1.      Heard Mr. Aditya Parolia, Advocate, for the complainant and Ms. Sonia, Advocate, Proxy counsel for opposite party-2. 

2.      Ms. Yashoda Bhatt has filed above complaint for directing the opposite parties to (i) refund entire amount deposited by her with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.200000/-, as compensation for mental agony and harassment; (iii) pay Rs.100000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.

3.      The complainant stated that M/s. Vihaan Developers 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. Armed Forces Welfare Organisation (OP-2) was a society, registered under Societies Registration Act, 1860 and used to help the members of Armed Forces in purchasing flat/plot throughout the country. OP-1 launched a group housing project in the name of “Vihaan Greens”, at leasehold Plot No. GH-15C, Sector-1, Greater Noida (West), Gautam Budh Nagar, U.P. in the year, 2014 and made wide publicity of its amenities and facilities. OP-2 negotiated with OP-1 for construction of Tower-B as “Raksha Tower” for its members. The complainant, who was in need of residential flat for herself, consulted with OP-2, who advised to buy a flat in above project “Vihaan Greens” and enrolled the complainant as its member. Believing upon the representations of the OPs, the complainant booked a flat and deposited Rs.100000/- on 09.12.2014 with OP-1. OP-1, vide Allotment Letter dated 28.12.2014, allotted Flat No.B-1106, super area 1865 sq.ft. in the project “Vihaan Greens”. The complainant opted for “construction link payment plan”. The OPs executed Tri-Party Agreement dated 14.01.2015 of Flat No.B-1106. Clause-9(a) of the Allotment Letter and Clause-6 of Tri-Party Agreement provide 36 months period from the date of commencement of excavation of Tower-B, for handing over possession. The complainant deposited the instalments as per demand of OP-1 and paid total Rs.5369653/- till 05.06.2017 (out of total cost of Rs.5508100/-). OP-1 realized instalment of ‘commencement of excavation of Tower-B’, on 03.04.2015 and last but one instalment on 05.06.2017, as such, due date of possession was 02.04.2018. However, construction was unreasonably delayed. The complainant was living in a rented accommodation as such she was in need of her own flat. As and when the complainant inquired about the possession then some date used to be given but even after expiry of two years, possession has not been handed over. Then, this complaint was filed on 18.07.2020 alleging deficiency in service on the part of the OPs.       

4.      The opposite party-1 filed its written reply on 29.12.2021, in which, booking of the flat, allotment of the flat, execution of Tri-Party Agreement and deposits made by the complainant, have not been disputed. OP-1 stated that the complainant applied for allotment of flat as her free will and signed the agreement after fully reading and understanding it. The revised Layout Plan was sanctioned on 12.06.2015 and OP-1 completed RCC work of the Tower-B, however, due to pandemic Covid-19 and consequent lockdown in the country, the construction could not be completed. Interest of home buyers is secured by providing delay compensation under the agreement. Preliminary issues that (i) total value of the flat is Rs.5508100/- and complaint does not fall within pecuniary jurisdiction of this Commission; (ii) Tri-party Agreement was executed on 14.01.2015 and the complaint is time barred: (iii) Uttar Pradesh Real Estate Regulatory Authority (UPRERA) has been notified under Real Estate (Development and Regulation) Act, 2016, which is a special enactment on the subject as such the complainants be relegated to go before UPRERA; and (iv) The dispute raised in this complaint is of civil nature, are raised. The complaint is liable to be dismissed.

5.      Opposite Party-2 filed its written reply on 18.12.2020 and stated that it was a society, registered under Societies Registration Act, 1860 and used to help the members of Armed Forces in purchasing flat/plot throughout the country. M/s. Vihaan Developers Private Limited (OP-1) was a class-1 builder and had successfully executed various other projects. OP-2 therefore advised its members including the complainant to book a flat in the project “Vihaan Greens”, at leasehold Plot No. GH-15C, Sector-1, Greater Noida (West), Gautam Budh Nagar, U.P. launched by OP-1. The complainant booked the flat and deposited money with OP-1, who alone is responsible for handing over possession. OP-2 has been wrongly impleaded in the complaint. OP-2 also raised preliminary issue that total value of the flat is Rs.5508100/- and complaint does not fall within pecuniary jurisdiction of this Commission. Tri-party Agreement was executed on 14.01.2015 and the complaint is time barred. Uttar Pradesh Real Estate Regulatory Authority (UPRERA) has been notified under Real Estate (Development and Regulation) Act, 2016, which is a special enactment on the subject as such the complainant be relegated to go before UPRERA. The dispute raised in this complaint is of civil nature. The complaint is liable to be dismissed.

6.      The complainant filed Rejoinder Replies, Affidavit of Evidence of Yashoda Bhatt and documentary evidence. Opposite party-2 filed Affidavit of Evidence of Sh. Yudhvir Talwar and documentary evidence. The complainant has filed written synopsis.

7.      I have considered the arguments of the parties and examined the record. Preliminary issues raised by the OPs have no merit. Section 21 of the Consumer Protection Act, 1986 provides that where value of the goods together with compensation claimed exceeds Rs.one crore, the complaint can be filed before this Commission. In the present case, value of the goods together with compensation claimed by the complainant exceeds Rs.one crore. It is well settled that this Commission exercises jurisdiction in addition and not in derogation of any other enactment as such provisions of Real Estate (Development and Regulation) Act, 2016 do not bar the jurisdiction of this Commission.

8.      Clause-9(a) of the Allotment Letter and Clause-6 of Tri-Party Agreement provide 36 months period from the date of commencement of excavation of Tower-B, for handing over possession. OP-1 realized instalment of ‘commencement of excavation of Tower-B’, on 03.04.2015 and last but one instalment on 05.06.2017, as such, due date of possession was 02.04.2018. The complainant deposited the instalments as per demand of OP-1 and paid total Rs.5369653/- till 05.06.2017 (out of total cost of Rs.5508100/-). Pandemic Covid-19 spread in country long after realization of last but one instalment. Till today, the construction was not completed for “occupation certificate’ was obtained although more than five years has expired. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and has held that the buyer cannot be made to wait for indefinite period for possession.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party-1 is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.