section 69 of the Consumer Protection Act, 2019 case law

Rasheed Ahmad Usmani & 8 Ors. vs Dlf Ltd. on 2 July, 2019

          NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION  NEW DELHI         

CONSUMER CASE NO. 1055 OF 2015 

        

  1. RASHEED AHMAD USMANI & 8 ORS. 14TH MAIN,36/6, NS, PALYA, BTM LAYOUT, 2ND STAGE, BENGALORE-560076. 

 

  1. JIJO GEORGE S/o. Mr. George,

D-2052, Westend Heights,

DLF Newtown,

Akshaya Nagar,  Bangalore – 560 068 

                                                                   ………..Complainant(s)              

Versus       

 

  1. DLF LTD. (THROGH ITS CHAIRMAN & MD)

 DLF CENTRE,  SANSAD MARG,  NEW DELHI-110 001. 

 

  1. DLF SOUTHERN HOMES PVT. LTD (THROUGH : DIRECTOR & PRINCIPLE OFFICER)

REGD. OFFICE NO. 1-E, JHANDEWALAN EXTENSION,  NEW DELHI-110055. 

 

  1. DLF PROJECT SITE (THROUGH : DIRECTOR & PRINCIPLE OFFICER)

REGD. OFFICE: SURVEY NO. 356/1/1 BEGUR HOBLI, BEGUR,   BENGALORE-560068 

 

  1. ANNABEL BUILDERS AND DEVELOPERS PVT. LTD (THROUGH : DIRECTOR & PRINCIPLE OFFICER)

REGD. OFFICE NO. 1-E, JHANDEWALAN EXTENSION,  NEW DELHI-110019 ………..Opp.Party(s)

              BEFORE:      HON’BLE MRS. JUSTICE DEEPA SHARMA

                     PRESIDING MEMBER:   HON’BLE MR. C. VISWANATH,MEMBER

    

 For the Complainant :      For the Complainants

  No.1 to 197:         Mr. Biswajit Bhattacharya

Senior Advocate :        Mr. Chandrachur Bhattacharya

Advocate For the Complainants :

  No.198 to 339:  Mr. R. Bala Subramanian

 Senior Advocate: Mr. Shankar Divate

 Advocate: Mr. Manoj Kumar Dubey

AdvocateFor the Opp.Party      :     Mr. Pinaki Misra

 Senior Advocate: Mr. Pravin Bahadur

 Advocate :Ms. Seema Sund

Advocate: Mr. Ritu Raj

 Advocate : Mr.  Priyash Sharma

Advocate : Mr. Prabhat Ranjan

Advocate :Mr. Aditya P.N. Singh

Advocate : Mr. Alabhya Dhamija

 

 Dated : 02 Jul 2019           

 

                                       ORDER              

 

  1. This complaint initially was filed by nine complainants and the notice of the complaint under Section 12 (1) (c) of the Act was issued by way of publication advertisement in “Times of India” for 30.11.2015. Vide order dated 30.11.2015, numerous impleadment applications, filed by flat owners, were allowed and the amended complaint was ordered to be filed. Thereafter, the complainants moved an application under Section 12 (1) (c) of the Act after seeking permission from the Commission on 05.05.2017. Arguments were heard on this application on 30.10.2017 and vide order dated 21.11.2017 following directions were issued by this Commission:

 

 

 

“(i)      The complainants are permitted to file this complaint on behalf or for the benefit of all such flat buyers who are interested in all the reliefs sought in this complaint;

 

 

 

(ii)      The flat buyers, who have already executed the conveyance deed or who have already executed affidavits accepting agreed compensation in full and final satisfaction or who have already received possession of their respective flats within the stipulated time period, shall not form part of the class on whose behalf or for whose benefit the complaint is instituted.

 

 

 

(iii)     The buyers who have already sold the property or who are subsequent purchasers having purchased the flat after execution of the conveyance deed shall also remain out of the purview of the class on whose behalf or for whose benefit the complaint is instituted.

 

 

 

(iv)    The buyers / allottees from whom Preferential Location Charges were not charged and are not chargeable shall also remain out of the class on whose behalf or for whose benefit the complaint is instituted.

 

 

 

(v)     A fresh public notice, in terms of sub-rule (2) of Rule 8 of Order I of the Code of Civil Procedure shall be published in Times of India, published from Bangalore for the next date of hearing.  The said notice will clearly describe the class on whose behalf or for whose benefit this complaint is allowed to be instituted as also the reliefs sought in this complaint.  The complainants shall take dasti notice and deposit the requisite charges directly in the office of the concerned newspaper.  Notice will be published in the same font size in which the classified advertisements are regularly published in the aforesaid newspaper.

 

 

 

(vi)    The names of the flat buyers who do not form part of the class in terms of this order, are deleted.

 

 

 

          Re-notify on 11.01.2018.”

 

 

 

 

 

 

 

          This order of the Commission was challenged in Hon’ble Supreme Court. Vide order dated 10.04.2018 the Hon’ble Supreme Court directed as under: –

 

 

 

We have heard learned counsel for the parties and perused the record.

 

 

 

Since the complaint filed by the appellants was only by nine persons jointly for their benefit, the same could not be treated to be in representative capacity. Accordingly, the impugned order is set aside.

 

 

 

Aggrieved parties are at liberty to file an appropriate fresh application under Section 12 (1) (c) of the Consumer Protection Act, 1986 before the National Consumer Disputes Redressal Commission within two weeks from today. The same may be disposed of by the National Commission in accordance with law within three months from the date of filing of such an application.

 

 

 

Since we have not examined the merits of the matter, contentions of all the parties are left open before the National Commission.

 

 

 

The appeals are accordingly disposed of.

 

 

 

 Civil Appeal arising out of Diary No.13241 of 2018

 

 

 

Taken on Board.

 

 

 

In view of the order passed in C.A.No.24 of 2018, this appeal, filed by Begur OMR Homes Pvt. Ltd. (Formerly known as DLF Southern Homes Pvt. Ltd.) is also disposed of.”

 

 

 

 

 

 

 

  1. While setting aside the order dated 21.11.2017 of this Commission, liberty was given to the complainants to file an application under Section 12 (1) (c) of the Act. Pursuant to the liberty given to the complainants, IA/8083/2018 was filed by the complainants under Section 12 (1) (c) of the Act. This application was disposed of by this Commission vide order dated 13.07.2018. In an appeal challenging this order the Hon’ble Supreme Court vide order dated 28.09.2018 issued following directions: –

 

 

 

          “Having heard learned counsel for the appellants, we are of the view that the impugned judgment dated 13.7.2018 needs to be set aside. We set it aside and direct the National Consumer Disputes Redressal Commission to treat the complaint, as amended, that has been filed, as a complaint filed on behalf of all 339 persons and to proceed on merits.

 

 

 

          It will be open for the respondents to give their say on the merits of each of the 339 complainants.

 

 

 

          The Commission will decide the matter within a period of six months from today.

 

 

 

          The Civil Appeals are disposed of accordingly.”

 

 

 

 

 

 

 

  1. The complaint thereafter was restored to its original number. Several impleadment applications were filed before the Commission, considering the complaint being a class suit under Section 12 (1) (c) of the Act. The complainants opposed the applications and while these applications were pending for disposal, the complainants moved the Hon’ble Supreme Court. Vide order dated 08.05.2019 the Hon’ble Supreme Court had reiterated that this complaint be treated as having been filed by 339 complainants. The order of Hon’ble Supreme Court is reproduced as under: –

 

 

 

          “Heard the learned counsel appearing for the parties.

 

 

 

By our order dated 28.09.2018, we had stated that the complaint filed is to be treated as being on behalf of 339 persons and proceed on merits. …

 

 

 

… ……………………………………………………………..

 

 

 

… … We now direct the Commission to decide the matter positively within a period of eight weeks from today.

 

 

 

The Miscellaneous Applications stand disposed of accordingly.”

 

 

 

 

 

 

 

 

 

 

 

  1. Pursuant to these directions, this matter was taken up on day to day basis. In view of the specific directions of the Hon’ble Supreme Court this complaint is treated as being filed on behalf of 339 persons Our order shall bind 339 persons before us.

 

 

 

  1. An amended complaint is filed on behalf of 339 complainants. Facts

set out in the complaint are that the opposite parties had advertised their project DLF Westend Heights in Bangalore on 26th April, 2009. The complainants booked the apartments in the said project and each of the complainants individually entered into agreements with opposite parties which contains identical terms. Sale deeds of the subject flats qua some of the complainants were also executed. Another advertisement for the said project was published by the opposite parties again on 25th March, 2010 wherein the price of three bedroom flat was mentioned as 38.22. lakhs.

