JUDGMENT

HON’BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

The complainant before this Commission is a society registered under the Societies Registration Act, 1860 on 18.08.2016.  The aims and objectives of the complainant include the following:

18A.  That the present association is an association of flat buyers and the members thereof have common interests being purchasers/consumer in the same project and as defined under the Consumer Protection Act.  It is made clear that the present association has not been formed for making financial gains, rather the sole purpose of association is to serve the cause of the society/members in general and to protect the rights of its Members being Consumer and Purchaser of flats.

18B.  That the members of the present association have joined hands together on their own freewill and without being motivated by any financial consideration.  The main objectives of the present association is to pursue, propagate, advance, safeguard and promote the interests of the members in general before the Hon’ble National Commission, State Commissions, District Forums under the Consumer Protection Act, Hon’ble Tribunals, Hon’ble High Court and Hon’ble Supreme Court being a purchaser of flats and consumer as defined under the Consumer Protection Act.

2.      The complainant therefore, claims to be a recognized Consumer association in terms of Section 12(1)(b) of the Consumer Protection Act.  The complaint has been instituted on behalf of as many as 40 buyers of residential flats in a project namely ‘Parsvnath Exotica’ which was proposed to be developed in Ghaziabad.  The complaint was instituted against two companies namely ‘Parsvnath Developers Limited’ (hereinafter referred to as ‘PDL’) and ‘Parsvnath Buildwell Pvt. Ltd.’ (hereinafter referred to as ‘PBPL’).  One of the allottees on whose behalf this complaint was instituted, having withdrawn, the complaint now continues on behalf of the remaining 39 allottees of the above referred project.  The details of the allottments made to the above referred persons have been given in Annexure P-4 to the complaint and need not be reproduced in this judgment.  The allottees at serial number 24 namely Ms. Preeti Dewan and Mr. Nitin Dewan have withdrawn from this complaint and therefore, the allotment made to the remaining 39 allottees is the subject matter of this Consumer Complaint.

3.      Out of the above referred 39 allottees, four allottees (at serial number 23 i.e. Ms. Ashti Khan and Dr. Sabha Anwar Khan, at serial number 30 i.e. Mr. Ram Parvesh and Ms. Savitri Devi, at serial number 34 Ms. Ajiti Misra and Ms. Prabha Rani and at serial number 40 i.e. Ms. Kiran Lata and Col. D.N. Karan) had executed agreements with ‘Parsvnath Developers Ltd.’ whereas remaining 35 allottees had executed agreements with ‘Parsvnath Buildwell Pvt. Ltd.’  The agreements were executed on different dates between 2012 to 2014 and the grievance of the allottees is that despite they having made substantial payments, the possession of the allotted flats was not offered to them and even the construction was not complete.  The complainant is therefore, seeking refund of the amount paid by the above referred 39 allottees alongwith compensation and interest on the said amounts.

4.      The complaint has been resisted by the OPs who have not disputed the allotment made to the above referred 39 allottees and the payments received from them.  It is inter-alia stated in their written version that PDL had entered to a development agreement with a company namely ‘M/s Devidayal Aluminium Industries Pvt. Ltd.’ Where-under PDL was to carry out development, construction and sale of areas on the land owned by M/s Devidayal Aluminium Industries Pvt. Ltd.  An SPV in the name of Parsvnath Buildwell Pvt. Ltd. was then formed in order to expedite the construction and development.  The OPs have sought to justify the delay in completion of the construction on several grounds including the acts and omissions attributed to M/s Devidayal Aluminium Industries Pvt. Ltd. 

5.      It is evident from the Certificate of Registration of the complainant that the complainant is a registered society.  It is also evident from a perusal of its aims and objectives that one of the objects behind formation of the complainant association was to advance the interests and rights of the consumers particularly those who had taken allotments in the project which was proposed to be developed by the OPs in Ghaziabad.  Therefore, being a recognized consumer association, the complainant is competent to institute this complaint. 

6.      A preliminary objection with respect to the maintainability of the Consumer Complaint has been taken by Sh. Sachin Datta, learned senior counsel for the OPs.  He has pointed out that in a Consumer Complaint instituted u/s 12(1)(c) of the Consumer Protection Act, the requisite permission to institute a Consumer Complaint on behalf of all the allottees of the above referred project was granted by this Commission on 20.02.2017 in CC No.889 of 2016 and having been instituted later than grant of the aforesaid permission, this Consumer Complaint is not maintainable, the only remedy available to the concerned allottees being  to join in the Consumer Complaint in which permission u/s 12(1)(c) of the Consumer Protection Act was granted by this Commission.  A reference in this regard is made to the decision rendered by a three-Members Bench of this Commission on 07.10.2016 in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. 

