps to cause publication in Times of India (English) and Amar Ujala (Vernacular) within four weeks.

          List on 2.8.2019.”

          However, with the passage of time many of the complainants withdrew and subsequently the complaint shrunk to the grievances in respect of 14 of the units that came to be noticed in the order dated 19.12.2022.  Out of the remaining complainants, only 4 had not taken possession whereas rest of the complainants had already taken possession in the past.  On 19.12.2022 the following order was passed:  

“Proxy counsel for opposite party appears and states that excluding four, all other complainants have taken possession of the flats.  Counsel for the complainants states that he is appearing only for the remaining four complainants and requests that possession may be given to these four complainants also subject to payment of undisputed amount as per the agreement and remaining issues/disputed amounts can be taken up on merits on the next date of hearing.  Accordingly, the opposite party is directed to give possession to the remaining four complainants within 45 days subject to their paying the undisputed agreed consideration amount as per the agreement within 30 days.  Disputed amount/remaining issues, if any shall be taken up on merits on the next date of hearing. 

In the meanwhile, the opposite party shall also arrange a joint inspection of the units of these complainants and ensure that these units are complete in all respects with specifications and amenities as agreed in the agreement. Such inspection shall be done within three weeks.

List the matter for final hearing on 03.04.2023.” 

Pursuant to the aforesaid order, the 4 set of complainants, namely, Aneesh Kapoor and another, Rachna Singh, Sumit Sood and another and Raghav Koshik and others took possession respectively on 10.03.2023, 22.02.2023, 31.03.2023 and 17.03.2023.

The matter was adjourned thereafter and on 30.08.2023 the following order was passed:

          “Learned Counsel for the Complainant is present and submits that issues before this Forum have been narrowed down keeping in view the subsequent events pursuant to the Order dated 19.12.2022. He therefore submits that there is a very short area of dispute which now remains confined to the deficient amenities and facilities as well as the delay compensation which can be resolved in case the matter is taken up at the earliest.

As prayed and due to non-availability of the learned Counsel for the Opposite Party, list on 03.11.2023.” 

The case was again taken up on 30.01.2024 when submissions were advanced and an adjournment was sought on behalf of the opposite party.  The order dated 30.01.2024 is extracted hereunder:

“The Complainants are present in person. They have pointed out that neither the deficiencies which were existing have been rectified nor the issue of delay compensation has been resolved. They also point out that possession to four of the Complainants were given pursuant to the order dated 19.12.2022, the rest of the Complainants had been given possession earlier.

          The deficiencies which broadly continue to persist are the fire fighting arrangements and equipment necessary for the premises in question which is common to all as well as the STP facilities which was found to be under capacity also continues to be the issue that needs to be resolved. Apart from this seepage complaints and water problems have also been urged.

          The matter had been taken up earlier on 30.08.2023 for proceeding to decide these pending issues, whereafter an adjournment was sought on 03.11.2023 by the Opposite Party.

          Today, Ms. Shatakshhi Saxena, Advocate holding brief of Mr. Bala Subramanian, learned Counsel prays that since now Mr. Subramanian would be conducting the case, he has to file his Vakalatnama. Learned Counsel for the Opposite Party may prepare his submissions with regard to the aforesaid issues which have been pointed out by the Complainants. Since an adjournment has been sought by the learned Counsel for the Opposite Party for today on account of the new engagement of the learned Counsel, let the matter be listed on 04.07.2024. No further adjournments shall be entertained.” 

The case was again adjourned and the arguments on behalf of the complainants were concluded on 15.10.2024 when the following order was passed:

“Heard Mr. Lahoty, learned Counsel for the Complainants, a short resume of the proposed arguments has been handed over to the learned Counsel for the Opposite Party as well as to the Bench. The same is extracted hereinunder:

“Status of Possession

Originally the Complaint was filed on 27.10.2016 for 34 Flats under Section 12 (1)(c) of Consumer Protection Act, 1986. However, only 14 units are in fray as on the date. Physical possession has been taken by four unit holders pursuant to the order dated 19.12.2022 while all other 10 unit holders have taken possession earlier.

ISSUE FOR DETERMINATION :

Delay Compensation:

Four Complainants, namely, (a) Aneesh Kapoor & Anr (Phase-I), (b) Rachna Singh (Phase-1), (c) Sumit Sood & Anr. (Phase-1) and (d) Raghav Koshik & Ors (Phase-2) have taken possession on 10.03.2023, 22.02.2023, 31.03.2023 and 17.03.2023 respectively. The Complainants are entitled to compensation till the date. The actual physical possession was handed over to them only after the order of this Hon'ble Commission dated 19.12.2022. It is important to state that the Complainants were repeatedly requesting for handing over the possession (pages 30 - 32 of Synopsis), but the Opposite Party held back the possession of the four unit holders till the Order dated 19.12.2022. The compensation, therefore has to be given uptill the physical possession which was handed over to these four complainants.