  1. It is submitted that the opposite parties had not delivered the possession of the subject flats within the stipulated period and rescheduled the delivery time on several occasions. It is further contended that through their brochure the opposite parties had lured the complainants into believing that they would get state of the art health care facilities manned by competent medical professionals, play school for their children and convenient shopping facilities in the complex and a swimming pool, gymnasium, restaurant, bar, billiards room, banquet hall, tennis court, cards room, squash courts, spa massage and a beauty parlour. They had used phrase “our play school aims to take care of your child” and “our healthcare centre will offer the latest” and made them to believe that they would get these facilities and it prompted them to purchase the subject flats in the said project of the opposite parties. None of the above promises were fulfilled till the filing of the complaint which shows that false promises were made by opposite parties in the brochure. It is submitted that the opposite parties were able to sell these flats only due to such false promises in the brochure. It is contended that it amounts to unfair trade practice as defined under Section 2(r) of the Consumer Protection Act, 1986. It is further contended that the cost of project shown by the opposite parties in 2009 was Rs.536 crores and on the basis of the said pricing of the project, the environment clearance (EC) was obtained from State Environment Impact Assessment Authority (hereinafter referred as SEIAA) on 21.11.2009. However, after almost three years i.e. in 2012, by which time the opposite parties were supposed to hand over the possession of the flats, it had submitted a modified plan showing expansion of the project to SEIAA for clearance. In this revised proposal, the cost of project was shown to have reduced to Rs.264 crores. i.e. almost half of the initial cost. It is contended that despite this, the prices of the flats were not reduced proportionately. It is contended that the opposite parties have done the price manipulation in order to enrich itself and this amounts to violation of Section 2 (nnn) of the Consumer Protection Act, 1986. It is further contended that the reduction of the project cost also leads to declination in the quality of construction which fact is quite obvious. It is contended that though the cost of the project has been reduced and the quality of dwelling units have been compromised and they have been provided sub-standard flats yet cost of flat was calculated on the basis of original cost of the project and this way the opposite parties have earned lot of profits. It is contended that this amounts to unfair trade practice and restrictive trade practice. They are doing it through the gateway of clause 1.10, 1.14, 1.15 and 1.23 (b) of Apartment Buyers Agreement (hereinafter referred as ABA). For the complainant No.9 to whom possession has been given belatedly the quality of the material used and the workmanship in the construction of the said flat was pathetic and sub-standard. Lifts are also not in proper working conditions. The deplorable condition of the quality of flats is a clear reflection of the fact of unilateral illegal cost cutting done by the opposite parties. This shows that opposite parties have compromised on the quality of the flat.
  2. It is further contended that the Chartered Accountant’s certificate dated 26th July, 2013 and 9th August, 2013 clearly shows that the money the opposite parties were collecting from the complainants in the name of taxes payable in future through the gateway of clause 1.10 of Apartment Buyer Agreement were not deposited it with the concerned authorities and they  have been defaulting in paying the taxes. Due to this default, penalties have been imposed and interest have been charged which the opposite parties are unfairly recovering from the complainants. They are thus adopting fraudulent trade practices. In their letter dated 26th March, 2015, the opposite parties have admitted that they have defaulted in paying the taxes. They thus have been illegally enjoying the money which they have collected from the complainants in the name of taxes. It is also contended that the time was the essence of the agreement and the opposite parties had to deliver the possession of the flats within 36 months which expired in the years late 2012/ early 2013 and there was thus delay in offer of possession.  This delay had compelled the complainants to pay higher registration charges which had increased over the period of time. It is contended that the guidance value in June, 2013 was approximately 2000 per sq. ft. and it was increased to Rs.2250/- per square ft.  and to Rs.3150/- on 31.11.2014 and further increased  to Rs.3215 /-, as per the draft notification dated 14th September, 2015.
  3. Service tax had also increased to 12.3% and 14.5% and thus the buyers had to pay higher service tax. The complainant No.9 has contended that he is aggrieved of the monthly fee @ 3.90 per sq. ft. which he is required to pay to the Buyers Welfare Association which was formed unilaterally by the opposite party DLF Southern Homes Pvt. Ltd since this amount was not disclosed to the buyers at the time of booking of the apartment and thus is a hidden cost. Apart from this, a hidden cost of Rs.60,000/- extra  has also been slapped on the complainants on account of club house charges. It is further contended that the opposite parties are forcing the complainants to make payment to WHCAOWA which is a third and unrelated party, which is another example of restrictive trade practice adopted by the opposite parties.  Complainant No.9 was also coerced to pay sum of Rs.22,000/- to opposite parties’ advocate Dua Associates, which also amounts to restrictive trade practice.
  4. The opposite parties have also failed to provide visitors parking space in the complex which according to the local guidelines was 10% of the total parking space. It is further submitted that as per the recent judgment of Hon’ble Supreme Court the builders are supposed to provide free car parking and the opposite parties have violated the said judgment since they have charged the complainants for the car parking. Although under the ABA they have agreed to provide electricity and water on payment of Rs.1,50,000/- yet in final demand note issued alongwith letter of possession an additional amount of Rs.2 lakhs had been demanded per person in the name of water and electricity charges. In order to justify this demand they are relying on the certificate of Chartered Accountant dated 9.8.2014. The opposite parties are misusing clause 1.14, 1.15 and 23 (b) of the ABA and demanding extra amounts under garb of these clauses. This amounts to unfair trade practices. For adopting such practices the opposite parties have been reprimanded by several government agencies like SEBI. The opposite parties have also failed to act under Section 10 of the Karnataka Apartment Ownership Act, 1972. Though the charges payable to BBMP were included in the total price payable yet these charges have been raised again. It is contended that opposite parties have been penalized by BBMP for deviating from the original plan and this penalty amount has been fraudulently recovered from the buyers. It is further contended that the total saleable area which as per CA certificate dated 26th July, 2013 was 29,14,850 was shown to have reduced to 28,12,609 in second CA certificate dated 9.8.2014. This shows reduction in the saleable area of about 102,241 sq. ft. This reduction naturally leads to reduction in the individual flat area by 40 to 60 sq. ft. Despite this in the final demand notice issued to some of the complainants, the opposite parties have shown an increase in super area and have charged an extra amount of Rs.25.89 per sq. ft. After the possession of flats in D block had already been given to its allotttees and conveyance deeds executed and the owners of flats in D block had become owners of the undivided share in the land, the opposite parties continued to occupy and operate an office from that area without paying any rent to the owners of D block. It is contended that the owners of D block flats are entitled for the rent and the opposite parties be directed to pay monthly market rent to them. It is further contended that the opposite parties are charging property taxes form the buyers in gross violation of Section 6 of Karnataka Ownership of Flat Act. It is submitted that opposite parties are also raising extra charge for preferential location i.e. for flats having a view of club house, swimming pool and greenery. It is further contended that as per the approved building plan none of the flats are going to have a view of clubhouse, swimming pool and greenery and therefore it amounts to restrictive trade practices. In 2009, opposite parties committed a corporate social responsibility fund of Rs.100 lakhs to Karnataka State Fire and Emergency Services in order to build a fire station 2 km away from the project site. Thereafter they also submitted a Social Commitment plan to State Level Environment Impact Assessment Authority (SEIAA) which included the cost of Rs.100 lakhs towards fire station construction. A proportionate additional cost of Rs.110.34 lakhs was imposed on complainants vide CA certificate dated 9.8.2014 which is an unjustified additional cost.  When confronted they agreed to refund the amount to D block buyers and agreed not to charge it in future. This is an example to show that they had been caught red handed with a wrong doing. It is prayed that they should be restricted from charging any cost relating to Corporate social Responsibility (CSR) or Social Commitment or similar cost by whatever name called in future. Many of the allottees who took possession from September, 2014 onward, had noted number of major construction defects relating to seepage, elevator lifts, painting, internal roads, chipping, cracked plaster, water pipeline etc. These defects since came under the warranty of one year in terms of Section 7(3) of Karnataka Ownership of Flat Act, 1972 and were to be fixed at the cost of builder. The opposite parties had attended to those complaints and had removed the defects but they have not disclosed the sources of fund spent on fixing these defects. It is prayed that opposite parties be directed to furnish their audited/unaudited maintenance register and expense register from 2014-15 onwards. It is further contended that the allottees were charged the labour cess @ 1% on the cost of construction and once the cost of declared project is reduced, the extra money ought to have been refunded to the allottees but the same was not done. It is also contended that the opposite parties had promised to charge one time membership fee for the club house and it was already collected yet the opposite parties are demanding Rs.30,000/- plus Rs.7,000/- in the name of club house though no club house facilities have so far been provided to them. Payments were to be made in the name of “Westend Heights Condominium Apartment Owners Welfare Association” which has nothing to do with the club or the common area (CA) site. On these contentions it is prayed that the opposite parties be directed to refund the excess amount they had paid in proportion to the reduction in the overall project cost by 50.75% alongwith interest @ 24%. It is prayed that they be also directed to refund the tax which they have collected through the gateway of clause 1.10 with interest @ 24%. It is also prayed that they be directed to provide all the facilities and amenities as were promised in the brochure and in various advertisements without charging any additional sum/fee or in alternate to pay cost of Rs.10 lakhs to each of the complainants. It is also prayed that they be directed to refund the money which they had charged through the gateway of clause 1.14, 1.15 & 23 (b) alongwith interest @ 24% p.a. and also be restrained from invoking these clauses in future. It is also prayed that they be directed to pay interest @ 24% p.a for the period of delay in handing over the possession of the flat. It is also prayed that they be directed to pay sum of Rs.10 lakhs to each of the complainants towards mental harassment and agony. It is also prayed that opposite parties be directed to refund property tax which has been illegally charged alongwith interest @ 24% and also be restrained from charging property tax from them in future. The money collected towards car parking be also be refunded with interest @ 24% p.a. The fee which is charged for payment to Dua Associates be refunded alongwith interest @ 24% p.a. It is prayed that they shall also be directed to compensate them for the losses they had suffered on account of higher registration charges and guidance value alongwith interest @ 24% p.a. towards service tax and the extra amount fraudulently charged by way of BBMP and charged on account of increased in super area alongwith interest @ 24% p.a. It is further prayed that the extra amount fraudulently charged by way of BBMP betterment charges be ordered to be refunded alongwith interest @ 24% and they be also restrained from putting the burden of penalty imposed by BBMP on buyers. opposite parties be directed to pay market rent to the complainants for the land illegally used by the opposite parties. It is further prayed that the opposite parties be directed to refund the PLC charges alongwith interest @ 24%. The extra charges taken in the name of labour cess may ordered to be refunded alongwith 24% interest. The money taken in the name of association membership fee/subscription fee be ordered to be refunded and they be restrained from charging such fee in future and also from charging any cost relating to corporate social responsibility. It is also prayed that opposite parties be also directed to submit detailed calculations pertaining to the discrepancies in the original saleable area and new saleable area and the reasons to increase the super area in each flat and refund any amount charged in excess pertaining to the same. It is prayed that they be directed to disclose the source of fund for fixing each reported defect from 1.9.2014 onwards. It is prayed that opposite parties be directed to refund money collected in the name of club house and also be restrained from collecting any amount in future. Cost should also be awarded to the complainants and any other order which this Commission feels fit and proper be passed in interest of justice.
  5. The opposite parties have filed their written version. It is submitted that the complaint is vague, misconceived and is filed on baseless assumptions. It is submitted that the present complaint is not maintainable under Section 12(1) (c) of the Consumer Protection Act, 1986 since 339 complainants do not constitute homogeneous class having sameness of interest and entitlement to all the reliefs claimed in the amended complaint. It is submitted that the fact that there is no sameness in the relief claimed by the complainants is clear from the pleadings of the complainants.
  6. That the complainants had although omitted the prayer (o) which pertains to refund of the preferential location charges (PLC) in their application No.6662/2017 under Section 12(1) (c) of the Act, filed pursuant to the order dated 5.5.2017 yet they have retained the said prayer in their amended complaint. It is further submitted that the counsel for the complainants at the time of argument on application IA/6662/2017 on 30th October, 2017 had admitted that the relief for refund of PLC is not common to all the complainants and this fact was recorded in the order dated 21st November, 2017. It is submitted that in application IA/8083/2018 which was filed pursuant to order of Hon’ble Supreme Court dated 10.4.2018, in para-12, the complainants have admitted that the reliefs sought by them were not identical and therefore sought liberty of this Commission to move appropriate application seeking deletion of prayer- G, L, N, O, R, S & T from the complaint. However, the complainants failed to file any such application for deletion of these prayers. It is submitted that the fee paid to Dua Associates, was professional fee paid for preparation of conveyance deed, documents and finalizing and printing of the conveyance deeds, and for coordinating with the concerned officers relating to registration activities at Sub-Registrar’s Office, Bangalore including commissioning and coordinating with the lenders/bankers of the buyers/complainants for execution and registration of respective conveyance deeds. It is further submitted that all of 339 complainants have not paid/remitted the handling charges to Dua Associates. It is paid by those complainants who have executed the registered conveyance deed of their subject flats. It is further submitted that the prayer (e) of the complaint which relates to the compensation alongwith interest @ 24% for the period of delay in handing over of the possession of the apartment is not applicable to all the 339 complainants. It is submitted that out of 339 complainants, 278 complainants have accepted delayed compensation and 169 complainants out of 278 complainants have also executed the conveyance deed and thus have discharged their right to claim further compensation. It is contended that these persons are not entitled to any relief. It is further contended that the complainants Nos.164 and 174 i.e. Nikhel Jain and Reetika Jain purchased two properties in the same project being NWD2011 & NWA7105 and therefore they are not the consumers and cannot form part of the class seeking identical relief. It is further submitted that complainants Nos.224 and 240 is one person of the name Mahendra Manubhai Joshi who has purchased two properties in the same project – NWC3091 & NWC3095 and thus he cannot be considered as consumer. Since none of them have specifically pleaded/given reasons showing purpose of purchasing two different properties in the same block in the same project and they do not form the part of the same class. It is further contended that complainant Nos.268 and 273, is also one person of the name Kanwar Preet Singh Sachdeva who has also purchased two properties in the same project i.e. NWA3081 & NWA6144 without giving any reason/purpose and therefore, he is also not a consumer and cannot be considered as part of the class seeking identical relief. It is contended that the complainants neither have common interest nor they have common grievance and therefore common relief cannot be granted to all of them. It is contended that out of 339 complainants, 206 have executed they conveyance deeds. That complainant No.9 had executed conveyance deed on 13.3.2015 i.e. prior to filing the complaint and had accepted delayed compensation of Rs.1,28,760/- towards full and final settlement and thus is not entitled to any relief. It is contended that the  complainant Nos.2,4 to 7, 17, 25, 68, 72, 91, 100, 105, 109, 113, 114, 119, 122, 127, 129, 155, 167, 169, 170, 172, 175, 177, 179, 183, 185, 188, 190, 195, 202, 208, 213, 221, 222, 226, 227, 228, 230, 235, 237, 239, 245, 253, 270, 280, 288, 295, 302, 304, 313, 314, 317, 319, 322, 324, 329, 330 & 333 are not entitled to relief (E). It is further contended that many of the complainants are subsequent purchasers who purchased the apartment on resale and they were fully aware of the delay in delivery of the said apartments and thus they are not entitled to any relief. It is further contended that qua complainant Nos.2 and complainant No.4 the complaint is pre-mature since the transfer deed in their favour was executed on 30.7.2014 and 2.2.2013 respectively and thus the period of 36 months as per clause 11A of the agreement had not expired on the date of filing of the complaint. It is further contended that complainant Nos.2, 4, 7, 25, 26, 91, 114, 167, 175, 213, 230, 249, 288, 314, 333 & 335 are subsequent purchasers and therefore not entitled to any relief. It is further contended that complainant No.249 had executed the settlement deed for withdrawal of the present complaint. A list of such allottees is enclosed alongwith the written version as Annexure-OP/13. The list of the complainants who had received possession within stipulated period from the date of agreement is also annexed alongwith the written version as Annexure-OP/14. The list of complainants who have sold the property after filing of the impleadment application is also annexed as Annexure-OP/15. List of complainants who are subsequent purchasers from the original allottees is annexed as Annexure-OP/16. The affidavits of those allottees/complainants who had willingly accepted delayed compensation and have taken the possession of the apartment towards full and final satisfaction of all the contractual obligations of the opposite parties is annexued as Annexure-OP/17. It is further submitted that 66 complainants are engaged in commercial activities of renting out their apartments instead of self-use and are thus not consumers. It is further contended that list of 52 complainants who have executed settlement deeds and have settled the matter fully and finally is annexed as Annexure-OP/20. It is further contended that complainant No.213 has no privity of contract with the opposite partiesy. It is contended that property No.NWD2161 which complainant No.213 claims to be owned by him, is in the name of Jaishankar Sukmran Nair in the record of the opposite parties and thus he is not a consumer. It is further contended that the complainants have suppressed the material facts from the knowledge of this Commission. It is further contended that by raising the boggy allegations of unfair trade practices, the complainants are actually seeking the complete amendment/modification/re-writing of the terms of ABA. It is contended that the complainants are bound by the terms and conditions of the apartment buyer agreement with they had signed with open eyes and after understanding its terms. It is further contended that many of the complainants/original allottees have booked their flats only with the purpose of investment and that is why they had sold it to other persons, who cannot come before this Commission as complainants and so qua them the complaint is liable to the dismissed. It is further contended that the complainants had neither sought possession of the respective flats nor have  sought refund due to delay but have malafidely sought refund of other amounts paid in terms of ABA, being fully aware of the fact that the construction of 1830 apartment units have been completed and occupancy certificate have been issued by BBMP. It is contended that possession has been offered to all the allottees and out of 1830 apartment units, 1760 allottees have been taken possession of their respective flats and out of this 1500 allottees have executed sale deed and 1300 families are already residing therein. It is contended that these figures includes large number of complainants.
  7. It is further contended that the present complaint is barred by limitation. It is submitted that complaint was filed in August, 2015 while the cause of action for the relief sought arose more than two years prior to filing of the present complaint. It is further submitted that the complaint cannot be adjudicated in summary jurisdiction in view of the fact that the various allegations and reliefs claimed can only be dealt with effectively in the Civil Court. The factual allegations and the disputes require detailed evidence and consideration of facts and hence cannot be tried under Consumer Protection Act, 1986 by way of summary procedure. It is further submitted that the apartment buyers agreement contained clause 43 which relates to force majeure. It is submitted that the opposite parties have not commenced the construction of the project and had applied to the competent authority for requisite approvals in compliance of clause 9 of the agreement. BDA issued the work order for development of the project on 5.5.2009 to put up 440 units for G+4 floors. The building license was issued by BBMP for the said plan on 5.8.2009. It is submitted that thereafter with the consent of the parties, the opposite parties, revised their plan for modification for G+B+18/19 floors with 1830 units and accordingly the approvals were received on 3.3.2011 from BDA. Meanwhile, the BBMP had granted permissions for the commencement of the project work for building Nos.1 to 7 vide commencement certificates issued between 2010 and 2011. The project Westend Heights comprises of 1830 apartments in 19 towers with 18/19 floors in 7 buildings viz Building No.1 Comprising 2 towers also known as D1& D2 blocks Building No.2 comprising 4 towers also known as C1 to C4 blocks Building No.3 comprising 4 towers also known as B3 to B6 blocks Building No.4 comprising 3 towers also known as A5 to A7 blocks Building No.5 comprising 2 towers also known as A3 & A4 blocks Building No.6 comprising 2 towers also known as A1 & A2 blocks and Building No.7 comprising 2 towers also known as B1 & B2 blocks, in 19  towers developed in 26 acres 32.8 guntas of land.
  8. It is submitted that on 30.6.2011 due to carelessness and negligence of some labourers of the contractor, five workers working on a tower crane died and one was severely injured. On account of this unfortunate crane accident, the construction work activity at the site had stopped nearly for six months as the criminal case was registered against the employees of the opposite parties. However, vide order dated 5th December, 2014, all the accused were acquitted. It is further submitted that opposite parties had proposed to widen the road 850 meters in length at the entrance of the project from 40 ft. width to 80 ft. width in the interest of residents and general public to have better connectivity and ensure smoother flow of traffic and for that had contributed lands by way of registered relinquishment deed and also deposited Rs.4 crores with BBMP. The overall cost of Rs.50 crore was solely incurred by the opposite parties without financial burden on the allottees. On the false complaint filed by some people with vested interest, a complaint had been registered in the Court of Additional Civil Judge, Bangalore City bearing PCR No.59/2012. Filing of this complaint was challenged before Karnataka High Court in Criminal Petition No.7799/2012. The Karnataka High Court vide its order dated 25th October, 2016 quashed the said complaint. The Bangalore Metropolitan Task Force (BMTF) registered a criminal case No.203/2012 on a false complaint against the government officials of BDA, BBMP, Local MLA, Hiranandani Company and the opposite parties in alleging commission of offence under Section 119217218181197420read with Section 34 IPC and Section 320321 & 321 (b) of the Karnataka Municipal Corporation Act 1976 and Section 76 (FFF) of the Karnataka Town & Country Planning Act, 1961. The said FIR was quashed by the High Court of Karnataka vide its order dated 16th March, 2015 in Criminal Petition No.7480/2012. It is submitted that BMTF had seized the entire project approval master files from the office of the BBMP (Town Planning) as such BBMP was not considering any of the applications of the opposite parties for modification of plans or for issuance of occupancy certificate. In spite of continuous follow up & persuasion by opposite parties there was no progress. This act of the BBMP and BMTF was challenged by the opposite parties vide writ petition No.23689/2013 before the High Court of Karnataka seeking directions for return of the original file by BMTF and for consideration of their application dated 04.10.2012 by BBMP and the same was allowed by the Hon’ble High Court vide order dated 13.11.2013. Vide application dated 24.01.2014 the opposite parties had applied to BBMP for issuance of occupancy certificate. No communication from BBMP has been received even after four months and despite several inspections of the site and failure to find any deviation in the construction which was done as per the Rules & Regulations, BBMP did not issue the occupancy certificate. The opposite parties thereafter wrote a detailed letter dated 09.05.2014 to the Commissioner, BBMP requesting to consider their application for issuance of occupancy certificate. The Commissioner granted a partial occupancy certificate (POC) dated 18.06.2014 for buildings No.1 (i.e. D-1 & D-2 block consisting of 228 apartments). The opposite parties vide their application dated 15.05.2015, again applied to BBMP for issuance of occupancy certificate. The Commissioner had approved the issue of POC on dated 07.08.2015 for buildings 4, 5 & 6 having A1 to A7 blocks.

