1.       Heard Mr. Praveen Chaturvedi, Advocate, for the complainant and Mr. Jeetender Gupta, Advocate, for opposite party-1. 

2.       NPX Tower Owners Association (a registered flat owners association) has filed above complaint for directing opposite party-1 to (i) handover possession of the units to the members of the association, complete in all respect, as per specification and execute conveyance deeds in their favour; (ii) rectify the deficiency in construction as specified in the notices issued by opposite party-2 dated 10.04.2017, 19.06.2017 and 22.09.2017; (iii) file deed of declaration in Form-A before OP-2; (iv) remove glass partition from stilt floor as per occupancy/completion certificate; (v) complete filling of sunken areas and finishing of flooring in internal parts of the units; (vi) complete electricity wiring work; (vii) fill up the gaps of 20 cm. to 45 cm. which is counted in carpet area; (viii) not to insist to sign the ‘maintenance agreement’; (ix) maintain the common area till handing over possession to the members of the complainant; (x) handover entire amount of ‘Interest Free Maintenance Security’ and ‘Capital Replacement Charges’ realized from the allottee and transfer maintenance management to the complainant; (xi) mark numbers on the units, allotted to the members of the complainant; (xii) hold registration of the units till its completion as per specifications; (xiii) not to impose/levy holding or maintenance charges till registration of the unit and handing over possession; (xiv) issue allotment letters to those allottees, to whom it has not been issued; (xv) conduct measurement of the project for determining ‘carpet area’ and ‘super area’ and its ratio; (xvi) restore original floor location and area of the units; otherwise if the buyers agree, refund proportionate excess amount deposited by them with interest @24% per annum, from the date of respective deposit till the date of refund; (xvii) not to increase/decrease area of the units beyond 10% as mentioned in the Letter of Intent; (xvii) pay assured return as promised to the allottees with interest @24% per annum; (xix) to provide partition with proper brick walls; (xx) provide promised common area and facilities; (xxi) provide layout of parking space as per sanctioned building plan; (xxii) not to allot/sell complimentary parking to the selected buyers; (xxiii) obtain verification from government agency regarding function of all the lifts, escalators, air conditioning system, electric transformers, generators for power backup, fire fighting equipment, goods and services before handing over to the complainant; (xxiv) offer possession within a month after removing all the deficiencies, refunding excess amount, removing unjustified demand in the head of PLC, Interest, Capital Replacement charges, failing which penalty of Rs.10000/- per day, per unit be imposed for the defaulted period; (xxv) refund excess collected money with interest @24% per annum; (xxvi) pay delay compensation in the form of interest @24% per annum on the deposit of the buyers from 25.10.2012 till the delivery of possession; (xxvii) pay penalty @Rs.10/- per sq.ft., per month on super area from 25.10.2012 till the date of handing over possession with interest @24% per annum; (xxviii) bear increased statutory taxes and expenses on stamp duty and registration charges; (xxix) refund service tax collected from the buyers with interest @24% per annum; (xxx) provide details of challan, returns of service tax, lease rent collected from buyers and paid to the authorities and refund excess amount with interest @24% per annum; (xxxi) pay Rs.25000000/-, as compensation for harassment to the complainant; (xxxii) pay Rs.1000000/-  as compensation to each of the allottees for harassment; (xxxiii) pay Rs.1000000/- as litigation costs; and (xxxiv) any other relief which is deemed fit and proper in the facts  and circumstances of the case.