Deficient Amenities and Facilities

Although the OC has been obtained by the Opposite Party, the project lacks several amenities and facilities. Even till date the following deficiencies exist in the project:

(i) Under capacity STP                    Pages 19-20 of Rejoinder

(Inspection Report)                        Pages 18-20 of Synopsis

(ii) Deficient Fire Fight System         Pages 18-20 of Synopsis

(iii) Supply of untreated Water        Pages 19-20 of Rejoinder

C. Addl. Super Area charged

Alleged revised Super Area prayer      Page 167 of Complaint

                                                       (D) and (e) page 40

Documents:

1. Complaint dated 17.09.2010 of the association regarding deficient fire safety system

2. Complaint dated 09.10.2020 of the Association regarding under capacity STP

3. List of deficiencies in the Project submitted before RERA.”

Along with the said resume, there is a chart which is also extracted hereinunder:

A perusal thereof demonstrates the grievance in essence, the details whereof have been indicated in the said resume.

Thus, the issue of delay compensation, the deficiency in amenities and facilities and the documents in support thereof together with the chart indicating the details have already been tendered and Mr. Lahoty contends that this is in essence the argument on behalf of the Complainants that are required to be finally considered.

Mr. Shaunak Kashyap, learned Counsel, has appeared for the Respondent/Opposite Party online and he submits that the issues that have been narrowed down shall be answered by him as according to his contentions, there is no deficiency and on the issue of delay, he submits that there was no delay on the part of the Opposite Parties as a result whereof the Complainants cannot claim any delay compensation.

What is evident is that there is no dispute that actual physical possession of all the units has been handed over to the Complainants and it is for this reason that the reliefs as prayed for in the complaint now remain only in respect of the submissions that have been indicated hereinabove. Mr. Kashyap may therefore respond to the three issues that have been indicated hereinabove within a week with a copy of the synopsis to the learned Counsel for the Complainant without seeking any further adjournments in the matter.

List on 11.11.2024.”

Thus, the dispute crystalized on the issues that have been indicated in the above quoted order dated 15.10.2024, mainly pointing out the period of delay in possession and the claim of compensation against the same.  The chart which has been extracted hereinabove clearly indicates that 4 of the complainants in respect of their units have claimed compensation till the date of actual possession in 2023 whereas the rest of them have already taken possession in the past which dates are reflected against their names in the chart extracted above.  Their claim is that they should be granted delay compensation upto the date of the occupancy certificate as mentioned against their names.  The other 4 complainants have claimed compensation from the date of actual physical possession given to them pursuant to the orders of the Court referred to above in 2023.   

Learned counsel for the complainants in support of the submissions that have been indicated as issues for determination and quoted in the order dated 15.10.2024 has also relied on the written arguments filed previously on 03.02.2021 and 15.03.2022.  It is alleged that the complainants could not have been made to wait indefinitely for the delivery of possession and therefore the same amounted to a deficiency in service and unfair trade practice.  The delay is established and the pretexts of there being impediments in completing the project and handing over possession are unfounded.  It is urged that as a matter of fact there was no impediment on account of any proceedings pending before the High Court or Supreme Court or even the National Green Tribunal, yet, inspite of representations, the opposite party started threatening with cancellation letters and also did not provide the requisite information with regard to the charges levied by it.

Learned counsel has also invited the attention of the Bench to the mails exchanged between the opposite party and the buyers and other communications in this regard.

Learned counsel has further invited the attention of the Bench to the letter issued by the New Okhla Industrial Development Authority dated 03.03.2021 to indicate that the deficiencies were pointed out by the authorities themselves and therefore the contention of the opposite party that they had completed the project in all respects is not correct.  The possession was handed over without removing the deficiencies which has also been noticed by the authorities and as such they are liable to pay delay compensation and also remove the deficiencies as alleged.

Learned counsel for the opposite party has filed a written synopsis dated 11.11.2024 and has made the following submissions therein:  

“In terms of the Order dated 15.10.2024, this Hon’ble Commission was pleased to record only three surviving issues in CC No. 778 of 2016.  The said issues are being replied to as herein under:

I.       Delay in Compensation

In regard to the Complainants’ entitlement to delay compensation, it is submitted as follows:

For Phase I, the Occupancy Certificate (OC) was received on 09.02.2017.