         It is further submitted that a writ petition No.36714/2015 was filed against the opposite parties before the High Court of Karnataka and vide order dated 01.09.2015 the High Court had restrained the opposite parties to from creating any third party interest in respect of certain properties. This prevented the opposite parties from creating any third party interest in the project despite the fact that the entire project had been sold and that registration of the sale deed in favour of purchasers was to be executed. Despite deposit of the cost of widening of the road in the year 2009, since BBMP was not widening the road, the Division Bench of the High Court directed the BBMP to complete the road work and submit the report. Thereafter the BBMP completed the road work and submitted a report before the High Court stating that all the sanctions and permissions granted to the opposite parties were in accordance with the law and there was no violation of any statutory provision by the opposite parties. Being satisfied, the interim order was vacated by the Hon’ble High Court vide its order dated 17.12.2016 and the writ petition was dismissed on 08.01.2017. This paved the way to the opposite parties to pursue for issuance of occupancy certificate and to hand over the possession and execute conveyance deeds. It is submitted that despite the fact that the construction of all the units had been completed in time, the offer of possession got delayed due to these litigations and for the reasons beyond the control of the opposite parties. The opposite parties had made every endeavor for timely delivery of the possession. The opposite parties had made an application dated 05.09.2015 to BBMP for grant of occupation certificate which was held up due to the pendency of said writ petition. Another application dated 21.01.2016 was also filed before BBMP requesting them to consider their application dated 05.09.2015 for issuance of final occupancy certificate. Some of the complainants including complainant No.2 Kartikeya Khanna made malafide representations to BBMP for not issuing the occupancy certificate and this further delayed the process. On the complaint of Kartikeya Khanna, complainant No.2 a show cause notice dated 24.2.2016 was issued by BBMP to opposite parties which was duly replied vide reply dated 10th March, 2016. After constant follow-ups with BBMP and despite the objections of some of the complainants, finally the occupation certificate Tower B & C was issued on 25th July, 2016. It is submitted that the opposite parties had been diligently making all the efforts to allot the subject flats but it is due to these circumstances which were beyond its control that the delay had occurred.

  1. It is contended that there is no deficiency in service on the part of the opposite parties. It is further contended that the opposite parties have not adopted any unfair or restricted trade practices and have acted strictly in terms of ABA. It is contended that compensation can be granted only in terms of Section 14(1) (d) and since no injury or loss has been suffered by the complainants, they are not entitled to any relief. It is further submitted that complaint has been filed under Section 12 (1) (c) of the Act with the intention to invoke the jurisdiction of this Commission. It is further submitted that the relief claimed by the complainants are in the form of specific relief and such prayers are beyond the jurisdiction of this Commission. It is further submitted that complainants have not come to this Commission with clean hands. They have not disclosed the details of the defaults made by them and they have suppressed the material facts.

 