3.       Initially above complaint was filed on behalf of 53 sets of allottees, on 03.08.2016, which was dismissed as not maintainable vide order dated 16.08.2016. The complainant challenged the order dated 16.08.2016 in Civil Appeal No.10181 of 2016, which was allowed by the Supreme Court on 04.09.2017 and the matter was remanded with direction to examine the case of each of the allottees on whose behalf the complaint was filed and determine as to whether, he/she is consumer or not. After remand, the complainant filed an amended complaint again giving the names of 53 sets of allottees. Later on, the complainant filed a revised list along with IA/9227/2019, showing that six sets of allottee withdrew themselves. Mrs. Rajni Khare filed IA/9004/2021 for withdrawing herself from the complaint, which was allowed vide order dated 26.11.2021. Opposite party-1 filed a list showing that out of the 53 allottees, 22 have taken possession and settled their dispute. Two allottees have taken refund. Niranjan Singh Dhingra (whose names are mentioned at serial Nos.28 & 29 has died). Allotment of Saroj Verma (Sl. No.47) has been cancelled for non-payment. List supplied by opposite party-1 is reproduced below:-

4.       The complainant stated that NPX Tower Owners Association is an association of the shop buyers of the complex “Urbtech-NPX”, registered under the Societies Registration Act, 1860 and U.P. Apartments (Promotion of Construction, Ownership and Maintenance) Act, 2010 on 24.06.2015 and is a ‘voluntary consumer association’ within the meaning of Section 12(1)(b) of the Consumer Protection Act, 1986. The complaint is being filed on behalf of 53 allottees of the shop of above complex. M/s. Hi-Lead Infotech Private Limited (OP-1) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. Noida (OP-2) is a statutory regulator of the complex. OP-1 launched a project of commercial complex in the name of “Urbtech-NPX”, at leasehold Plot No.C-1, Sector-153, Noida, Gautam Budh Nagar, U.P. in the year, 2009 and made wide publicity of its amenities and facilities in print and electronic media. The brochure contains as “offices/shops/food court space built with modern facilities of lifts, parking, 24 hours power backup, round the clock security and streamlined connectivity with Delhi. Possession within 36 months”. Believing upon the representations of OP-1, the members of the complainant booked their units during 2009 to 2014 in the complex. OP-1 issued Allotment Letters allotting their units in the “Urbtech-NPX” with delay of three to six months from the date of booking. Allotment Letters provide “construction linked payment plan”. The members of the complainant timely deposited the instalments as per demand of OP-1. OP-1 realized 95% basic consideration but could not complete the construction and offer possession although due date of possession expired on 25.10.2012. Layout plan of the complex was sanctioned on 29.01.2010 but OP-1 revised the layout plan without approval of the allottees and got it sanctioned on 06.01.2012. In revised plan, size of the unit have been reduced and “ground floor” has been renamed and “lower ground floor”, “first floor” as “upper ground floor”. As the rates of ground floor was highest. Now same rate is being charged of “upper ground floor” although it was ‘first floor” and its rate was less than “ground floor”. In sanctioned layout, OP-1 has not specified parking for the buyer and parking for the visitors. OP-1 obtained ‘completion certificate’ on 22.08.2014. OP-1 thereafter, issued final demand letters, which includes ‘Interest Bearing Maintenance Security’, ‘Capital Replacement Charges’, electricity connection charges and increased super area, to the members of the complainant from December, 2014 onward and also demands relating to. OP-1 also required to execute an undertaking before handing over possession, which contained various arbitrary clauses. OP-1 also insisted the members to execute ‘Maintenance Agreement’ in favour of M/s. Nelson Projects Private Limited, for paying Rs.50/- per sq.ft. per month on super area as monthly maintenance charges. Although possession has been unreasonably delayed but OP-1 did not provide any delay compensation. Noida issued ‘show cause notice’ to OP-1 dated 12.01.2015, for