7.       Admittedly, the complainant had instituted a Consumer Complaint being CC No.1672 of 2016 before this Commission which was withdrawn on 02.11.2017.  While permitting withdrawal of the above referred complaint, this Commission had granted liberty to the complainant to file a fresh complain on the same cause of action.  In terms of the decision of this Commission in Ambrish Kumar Shukla (supra), once a permission in terms of Section 12(1)(c) of the Consumer Protection Act is granted, an individual complaint will not be maintainable if the reliefs claimed are the same which were claimed in the Consumer Complaint in which the permission u/s 12(1)(c) of the Consumer Protection Act was granted.  However, as specifically held by the larger Bench of this Commission in Ambrish Kumar Shukla (supra), the Consumer Complaints which had been instituted prior to grant of permission u/s 12(1)(c) of the Consumer Protection Act, would not be affected by such permission and would continue for adjudication.  CC No.1672 of 2016 was pending before this Commission on the date on which permission u/s 12(1)(c) of the Consumer Protection Act was granted by this Commission in CC No.889 of 2016 on 20.02.2017.  Though the aforesaid complaint was later withdrawn on 02.11.2017, it was not a withdrawal simpliciter and the complainant had sought and was granted liberty to file a fresh complaint on the same cause of action.  In my opinion, this Commission having specifically granted liberty to file a fresh complaint on the same cause of action and that order having not been challenged by any party, the present complaint would be maintainable despite the permission in terms of Section 12(1)(c) of the Consumer Protection Act in CC No. 889 of 2016 having been granted by this Commission before this fresh complaint on the same cause of action was instituted. 

8.      Coming to the merits of the complaint, this Commission, vide its order dated 06.05.2016, had allowed a Consumer Complaint filed by another association of flat buyers in this very project by way of a detailed judgment and directed refund of the amount which the concerned allottee has paid with interest and compensation.  The defence taken on merit therefore need not be examined afresh in this complaint. An appeal being Civil Appeal No.5335 of 2016 was preferred by Parsvnath Buildwell Pvt. Ltd. against the order alongwith Civil Appeal No.5336 of 2016 which is stated to have been filed by PDL.  The appeals were disposed of by the Hon’ble Supreme Court vide its order dated 29.11.2019.  During the pendency of the appeal, the appellants were directed from time to time to make certain deposits with the Registry of the Hon’ble Supreme Court.  Later on, the Hon’ble Supreme Court directed release of the amount deposited by the allottees to them alongwith interest @ 10% per annum.  While deciding the appeal vide its final order dated 29.11.2019, the Hon’ble Supreme Court also upheld the compensation awarded by this Commission. 

9.      The learned counsel for the complainant who has taken instructions from the allottees, states on instructions that considering the decline in the rates of interest and the pandemic situation in the country, the complainants are restricting their prayer to the refund of the principal amount paid by them alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the Hon’ble Supreme Court had directed disbursal of interest @ 10% per annum in Civil Appeal no. 5335 of 2016 and for the subsequent period, the allottees are restricting their claim to compensation in the form of simple interest @ 8% per annum.  He also submits that on the principal of parity, the complainant is also claiming the lump-sum compensation of Rs.3 lacs each which was upheld by the Hon’ble Supreme Court while deciding Civil Appeal no. 5335 of 2016. 

10.    In view of the above referred decision of the Hon’ble Supreme Court and the statement made by the learned counsel for the complainant on instructions, the complaint is disposed of with the following directions:

(i)      OP No.1 Parsvnath Developers Ltd. shall refund the entire principal amount received from Ms. Ashti Khan and Dr. Sabha Anwar Khan, Mr. Ram Parvesh and Ms. Savitri Devi, Ms. Ajiti Misra and Ms. Prabha Rani and Ms. Kiran Lata and Col. D.N. Karan to them alongwith compensation in the form of simple interest @ 10% per annum from the date of payment till the date on which disbursal of interest @ 10% per annum was directed by the Hon’ble Supreme Court in favour of the allottees in Civil Appeal no. 5335 of 2016.  For the subsequent period, Parsvnath Developers Ltd. shall pay such compensation by way of interest @ 8% per annum till the date of payment.  PDL shall also pay a sum of Rs.3 lacs to each of those four allottees as compensation. 

(ii)      OP No.1 Parsvnath Buildwell Pvt. Ltd. shall refund the entire principal amount received from remaining 35 allottees to them alongwith compensation in the form of simple interest @ 10% per annum from the date of payment till the date on which disbursal of interest @ 10% per annum was directed by the Hon’ble Supreme Court in favour of the allottees in Civil Appeal no. 5335 of 2016.  For the subsequent period, Parsvnath Buildwell Pvt. Ltd. shall pay such compensation, by way of interest @ 8% per annum till the date of payment.  PBPL shall also pay a sum of Rs.3 lacs to each of those remaining 35 allottees as compensation.

(iii)     The compensation of Rs.3 lacs each to every allottee shall be paid within three months from today failing which it shall carry interest @ 8% per annum from the date of this order.

(iv)    The complainant shall also be entitled to Rs.50,000/- as the cost of litigation to be shared equally by the OPs.

(v)     It is made clear that this order shall not come in the way of the OPs availing such remedy if any, as may be available to them in law against M/s Devidayal Aluminium Industries Pvt. Ltd. for the recovery of the amount ordered to be paid by them provided that such a remedy is otherwise available and the OPs are otherwise entitled to such amount from M/s Devidayal Aluminium Industries Pvt. Ltd.  If any such claim is made against M/s Devidayal Aluminium Industries Pvt. Ltd., the same shall be examined and adjudicated on its merit.  However, the payment to be made by the OPs in terms of this order, shall not, in any manner, be linked with the remedy which the OPs may seek to avail against M/s Devidayal Aluminium Industries Pvt. Ltd.