  1. The opposite parties have already completed the construction and received occupation certificate of all the apartments in 19 towers comprising of 7 buildings. The proper water connection from BWSSB and electricity supply from BESCOM is in place and full housekeeping and maintenance services are being provided through leading multinational company namely Jones Lang Lasalle (JLL). It is submitted that the interest of the customers has been kept in mind and several steps have been taken to provide better accommodation and better services. The opposite parties bore the expenses relating to broadening of the road of project and constructed about 600 meters of road within their project site which would effectively link Bannerghata road with electronic city thereby reducing the distance by 7 to 8 kms. The urban development department had given approval vide order dated 04.02.2012 of the said realignment of the CDP road sought by the opposite parties. The opposite parties  have also established at  their expenses, as a CSR measure, a fire station in Begur on behalf of the fire service department at the cost of around Rs.1.50 crores which is going to benefit the complainants/residents as well as public residing nearby. The opposite parties will also be establishing a club on Civic Amenities area and hand it over to the residents. It is submitted that as per the prevailing norms the residents/association has to pay BDA annual lease rental towards the use of the site and this amount is fixed at Rs.65,20,777/- in annual installments of Rs.3,59,66,781/-. Although the liability was that of the residents/association, the opposite parties took the burden of the same and thus have saved the residents from such a huge burden. It is also submitted that there is a substantive escalation/appreciation in the price of the apartment by 42% to 135% in the last 5 to 6 years. The prayer clause (b) has been totally denied by the opposite parties. It is denied that they had collected money from the buyers in the name of taxes using clause 1.10. It is submitted that opposite parties had neither defaulted in paying taxes nor the money has been used for earning extra income. It is submitted that averments in the complaint are contrary to the correct position.
  2. As regards the prayer (c) of the complaint is concerned, it is submitted that once the township would be developed the same will have all the facilities. It is submitted that Westend Heights is only one part of the said new town. It is submitted that the club which is to be developed in the said complex, would have all the facilities like swimming pool, gymnasium etc. It is submitted that the club was to be developed in CA area (Civic Amenity area). It is contended that the delay in construction of club has occurred due to inordinate delay on the part of the BDA in handing over the CA area. The opposite parties had filed a writ petition No.11380-11381/2015 before the High Court of Karnataka and finally pursuant to the directions dated 29.06.2015 of the Hon’ble High Court of Karnataka, CA site had been directed to be handed over and plan approval for the construction of Club building was applied to BBMP and the same is awaited. BBMP further delayed sanction of the plan and instead asked the opposite parties to submit Katha Certificate, Katha Extract and property tax paid receipts in respect of the said CA area. Opposite parties vide letter dated 11.03.2016 and reminder dated 31.3.2016 and 7.05.2016 requested BDA to furnish Katha Certificate, Katha extract and property tax paid receipts. Allottees of the project through their association vide letters dated 08.06.2016 and 20.06.2016 also requested the BDA to furnish Katha Certificate, katha extract and property tax paid receipts. The opposite parties on non-receipt of the documents from BDA filed writ petition No.44282/2016 before the Karnataka High Court seeking quashing of the endorsement letter dated 08.03.2016 and directions to consider their application dated 14.08.2015. The Karnataka High Court vide its order dated 18th October, 2016 quashed the endorsement dated 8th March, 2016 being superfluous and directed BBMP to consider the opposite parties’ application for sanction of the plan for construction and development of the 5% area of the land within a period of one month. BBMP vide letter dated 20.04.2017 demanded a sum of Rs.3,68,000/- towards Karnataka Building & other Construction and Workers Welfare Board and Rs.12,60,000/- towards issue of approval for construction of club house respectively and in compliance the opposite parties immediately by 28.04.2017 deposited the amount. It is submitted that the club building and facilities is at its completion stage. It is  contended that during this period as an interim measure, Gym, TT, Library and other facilities were provided by the opposite parties to the allottees. It is further contended that school, commercial complex and health clinic are part of the new town project and these facilities with existing population cannot be sustained. With regard to prayer (d) it is submitted that all the demands were made directly in terms of the agreement and not otherwise. That sum of Rs.1,50,000/- towards water and electricity are not inclusive of total sale price and are payable by the allottee as and when demanded by the opposite parties in accordance with the terms of agreement. It is denied that additional sum of Rs.2 lakhs approximately had been demanded per person in the name of water and electricity.
  3. On the claim of the complainants regarding the compensation for delay, it is submitted that in terms of clauses 11 and 43 of the agreement in case of any delay in handing over the possession of the apartment to the complainants, the opposite parties are liable to pay compensation @ Rs.5/- per sq. ft. of the super area of the apartment per month for the period of such delay beyond 36 months. It shall be done only at the time of conveyancing the said agreement. It is submitted that the apartment buyer agreement had been signed by the complainants on their own freewill and after understanding each and every clause and no force or coercion was used against them and thus it cannot be said that the opposite parties had indulged in the unfair or restricted trade practice.
  4. It is contended by the opposite parties that the taxes have been demanded in terms of clause 1.10 and clause 2 of the agreement. It is further submitted that the ABA clearly describes the taxes which shall be levied and are payable. It is submitted that the contention that the opposite parties are benefiting itself by collecting taxes is misconceived. It is submitted that there have been no defaults in depositing the taxes by the opposite parties and the compleaintnas are misconstruing the input tax with output tax and raising false and frivolous issue. It is submitted that the issue of applicability of output tax on the builders was clarified by the  Hon’ble Supreme court vide its judgment in the matter of M/s Larsen & Turbo Ltd. & Anr. Vs. State of Karnataka & Anr. 2013 -VIL-03-SC-LB (L&T) and therefore the opposite parties had to revise its tax returns filed earlier and an additional levy of tax was made. The CA certificate dated 09.08.2014 clearly describes the said eventuality. It is further submitted that
  5. It is submitted that the visitor’s car parking area has been provided as per the approval of development plan/building plan by BDA and BBMP. It is submitted that as per the prevailing building Bylaws of BBMP and Rules & Regulations of revised master plan of 2015, 10% of the visitor car parking has been provided to the residents of the project. It is further submitted that the opposite parties have not acted against the judgment of Hon’ble Supreme Court by charging for the car parking. The parking space is not sold to any of the allottees but has been merely allotted to the allotees for the “exclusive right to use” in compliance of clause 1.16 of the agreement i.e. as per the contractual obligation of the opposite parties.
  6. It is further submitted that the opposite parties have not demanded any additional money from the complainants in the name of BBMP betterment charges twice. It is submitted that the charges have been raised in terms of the agreement which permits the opposite parties to raise the demands from the allottes wherever there is any demand or increase in EDC imposed by the Government of Karnataka. It is submitted that as per the terms & conditions of ABA the price of the flat was not inclusive of IDC/EDC and the same was payable as per the demands.
  7. It is submitted that the opposite parties have paid charges to BBMP for excess built up area. It was agreed that if there is an increase in the area, the additional payment has to be paid by the allottees to the opposite parties and in case there is decrease in area, then money would be refunded to the allottees. It is further submitted that the difference in saleable area as reflected in CA certificate was due to the fact that the opposite parties had abandoned the construction of 92 apartments in the said complex. In first CA certificate 26th July, 2013 it is admitted that the total saleable area was 29,14,850 sq. ft. and at that time opposite parties had endeavoured to construct additional 92 apartments in the complex after obtaining the necessary approval. However, that plan could not be materialized and was given up and thereafter in the 2nd CA certificate dated 09.08.2014the total saleable area was reduced. It is denied that opposite parties have charged for increase in the super area from the complainants despite reduction in the super area. The demands have been raised strictly as per the agreement. It is contended that there is no merit in this claim and it is liable to be rejected.
  8. It is submitted that a temporary structure was raised at the cite for execution of the work and to facilitate the construction, supervision and handing over of the apartments. The same has now been demolished. This allegation is clear example of frivolous and concocted story by the complainants. The opposite parties have their own office for all its commercial activities in Bangalore which is located in Vinyas Mansion, Bangalore.
  9. With regard to the preferential location charges, (PLC) it is submitted that it was a matter of contractual understanding and was in terms of the agreement. It is submitted that these charges are not levied on all the complainants and this clearly shows that there is no communality of grievances between the complainants.
  10. With regard to the claim for refund of labour welfare tax, it is submitted that Labour Welfare Tax is payable at the time of approval on the estimates and the estimates of the cost has been on increase during implementation. It is submitted that the estimated cost as submitted to SEIAA was at Rs.536 crores and not Rs.264 crores as alleged.
  11. It is submitted that the claim of the complainants that the opposite parties had adopted unfair restrictive trade practices since it had asked the complainants to execute maintenance agreement at the time of handing over the apartment, with association for maintenance, upkeep and repair the apartment/project is baseless. It is submitted that it has been done strictly in terms of clause 16 of ABA.
  12. It is denied that the opposite parties had wrongly collected the proportionate cost of fire station from buyers vide a CA certificate dated 9.8.2014. It is submitted that this facility has been originally envisaged as a social commitment by way of CSR in the plan to SEIAA at a cost of Rs.100 lakh for construction of the same. It was later advised that the same was not within the scope of CSR and hence it was included under CA certificate. As a matter of goodwill the amount which was collected was refunded to the apartment buyers and it is wrong to say that it was done on the demand of apartment buyers.
  13. It is submitted that the defects had occurred on account of meddling of the apartments, pipeline etc. by the allottees while doing the interior work or modifications in their apartments. The opposite parties had done the repairs using its own funds and not from the maintenance charges. It is submitted that demanding the source of funds spend on such repairs from 2014 onwards is totally unwarranted. The maintenance responsibility as agreed, was carried out by WHCAOWA who is incharge of maintenance expenses, receipts and in this complaint such direction against the opposite parties cannot be raised.
  14. It is submitted that the club after construction will, in terms of conditions stipulated in the agreement, be handed over to the Association of members. It is contended that charges for lifetime membership would be in terms of the stipulations in the lease issued by BDA. It is further submitted that the charges of Rs.30,000/- and Rs.7,000/- towards two years membership and one year subscription has been raised as per the decisions of WHCOWA an association of the apartments owners, and the opposite parties have nothing to do with it. The said amount is also payable to WHCOWA as per the final demand notice and the money is not required to be paid to the opposite parties.
  15. It is submitted that the contents of the complaint are in contrast to the terms of ABA and are false and frivolous. It is contended that though in terms of clause 11 & 43 of ABA the possession of the apartments was to be handed over within 36 months, but the time was not the essence of the contract. It was for the reason beyond the control of the opposite parties that the possession could not be delivered within the stipulated period despite their best endeavours. Despite the fact that the construction was complete, possession could not be handed over due to the interim order against the opposite parties dated 1.9.2015 in writ petition No.367145/2015.  The opposite parties in their written statement had given details of individual complainant which includes the date on which the complainants had executed the apartment buyer agreement (ABA), the date of possession as per ABA, date of offer of possession, date of OC, the amount of compensation credited in the accounts of the individual complainant, calculated as per ABA and also the date on which the possession was taken by the complainant, including the date on which the matter was settled with the complainants.
  16.     It is submitted that complainants at serial No.1, namely, Rasheed Ahmad Usmani and Absa Rasheed Usmani, for apartment No. NWC 1123 executed the ABA on 07.12.2009. The possession was to be handed over to them by 07.12.2012.  Possession was offered to them on 12.8.2016 after the OC was obtained on 25.7.2016.  After the amount of Rs.2,93,007/- towards delay compensation as per ABA was credited in their account, the complainants took the possession of the subject property on 14.11.2016.
  17.     The complainants at Serial No. 2, namely, Kartikeya Khanna and Mrs. Shivi Khanna are the subsequent allottees to whom the apartment No.NWB6101 was allotted and the ABA was executed on 30.07.2014.  The possession was to be handed over to them on 30.07.2017.  Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  It is submitted that complainants are not eligible for delay compensation since there is no delay in handing over the possession.  The complainants took the possession of the subject property on 07.09.2016. 
  18.    The complainants at Serial No. 3, namely, Wg. Cdr. Arifur Rahaman Khan and Aleya Sultana booked the apartment No. NWB6046 and executed the ABA on 03.11.2009. The possession was to be handed over to them by 03.11.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  The compensation amount of Rs.2,98,293/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 15.12.2016.
  19.    The complainants at serial No. 4, namely, Gaurab Banerjee and Suchismita Banerjee are the subsequent allottees to whom the apartment No.NWB 1042 was allotted on 02.12.2013 and they executed the ABA on  02.12.2013.  The possession was to be handed over to them by 02.12.2016. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  It is submitted that there is no delay in handing over the possession by them.  They are therefore not entitled for delay compensation. 
  20.    The complainants at Serial No. 5, namely, Dr. Shankaranand Siddappa Bharatnur and Dr. Rashmi Vasanth booked the apartment No.NWB 6182 and executed the ABA on 08.07.2011.   The possession was to be handed over to them by 08.07.2014. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  According to opposite parties, they are not eligible for compensation as per ABA. 
  21.    The complainant at Serial No. 6, namely, Subramanian Vaidyanathan booked apartment No.NWC-4055 and executed the ABA on 25.02.2010.  The possession was to be handed over to him by 25.02.2013.  Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  According to opposite parties, he is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 22.09.2016.
  22.    The complainant at Serial No. 7, namely, Kundan Banwal is the subsequent allottee to whom the flat no.NWC 1046 was allotted on 17.03.2012 and he executed the ABA on 17.03.12.   The possession was to be handed over to him by 17.03.2015.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  According to opposite parties, he is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 16.11.2016.
  23.    The complainants at Serial No. 8, namely, Wg. Cdr. Sarfroz Uddin and Mrs. Saira Parveen booked the apartment No. NWB 2011 and executed the ABA on 14.10.2009.  The possession was to be handed over to them by 14.10.2012.  Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,02,539/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 14.11.2016.
  24.    The complainants at Serial No. 9, namely, Ajay Bangaragiri and Vijayalakshmi HS booked apartment No.NWD 1111 and executed the ABA on  31.03.2010.  The possession was to be handed over to them by 31.03.2013. Possession was offered to them on 04.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,28,760/- towards delayed compensation as per ABA was credited in their account, thereafter only they took possession of the subject property on 31.10.2014.
  25.    The complainant at Serial No.10, namely, Tirthankar Das booked apartment No.NWA 7051 and executed the ABA on 22.07.2009.  The possession was to be handed over to them by 22.07.2012.  Possession was offered to them on 11.01.2016   after the OC was obtained on 07.08.2015.  The amount of Rs.3,18,503/- towards delayed compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 01.06.2016.
  26.    The complainants at Serial No. 11, namely, Modin Bude Shaik and Asifa Siddiqua booked apartment No.NWD 1115 and executed the ABA on 20.04.2010.   The possession was to be handed over to them by 20.04.2013. Possession was offered to them on 29.09.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,23,395/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 24.11.2014.
  27.    The complainants at Serial No.12, namely, Aravinda R Kolekar and Abhisheka Shrivastava   booked apartment No.NWA 5046 and executed the ABA on 14.08.2009.   The possession was to be handed over to them by 14.08.2012.  Possession was offered to them on 07.01.2016 after the OC was obtained on 07.08.2015. After the amount of Rs.2,66,292/- towards delay compensation as per the ABA was credited in their account and thereafter only they took the possession of the subject property on 01.03.2016.
  28.    The complainant at Serial No. 13, namely, Nitin Jain booked apartment No.NWA 7084 and executed the ABA on 25.08.2009.  The possession was to be handed over to them by 25.08.2012. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,06,593/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.04.2016.
  29.    The complainants at Serial No. 14, namely, Vikash Kumar Sinha and Kirti Satish Srivastava booked apartment No. NWA 4065 and executed the ABA on 12.08.2009.   The possession was to be handed over to them by 12.08.2012.  Possession was offered to them on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,12,001/- towards delay compensation as per the ABA was credited in their account and thereafter only they took the possession of the subject property on 16.02.2016.
  30.    The complainant at Serial No. 15, namely, Madhusudhan Pattnaik booked apartment No. NWA 2143 and executed the ABA on 12.01.2009.  The possession was to be handed over to them by 12.01.2012.  Possession was offered to them on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,61,061/- towards delay compensation as per the ABA was credited in his account and thereafter only he took the possession of the subject property on 20.08.2016.
  31.    The complainants at Serial No. 16, namely, Atul Kumar Bhandari and Anu Bhandari booked apartment No. NWA 1084 and executed the ABA on 23.07.2009.  The possession was to be handed over to them by 23.07.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,15,555/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 05.10.2016.
  32.    The complainant at Serial No. 17, namely, B. A. B. Rajesh booked apartment No. NWC 1176 and executed the ABA on 01.04.2011. The possession was to be handed over to them by 01.04.2014.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  He is not eligible for compensation as per ABA.  The complainant took the possession of the subject property on 29.10.2016.
  33.    The complainants at Serial No. 18, namely, Palak Shah and Hetal Shah booked apartment No. NWC 2142 and executed the ABA on 23.01.2010.   The possession was to be handed over to them by 23.01.2013.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,59,319/- towards delay compensation as per the ABA was credited in their account and thereafter only they took the possession of the subject property on 14.09.2016.
  34.    The complainants at Serial No. 19, namely, Annamalai Samy S and Sumathi booked apartment No. NWA 7015 and executed the ABA on 09.01.2012.   The possession was to be handed over to them by 09.01.2015. Possession was offered to them on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.71,580/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 12.03.2016.
  35.    The complainant at Serial No. 20, namely, Sivakumar M booked apartment No. NWB 6033 and executed the ABA on 26.07.2009.  The possession was to be handed over to them by 26.07.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,24,595/- towards delay compensation as per ABA was credited in his account and thereafter only he took possession of the subject property on 04.10.2016.
  36.    The complainant at Serial No. 21, namely, Hariharan Kolam booked apartment No.NWA 2025 and executed the ABA on 24.08.2009.  The possession was to be handed over to him by 24.08.2012.  Possession was offered to him on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,08,722/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 29.04.2016.
  37.    The complainant at Serial No. 22, namely, Pramod K Nanjundaiah booked apartment No. NWB 6176 and executed the ABA on 13.06.2011.   The possession was to be handed over to them by 13.06.2014.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,61,176/- towards delay compensation as per ABA was credited in his account and thereafter only he took possession of the subject property on 22.09.2016.
  38.    The complainant at Serial No. 23, namely, Suraj Desai booked apartment No. NWC 4152 and executed the ABA on 29.10.2010.   The possession was to be handed over to him by 29.10.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,12,844/- towards delay compensation as per ABA was credited in his account and thereafter only he took possession of the subject property on 19.09.2016.
  39. The complainants at Serial No. 24 namely, Ravinder Kumar Sharma and Aruna Sharma booked apartment No. NWB 3093 and executed the ABA on 21.08.2009.  The possession was to be handed over to them by 21.08.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.4,18,403/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 07.12.2016.