showing cause as to why its lease of Plot No.C-1 would not be cancelled. Thereafter, Noida cancelled the lease of OP-1 of Plot No.C-1 on 23.02.2015. OP-1 filed Writ Petition (C) No.17212 of 2015 against the order dated 23.02.2015 before Allahabad High Court, in which, interim order dated 31.03.2015, staying operation of the order dated 23.02.2015 was passed. Writ Petition (C) No.17212 of 2015 was allowed vide judgment dated 29.11.2016 and the order dated 23.02.2015 was set aside. The construction of the complex was not done as per specification. The complainant and various allottees made complaint to Noida, on which, a joint inspection of the complex was carried on 18.04.2017, in which, various deficiencies in construction were noticed. Flooring, electrical wiring, painting, finishing of the walls and roofs were not done. Partition between two units was made by gypsum board. Gaps were left between the walls and flooring, walls and roof. The units are covered either by gypsum board or by glasses. There were columns within floor area in some units. OP-1 has not marked the number of the units. Taking advantage of it, OP-1 is giving possession of a unit other than booked by the allottee. Some members have taken fit-out possession for purposes of finishing of their choice. OP-1 is issuing ‘possession certificate’ to them of those unit. Common amenities and facilities have not been developed. Carpet area has been reduced. OP-1 issued Final notice for possession in April, 2017, with threatening to cancel allotment. Noida vide letter dated 19.06.2017, directed OP-1 to remove the deficiencies and complete the construction within 15 days. However, OP-1, instead of removing deficiencies, started threatening the alloottees to cancel their allotment. The complainant made a fresh representation on 09.10.2017 before Noida. U.P. Apartment Act, 2010 requires for submitting ‘Declaration Form’, which has not been submitted by OP-1. Due date of possession expired 25.10.2012. OP-1 is liable to remove deficiencies in construction as pointed out in joint inspection report dated 18.04.2017 and then offer possession. The allottees are entitled for delay compensation in the form of interest @24% per annum on their deposit from 25.10.2012 till the date of handing over possession as OP-1 is charging interest @24% per annum on delay in payment of instalment. OP-1 has not given any notice to the allottees informing that due to force majeure, construction was stopped as such OP-1 is not entitled to extension of any period due to force majeure. OP-1 is required to file Deed of Declaration as per provisions of U.P. Apartment Act, 2010, which has not been filed. OP-1 is not permitting the complainant and its member for measurement of super area. OP-1 is illegally is raising demand for increased super area. OP-1 has demanded ‘Capital Replacement Charge’, which has not been mentioned either in the application form or in allotment letter. The allottee have paid consideration as per demand, prior to due date of possession. Due to delay in handing over possession, ‘circle rates’ have been revised w.e.f. 01.06.2015 due to which stamp duty and registration charge have been increased. Goods and Service Tax has been imposed. OP-1 is liable to bear increased expenses. Liability to pay maintenance charges start after taking possession, but OP-1 is realizing maintenance charges prior to taking possession and also demanded ‘Interest Bearing Maintenance Security’. OP-1 has changed the location of various allottees due to which either they lost their prime location or they had to pay ‘preferential location charge’. Under U.P. Apartment Act, 2010, an allottee of every unit is entitled for one parking space and separate parking space for visitors is required. OP-1 is not demarcating parking to the allottee and the visitors. OP-1 has realised lease rent at rate of Rs.100 per sq.ft. on super area from every allottee, which is not in proportion of the lease rent actually paid by OP-1. Various clauses of the allotment letters are arbitrary and also contrary to U.P. Apartment Act, 2010 and OP-1 cannot exercise its right under these clauses. OP-1 also assured for giving 12% interest on the amount paid, from the date of payment till offer of possession.      

