IMPORTANT POINTS
(1) Deficiency - the cause of inordinate delay in handing over the possession continues which is a clear cut deficiency on the part of the opposite party.
(2) Deficiency of Service - the payments made by the complainants as indicate above were retained and withheld unjustifiably beyond 28.05.2014 without delivering possession till date. This amounts to unfair trade practice as well as deficiency in service.

ORDER

A.P. Sahi, President—These are two consumer complaints where the complainants have come up contending that the opposite party has failed to deliver possession of the premises in question in the project developed by the opposite party known as “Knights Court” at Jaypee Greens, Noida, U.P., in spite of a payment of Rs.1,10,47,424/- and Rs.1,10,45,586/- respectively for which the complainants had also taken loans from the HDFC Bank. The allotment letter dated 29.11.2010 promised possession approximately in 36 months, i.e. by 28.11.2013. The opposite party however informed the complainants on 06.09.2014 that the possession would be delivered by November, 2015. The letter admitting delay and promising payment of delay compensation is extracted hereunder:—

“You shall however be entitled to delay compensation for the delay beyond the scheduled period of delivery as per the provisions of Standard Terms and Conditions.”

2. The complaints were filed on 01.02.2016 alleging deficiency in service/unfair trade practice and seeking delivery of possession together with damages and interest thereon.

3. A written statement was filed admitting allotment and the constructions being proceeded with but there were certain impediments on environmental issues that travelled up-to the National Green Tribunal as there was an injunction of granting completion certificate as a result whereof the flats could not be handed over. It is urged that the project has taken shape to a substantial extent but the complainants had joined hands in the proceedings before the Real Estate Regulatory Authority (RERA) and hence they would be bound by the orders passed in the said proceedings where a rehabilitation programme has been agreed to and such facts have been brought on record.

4. Learned counsel for the opposite party has vehemently contended that the project has been completed which is being denied by the complainants. It is further pointed out by the learned counsel for the opposite party that they have already applied for the occupancy certificate which has not been granted and as soon as the same is obtained and any dues which are there against the complainants are cleared, the possession will be handed over to the complainants. It is also submitted that in respect of other towers the occupancy certificate has been granted in the same project and there is every likelihood that the occupancy certificate would be granted in respect of this tower as well.

5. What has been vehemently argued by the learned counsel for the opposite party is that the judgment in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor 2022 SCC OnLine SC 416 and the judgment in the case of Imperia Structures Ltd. Vs. Anil Patni (2020) 10 SCC 783 were all decisions on section 18 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the RERA Act) whereas in the present case the rehabilitation before the RERA has been considered in the light of sections 7, 8 and 34(a) of the RERA Act. It is vehemently argued that in the event of any conflict between the provisions of Consumer Protection Act, 1986 (hereinafter referred to as the 1986 Act) and the RERA Act, the rehabilitation which is based on an agreement and the order passed by the RERA would prevail.

6. To augment this argument, learned counsel for the opposite party has further invited the attention of the Court to the consent clause 11(h) of the order dated 29.01.2021 to urge that in view of the aforesaid proceedings before the RERA, the Consumer Forum cannot proceed to grant the reliefs for which an agreement has been reached into between the parties before the RERA.

7. To substantiate the submission, the learned counsel for the opposite party has invited the attention to the agreement dated 21.01.2021 entered into between the opposite party and the home buyers welfare association consisting of 160 buyers including the complainants in the same project where all details have been worked