  40.    The complainants at Serial No.25, namely, Ravi Sankararao Buddha and Tulasi Buddha are the subsequent allottees to whom apartment No. NWD 2115 was allotted on 12.02.2013 and executed the ABA on 12.02.2013.  The possession was to be handed over to them by 12.02.2016.  Possession was offered to them on 07.10.2014 after the OC was obtained on 18.06.2014.   It is submitted that Complainant is not eligible for compensation since there is                    no delay in handing over the possession.  The complainants took the possession of the subject property on 28.11.2014.
  41.     The complainants at Serial No. 26 namely, Praveen Kumar Tupati Jagannath booked apartment No. NWD 1143 and executed the ABA on 19.03.2010.   The possession was to be handed over to him by 19.03.2013.  Possession was offered to him on 01.10.2014  after the OC was obtained on 18.06.2014.  After the amount of Rs.35,847/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.12.2014.
  42.    The complainants at Serial No. 27, namely, Ganesh P and Rajamathangi S booked apartment No. NWA 4014 and executed the ABA on 07.08.2009.   The possession was to be handed over to them by 07.08.2012.   Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,11,481/- towards delay compensation as per ABA was credited in their account and thereafter only they took possession of the subject property on         29.02.2016.
  43.    The complainants at Serial No. 28 namely, Surajit Sen and Tabassum Sen booked apartment No. NWB 1173 and executed the ABA on 29.07.2010.  The possession was to be handed over to them by 29.07.2013.  Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.   After the amount of Rs.2,37,848/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 22.10.2016.
  44.    The complainant at Serial No.29, namely, Sandip Panigrahi booked apartment No.NWB 2164 and executed the ABA on 02.12.2010. The possession was to be handed over to them by 02.12.2013.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,85,648/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 25.11.2016.
  45.    The complainants at Serial No. 30 namely, S. Jayashree booked apartment No. NWC 3042 and executed the ABA on 23.07.2009.  The possession was to be handed over to him by 23.07.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,99,214/-  towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 17.11.2016.
  46.    The complainant at Serial No. 31, namely, Ramakrishnan Kumarasamy booked apartment No. NWA 2041 and executed the ABA on 20.07.2009.   The possession was to be handed over to him by 20.07.2012.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,19,050/- towards delay compensation as per ABA was credited in their account and thereafter only he took the possession of the subject property on 02.04.2016.
  47.    The complainant at Serial No. 32, namely, Harish Maheshwari booked apartment No. NWB 1182 and executed ABA on  28.10.2010.  The possession was to be handed over to him by 28.10.2013.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,13,077/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 25.10.2016.
  48.    The complainants at Serial No.33, namely, Sheethal Bhat and Karthik Kayyar booked apartment No.NWA 3122 and executed the ABA on 25.05.2010.  The possession was to be handed over to them by 25.05.2013. Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,66,931/- towards delay compensation as per ABA was credited in their account and thereafter only they took possession of the subject property on 09.04.2016.
  49.     The complainant at Serial No.34, namely, Dr. Virendra Kumar booked apartment No. NWC 4034 and executed the ABA on 20.07.2009.  The possession was to be handed over to him by 20.07.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,90,771/- towards delay compensation as per ABA was credited in his account and thereafter only he took possession of the subject property on 05.11.2016.
  50.    The complainant at Serial No. 35, namely, Rajesh Shivaji Sawant booked apartment No. NWB 4126 and executed the ABA on 15.02.2010.  The possession was to be handed over to him by 15.02.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,74,000/- towards delay compensation as per ABA was credited in their account and thereafter only he took possession of the subject property on 04.10.2016.           
  51.    The complainants at Serial No. 36, namely, Satya Narayana Chivukula and Sobha Kalyani Chivukula booked apartment No. NWB 1102 and executed the ABA on 25.09.2009.  The possession was to be handed over to them by 25.9.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.3,05,456/- towards delay compensation as per ABA was credited in his account and thereafter only they took possession of the subject property on 17.10.2016.
  52.    The complainants at Serial No. 37, namely, Girish S Padasalagi and Supriya Surendra Mahipati booked apartment No. NWA 2091 and executed the ABA on 19.08.2009.  The possession was to be handed over to them by 19.08.2012.  Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,10,835/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 25.03.2016.
  53.    The complainant at Serial No. 38, namely, Atul Jain booked apartment No. NWA 7083 and executed the ABA on 23.10.2009.  The possession was to be handed over to him by 23.10.2012.  Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,85,118/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.04.2016.
  54.    The complainant at Serial No.39, namely, Yuvraj Vilas Sankeshwari booked apartment No. NWC 2122 and executed the ABA on 12.01.2010.  The possession was to be handed over to them by 12.01.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,61,704/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 23.09.2016.
  55.    The complainant at Serial No. 40, namely, Shashikant Raghunath Shinde booked apartment No. NWA 1171 and executed the ABA on 11.02.2010.      The possession was to be handed over to him by 11.02.2013.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,62,635/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.04.2016.
  56.    The complainants at Serial No. 41, namely, Anupkumar Shetty and Shruthi Rai booked apartment No. NWB 3084 and executed the ABA on 29.07.2009.  The possession was to be handed over to them by 29.07.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.4,27,559/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 25.11.2016.
  57.    The complainants at Serial No. 42, namely, Vishal Aggarwal and Poornima Vishal Aggarwal booked apartment No. NWA 7056 and executed the ABA on 21.08.2009.  The possession was to be handed over to them by 21.08.2012.  Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,11,032/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 26.03.2016.
  58.    The complainants at Serial No. 43, namely, Kanageswaran Radhakrishnan and Pavithra Subbiah booked apartment No. NWB 6073 and executed the ABA on 20.08.2009.  The possession was to be handed over to them by 20.08.2012.  Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,18,702/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 17.11.2016.
  59.    The complainants at Serial No. 44, namely, Sanjeev Kumar and Shruti Kumari booked apartment No. NWB 2183 and executed the ABA on 14.12.2010.  The possession was to be handed over to them by 14.12.2013. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,05,317/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 24.09.2016.
  60.    The complainants at Serial No. 45, namely, Siddharth Kuchimanchi and Parul Mittal booked apartment No. NWC 2015 and executed the ABA on 28.12.2010.  The possession was to be handed over to them by 28.12.2013.   Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,41,744/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 05.10.2016.
  61.    The complainant at Serial No. 46, namely, Rakesh Karolil Raman booked apartment No. NWD 1042 and executed the ABA on 14.10.2009.  The possession was to be handed over to them by 14.10.2012.  Possession was offered to them on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,57,138 towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 31.10.2014.
  62.    The complainants at Serial No. 47, namely, Ranjeet Kumar and Nayan Patil booked apartment No. NWA 7062 and executed the ABA on 30.07.2009.     The possession was to be handed over to them by 30.07.2012.  Possession was offered to them on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,14,603/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on   15.03.2016.
  63.    The complainants at Serial No.48, namely, Jeril Jacob George and Rinu Joy booked apartment No. NWB 1175 and executed the ABA on 20.07.2011.    The possession was to be handed over to them by 20.07.2014.  Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,51,460/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 04.10.2016.
  64.    The complainants at Serial No. 49, namely, Shajith Chandran and Pratibha Singh booked apartment No. NWA 2121 and executed the ABA on 26.08.2009.  The possession was to be handed over to them by 26.08.2012.   Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,08,917/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 26.04.2016.
  65.    The complainants at Serial No. 50, namely, Kolappan S booked apartment No. NWA 6054 and executed the ABA on 17.08.2009.  The possession was to be handed over to him by 17.08.2012.  Possession was offered to them on 12.01.2016  after the OC was obtained on 07.08.2015.  After the amount of Rs.3,53,809/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on          07.04.2016.
  66.    The complainants at Serial No. 51, namely, Soumilak Das and Gayathri Das booked apartment No. NWB 6023 and executed the ABA on 24.07.2009. The possession was to be handed over to them by 24.07.2012.  Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,25,066/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on   26.12.2016.
  67.    The complainants at Serial No. 52, namely, Mohit Mittal booked apartment No. NWC 2082 and executed the ABA on 24.02.2010.  The possession was to be handed over to him by 24.02.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,52,381/- towards delay compensation as per ABA was credited in his account and thereafter only he took possession of the subject property on 02.12.2016.
  68. The complainants at Serial No. 53, namely, Aravinda Tegginamath and Nirmala Boreddy booked apartment No. NWA 2163 and executed the ABA on 09.03.2010.  The possession was to be handed over to them by 09.03.2013. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,48,613/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 03.05.2016.
  69.    The complainants at Serial No. 54, namely, Narayanan Parthasarthy Vangal and Mrs. Vydehi Narayanan booked apartment No. NWA 5164 and executed the ABA on 11.02.2010.  The possession was to be handed over to them by 11.02.2013. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,01,626/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 11.04.2016.
  70.    The complainants at Serial No.55, namely, B Ravindra and Rekha Kudligi booked apartment No. NWA 3164 and executed the ABA on 27.01.2011.  The possession was to be handed over to them by 27.01.2014.  Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.1,89,507/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 04.04.2016.
  71.    The complainants at Serial No. 56, namely, Nunna Harish Babu booked apartment No. NWC 2063 and executed the ABA on 10.07.2009.  The possession was to be handed over to him by 10.07.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,99,285/- towards delay compensation as per ABA was credited in his account and thereafter only he  took the possession of the subject property on 03.10.2016.
  72.    The complainants at Serial No. 57, namely, Prakash Vel G. and Pratha Prakash Vel booked apartment No. NWC 3151 and executed the ABA on 28.03.2011.  The possession was to be handed over to them by 28.03.2014.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,16,357/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 11.11.2016.
  73.    The complainants at Serial No. 58, namely, Sakhawat Hussain and Farhat Sabba booked apartment No. NWA 1102 and executed the ABA on 17.08.2009.    The possession was to be handed over to them by 17.08.2012.  Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,09,700/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on   11.06.2016.
  74.     The complainant at Serial No. 59, namely, Sachin Makkar, booked apartment No. NWB1162 and executed the ABA on 12.03.2010.  The possession was to be handed over to him by 12.03.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,66,462/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 09.10.2017.
  75.     The complainants at Serial No. 60, namely, Arup Kumar Mallick and Bratati Mallick, booked apartment No. NWC2042 and executed the ABA on 24.03.2010.  The possession was to be handed over to them by 24.03.2013. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,46,310/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants  took the possession of the subject property on 17.09.2016.
  76. The complainant at Serial No. 61, namely, Priyank Nautiyal, booked apartment No. NWC4123 and executed the ABA on 18.12.2009.  The possession was to be handed over to him by 18.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,90,414/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.10.2016.
  77.     The complainant at Serial No. 62, namely, Virender Singh, booked apartment No. NWA4033 and executed the ABA on 20.08.2009.  The possession was to be handed over to him by 20.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,02,172/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 04.04.2016.
  78.    The complainants at Serial No. 63, namely, Naveen Khatri and Neha Khatri, booked apartment No. NWC3065 and executed the ABA on 08.10.2011.  The possession was to be handed over to them by 08.10.2014.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,61,633/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 19.11.2016.
  79.    The complainant at Serial No. 64, namely, Venkatraman Thyagarajan, booked apartment No. NWC3081 and executed the ABA on 23.02.2011.  The possession was to be handed over to him by 23.02.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,25,666/- towards delay compensation as per ABA was credited in his account and thereafter only he  took the possession of the subject property on 28.10.2016.
  80.    The complainant at Serial No. 65, namely, Muthu Kumar S, booked apartment No. NWA2116 and executed the ABA on 14.08.2009.  The possession was to be handed over to him by 14.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,12,953/- towards delay compensation as per ABA was credited in his account and thereafter only he took possession of the subject property on 07.03.2016.
  81.    The complainants at Serial No. 66, namely, Pawan Vilas Sankeshwari and Sarika Pawan Sankeshwari, booked apartment No. NWA2066 and executed the ABA on 26.08.2009.  The possession was to be handed over to them by 26.08.2012.  Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,09,659/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 02.05.2016.
  82.    The complainants at Serial No. 67, namely, Aditya Pathania and Shweta Mehta, booked apartment No. NWC1185 and executed the ABA on 21.05.2011.  The possession was to be handed over to them by 21.05.2014.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,65,377/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 09.11.2016.
  83.    The complainants at Serial No. 68, namely, Sri Visnu Nadam and Vijaylakshmi Viswas, booked apartment No. NWA3092 and executed the ABA on 03.09.2010.  The possession was to be handed over to them by 03.09.2013. Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainants are not eligible for compensation. The complainants took the possession of the subject property on 22.04.2016.
  84.    The complainants at Serial No. 69, namely, Rupam Jha and Mihir Shankar Jha, booked apartment No. NWA1151 and executed the ABA on 15.12.2009.  The possession was to be handed over to them by 15.12.2012. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015. After the amount of Rs.2,78,519/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 09.04.2016.
  85.    The complainants at Serial No. 70, namely, Gopi Krishna B V and Shubha Bellave, booked apartment No. NWA4113 and executed the ABA on 04.08.2009.  The possession was to be handed over to them by 04.08.2012. Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,06,436/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 26.02.2016.
  86. The complainant at Serial No. 71, namely, Rakeshkumar Sadhubhai Patel, booked apartment No. NWB2091 and executed the ABA on 24.11.2009.  The possession was to be handed over to him by 24.11.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  The amount of Rs.2,92,975/- towards delay compensation as per ABA was credited in his account. The complainant has not yet taken the possession.
  87.   The complainants at Serial No. 72, namely, Rahul Maheshwari and Vidhu Maheshwari, booked apartment No. NWC2104 and executed the ABA on 09.03.2010.  The possession was to be handed over to them by 09.03.2013. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainants are not eligible for compensation.  The complainants took the possession of the subject property on 31.12.2016. They have sold their subject flat to a third party on 09.08.2018.
  88.   The complainant at Serial No. 73, namely, Anurag Dwivedi, booked apartment No. NWB1154 and executed the ABA on 24.02.2010.  The possession was to be handed over to him by 24.02.2013.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,44,727/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.09.2016.
  89.   The complainant at Serial No. 74, namely, Darpan Hongal, booked apartment No. NWD2016 and executed the ABA on 19.11.2009.  The possession was to be handed over to him by 19.11.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,49,181/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.11.2014.
  90.   The complainants at Serial No. 75, namely, Mogishuddin Raza and Afshan Naz, booked apartment No. NWA7183 and executed the ABA on 29.10.2010.  The possession was to be handed over to them by 29.10.2013. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.1,86,260/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 03.03.2016.
  91.   The complainants at Serial No. 76, namely, Mohammed Shahid Khan and Aayesha Sultana, booked apartment No. NWA7042 and executed the ABA on 30.7.2009. The possession was to be handed over to them by 30.07.2012. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,14,603/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 08.03.2016.
  92.   The complainant at Serial No. 77, namely, Savita Ulvappa Immadi, booked apartment No. NWB6123 and executed the ABA on 18.12.2009.  The possession was to be handed over to him by 18.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,90,414/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 15.10.2016.
  93.   The complainant at Serial No. 78, namely, Shilpankumar Babubhai Rana booked apartment No. NWA5035 and executed the ABA on 03.08.2009.  The possession was to be handed over to him by 03.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,66,969/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.01.2017.
  94. The complainant at Serial No. 79, namely, Mukesh Kumar, booked apartment No. NWB4145 and executed the ABA on 29.07.2010.  The possession was to be handed over to him by 29.07.2013.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,12,926/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 05.11.2016.
  95.   The complainants at Serial No. 80, namely, Biju Somnath and Sorriya Biju, booked apartment No. NWC3PO4 and executed the ABA on 28.10.2010.  The possession was to be handed over to them by 28.10.2013.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,13,632/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 08.10.2016.
  96.   The complainants at Serial No. 81, namely, Vikas Shayana K V and K N Vasuki Shyana, booked apartment No. NWC1043 and executed the ABA on 25.07.2009.  The possession was to be handed over to them by 25.07.2012. Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,24,830/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 28.01.2017.
  97.   The complainants at Serial No. 82, namely, Sankar Chandra Patra and Gopinath Patra, booked apartment No. NWC1141 and executed the ABA on 25.05.2010.  The possession was to be handed over to them by 25.05.2013. Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,50,522/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 24.12.2016.
  98.   The complainant at Serial No. 83, namely, Naga Syam T, booked the apartment No. NWA4053 and executed the ABA on 25.09.2009.  The possession was to be handed over to him by 25.09.2012. Possession was offered to him on 07.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,92,579/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.03.2016. The complainant has sold his subject flat to a third party on 03.03.2017.
  99.   The complainants at Serial No. 84, namely, Vasantha Kuppuswamy and Rajesh Kuppuswamy and Indira Rajesh booked apartment No. NWB3044 and executed the ABA on 29.07.2009.  The possession was to be handed over to them by 29.07.2012.  Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.4,27,559/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 30.11.2016.
  100.   The complainants at Serial No. 85, namely, Bikash Kumar Ghosh and Powlami Ghosh, booked apartment No. NWC1036 and executed the ABA on 23.07.2009.  The possession was to be handed over to them by 23.07.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,22,353/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 15.09.2016.
  101.   The complainants at Serial No. 86, namely, Savitha Balachandran and Deepak Prabhu, booked apartment No. NWC4PO2 and executed the ABA on 22.04.2010.  The possession was to be handed over to them by 22.04.2013. Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,55,853/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants  took the possession of the subject property on 28.10.2016.
  102.   The complainants at Serial No. 87, namely, Asish Kumar Mishra, booked apartment No. NWA4144 and executed the ABA on 16.12.2009.  The possession was to be handed over to him by 16.12.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,75,907/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 18.03.2016.
  103.   The complainants at Serial No. 88, namely, Saumya Ambujakshi, booked apartment No. NWD1093 and executed the ABA on 11.02.2010.  The possession was to be handed over to her by 11.02.2013.  Possession was offered to her on 04.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,41,436/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 21.10.2014.  The complainant has sold her subject flat to a third party on 22.12.2016.
  104.   The complainants at Serial No. 89, namely, Sujit Sharadchandra Kolte and Rashmi Kolte, booked apartment No. NWC4041 and executed the ABA on 24.11.2009.  The possession was to be handed over to them by 24.11.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,92,975/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 30.09.2016.
  105.   The complainants at Serial No. 90, namely, Sridhar Sripada and Aswani Sripada booked apartment No. NWC2065 and executed the ABA on 20.04.2010.  The possession was to be handed over to them by 20.04.2013. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,12,829/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants  took the possession of the subject property on 15.10.2016.
  106. The complainants at Serial No. 91, namely, Ashish Bansal and Anshu Bansal are the subsequent allottees to whom the apartment No. NWB1092 was alloted and executed the ABA on 12.03.2014.  The possession was to be handed over to them by 12.03.2017.  Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainants are not eligible for compensation since the possession was handed over to them in time. The complainants took the possession of the subject property on 07.10.2016.
  107.   The complainants at Serial No. 92, namely, Prakash Gaurav and Priyanka Kumari booked apartment No. NWC2033 and executed the ABA on 11.05.2011.  The possession was to be handed over to them by 11.05.2014. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,55,336/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 10.10.2016. The complainants have sold their subject flat to a third party on 29.10.2018.