5.       After remand, amended complaint was filed on 14.12.2017 which was admitted on 15.02.2018 and notices were issued to the opposite parties. Notice was served upon OP-1 on 10.03.2018 and upon OP-2 on 08.03.2018. OP-1 filed its written reply on 04.06.2018, i.e. after 45 days from service of the notice. As such, this Commission, vide order dated 08.10.2018 rejected the written reply. The complainant filed Affidavits of Evidence of Pankaj Naglia, Rajiv Malik, M.K. Varadrajan, Raj Kumar Bhatia and documentary evidence. The complainant filed Additional Documentary evidence through IA/3489/2023. Both the parties have filed their written synopsis.

6.       We have considered the arguments of the parties and examined the record. The complainant has raised various points in the complaint, relying upon the provisions of U.P. Apartments (Promotion of Construction, Ownership and Maintenance) Act, 2010. In the present case, New Okhla Industrial Development Authority, constituted under U.P. Industrial Development Act, 1976 has allotted the land to OP-1 by for construction of commercial complex for carrying out business of Information Technology/ Information Technology Enabled Services. In the brochure, OP-1 has mentioned “Business Hub”. In Application Form also, it has been mentioned Unit/Shop/Other Space. It is a ground + three storied building. Therefore, provisions of U.P. Apartments (Promotion of Construction, Ownership and Maintenance) Act, 2010 are not applicable on it. Section-2 of this Act is quoted below:-

“ Section-2.- The provisions of this Act shall apply to all buildings having four or more apartments in any building, constructed or converted into apartment and land attached to the apartment, whether free-hold or lease, excluding shopping malls, multiplex and commercial complexes, which are maintained as single unit by the promoter or the maintenance agency.”  

7.       Supreme Court, in the order dated 04.09.2017, directed to determine as to whether the members of the complainant are ‘consumer’ or not. We are not examining the case of those complainants, who have taken possession/refund and settled their dispute as per list of OP-1, supplied on 02.08.2024. Admittedly shop/unit has been booked in commercial complex for doing commerce. In order to prove to be a ‘consumer’, the allottee has to prove that shop/unit was booked ‘for earning livelihood by way of self-employment’. Supreme Court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265, held that if unit was booked for self-use then also the allottee is falling within the definition of the ‘consumer’. Along with the complaint, affidavits of individual allottees have been filed, which remained un-rebutted, as such, we are relying upon those affidavits.

(i)      Astik Kumar Butts has stated that he was teacher and his wife Dr. Seema Sinha was MA, PhD. He has booked one unit for purposes of his wife for running E-Learning for online coaching for PMT. Although, it has not been stated that unit was booked ‘for earning livelihood by way of self-employment’ but as Dr. Seema Sinha intended to run E-Learning herself, as such, as such, Astik Kumar Butts is ‘consumer’.

(ii)      Ambar Khaira has stated that he has purchased this unit for his own use as in medical based apps/consultancy. He is a ‘consumer’.

(iii)     C.P. Sharma, has stated that he has purchased unit for starting e-commerce business for home textile and handicraft items. He is a ‘consumer’.

(iv)  Geeta Ghose has stated that she was Post Graduate in Business Management and employed in a leading private company. She book the unit for use of her family for starting business relating to sale of software and products/ peripherals of various IT companies such as Microsoft, HP, Dell etc. She is employed and she has not given status of her family member as to whether he/she was unemployed. She is not a ‘consumer’.

(v)     Grijendra Singh has stated that he was a Financial & Insurance Consultant and booked the unit for his online consultancy. He is a ‘consumer’.

(vi)     Gurpratap Singh Lamba has stated that he was Graduate in Electronics and Post Graduate in Business Administration. He has booked unit for using it as a software development for his self employment. He is a ‘consumer’.

(v)     Sumbul Siddiqui filed her affidavit ad has stated that Mrs. Iffat Azmi has booked unit for opening an IT/Computer Hardware Store with her husband, who is an Electrical Engineer by way of post retirement source of livelihood. She is a ‘consumer’.

(vi)     Kuldeep Singh has stated that he was M.A.(Eng.), B.Ed. and running a play school. He booked the unit for opening IT related online education apps and software development for children education. He is a ‘consumer’.

(vii)    Kapil Rastogi (dead), his widow Nikita Rastogi has stated that she was a chartered accountant. Her husband booked the unit for running an office for online and ofline practice in accounting. She is a consumer.

(viii)   (Kamini Shukla) Gaurav Shukla stated that he was an Electronics Engineer, retire from Indian Air Force. He booked the unit to open an IT Infrastructure Consultancy service. He is a ‘consumer’.

(ix)     Dr. Latika Singh was a former scientist at CDRI, Lucknow. She booked the unit for opening centre of E-Learning for life science. She is a ‘consumer’.

