A developer cannot enforce one-sided contractual clauses, such as capped penalty provisions, to escape liability for delayed possession or service deficiency, and shall be liable for full refund with interest where project delays are inordinate and statutory approvals have lapsed.

ORDER

DR. INDER JIT SINGH, PRESIDING MEMBER

1. The present Consumer Complaint (CC) has been filed under Section 21(a)(i) read with Section 12(1)(c) of the Consumer Protection Act, 1986 by the Complainants (a class of homebuyers) against the Opposite Party, inter alia praying for directions to the Opposite Party:

i. To refund the entire principal amounts deposited by each of the Complainants towards their respective units in the project "Aryan Apartment";

ii. To pay interest @24% per annum on the refunded amounts from the date of each deposit till realization;

iii. To pay compensation of Rs.3,00,000/- per complainant for mental agony, harassment and increased cost of alternative accommodation; and

iv. To pay litigation expenses of Rs.50,000/- per complainant.

2. It is averred/stated in the Complaint that:

i. The Opposite Party entered into a Collaboration Agreement dated 31.08.2012 with the original landowners for development of about 7000 sq. yards of Abadi land at Sector 73, Noida, Sarfabad, U.P. for construction of approximately 400 flats (1 BDR and 2 BDR units). Relying on the Opposite Party's aggressive marketing and promises of "speedy construction and timely delivery", the Complainants booked various residential units in the project "Aryan Apartment" between 2013 and 2014.

ii. The Complainants entered into standardized Builder Buyer Agreements (BBA) with the Opposite Party under different payment plans (Down Payment, Flexi Payment, Construction Linked, Subvention Plans). Substantial amounts were deposited, Complainant Nos. 1 & 2 deposited Rs.12,61,822/- for a 2 BHK unit (C1-416) having total consideration of Rs.33,09,189/-; Complainant Nos.3 & 4 deposited Rs.11,55,755/- for a 3 BHK unit (C1-511) of Rs.47,66,624/-.

iii. Under Clause 9.1 of the BBA, the Opposite Party committed to complete construction and hand over possession within 42 (forty-two) months from the date of the respective applications. For many Complainants, the 42-month period expired in 2016 or 2017, yet possession was not offered.

iv. The Complainants allege that the project was virtually abandoned: Tower A never commenced, Tower C1 was unilaterally split into two phases without consent, and digging for the second phase of Tower C1 had not begun even years after bookings.

v. Unfair trade practice is alleged: the Opposite Party sold 3 BHK units even though the Collaboration Agreement and sanctioned layout only permitted 1 BDR and 2 BDR units. The term "BHK" (including Hall) was used to camouflage this lack of approval.

vi. During a meeting on 13.02.2015, it was revealed that all statutory approvals, layout plans and NOCs from Zila Panchayat had expired and were not renewed by the Builder, which also prevented buyers from securing institutional financing.

vii. Several Complainants sent emails requesting cancellation and refund citing complete halt in construction for over six months, but received evasive replies. A joint Legal Notice dated 09.08.2016 demanding refund with 24% interest was also not responded to by the Opposite Party.

3. The Opposite Party in its written statement/reply stated that:

i. The complaint is not maintainable on the ground of pecuniary jurisdiction as the original four complainants had deposited only Rs.45,26,133/-, which is below the Rs.1 Crore threshold under Section 21 of the Act. It was also contended that there is no "common grievance" because e