  108.   The complainants at Serial No. 93, namely, Jahnab Hazarika and Munmuni Kalita booked apartment No. NWC1034 and executed the ABA on 14.08.2009.  The possession was to be handed over to them by 14.08.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,85,515/- towards delay compensation as per ABA was credited  in their account and thereafter only the complainants  took the possession of the subject property on 03.10.2016.
  109.   The complainants at Serial No. 94, namely, Sudha Singhvi and Amit Kumar Singhvi booked apartment No. NWC3045 and executed the ABA on 10.01.2011.  The possession was to be handed over to them by 10.01.2014. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,38,077/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 12.10.2016.
  110.   The complainants at Serial No. 95, namely, Gantha Amaralingam and Gantha Sandya Rani booked apartment No. NWB1072 and executed the ABA on 11.08.2009.  The possession was to be handed over to them by 11.08.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,15,901/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 04.11.2016.
  111.   The complainant at Serial No. 96, namely, Anupam Singh booked apartment No. NWD1116 and executed the ABA on 28.12.2010.  The possession was to be handed over to him by 28.12.2013.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.66,106/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 17.01.2015.
  112.   The complainants at Serial No. 97, namely, Chhaya Bhavesh Patel and Bhavesh Narsinhbhai Patel booked apartment No. NWA6102 and executed the ABA on 17.07.2009.  The possession was to be handed over to them by 17.07.2012.  Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,64,224/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 14.05.2016.
  113.   The complainants at Serial No. 98, namely, Rajeev Kumar and Sangita Kumari booked apartment No. NWC4035 and executed the ABA on 03.08.2009.  The possession was to be handed over to them by 03.08.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,17,533/- towards delay compensation as per ABA was credited in their account and thereafter only the complainants took the possession of the subject property on 10.09.2016.
  114.   The complainants at Serial No. 99, namely, Sudhindra Bhargav Sharathakumar and Srinivas Panchajaya booked apartment No. NWB6172 and executed the ABA on 24.02.2011.  The possession was to be handed over to them by 24.02.2014.  Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,85,456/- towards delay compensation as per ABA was credited in his account and thereafter only the complainant  took the possession of the subject property on 12.11.2016.
  115.   The complainants at Serial No. 100, namely, Rajeev Kumar Ujjwal and Alka Ujjwal booked apartment No. NWC3PO2 and executed the ABA on 31.12.2010.  The possession was to be handed over to them by 31.12.2013. Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainants are not eligible for compensation.  The complainants took the possession of the subject property on 22.09.2016.
  116.   The complainant at Serial No. 101, namely, Manjunatha Shetty Kondalli booked apartment No. NWA4PO5 and executed the ABA on 28.04.2010.  The possession was to be handed over to her by 28.04.2013.  Possession was offered to her on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,40,515/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 20.04.2016.
  117.   The complainant at Serial No. 102, namely, Ashutosh Kumar Singh booked apartment No. NWD2113 and executed the ABA on 21.12.2009.  The possession was to be handed over to him by 21.12.2012.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,54,401/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.10.2014.
  118.   The complainant at Serial No. 103, namely, Umesh Rao Mukkuru Kondeppady booked apartment No. NWA6141 and executed the ABA on 15.12.2009.  The possession was to be handed over to him by 15.12.2012. Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3.16,468/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 23.04.2016.
  119.   The complainants at Serial No. 104, namely, Prabhash Chandra Mandal and Tapasi Mondal booked apartment No. NWB2153 and executed the ABA on 15.02.2010.  The possession was to be handed over to them by 15.02.2013. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,76,507/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 28.09.2016.
  120.   The complainant at Serial No. 105, namely, Shubhadeep Mukhopadhyay booked apartment No. NWA5104 and executed the ABA on 15.12.2009.  The possession was to be handed over to him by 15.12.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation according to ABA.  The complainant took the possession of the subject property on 28.05.2016.
  121.   The complainant at Serial No. 106, namely, Bama Balasubramanian booked apartment No. NWC3085 and executed the ABA on 23.02.2011.  The possession was to be handed over to him by 23.02.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,25,666/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.10.2016.
  122. The complainant at Serial No. 107, namely, Amit Kumar Joshi booked apartment No. NWC4172 and executed the ABA on 20.06.2011.  The possession was to be handed over to him by 20.06.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,58,531/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.10.2016.
  123.   The complainant at Serial No. 108, namely, Lata Vijaykumar Pillai booked apartment No. NWB2143 and executed the ABA on 11.02.2010.  The possession was to be handed over to him by 11.02.2013.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,77,450/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 28.11.2016.
  124.   The complainants at Serial No. 109, namely, Kashinath Eknath Holey and Mrs Kumud Holey booked apartment No. NWD1072 and executed the ABA on 23.01.2010.  The possession was to be handed over to them by 23.01.2013. Possession was offered to them on 26.08.2014 after the OC was obtained on 18.06.2014.  As per OP the complainants are not eligible for compensation according to ABA.  The complainants took the possession of the subject property on 21.10.2014.
  125. The complainants at Serial No. 110, namely, Pooja Mysore Anand and Shree Balaji Sampath booked apartment No. NWB5141 and executed the ABA on 19.12.2009.  The possession was to be handed over to them by 19.12.2012. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,83,060/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 27.09.2016.
  126.   The complainant at Serial No. 111, namely, Ashish Kumar Bhojnagarwala booked apartment No. NWA1033 and executed the ABA on 17.07.2009.  The possession was to be him over to him by 17.07.2012. Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,11,232/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 02.05.2016.
  127.   The complainants at Serial No. 112, namely, Shashi Kant Agarwal and Sapna Agarwal booked apartment No. NWB3164 and executed the ABA on 18.12.2009.  The possession was to be handed over to them by 18.12.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,83,371/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 28.10.2016.
  128.   The complainants at Serial No. 113, namely, Reddeppa Chowdary N S and P Bharati booked apartment No. NWD1074 and executed the ABA on 11.02.2010.  The possession was to be handed over to them by 11.02.2013. Possession was offered to them on 22.08.2014 after the OC was obtained on 18.06.2014.  As per OP the complainants are not eligible for compensation according to ABA.  The complainants took the possession of the subject property on 01.10.2015.
  129.   The complainants at Serial No. 114, namely, Manish Kumar Hemani and Ruchi Manish Hemani are the subsequent allottees to whom the apartment No.  NWD2056 was alloted and executed the ABA on 20.07.2013.  The possession was to be handed over to them by 20.07.2016.   Possession was offered to them on 22.08.2014 after the OC was obtained on 18.06.2014. As per OP the complainants are not eligible for compensation since there is no delay in handing over the possession. The complainant took the possession of the subject property on 26.09.2014.
  130.   The complainants at Serial No. 115, namely, Rohit Bharade and Chitra Bharade booked apartment No. NWA5156 and executed the ABA on 30.03.2011.  The possession was to be handed over to them by 30.03.2014. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.1,27,773/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 04.04.2016.
  131.   The complainant at Serial No. 116, namely, Niranjan Deepak Jahagirdar booked apartment No. NWC4175 and executed the ABA on 08.04.2011.  The possession was to be handed over to him by 08.04.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,75,351/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.11.2016.
  132.   The complainants at Serial No. 117, namely, Anand Archak and Malini booked apartment No. NWB3074 and executed the ABA on 26.08.2009.  The possession was to be handed over to them by 26.08.2012.  Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.4,18,846/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 17.11.2016.
  133.   The complainant at Serial No. 118, namely, Rajeev Mahajan booked apartment No. NWD1033 and executed the ABA on 25.07.2009.  The possession was to be handed over to him by 25.07.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,78,680/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 31.10.2014.
  134.   The complainant at Serial No. 119, namely, Atul Kumar Sinha booked apartment No. NWA5066 and executed the ABA on 23.10.2009.  The possession was to be handed over to him by 23.10.2012.  Possession was offered to him on 08.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 26.03.2016.
  135.   The complainants at Serial No. 120, namely, Gagan P and Bharani BS booked apartment No. NWB6166 and executed the ABA on 13.06.2011.  The possession was to be handed over to them by 13.06.2014.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.1,61,176/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 06.10.2016.
  136.   The complainants at Serial No. 121, namely, Sanjay Kumar Sinha and Seema Sinha booked apartment No. NWA1152 and executed the ABA on 19.12.2009.  The possession was to be handed over to them by 19.12.2012. Possession was offered to them on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,75,925/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 19.03.2016.
  137.   The complainants at Serial No. 122, namely, B N Dershava Murthy and D Nirmala booked apartment No. NWC3164 and executed the ABA on 15.02.2010.  The possession was to be handed over to them by 15.02.2013. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainants are not eligible for compensation according to ABA.  The complainants took the possession of the subject property on 28.10.2016.
  138.   The complainants at Serial No. 123, namely, Amrita Nanda and Santosh Kumar Padhy booked apartment No. NWB4074 and executed the ABA on 03.11.2009.  The possession was to be handed over to them by 03.11.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,68,485/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 31.05.2017.  The complainants sold their subject flat to a third party on 01.03.2019.
  139.   The complainants at Serial No. 124, namely, Mohan Kumar Ramesh Kotyankar and Usha Mohan Kumar Kotyankar booked apartment No. NWB3124 and executed the ABA on 10.08.2009.  The possession was to be handed over to them by 10.08.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.4,23,825/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 25.11.2016.
  140.   The complainant at Serial No. 125, namely, Madhvesha Raviraja booked apartment No. NWB5151 and executed the ABA on 12.01.2010.  The possession was to be handed over to him by 12.01.2013.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,75,592/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.09.2016.
  141.   The complainant at Serial No. 126, namely, Sunil Madhukar Konantambigi booked apartment No. NWB5PO3 and executed the ABA on 12.03.2010.  The possession was to be handed over to him by 12.03.2013. Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,52,892/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.12.2016.
  142.   The complainants at Serial No. 127, namely, Sabita Tripathy and Sovan Kumar Sahu booked apartment No. NWA4024 and executed the ABA on 06.08.2009.  The possession was to be handed over to them by 06.08.2012. Possession was offered to them on 07.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainants are not eligible for compensation according to ABA.  The complainants took the possession of the subject property on 30.11.2016.
  143.   The complainants at Serial No. 128, namely, Siddharth Gupta and Sadhana Kanoo booked apartment No. NWC4145 and executed the ABA on 29.07.2010.  The possession was to be handed over to them by 29.07.2013. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,34,033/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 25.01.2017.
  144.   The complainants at Serial No. 129, namely, Kamal Pandey and Shalini Rai booked apartment No. NWC4185 and executed the ABA on 27.08.2011.  The possession was to be handed over to them by 27.08.2014.  Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainants are not eligible for compensation according to ABA. The complainants took the possession of the subject property on 31.01.2017.
  145.   The complainants at Serial No. 130, namely, Subramanian Krishnamurthy and Yogamabal Srinivasan booked apartment No. NWA3012 and executed the ABA on 29.07.2009.  The possession was to be handed over to them by 29.07.2012.  Possession was offered to them on 03.02.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,66,719/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 05.05.2016.
  146.   The complainants at Serial No. 131, namely, Raja Subramanian and Tamilselvi booked apartment No. NWC4063 and executed the ABA on 25.08.2009.  The possession was to be handed over to them by 25.08.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,17,523/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 20.12.2016.
  147.   The complainants at Serial No. 132, namely, Raghu Nagaraja Rao and Geetha Devalcheruvu booked apartment No. NWB6066 and executed the ABA on 11.08.2009.  The possession was to be handed over to them by 11.08.2012. Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,17,915/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 10.12.2016.
  148.   The complainants at Serial No. 133, namely, Tohit Goel and Ankita Agarwal booked apartment No. NWA1155 and executed the ABA on 18.12.2009.  The possession was to be handed over to them by 18.12.2012. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,77,030/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 28.05.2016.
  149.   The complainants at Serial No. 134, namely, Pradipta Laha and Anindita Dutta booked apartment No.NWC4122 and executed the ABA on 31.03.2010.  The possession was to be handed over to them by 31.03.2013.  Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,62,052/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 26.10.2016.
  150.   The complainants at Serial No. 135, namely, Chandan Borha and Aradhana Bordoloi booked apartment No. NWA5093 and executed the ABA on 25.02.2010.  The possession was to be handed over to them by 25.02.2013. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,22,761/- towards delay compensation as per ABA was credited in their account.  The complainants have not yet taken the possession of the flat.
  151.   The complainants at Serial No. 136, namely, Sunno Varghese and Elza Mathew booked apartment No. NWA7071 and executed the ABA on 12.08.2009.  The possession was to be handed over to them by 12.08.2012. Possession was offered to them on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,12,752/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 14.05.2016.
  152.   The complainants at Serial No. 137, namely, R Srinivasan S Janani and S Vijayalakshmi booked apartment No. NWA7152 and executed the ABA on 29.12.2009.  The possession was to be handed over to them by 29.12.2012. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,73,201/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 05.02.2016.
  153.   The complainants at Serial No. 138, namely, Harish Chandra Agarwal and Sonu Gupta booked apartment No. NWC1016 and executed the ABA on 23.10.2009.  The possession was to be handed over to them by 23.10.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,00,863/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 13.12.2016.
  154.   The complainants at Serial No. 139, namely, Naveen Kumar Devalcheruvu and Rajalakshmi Arcot Suresh booked apartment No. NWB6056 and executed the ABA on 04.08.2009.  The possession was to be handed over to them by 04.08.2012.  Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,19,550/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 26.11.2016.
  155.   The complainants at Serial No. 140, namely, Lohith V and Shilpa Tippannavar booked apartment No. NWA7023 and executed the ABA on 04.08.2009.  The possession was to be handed over to them by 04.08.2012. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,06,436/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 30.03.2016.
  156.   The complainant at Serial No. 141, namely, Yelentoor Giridharakrishna Bhatta booked apartment No. NWA3174 and executed the ABA on 24.02.2011.  The possession was to be handed over to him by 24.02.2014.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.1,80,794/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 25.03.2016.
  157.   The complainant at Serial No. 142, namely, Kaushik Patel booked apartment No. NWA6092 and executed the ABA on 17.07.2009.  The possession was to be handed over to him by 17.07.2012.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,64,224/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 02.04.2016.
  158.   The complainants at Serial No. 143, namely, Shuchi Sood and Amit Sood booked apartment No. NWA6121 and executed the ABA on 25.08.2009.  The possession was to be handed over to them by 25.08.2012.  Possession was offered to them on 03.02.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,51,320/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 23.04.2016.
  159.   The complainant at Serial No. 144, namely, Amit Goel booked apartment No. NWB1051 and executed the ABA on 25.09.2009.  The possession was to be handed over to him by 25.09.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,06,971/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.09.2016.
  160.   The complainant at Serial No. 145, namely, Amaresh Adappa Ganganagoudar booked apartment No. NWC2061 and executed the ABA on 11.01.2011.  The possession was to be handed over to him by 11.01.2014. Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,37,795/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 13.12.2016.
  161. The complainants at Serial No. 146, namely, Mohana Krishnan Ramanujam and Anuradha Gopalan booked apartment No. NWA3162 and executed the ABA on 15.10.2010.  The possession was to be handed over to them by 15.10.2013.  Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,22,339/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 11.04.2016.
  162.   The complainants at Serial No. 147, namely, Badri Prasad Gopalan and Harini Sudarsanam booked apartment No. NWA3163 and executed the ABA on 15.10.2010.  The possession was to be handed over to them by 15.10.2013. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,20,815/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 11.04.2016.
  163.   The complainants at Serial No. 148, namely, Chandrika Gururajan and R Gururajan booked apartment No. NWA6163 and executed the ABA on 24.02.2010.  The possession was to be handed over to them by 24.02.2013. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,74,385/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 26.11.2016.
  164.   The complainant at Serial No. 149, namely, Prabha Prabhat Kumar Parida booked apartment No. NWC2094 and executed the ABA on 18.12.2009.  The possession was to be handed over to him by 18.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,66,112/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 08.10.2016.
  165.   The complainants at Serial No. 150, namely, Rupam Bhattacharya and Poulami Mukherjee booked apartment No. NWB6115 and executed the ABA on 06.05.2010.  The possession was to be handed over to them by 06.05.2013. Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,53,516/- towards delay compensation as per ABA was credited in their account and thereafter only he took the possession of the subject property on 28.10.2016.
  166.   The complainant at Serial No. 151, namely, Pracheer Singhal booked apartment No. NWC4103 and executed the ABA on 03.11.2009.  The possession was to be handed over to him by 03.11.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,01,022/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 23.09.2016.
  167.   The complainants at Serial No. 152, namely, Sujit Edavalath and Sreelakshmi Pilakal booked apartment No. NWD1102 and executed the ABA on 14.01.2011.  The possession was to be handed over to them by 14.01.2014. Possession was offered to them on 29.09.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.61,045/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 27.01.2015.
  168.   The complainants at Serial No. 153, namely, Anil Kishore Jandial and Kusam Lata booked apartment No. NWD2106 and executed the ABA on 09.03.2010.  The possession was to be handed over to them by 09.03.2013. Possession was offered to them on 04.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,34,080/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 20.11.2014.
  169.   The complainants at Serial No. 154, namely, Bijay K Mishra and Sangeeeta Mishra booked apartment No. NWD1113 and executed the ABA on 07.12.2009.  The possession was to be handed over to them by 07.12.2012. Possession was offered to them on 10.09.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,51,336/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 10.08.2014.
  170.   The complainants at Serial No. 155, namely, Sanjay Dhadwal and Namita Verma Dhadwal booked apartment No. NWD2013 and executed the ABA on 20.07.2009.  The possession was to be handed over to them by 20.07.2012. Possession was offered to them on 26.08.2014 after the OC was obtained on 18.06.2014.  As per OP the complainants are not eligible for compensation according to ABA.  The complainant took the possession of the subject property on 24.02.2015.
  171.   The complainants at Serial No. 156, namely, Bhupendra Berdia and Swati Berida booked apartment No. NWD2041 and executed the ABA on 03.11.2009.  The possession was to be handed over to them by 03.11.2012.  Possession was offered to them on 26.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,54,418/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 31.10.2014.
  172. The complainant at Serial No. 157, namely, Piyush Kothari booked apartment No. NWA1022 and executed the ABA on 14.07.2009.  The possession was to be handed over to him by 14.07.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,18,961/- towards delay compensation as per ABA was credited in his account and thereafter only he  took the possession of the subject property on 16.04.2016.
  173.   The complainant at Serial No. 158, namely, Anirban Poddar booked apartment No. NWC2155 and executed the ABA on 13.01.2011.  The possession was to be handed over to him by 13.01.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,37,231/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 17.01.2017.
  174.   The complainant at Serial No. 159, namely, Asim Kumar Ghosal booked apartment No. NWB5044 and executed the ABA on 07.08.2009.  The possession was to be handed over to him by 07.08.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.4,24,758/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 06.10.2016.