• Mr. Aneesh Kapoor: Possession was offered to Mr. Kapoor on 16.02.2017, but he refused to take possession despite the offer.  However, pursuant to the Order passed by this Hon’ble Commission dated 19.12.2022, Mr Kapoor finally took possession and, consequently, the Certificate of Possession could only be issued on 10.03.2023, thereby evincing that this prolonged delay is solely attributable to Mr. Kapoor. (Pages 5 – 7 herein)

• Ms. Rachna Singh and Mr. Sumit Sood: Both were offered possession on 16.02.2017.  However, pursuant to the Order passed by this Hon’ble Commission dated 19.12.2022, Mr. Sood and Ms Singh finally took possession and, consequently, the Certificate of Possession could only be issued on 21.02.2023.  Thereby evincing that this prolonged delay is solely attributable to Ms. Rachna Singh and Mr. Sumit Sood.  (Pages 8 – 15 herein)

For Phase III, the Occupancy Certificate (OC) was received on 16.03.2018.

• Mr. Raghav Koshik was formally offered possession on 03.04.2018,.  However, despite multiple follow-ups and reminders issued on 11.09.2018 and again on 24.10.2018, Mr. Koshik refused to take possession of the unit.  However, it was only pursuant to the Order passed by this Hon’ble Commission dated 19.12.2022, that Mr. Raghav Koshik finally took possession, on 17.03.2023, thereby allowing the Certificate of Possession to be issued on the same date.  (Pages 16 – 21 herein)

• Documents reflecting Possession being offered to the Complainants are filed hereto.  (Refer Page No. 5 – 21 of this Synopsis)

II.      Deficiency of Amenities

1. Under Capacity STP & Supply of untreated Water:

An adequacy report for GreatValue ‘Sharanam’ was commissioned from the Department of Civil Engineering, Jamia Millia Islamia.  A plain reading of the report dated 21.04.2022 effectively addresses and refutes the Complainant’s argument, thereby resolving this issue.

Relevant extract of Adequacy Report No. JMI/CIVIL/2022/4651 dated 21.04.2022:

“The STP site of M/s GreatValue Projects India Ltd., Plot No. GH-02, Sector-107, Noida (U.P.) has been visited by a team of experts from JMI Delhi on April 16, 2022 to inspect the sewage treatment plant installed for the treatment of wastewater being released by the unit and discussed with the plant management about the general concept of pollution control mechanisms, its operations and maintenance.  Each and every component of plant has been found to be properly installed and in working order at the time of visit.  The adequacy report has been prepared and issued on the basis of site visit, study of plant processing for pollution generation, its treatment and previous experiences (Photographs: ANNEXURE II).”

(Refer STP Audit Report @ Page No. 26 of Synopsis)

2. Deficient Fire Fighting System:

It is submitted that the Respondent has undertaken all efforts to meet the mandatory safety requirements.  Due to issuance of Fire Safety Certificates and their periodic renewal is evident from the documents referred herein under.  Therefore, it is submitted that the claim of there being deficiency of amenities does not hold water.

1. Fire & Life Safety Certificate renewed for a period of five years from 09.08.2023 – 07.08.2028.  For Tower A, B, C, D, F, G, H, J, K, L, M, N.  (Refer Page No. 50 of Synopsis)

2. Safety Certificate Completion (No Objection Certificate) issued for Tower I & Club House for a period of five years from 19.09.2024 – 18.09.2029.  (Refer Page No. 51 of Synopsis)

3. Fire & Life Safety Certificate renewed for a period of five Years from 02.06.2024 – 01.06.2029.  For Tower O, P, Q, R.  (Refer Page No. 52 of Synopsis)

III.     Additional Super Area Charged:

          The increase in the Super Area was duly approved by the NOIDA Authority, making any further verification by the Authority unnecessary, as prior approval was required for any such increase.  This increase aligns with Clause 4 of Para C of the Builder Buyer Agreement and was communicated to the Complainants vide a formal letter [Refer Annexure R-16 (Colly) of Reply].  The additional area charge arose from architectural, structural, and regulatory requirements under NOIDA Authority’s applicable Bye-Laws at the time.  Therefore, the Complainant’s prayer seeking a refund of the additional Super Area charged does not survive.”  