(x)     Manju Kharya has stated that she purchased two units for software development for her husband. She is a ‘consumer’.

(xi)     Maneesh Saxena has stated that he was a Production Engineer. He booked unit for own/family use as Electronics Items, Mobile-Selling & Repairing shop. He is not a ‘consumer’.

(xii)    Manjit Sahi stated that she was a science graduate and woman entrepreneur. He husband Col. Harinder Singh Sahi was a Financial Consultant. She booked the unit for opening office of Financial Consultancy. She is a ‘consumer’.

(xiii)   Niranjan Singh Dhingra (since deceased), stated that he was retired Professor and working with his son Tejinder Pal Singh. He booked two units for opening an office of his son’s business. He was a ‘consumer’.

(xiv)   Poyam Mehrotra has stated that she booked unit for opening shop of selling of PC/Laptop and other computer accessories. She was working in the field of special education for differently able children. He is not a ‘consumer’.

(xv)    Rajiv Chhibber has not filed his affidavit. He is not a ‘consumer’.

(xvi)   Surinder Kumar Kharya is husband of Manju Kharya, who is consumer.

(xvii)  Savita Bhalla has stated that she was working as Associate Vie-President in SMC Insurance Company Limited. She has booked unit for carrying out Fiancial Service Business by herself and her husband. She has not disclosed anything about her husband. She is not a ‘consumer’.

(xviii) Unit of Saroj Verma has been cancelled. She has not filed her affidavit. Her name is directed to be deleted from list of the complainants.

(xix)   Vandana Mallik stated that she was a computer entrepreneur and was working online. She book the unit for selling computer and other hardware used in IT industry for husband, who used to sell computer and hardware. She is a ‘consumer’.

(xx)    Sonia Jain daughter of Yogendra Kumar Rastogi has stated she and her father took two units for running software company by herself and her husband, who is running software company from rented accomodation. Yogendra Kumar Rastogi is a ‘consumer’.

8.       So far as delay in handing over possession is concerned that in ‘List of Dates’, the complainant has stated that its members had booked their respective unit during 2009-2014. Delay compensation has been claimed for all of them from 25.10.2012, i.e. date before their booking. Except Geeta Ghose and Mrs. Rajul Gupta, due date of possession of all of them was after April, 2013. Geeta Ghose has been held as not a ‘consumer’ and name of Mrs. Rajul Gupta is not mentioned in the list of complainants. Some allotment letters provides 36 months from the date of signing of allotment letter with an extended period of six month subject to force majeure and timely payment of instalment for construction of the complex. A perusal of ‘completion certificate’ dated 22.08.2014 shows that after applying for issue of ‘completion certificate’, statutory authority had inspected the complex on 29.11.2013 and took about 8 months in issue of ‘completion certificate’ thereafter. Therefore, the construction was completed within 42 months of signing the allotment. Delay caused by Statutory authority is issuing ‘completion certificate’ is a ‘force majeure’. After completion certificate, OP-1 started issuing offer of possession. Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285, held that an analysis of the rulings on the subject shows that where reference is made to “force majeure” the intension is to save the performing party from the consequences of anything over which he had no control. In Ireo Grace Realtech Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held that if possession is offered after obtaining ‘occupation certificate’ the buyer is obligated to take possession.

10.     The complainant stated that joint inspection of the complex was carried on 18.04.2017, in which, various deficiencies in construction were noticed. Flooring, electrical wiring, painting, finishing of the walls and roofs were not done. Partition between two units was made by gypsum board. Gaps were left between the walls and flooring, walls and roof. The units are covered either by gypsum board or by glasses. There were columns within floor area in some units. OP-1 has not marked the number of the units.