  175.   The complainants at Serial No. 160, namely, Rakesh Kalra and Simran Malhotra booked apartment No. NWA5071 and executed the ABA on 08.09.2009.  The possession was to be handed over to them by 08.09.2012. Possession was offered to them on 07.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,60,085/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 18.05.2016.
  176.   The complainants at Serial No. 161, namely, Samrat Guha Niyogi and Gayatri Guha Niyogi booked apartment No. NWA5PO4 and executed the ABA on 12.07.2010.  The possession was to be handed over to them by 12.07.2013. Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.1,68,020/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 02.04.2016.
  177.   The complainant at Serial No. 162, namely, Hardi Kumar booked apartment No. NWB6061 and executed the ABA on 24.08.2009.  The possession was to be handed over to him by 24.08.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,14,435/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 29.12.2016.
  178.   The complainant at Serial No. 163, namely, Ashwani Kumar Gupta booked apartment No. NWA7125 and executed the ABA on 08.09.2009.  The possession was to be handed over to him by 08.09.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,04,624/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.03.2016.
  179.   The complainants at Serial No. 164, namely, Nikhel Jaina and Reetika Jain booked apartment No. NWD2011 and executed the ABA on 23.10.2009.  The possession was to be handed over to them by 23.10.2012.  Possession was offered to them on 26.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,55,546/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 25.11.2014.
  180.   The complainants at Serial No. 165, namely, Ramesh Chandra Pathak and Aishwarya Rajlaxmi Pathak booked apartment No. NWC1054 and executed the ABA on 19.11.2009.  The possession was to be handed over to them by 19.11.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,65,121/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 15.10.2016.
  181.   The complainants at Serial No. 166, namely, Kanhaiyalal and Manoj Kumar booked apartment No. NWA6053 and executed the ABA on 17.08.2009.  The possession was to be handed over to them by 17.08.2012.  Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,52,127/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 10.05.2016.
  182.   The complainant at Serial No. 167, namely, Musadique Jahan is the subsequent allottee to whom the apartment No. NWC2053 was alloted and executed the ABA on 29.02.2012.  The possession was to be handed over to him by 28.02.2015.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 05.11.2016.
  183.   The complainants at Serial No. 168, namely, Subramanya Bettadahally Annegowda and Pankaja Manchibeedu Doddathammaiah booked apartment No. NWC3014 and executed the ABA on 21.12.2009.  The possession was to be handed over to them by 21.12.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,65,464/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 24.09.2016.
  184.   The complainant at Serial No. 169, namely, Prashant Ramdas Kale booked apartment No. NWB5172 and executed the ABA on 11.02.2010.  The possession was to be handed over to him by 11.02.2013.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 03.10.2016.
  185.   The complainant at Serial No. 170, namely, Arunkumar Ramachandra Bilagi booked apartment No. NWB4072 and executed the ABA on 07.08.2009.  The possession was to be handed over to him by 07.08.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation according to ABA.  The complainant took the possession of the subject property on 13.02.2017.
  186.   The complainants at Serial No. 171, namely, Peremjit Santra and Baishalay Dutta booked apartment No. NWA4063 and executed the ABA on 25.09.2009.  The possession was to be handed over to them by 25.09.2012. Possession was offered to them on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,92,579/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 09.04.2016.
  187.   The complainant at Serial No. 172, namely, Bhanudev Mahadev Bhatt apartment No. NWD2191 and executed the ABA on 11.02.2012.  The possession was to be handed over to him by 11.02.2015.  Possession was offered to him on 29.09.2014 after the OC was obtained on 18.06.2014.  As per OP the complainant is not eligible for compensation as there is no delay in handing over the possession of the subject flat.  The complainant took the possession of the subject property on 19.12.2014.
  188.   The complainant at Serial No. 173, namely, Tanseer Anjum booked apartment No. NWB5084 and executed the ABA on 14.08.2009.  The possession was to be handed over to him by 14.08.2012.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.4,22,580/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 18.11.2016.
  189.   The complainants at Serial No. 174, namely, Reetika Jain and Nikhel Jaina booked apartment No. NWA7105 and executed the ABA on 25.08.2009.  The possession was to be handed over to them by 25.08.2012.  Possession was offered to them on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,08,449/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 01.08.2016.
  190.   The complainants at Serial No. 175, namely, Parag Deshpande and Varsha Deshpande are the subsequent allottees to whom the apartment No.NWC3143 was alloted and executed the ABA on 10.05.2010.  The possession was to be handed over to them by 10.05.2013.  Possession was offered to them on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainants are not eligible for compensation according to ABA. The complainants took the possession of the subject property on 27.10.2016.
  191.   The complainant at Serial No. 176, namely, Ramakiran Kumar Panyam booked apartment No. NWA7091 and executed the ABA on 21.08.2009.  The possession was to be handed over to him by 21.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,10,287/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 16.04.2016.
  192.   The complainants at Serial No. 177, namely, Giriraj Goyal booked apartment No. NWD1196 and executed the ABA on 12.08.2011.  The possession was to be handed over to him by 12.08.2014.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 28.03.2015.
  193.   The complainants at Serial No. 178, namely, Biswa Bhusan Sahoo and Monalisa Sahoo booked apartment No. NWC1015 and executed the ABA on 23.10.2009.  The possession was to be handed over to them by 23.10.2012. Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2.98,745/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 05.11.2016.
  194.   The complainants at Serial No. 179, namely, Sudeep Singh and Rajeshwari B booked apartment No. NWB1016 and executed the ABA on 14.10.2009.  The possession was to be handed over to them by 14.10.2012. Possession was offered to them on 14.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainants are not eligible for compensation according to ABA.  The complainants took the possession of the subject property on 07.10.2016.
  195.   The complainants at Serial No. 180, namely, Mahantesh Chandrashekhar Hunagund and Deepthi Mahantesh Hunagund booked apartment No. NWA6061 and executed the ABA on 12.08.2009.  The possession was to be handed over to them by 12.08.2012.  Possession was offered to them on 05.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,52,254/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 28.03.2016.
  196.   The complainant at Serial No. 181, namely, Prakash Prabhu booked apartment No. NWC4142 and executed the ABA on 31.03.2010.  The possession was to be handed over to him by 31.03.2013. Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,62,052/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 30.11.2016.
  197.   The complainants at Serial No. 182, namely, Arun Kumar Pradhan and Papri Biswas booked apartment No. NWD2145 and executed the ABA on 11.11.2010.  The possession was to be handed over to them by 11.11.2013. Possession was offered to them on 29.09.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.75,846/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 21.11.2014.
  198.   The complainant at Serial No. 183, namely, Himansu Behera booked apartment No. NWA1174 and executed the ABA on 12.05.2010.  The possession was to be handed over to him by 12.05.2013.  Possession was offered to him on 07.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation according to ABA.  The complainant took the possession of the subject property on 28.11.2017.
  199.   The complainants at Serial No. 184, namely, Mohammand Kumbla Navas and Sahlath Moidu Hassan booked apartment No. NWB4061 and executed the ABA on 14.10.2009.  The possession was to be handed over to them by 14.10.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,02,539/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 01.10.2016.
  200.   The complainants at Serial No. 185, namely, Anil Kumar Singh and Ruchi Singh booked apartment No. NWA6094 and executed the ABA on 25.08.2009.  The possession was to be handed over to them by 25.08.2012. Possession was offered to them on 14.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainants are not eligible for compensation according to ABA. The complainants took the possession of the subject property on 17.11.2016.
  201.   The complainant at Serial No. 186, namely, Birendra Kumar Verma booked apartment No. NWC4093 and executed the ABA on 07.12.2009.  The possession was to be handed over to him by 07.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,93,007/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 01.10.2016.
  202.   The complainants at Serial No. 187, namely, Sanjay Bagra and Sunita Bagra booked apartment No. NWA4105 and executed the ABA on 26.08.2009.  The possession was to be handed over to them by 26.08.2012.  Possession was offered to them on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,08,176/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 20.02.2016.
  203.   The complainants at Serial No. 188, namely, Bhavesh Sharma and Charu Sharma booked apartment No. NWA4022 and executed the ABA on 28.04.2010.  The possession was to be handed over to them by 28.04.2013. Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainants are not eligible for compensation according to ABA.  The complainants took the possession of the subject property on 07.10.2016.
  204.   The complainants at Serial No. 189, namely, K S Srinivas and K S Vasudha booked apartment No. NWA4112 and executed the ABA on 28.08.2009.  The possession was to be handed over to them by 28.08.2012. Possession was offered to them on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,06,704/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 07.05.2016.  The complainants sold their subject flat to a third party on 18.04.2017.
  205.   The complainants at Serial No. 190, namely, Bharati Viswanathan and Venkatesh Mookiah booked apartment No. NWA4023 and executed the ABA on 26.08.2009.  The possession was to be handed over to them by 26.08.2012. Possession was offered to them on 12.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainants are not eligible for compensation according to ABA.  The complainants took the possession of the subject property on 12.04.2016.
  206.   The complainants at Serial No. 191, namely, Hemant Kumar and Rinku Kumari booked apartment No.NWC4065 and executed the ABA on 19.11.2009.  The possession was to be handed over to them by 19.11.2012.  Possession was offered to them on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,92,483/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 20.10.2016.
  207.   The complainant at Serial No. 192, namely, Mathew Paulose Peckel booked apartment No. NWB3163 and executed the ABA on 07.12.2009.  The possession was to be handed over to him by 07.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,84,955/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 29.08.2016.
  208.   The complainant at Serial No. 193, namely, Chandreshwar Prasad booked apartment No. NWC1064 and executed the ABA on 19.11.2009.  The possession was to be handed over to him by 19.11.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,65,121/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 05.10.2016.
  209.   The complainant at Serial No. 194, namely, Manish Srivastava booked apartment No. NWC4113 and executed the ABA on 07.12.2009.  The possession was to be handed over to him by 07.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,93,007/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.11.2016.
  210.   The complainants at Serial No. 195, namely, Souvik Das and Rashmi Subramanyam booked apartment No. NWA4054 and executed the ABA on 12.08.2009.  The possession was to be handed over to them by 12.08.2012. Possession was offered to them on 07.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainants are not eligible for compensation according to ABA.  The complainants took the possession of the subject property on 19.04.2016.
  211.   The complainant at Serial No. 196, namely, Jyothi Nagaraja Rao booked apartment No. NWC3052 and executed the ABA on 19.03.2010.  The possession was to be handed over to her by 19.03.2013.  Possession was offered to her on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,47,394/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 03.12.2016.
  212.   The complainants at Serial No. 197, namely, Abhishek Singh and Prerna Singh booked apartment No. NWA2183 and executed the ABA on 25.05.2010.  The possession was to be handed over to them by 25.05.2013.  Possession was offered to them on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,28,095/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 07.03.2018.
  213.   The complainant at Serial No. 198, namely, Jijo T George booked apartment No. NWD2052 and executed the ABA on 25.08.2009.  The possession was to be handed over to him by 25.08.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,69,672/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.01.2015.
  214.   The complainant at Serial No. 199, namely, Deepesh Damodaran booked apartment No. NWD2141 and executed the ABA on 31.05.2011.  The possession was to be handed over to him by 31.05.2014.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.30,091/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 12.04.2014.
  215.   The complainant at Serial No. 200, namely, M S Shama Sundra booked apartment No. NWD1091 and executed the ABA on 23.01.2010.  The possession was to be handed over to him by 23.01.2013.  Possession was offered to him on 08.09.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,38,790/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.11.2014.
  216.   The complainant at Serial No. 201, namely, Deen Dayal Pareta booked apartment No. NWD2024 and executed the ABA on 21.08.2009.  The possession was to be handed over to him by 21.08.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,54,741/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 11.03.2014.
  217.   The complainant at Serial No. 202, namely, Soumya Kumar Nayak booked apartment No. NWB1036 and executed the ABA on 03.08.2009.  The possession was to be handed over to him by 03.08.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation according to ABA.  The complainant took the possession of the subject property on 18.10.2016.
  218.   The complainant at Serial No. 203, namely, Ravish Ranjan booked apartment No. NWB2013 and executed the ABA on 05.08.2009.  The possession was to be handed over to him by 05.08.2012.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,22,237/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 06.09.2016.
  219.   The complainant at Serial No. 204, namely, Sachin Sethi booked apartment No. NWB1026 and executed the ABA on 06.08.2009.  The possession was to be handed over to him by 06.08.2012.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,19,083/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.11.2016.
  220.   The complainants at Serial No. 205, namely, Ashish Madaan booked apartment No. NWA1106 and executed the ABA on 14.08.2009.  The possession was to be handed over to him by 14.08.2012.  Possession was offered to him on 08.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,12,953/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 02.04.2016.
  221.   The complainant at Serial No. 206, namely, Mita Bandyopadhyay booked apartment No. NWA5015 and executed the ABA on 05.08.2009.  The possession was to be handed over to him by 05.08.2012.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,66,505/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 25.03.2016.
  222.   The complainant at Serial No. 207, namely, Biswajit Jena booked apartment No. NWA5123 and executed the ABA on 24.11.2009.  The possession was to be handed over to him by 24.11.2012.  Possession was offered to him on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,44,684/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.05.2016.
  223.   The complainant at Serial No. 208, namely, Pankaj Kumar booked apartment No. NWD1202 and executed the ABA on 22.06.2012.  The possession was to be handed over to him by 22.06.2015.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  As per OP the complainant is not eligible for compensation since the possession of the subject flat was given to him in time.  The complainant took the possession of the subject property on 24.12.2014.
  224.   The complainant at Serial No. 209, namely, Neeraj Kumar Gupta booked apartment No. NWD1023 and executed the ABA on 14.07.2009.  The possession was to be handed over to him by 14.07.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,82,216/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 18.09.2014.
  225. The complainant at Serial No. 210, namely, Pradeep Kumar Sinha booked apartment No. NWA4101 and executed the ABA on 12.08.2009.  The possession was to be handed over to him by 12.08.2012.  Possession was offered to him on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,12,752/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 20.02.2016.
  226. The complainant at Serial No. 211, namely, Guru Rajeev booked apartment No. NWB4022 and executed the ABA on 06.08.2009.  The possession was to be handed over to him by 06.08.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,17,062/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.09.2016.
  227.   The complainant at Serial No. 212, namely, Anu Tiwari booked apartment No. NWD2021 and executed the ABA on 14.10.2009.  The possession was to be handed over to her by 14.10.2012.  Possession was offered to her on 26.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,59,084/- towards delay compensation as per ABA was credited in her account and thereafter only he took the possession of the subject property on 13.10.2014.
  228.   The complainant at Serial No. 213, namely, Jai Shankar Sukumaran Nair purchased the flat No.NWD2161 and executed the ABA on 18.08.2011. The possession was to be handed over by 18.08.2014.  Possession was offered on 26.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.10,963/- towards delay compensation as per ABA was credited in the account of original allottee i.e. Jai Shankar Sukumaran Nair. The original allottee took the possession of the subject property on 29.11.2014. Subsequently the original allottee sold his flat to Tajinder Pal Singh vide sale deed dated 22.07.2015. Therefore, the subsequent allottee is not eligible for any compensation.
  229.   The complainant at Serial No. 214, namely, Sudhir Shridhar Kalmady booked apartment No. NWD1016 and executed the ABA on 30.07.2009.  The possession was to be handed over to him by 30.07.2012.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,75,085/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.11.2014.
  230.   The complainant at Serial No. 215, namely, Shivashankar Madri booked apartment No. NWD1094 and executed the ABA on 12.01.2010.  The possession was to be handed over to him by 12.01.2013.  Possession was offered to him on 08.09.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,27,409/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 22.10.2014.
  231.   The complainants at Serial No. 216, namely, Gauthama Bhojaraja Shetty Katapady booked apartment No. NWD1191 and executed the ABA on 22.08.2011.  The possession was to be handed over to him by 22.08.2014. Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014. After the amount of Rs.10,730/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 16.12.2014.
  232.   The complainant at Serial No. 217, namely, Vijayalakshmi Arunachalam booked apartment No. NWC4101 and executed the ABA on 14.09.2010.  The possession was to be handed over to her by 14.09.2013.  Possession was offered to her on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,24,396/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 22.10.2016.
  233.   The complainant at Serial No. 218, namely, Akash Jain booked apartment No. NWD2045 and executed the ABA on 23.10.2009.  The possession was to be handed over to him by 23.10.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,55,867/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.12.2015.
  234.   The complainant at Serial No. 219, namely, Pratish Raj booked apartment No. NWD2111 and executed the ABA on 09.06.2011.  The possession was to be handed over to him by 09.06.2014.  Possession was offered to him on 29.09.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.27,991/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.12.2014.
  235.   The complainant at Serial No. 220, namely, Swapan Acharyya booked apartment No. NWD1063 and executed the ABA on 19.08.2009.  The possession was to be handed over to him by 19.08.2012. Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015. After the amount of Rs.3,02,439/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 13.09.2016.
  236. The complainant at Serial No. 221 namely, Seshadri Rajagopalan booked apartment No. NWD2096 and executed the ABA on 21.06.2010.  The possession was to be handed over to her by 21.06.2013. Possession was offered to her on 04.10.2014 after the OC was obtained on 18.06.2014. As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 26.02.2015.
  237.   The complainant at Serial No. 222, namely, Deepak Goenka booked apartment No. NWA2013 and executed the ABA on 10.07.2009. The possession was to be handed over to him by 10.07.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015. As per OP the complainants are not eligible for compensation according to ABA. The complainant took the possession of the subject property on 10.02.2016.
  238.   The complainant at Serial No. 223, namely, Prashantha D P booked apartment No. NWA1116 and executed the ABA on 05.08.2009.  The possession was to be handed over to him by 05.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,15,424/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 03.02.2016.
  239.   The complainant at Serial No. 224, namely, Mahendra Manubhai Joshi booked apartment No. NWC3091 and executed the ABA on 26.11.2011.  The possession was to be handed over to him by 26.11.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016 towards delay compensation as per ABA.  After the amount of Rs.1,47,811/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 28.11.2016.
  240. The complainant at Serial No. 225, namely, Sushil Kumar Sinha booked apartment No. NWA4074 and executed the ABA on 11.08.2009.  The possession was to be handed over to him by 11.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,10,395/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 14.03.2016.
  241.   The complainant at Serial No. 226, namely, Manish Prasad booked apartment No. NWB4073 and executed the ABA on 24.03.2010.  The possession was to be handed over to him by 24.03.2013.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 03.12.2016.
  242.   The complainant at Serial No. 227, namely, Shilpi booked apartment No. NWA1061 and executed the ABA on 12.03.2010.  The possession was to be handed over to her by 12.03.2013.  Possession was offered to her on 07.01.2016 after the OC was obtained on 07.08.2015. As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 14.05.2016.