We have considered the submissions raised and we find that the flat buyer agreement which is on record in respect of one of the allottees mentions in Clause-1 of the narration regarding completion of the construction.  The same is extracted hereunder:

“1.      The construction of said unit is likely to be completed within a period of 30 months i.e. March 2013, for 1^st Phase and 2^nd Phase by August 2013, with a grace period of 6 (Six) months subject to force majeure conditions (defined herein after); restraints or restrictions from any courts/authorities; and circumstances beyond the control; of the company and also subject to timely payment by the allottee/s, in terms thereof.  No claim by way of damages/compensation shall lie against the company in case of delay in handing over possession of the said unit on account of the aforesaid reasons.  However if the allottee/s opts to pay in advance of schedule, a suitable discount may be allowed but the completion schedule shall remain unaffected.   

2.       In case the company is unable to construct/deliver the possession of the apartment within the stipulated time frame, subject to aforesaid reason, the company shall compensate the intending allottee/s for delayed period @ Rs.5/- Sq.Ft. per month subject to regular and timely payment by the Allottee/s.”         

          In the absence of delivery of possession, the delay compensation is to be paid @ Rs.5/- sq. ft. per month.

With regard to change in area and variation of the super area upto 10% was made payable at a rate prevailing at the time of allotment and in the event the variation is beyond 10%, then the rate prevalent on the date of intimation of such variation shall be applicable.

It is thus clear that the expected date of completion of the project was March 2013 for Phase I and August 2013 for Phase II with a grace period of 6 months.

It is apparent from the dates indicated in the chart that the occupancy certificate arrived in the year 2017 – 2018.  This is certainly far beyond the expected date of completion as per the agreement.  In the given circumstances, there is no doubt that delay in delivery of possession has occurred.

So far as the other 4 unit holders are concerned, it is apparent that they were delivered possession under the orders of this Commission dated 19.12.2022.  The question is as to whether these 4 unit holders are entitled for compensation till the date of the occupancy certificate or even thereafter.  The opposite party has taken a stand that possession was offered to these 4 persons on the dates as have been quoted in the written submissions extracted hereinabove.  The contention of the complainants is that they were given this offer of possession without completing the premises and some of the deficiencies still continue to persist.

In our considered opinion, these 4 persons would be entitled to delay compensation as the offer of possession came to be executed only after the orders were passed by this Commission on 19.12.2022.  Consequently, these 4 persons would be entitled to delay compensation till the date of passing of the order by this Commission i.e. 19.12.2022. 

The rest of the complainants would be entitled to delay compensation upto the date of occupancy certificate as indicated in the chart above. 

We therefore allow this complaint with a direction that delay compensation shall be payable @ 9% of the total amount deposited by the respective complainants in accordance with the direction hereinabove.  The chart which has been extracted in the order dated 15.10.2024 shall be made the basis of the calculation except that the dates in respect of 4 of the unit holders shall be 19.12.2022.  The amount shall be recalculated accordingly and be paid to the complainants within a period of three months from today.  In the event of default, the rate of payment shall stand enhanced to 12%.

So far as the issue relating to the additional super area is concerned, we accept the argument of the opposite party that the increase as indicated is in reference to Clause 4 of Paragraph-C of the builder buyer agreement which was communicated to the complainants.  Consequently, the prayer for refund of the charge for additional super area is declined.

Insofar as the other two grievances of the complainants towards deficiencies in amenities with regard to Sewage Treatment Plant and Supply of Untreated Water are concerned, the installation thereof has been verified by a team of experts from the Jamia Millia Islamia University, Department of Civil Engineering.  The said Audit Report has been brought to our notice that has been signed by Dr. Kafeel Ahmad, a Professor of the Department of Civil Engineering.  There is no other conflicting report subsequent thereto and as such the said report dated 21.04.2022 deserves acceptance subject to the condition that in case the Sewage Treatment Plant is not effectively functioning as per its capacity and required potential, it shall be open to the complainants to bring it to the notice of the opposite party who shall endeavour to rectify the same or raise a complaint before the regulating authority.

The other deficiency with regard to fire fighting system has been explained by the opposite party in respect of Tower-I as well as some of the other Towers.  In the event the fire fighting systems are not in accordance with the norms prescribed, it shall be open to the complainants to approach the Fire Fighting authorities in respect of such grievances for redressal thereof.   

In addition thereto, looking at the complaints coupled with photographs indicating the status of the plastering of the walls, the opposite party is directed to carry out the repairs of the plaster of the outer walls that have been withered and are indicated in the photographs appended along with the written synopsis and the other pleadings on behalf of the complainants within a period of three months. A cost of Rs.1,40,000/- is imposed as litigation costs to be paid @ Rs.10,000/- to each of the 14 unit holders.        

With the aforesaid directions, the complaint stands finally disposed of.