VIKASH ANAND Vs. OMKAR NESTS PVT. LTD.

JUDGEMENT

(1.) The present Consumer Complaint has been filed against the Opposite Parties (OPs) seeking the following:

(2.) Brief facts of this case are that the complainants, a group of home buyers, seeking residential accommodation for own use and occupation sought allotment of residential flats in the project named 'Royal Nest' situated at Plot No. GH-08B, Tech Zone IV, Greater Noida (West), UP. This plot measuring 24,288 Sq Mts was originally part of larger 86,037 Sq. Mts tract allotted by GNIDA in 2010 to a consortium involving VA Supertech Builders, ATS Infrastructure & Ors. To manage the project, the consortium formed a Special Purpose Company (SPC) known as M/s Omkar Nests Private Limited (OP-1), which secured the formal lease deed from GNIDA on 1/4/2011. OP Nos.2 to 5 are the Directors of the company. OP Nos. 6 and 7 are senior officials responsible for the administrative and marketing operations of the project. The company planned to construct 8 Towers on the site, representing to buyers that it has held full authority over the project's execution. Relying on the representations and advertisements issued by OPs regarding a time bound delivery and high-standard construction, the complainants entered into Builder-Buyer Agreements (BBA) with the OP. According to the terms of these BBAs, construction was to be completed within 36 months (extendable to 40-48 months in certain cases) from the date of map approval. GNIDA approved the project maps on 5/2/2013, thereby setting the primary deadline for completion by 4/2/2016. Even after lapse of six-month grace period to cater for unforeseen circumstances, the final deadlines for delivery across various allotments lapsed between August 2016 and March 2017. The cause of action for the present complaint arose from ongoing deficiency in service and unfair trade practices by the OPs. Even though most complainants had paid 95% of the total sale consideration, the project had remained incomplete and uninhabitable. The complainants allege that while the Agreements provided for paying the OP a punitive interest rate of 24% p.a. in the event of any payment delay by the buyers, the developer failed to fulfil its reciprocal obligation of delivering the flats within the stipulated timeframe. The OPs have also unilaterally altered the floor designation by renaming the Podium level (an elevated parking/ recreational floor) as the Ground Floor. This move effectively shifted the complainants' allotted units one floor higher than what was originally booked and paid for, in direct violation of the GNIDA-approved maps and CPWD Indian Building Standards. Further, the complainants allege that the Partial Completion Certificates purportedly obtained for certain towers were secured through misrepresentation, as the buildings lacked basic functional infrastructure, including mandatory fire safety systems, permanent electricity connections, and piped gas facilities. They also alleged that the OPs failed to provide the promised Club House and Community Centre, which were explicitly represented to be operated on a No Profit No Loss basis. The developer also neglected to execute and register the Sub-Lease Deeds in favor of the allottees, despite receiving substantial payments. After several failed attempts to resolve these issues through meetings with the Directors and senior management, the complainants approached this Commission for relief.

(3.) Upon notice, the complaint was resisted by the OPs by filing their written statement asserting that the petition was misconceived and liable for dismissal. OPs contended that a detailed reply was only required after the Commission adjudicated upon the maintainability of the class action application under Sec. 12(1)(c) of the Act, 1986. They contended that a common relief was unjustified because the individual claims involved varying factors such as apartment size, total sale price, and the specific amounts paid till date, which necessitated individual assessment rather than a collective decree. OPs maintained that a representative complaint is maintainable only if it is filed for the benefit of all consumers sharing common grievances. They alleged that the class action was an attempt to shield genuine defaulters who breached the terms of their allotment and payment schedules. Regarding the project delays, they contended that the disruption was purely unintentional and caused by factors beyond their control. OPs brought out complex history of land acquisition, noting that while possession had been taken in 2008 and 2009, later the Allahabad High Court ordered payment of additional compensation of 64.70% and plot allotments for original landowners. The construction was specifically halted by GNIDA due to the non-approval of the Master Plan 2021 and by various Special Leave Petitions filed by farmers in 2012. Additionally, the National Green Tribunal issued orders stopping work due to dust pollution, levying penalties in 2015 and 2016. Other external factors cited included acute shortage of labour due to social schemes like NREGA and JNNURM, and a financial burden involving a Rs.60.00 Crore loan from Punjab & Sind Bank with Rs.24.00 Crore in interest payments. The OPs further objected that the Complainants were not Consumers within the meaning of Sec. 2(1)(d) of the Act and were investors who booked the properties for commercial motive. Such profit-motivated transactions were excluded from the Act's protection. In support of their bonafide, OPs stated that all GNIDA dues were paid, 182 units were handed over and registration for 130 flats was completed. Emphasising that under Clause 20(A) of the BBA, the OP was entitled to reasonable extension of time for delays caused by Act of God, court orders or changes in Govt policy. Finally, the OPs disclosed that Complainant No.1 had already been offered possession in February 2018 but had failed to clear outstanding dues amounting to Rs.8,39,328,.00 thereby they denied any unfair trade practices or deficiency in service on their part.