HON'BLE AVM JONNALAGADDA RAJENDRA AVSM VSM MEMBER

JUDGMENT

1. The Appellants filed the instant First Appeal against the Order dated 07.06.2024 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh (“State Commission”) in CC No. 257 of 2023, wherein the State Commission allowed the Complaint.

2. For convenience, the parties in the present matter are being referred to as per position held in the Consumer Complaint.

3. Brief facts of the case, as per the complaint, are that the OPs are builders/developer/promoters engaged in construction activities. The Complainants were allured by the OPs marketing officials to purchase a flat in the project “Experion Capital” at Gomti Nagar, Lucknow, and thus applied for allotment on 25.12.2017. Upon the payment of Rs.5,00,000, the Complainant was allotted Flat No.703 on 7th Floor in Tower-2 on 06.01.2018. A provisional allotment letter dated 17.03.2018 was issued, followed by execution of Agreement for Sale dated 10.07.2018. As per the Agreement, the carpet area was 111.41 Sq Mts and the total sale consideration was Rs.1,13,68,681, payable as per Construction Linked Payment Plan, with possession to be offered on or before 30.11.2022 along with Completion and Occupancy Certificates. It is stated that the Complainants paid a total sum of Rs. 1,34,98,422.11 (including TDS), allegedly in excess of the agreed sale consideration. The OPs issued an offer of possession dated 05.04.2022 demanding an additional sum of Rs. 28,81,524.70, which the Complainants claim was arbitrary. Upon inspection, the project was found incomplete and without promised amenities. Thereafter, OPs cancelled the allotment of the Complainant vide letter dated 16.09.2022 for non-payment of the demanded amount and forfeited Rs. 29,49,933/-. The Complainants allege that the said cancellation was later admitted to be erroneous by OPs. Under pressure, they paid further amounts in 2023, including maintenance charges, making the total deposited amount Rs.1,34,98,422.11, i.e., Rs.21,29,741.11 in excess of the sale consideration. Despite repeated requests for possession, execution of sale deed and refund of excess amount, the OPs allegedly failed to comply and instead reiterated that the unit stood cancelled.

4. On being issued notice, the OPs filed their written statement, denied the allegations and contended that the complaint was based on incorrect and misleading facts and was devoid of any cause of action. OPs further contended that there was no deficiency in service on their part and, therefore, the complaint was not maintainable under the Consumer Protection Act, 2019. It was also contended that the project was RERA registered vide Registration No.UPRERAPRJ 4224 and, therefore, the matter fell within the jurisdiction of RERA. OPs further alleged that the Complainants were investors and not consumers, and that they had failed to perform their contractual obligations by not making timely payments. The Complainants had suppressed material facts and had not approached this Commission with clean hands, and thus, the complaint was liable to be dismissed with costs.

5. The learned State Commission vide order dated 07.06.2024 allowed complaint with the following directions:

“ORDER

The complaint is allowed with the following directions.

The OPs are directed to deliver Physical possession of the allotted flat No.703, situate at 7th floor, in Experion Capital in Tower No.2. Phase-1, built on Plot No. TCG-1/AV-6, TCG-1/AV-7, Gomti Nagar, Phase-1 Vibhuti Khand, Gomti Nagar, Lucknow, along with the Copy of Occupancy Certificate and Completion Certificate of the Project with all facilities and amenities as well within a period of 30 days from the date of this judgment.

The opposite parties are directed to pay interest @10 p.a. on the deposited amount of Rs.1,34,98,422.11 w.e.f. the respective date of deposits till the date of delivery of possession and execution of sale deed of the allotted flat.

The opposite parties are also