As per ‘payment plan’, 5% BSP and 100% Additional charges were payable on offer of possession as mentioned in clause26 of the allotment form. Additional charges includes, External Electrification charge, Fire Fighting Equipment charge, Centre Residential Community charge, Interest Free Maintenance Security, Lease Rent, Power Back-up, Stamp Duty, Registration charge and legal expenses. In the application form, it has been mentioned that the allottee shall, before taking possession, clear all dues towards unit and shall have the sub-lease deed agreement of the said unit executed in his favour after paying stamp duty, registration fee and legal expenses for registration. Normal practice among the builders is that after deposit of last instalment, they used to furnish the unit and complete paper works and handover possession. According to OP-1 there was some finishing works in some units remained. So far partition wall is concerned, it has been stated that as many of the allottees had booked more than one unit with an object to amalgamate their unit and made it as one unit for their commercial use; therefore in some places temporary partition walls have been made. Gaps were left as per requirement of civil engineering works. Thus there was no reason for the members of the complainant for not depositing final instalment of ‘offer of possession’.

11.     It may be mentioned that NPX Unit Owners Welfare Association filed Writ C No.12678 of 2017 for quashing ‘completion certificate’ dated 22.08.2014. This writ petition has been disposed vide order dated 10.04.2017 with observation that in terms of settlement, stilt area will be left as parking area and an allottee of stilt area will be shifted to first floor. The complainant has stated that they are not members of NPX Unit Owners Welfare Association, as such, this order is not binding upon them.

          It is not relevant that this order is binding upon the complainant and its member. It is relevant that this order is certainly binding upon OP-1 and who will use stilt area as parking place and issue of parking as raised by the complainant stand solved. None of the members of the complainant are allottees in stilt area as such, it would not affect them adversely. Validly of ‘completion certificate’ dated 22.08.2014 cannot be questioned again.

12.     The complainant on the one hand challenged the demand of ‘Interest Free Maintenance Security’ and ‘Capital Replacement charge’. On the other hand, the complainant has prayed [Prayer ii(h)] that OP-1 be directed to transfer ‘Interest Free Maintenance Security’ and ‘Capital Replacement charge’ to the complainant. OP-1 has agreed for returning ‘Capital Replacement charge’ after seven years. ‘Interest Free Maintenance Security’ is payable under clause-27 of the application form.  Maintenance charges is payable after expiry of 30 days from the ‘offer of possession’ as per clause-18 of the allotment letter. 

13.     The complainant has made various vague allegations without filing any evidence to prove it. The complainant has challenged increased ‘super area’ charge and electricity connection charges. In Final Statement of Account (Pg.674), Rs.3348/- has been demanded towards increased super area, which is less than one sq.ft. In application form and allotment letter, it has been clearly mentioned that ‘super area’ was tentative and subject to variation. As stated above electricity connection charges is falling within additional charges. In allotment letter, it has been mentioned that the allottee shall pay all the statutory taxes/levy etc.

14.     Various relieves claimed in the complaint, based upon the provisions of U.P. Apartments (Promotion of Construction, Ownership and Maintenance) Act, 2010 cannot be granted as this Act is not applicable. Maintenance of the complex cannot be handed over to the complainant. The relieves claimed is much more than the money deposited by the allottees.

ORDER

In view of aforesaid discussions, the complaint is disposed off, directing opposite party-1 to issue fresh demand of the balance amount (except ‘Capital Replacement charge’) along with interest @9% per annum from the date last demand (except on stamp duty, registration charges and legal expenses, which shall be demanded as presently required) within a period of one month from the date of this judgment, giving one month time to the allottees to deposit balance amount. On deposit of balance amount, opposite party-1 shall furnish their unit as per specification. If allottee raised objection regarding partition wall, it shall be constructed from bricks and cement. Similarly gaps will be covered as per requirement of the allottee within one month of the deposit. Opposite party-1 shall execute sub-lease deed/conveyance deed after deposit of balance amount without any further delay and handover possession of their units. If any allottee wants refund of his money, he shall give a written letter to OP-1 within one month and his money be refunded with interest@9% per annum from the date of deposit till the date of refund, within one month thereafter. This order is applicable only to those allottees, who have been found and ‘consumer’ and have not settled their dispute.