IMPORTANT POINT
Order of possession - The unit in question has already been transferred/allotted by Respondent to third party, and OP has already refunded the entire principal amount paid by the Petitioner, it may not be feasible to order possession of the unit to the Appellants.

ORDER

The present First Appeal (FA) has been filed by the Appellants against Respondent as detailed above, under section 19 of Consumer Protection Act 1986, against the order dated 15.05.2017 of the State Consumer Disputes Redressal Commission, U.P., (hereinafter referred to as the “State Commission”), in Consumer Complaint (CC) no 149 of 2015 inter alia praying to:—

(a) Restrain the respondent from creating any third party interest/right with respect to the Appellants’ flat No. 06091, 6th Floor, having built up area 910 sq.ft. (super area 1110 sq.ft.), in group housing residential complex “Mahagun MIPL-My Woods, Phase-1”, situated at GH-04, Sector-16C, Greater Noida, Uttar Pradesh during the pendency of the appeal;

(b) Grant ad-interim ex-parte stay order, staying the operation of impugned final judgment and order dated 15.05.2017 passed by the State Commission.

2. Notice was issued to the Respondent on 16.06.2017. Respondent/OP was directed to maintain the status-quo over the disputed property subject to Appellant depositing Rs.15 lacs with the State Commission. The Appellants and the Respondent filed their Written Arguments/Synopsis on 27.07.2022 and 29.07.2022 respectively.

3. Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that-

(i) On February 15, 2011, the complainants entered into an agreement to purchase a flat in the Mahagun My Woods Scheme, located at GH-04, Sector-16C, Greater Noida, U.P. with a built-up area of 910 square feet and a super area of 1110 square feet for consideration of Rs. 23,58,373/-. They submitted an application along with a cheque dated 12.02.2011, amounting to Rs. 1,00,000/-. On 16.02.2011, the OP issued a letter confirming the booking of Flat No. 0609/MIPL. Following the initial agreement, the complainants provided a cheque of Rs. 1,30,000/- to the OP and OP sent an allotment letter dated March 3, 2011. On 04.04.2011 the OP sent a demand letter for an additional amount of Rs.8,31,269/- . Subsequently, a tripartite agreement was executed among the complainants, the OP, and H.D.F.C. Bank. A deed of agreement was also executed in connection with this tripartite agreement. Pursuant to this agreement, the complainants applied for a loan of Rs.18,00,000/- from H.D.F.C. Bank, which was sanctioned as per the bank’s letter dated May 10, 2011.

(ii) As per application, the committed period of possession was 36 months from the date of sanction of plans, which was changed to 42 months as per allotment letter. Original plans were sanctioned on 09.03.2011, which were later on revised on 13.08.2014. The construction of project got struck due to some disputes relating to land acquisition and the possession of unit was not delivered as per committed date. After resumption of the construction, on account of failure on the part of Petitioner to pay the demanded instalments, the unit was cancelled by OP on 11.03.2015 and allotted to a third party on 30.05.2015. Aggrieved by the action of Respondent, Petitioner filed a consumer complaint before the State Commission. Vide Order dated 12.05.2016, the State Commission dismissed the complaint and Complainants were ordered to pay Rs.10,000/- as cost.

4. Aggrieved by the order passed by the State Commission the Complainants

(Appellants herein) have filed the Appeal before this Commission, mainly on the following grounds:—

(i) The impugned order is legally and factually unsustainable. The records clearly demonstrate that the appellants were always ready and willing to fulfill their payment obligations. They promptly obtained a loan, entered into a tripartite agreement with the respondent, and made a substantial payment of Rs.11,80,121/- (out of the total sale consideration of Rs.23,58,373/-). The appellants consistently requested the respondent to provide the necessary payment details. The appellants made arrangements to cover the entire sale consideration through a loan. However, due to the loan being tied