  243. The complainant at Serial No. 228, namely, Promila Sherawat booked apartment No. NWA5073 and executed the ABA on 09.03.2010.  The possession was to be handed over to her by 09.03.2013.  Possession was offered to her on 07.01.2016 after the OC was obtained on 07.08.2015. As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 02.04.2016.
  244.   The complainant at Serial No. 229, namely, Rana Banerjee booked apartment No. NWA2122 and executed the ABA on 14.08.2009.  The possession was to be handed over to him by 14.08.2012. Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,10,517/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 20.02.2016.
  245.   The complainant at Serial No. 230, namely, Thomas Varghese is the subsequent allottee. Apartment No. NWC4164 was allotted to the original allottee and ABA was executed on 16.11.2011.  The possession was to be handed over to him by 16.11.2014. Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016. As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 17.11.2016.
  246. The complainant at Serial No. 231, namely, Pallipadath Sajan Moideen booked apartment No. NWA6064 and executed the ABA on 17.08.2009.  The possession was to be handed over to him by 17.08.2012.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015. After the amount of Rs.3,53,809/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 16.05.2016.
  247.   The complainant at Serial No. 232, namely, Krishna Kishore M S booked apartment No. NWD2023 and executed the ABA on 22.07.2009.  The possession was to be handed over to her by 22.07.2012.  Possession was offered to her on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,80,330/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 15.10.2014.
  248. The complainant at Serial No. 233, namely, Aditi Dwivedi booked apartment No. NWB4096 and executed the ABA on 21.12.2009.  The possession was to be handed over to her by 21.12.2012.  Possession was offered to her on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,87,081/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 08.10.2016.
  249.   The complainant at Serial No. 234, namely, Vivek Saxena booked apartment No.NWB2092 and executed the ABA on 07.12.2009.  The possession was to be handed over to him by 07.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.2,88,512/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.11.2016.
  250.   The complainant at Serial No.235, namely, Mohan Kumar Phani booked apartment No.NWA4092 and executed the ABA on 30.07.2009. The possession was to be handed over to him by 30.07.2012.  Possession was offered to him on 07.01.2016 after the OC was obtained on 07.08.2015. As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 07.05.2016. He sold the subject flat to a third party on 08.12.2017.
  251. The complainant at Serial No.236, namely, Suganthi Sankar booked apartment No.NWA3062 and executed the ABA on 06.05.2010.  The possession was to be handed over to him by 06.05.2013.  Possession was offered to him on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,72,856/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 05.03.2016.
  252.   The complainant at Serial No.237, namely, Seetha Alagappan booked apartment No.NWD1022 and executed the ABA on 23.10.2009.  The possession was to be handed over to him by 23.10.2012.  Possession was offered to him on 26.08.2014 after the OC was obtained on 18.06.2014. As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 14.02.2015.
  253.   The complainant at Serial No.238, namely, Harmeet Kaur booked apartment No.NWB5032 and executed the ABA on 09.07.2009.  The possession was to be handed over to her by 09.07.2012.  Possession was offered to her on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.4,31,720/- towards delay compensation as per ABA was credited in her account and thereafter only she complainant  took the possession of the subject property on 15.10.2016.
  254.   The complainant at Serial No.239, namely, Sadath Ulla Sharieff booked apartment No.NWD1162 and executed the ABA on 20.08.2011.  The possession was to be handed over to him by 20.08.2014.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  As per OP the complainant is not eligible for compensation as there is no delay in handing over the possession.  The complainant took the possession of the subject property on 21.11.2014.
  255.   The complainant at Serial No.240, namely, Mahendra Manubhai Joshi booked apartment No.NWC3095 and executed the ABA on 26.11.2011.  The possession was to be handed over to him by 26.11.2014.  Possession was offered to him 12.08.2016 on after the OC was obtained on 25.07.2016. After the amount of Rs.1,47,811/- towards delay compensation as per ABA was credited in his account and thereafter only the complainant  took the possession of the subject property on 28.11.2016.
  256.   The complainant at Serial No.241, namely, Debasis Mohanty booked apartment No.NWC1023 and executed the ABA on 05.08.2009.  The possession was to be handed over to him by 05.08.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.3,22,237/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.10.2016.
  257.   The complainant at Serial No.242 , namely, Siddharth Ankathil booked apartment No. NWC1163 and executed the ABA on 09.03.2010.  The possession was to be handed over to him by 09.03.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,71,321/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.08.2016.
  258.   The complainant at Serial No.243, namely, Duvin S Nath booked apartment No. NWC1082 and executed the ABA on 16.12.2009.  The possession was to be handed over to him by 16.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,86,423/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 30.12.2016.
  259.   The complainant at Serial No.244, namely, Gurcharan Singh booked apartment No. NWD1021 and executed the ABA on 25.09.2009.  The possession was to be handed over to him by 25.09.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014. After the amount of Rs.1,62,349/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.10.2014.
  260.   The complainant at Serial No.245, namely, Nalin Kant Sahoo booked apartment No. NWD2142 and executed the ABA on 23.04.2012.  The possession was to be handed over to him by 23.04.2015.  Possession was offered to him on 04.10.2014 after the OC was obtained on 18.06.2014.  As per OP the complainant is not eligible for compensation as there is no delay in handing over the possession. The complainant took the possession of the subject property on 05.08.2016.
  261.   The complainant at Serial No.246, namely, Rajeev Ranjan booked apartment No.NWA6034 and executed the ABA on 30.07.2009.  The possession was to be handed over to him by 30.07.2012.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,59,411/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 16.05.2016.
  262.   The complainant at Serial No. 247, namely, Ambarish Jabshetty booked apartment No.NWC3083 and executed the ABA on 21.12.2009.  The possession was to be handed over to him by 21.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.2,64,050/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 18.10.2016.
  263.   The complainant at Serial No. 248, namely, Abhishek Shankar booked apartment No.NWB6174 and executed the ABA on 19.01.2011.  The possession was to be handed over to him by 19.01.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.1,75,556/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 22.03.2017.
  264.   The complainants at Serial No. 249, namely, Sanjay Ambala Parambhath booked apartment No.NWC2121 and executed the ABA on 04.01.2011.  The possession was to be handed over to him by 04.01.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.2,39,770/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.06.2016. 
  265.   The complainant at Serial No.250, namely, Sachin Laxman Kaledhonkar booked apartment No.NWD1041 and executed the ABA on 05.08.2009.  The possession was to be handed over to him by 05.08.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,74,245/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.11.2014.
  266.   The complainants at Serial No.251 , namely, Tejas Subhash Nevrekar booked apartment No.NWC1073 and executed the ABA on 25.09.2009.  The possession was to be handed over to him by 25.09.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of Rs.3,10,215/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.11.2016.
  267. The complainant at Serial No.252 , namely, Venkatesh Mahalingam booked apartment No.NWD1013 and executed the ABA on 14.07.2009.  The possession was to be handed over to him by 14.07.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,80,310 /- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 30.10.2014.
  268.   The complainant at Serial No. 253, namely, Nishid Govindraj Pai Kakode booked apartment No.NWD1155 and executed the ABA on 19.01.2011.  The possession was to be handed over to him by 19.01.2014.  Possession was offered to him on 04.10.2014 after the OC was obtained on 18.06.2014.  As per OP the complainant is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 18.12.2014.
  269.   The complainant at Serial No. 254, namely, Vikas Tyagi booked apartment No.NWA4093 and executed the ABA on 12.08.2009.  The possession was to be handed over to him by 12.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,04,304/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 14.03.2016.
  270.   The complainant at Serial No. 255, namely, Deepankar Asthana booked apartment No. NWA4062 and executed the ABA on 17.08.2009.  The possession was to be handed over to him by 17.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015. After the amount of Rs.3,09,700/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 22.03.2016.
  271.   The complainant at Serial No.256, namely, Suresh Vellora Madathil booked apartment No.NWA1051 and executed the ABA on 24.08.2009.  The possession was to be handed over to him by 24.08.2012.  Possession was offered to him on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,09,465/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 09.04.2016.
  272.   The complainant at Serial No.257, namely, Rajesha Kini booked apartment No.NWD1024 and executed the ABA on 23.10.2009.  The possession was to be handed over to him by 23.10.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014. After the amount of Rs.1,41,286/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 11.07.2014.
  273.   The complainants at Serial No.258, namely, U Sharat Rao booked apartment No.NWD2155 and executed the ABA on 10.01.2011.  The possession was to be handed over to him by 10.01.2014.  Possession was offered to him on 07.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.62,625/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 12.04.2014.
  274.   The complainant at Serial No.259, namely, J Chandrakala booked apartment No.NWD2105 and executed the ABA on 12.03.2010.  The possession was to be handed over to him by 12.03.2013.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,33,137/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 12.06.2014.
  275.   The complainant at Serial No.260, namely, Thanigairajan M booked apartment No.NWB4162 and executed the ABA on 24.03.2010.  The possession was to be handed over to him by 24.03.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.2,63,676/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 20.02.2017.
  276.   The complainants at Serial No.261, namely, Mangayarkarasi booked apartment No.NWA4142 and executed the ABA on 07.12.2009.  The possession was to be handed over to him by 07.12.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,79,193/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 12.04.2016.
  277.   The complainant at Serial No.262, namely, Vikas Mittal booked apartment No.NWB2123 and executed the ABA on 21.12.2009.  The possession was to be handed over to him by 21.12.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.2,89,707/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 03.05.2017.
  278.   The complainant at Serial No.263, namely, Subhirangshu Kumar Sarkar booked apartment No.NWB1073 and executed the ABA on 11.08.2009.  The possession was to be handed over to him by 11.08.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.3,20,823/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 20.10.2016.
  279.   The complainant at Serial No.264, namely, Prasanna Hegde booked apartment No.NWD2102 and executed the ABA on 09.03.2010.  The possession was to be handed over to him by 09.03.2013.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,33,927/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 01.02.2015.
  280.   The complainant at Serial No.265, namely, Rawal Jain booked apartment No.NWD2163 and executed the ABA on 24.02.2010.  The possession was to be handed over to him by 24.02.2013. Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014. After the amount of Rs.1,39,078/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 13.12.2014.
  281.   The complainant at Serial No.266, namely, Atonu Biswas booked apartment No.NWB1125 and executed the ABA on 24.02.2010.  The possession was to be handed over to him by 24.02.2013.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.2,69,984/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 17.11.2016.
  282.   The complainant at Serial No.267, namely, Nandkishore Muralidharan booked apartment No.NWA1175 and executed the ABA on 25.02.2010.  The possession was to be handed over to him by 25.02.2013.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,58,179/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 28.03.2016.
  283.   The complainant at Serial No.268, namely, Kanwarpreet Singh Sachdeva booked apartment No.NWA3081 and executed the ABA on 14.09.2010.  The possession was to be handed over to him by 14.09.2013.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,31,516/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 15.06.2016.
  284.   The complainant at Serial No.269, namely, Hemant Kumar Kanyal booked apartment No.NWA5114 and executed the ABA on 18.12.2009.  The possession was to be handed over to him by 18.12.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,13,190/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 23.03.2016.
  285.   The complainant at Serial No.270, namely, Vijay Kumar Tripathi booked apartment No.NWA5152 and executed the ABA on 28.04.2010.  The possession was to be handed over to him by 28.04.2013.  Possession was offered to him on 02.02.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 18.07.2016.
  286.   The complainant at Serial No.271, namely, Praveen Puthan Veetail booked apartment No.NWA5182 and executed the ABA on 03.10.2011.  The possession was to be handed over to him by 03.10.2014.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015. After the amount of Rs.83,559/-towards delay compensation as per ABA was credited in his account and thereafter only the complainant  took the possession of the subject property on 21.04.2016.
  287.   The complainant at Serial No.272, namely, Vinod Kumar Kolimarala booked apartment No.NWA6114 and executed the ABA on 11.08.2009.  The possession was to be handed over to him by 11.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,55,677/-towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 09.04.2016.
  288. The complainant at Serial No.273, namely, Kanwarjeet Singh Sachdeva booked apartment No.NWA6144 and executed the ABA on 14.10.2009.  The possession was to be handed over to him by 14.10.2012.  Possession was offered to him on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,35,761/-towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 15.06.2016.
  289. The complainant at Serial No.274, namely, SIB Bahadur Chettri booked apartment No.NWB1021 and executed the ABA on 15.07.2009.  The possession was to be handed over to him by 15.07.2012.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.3,23,765/-towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 01.10.2016.
  290.   The complainant at Serial No.275, namely, Vivek Shrinivas Joshi booked apartment No.NWA4PO4 and executed the ABA on 12.03.2010.  The possession was to be handed over to him by 12.03.2013.  Possession was offered to him on 11.01.2018 after the OC was obtained on 07.08.2015. After the amount of Rs.2,48,883/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 18.06.2016.
  291.   The complainant at Serial No.276, namely, Mayank Dandotia booked apartment No.NWB2084 and executed the ABA on 16.11.2009.  The possession was to be handed over to him by 16.11.2012.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016. After the amount of Rs.2,65,752/-towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 06.12.2016.
  292.   The complainant at Serial No.277, namely, Sunil Vasant Koparde booked apartment no.NWB3141 and executed the ABA on 19.11.2009.  The possession was to be handed over to him by 19.11.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016. After the amount of 3,92,396/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 28.05.2018.
  293.   The complainant at Serial No.278, namely, Krishnamurthy Narayan Hegde booked apartment no.NWB6062 and executed the ABA on 12.08.2009.  The possession was to be handed over to him by 12.08.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 3,15,669/- towards delay compensation as per ABA was credited in their account and thereafter only he took the possession of the subject property on 24.11.2016.
  294.   The complainant at Serial No.279, namely, Raju Ramar booked apartment no.NWB6103 and executed the ABA on 23.01.2010.  The possession was to be handed over to him by 23.01.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 2,81,928/- towards delay compensation as per ABA was credited in his account and thereafter only the complainant  took the possession of the subject property on 15.02.2017.  The complainant sold the property to a third party on 15.04.2019.
  295.   The complainant at Serial No.280, namely, Roshan Sudhir booked apartment no.NWC1103 and executed the ABA on 15.02.2010. The possession was to be handed over to him by 15.02.2013.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation and thereafter only he complainant  took the possession of the subject property on 01.02.2017.
  296. The complainant at Serial No.281, namely, Chandrashekar V. Vernekar booked apartment no.NWC2014 and executed the ABA on 19.03.2010. The possession was to be handed over to him by 19.03.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 2,46,456/- towards delay compensation as per ABA was credited in their account and thereafter only he took the possession of the subject property on 26.10.2016.
  297.   The complainant at Serial No.282, namely, Gourab Talukder booked apartment no.NWC2111 and executed the ABA on 26.05.2011. The possession was to be handed over to him by 26.05.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 1,99,714/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 28.04.2017.
  298.   The complainant at Serial No.283, namely, B. Thangavel Rajan booked apartment no.NWC3084 and executed the ABA on 23.10.2009. The possession was to be handed over to him by 23.10.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 2,78,208/- towards delay compensation as per ABA was credited in his account and thereafter only the complainant  took the possession of the subject property on 08.09.2016.
  299.   The complainant at Serial No.284, namely, Swaminathan Raman booked apartment no.NWC3111 and executed the ABA on 15.03.2011. The possession was to be handed over to him by 15.03.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016. After the amount of 2,20,024/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 22.11.2016.
  300.   The complainant at Serial No.285, namely, Arunkumar KVP booked apartment No.NWD1031 and executed the ABA on 23.10.2009. The possession was to be handed over to him by 23.10.2012.  Possession was offered to him on 26.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,56,984/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 28.11.2014
  301.   The complainant at Serial No.286, namely, Binu John booked apartment no.NWD1045 and executed the ABA on 11.08.2009. The possession was to be handed over to him by 11.08.2012.  Possession was offered to him on 26.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,73,031/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 29.01.2015.
  302.   The complainant at Serial No.287, namely, Mukti Sadhan Dattaray booked apartment no.NWD1056 and executed the ABA on 08.09.2009. The possession was to be handed over to her by 08.09.2012.  Possession was offered to her on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,67,483/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 16.10.2014.
  303.   The complainant at Serial No.288, namely, Ravindran Ramaraj is the subsequent allottee.  The Apartment No. NWD1064 was allotted to the original allottee and ABA was executed on 09.12.2013.  The possession was to be handed over to him by 09.12.2016.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  As per OP the complainant is not eligible for compensation he being second allottee and also there was no delay in handing over the possession. The complainant took the possession of the subject property on 17.12.2014.
  304.   The complainant at Serial No.289, namely, Ashish Kumar Singh booked apartment no. NWD1065 and executed the ABA on 07.12.2009.  The possession was to be handed over to him by 07.12.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,45,662/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 12.06.2014.
  305. The complainant at Serial No.290, namely, Kiran Kumar Laila booked apartment no. NWD1085 and executed the ABA on 23.01.2010.  The possession was to be handed over to him by 23.01.2013.  Possession was offered to him on 04.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,43,574/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 12.03.2014.
  306. The complainant at Serial No.291, namely, Amar Eshappa Setra booked apartment no. NWD1095 and executed the ABA on 24.02.2010.  The possession was to be handed over to him by 24.02.2013.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,36,848/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 18.12.2014.
  307. The complainant at Serial No.292, namely, Nirali Pranavkumar Purohit booked apartment no. NWD1096 and executed the ABA on 25.05.2010.  The possession was to be handed over to him by 25.05.2013.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,80,564/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 18.11.2014.
  308.   The complainant at Serial No.293, namely, Harish Damodar booked apartment no. NWD1114 and executed the ABA on 18.12.2009.  The possession was to be handed over to him by 18.12.2012.  Possession was offered to him on 08.09.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,32,666/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 31.10.2014.
  309.   The complainant at Serial No.294, namely, Ravi Kant Goswami booked apartment no. NWD1142 and executed the ABA on 03.05.2011.  The possession was to be handed over to him by 03.05.2014.  Possession was offered to him on 29.09.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.35,745/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 26.12.2014.
  310. The complainant at Serial No.295, namely, Niranjan Utla booked apartment no. NWD2193 and executed the ABA on 02.12.2010.  The possession was to be handed over to him by 02.12.2013.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  As per OP the complainant is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 25.11.2014.
  311. The complainants at Serial No.296, namely, Deivanai P.R. booked apartment no. NWD1035 and executed the ABA on 23.07.2009.  The possession was to be handed over to him by 23.07.2012.  Possession was offered to him on 26.08.2014 after the OC was obtained on 18.06.2014.  After the amount of Rs.1,77,438/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 22.10.2014.
  312. The complainants at Serial No.297, namely, Shipra Sood booked apartment no. NWA1021 and executed the ABA on 05.08.2009.  The possession was to be handed over to him by 05.08.2012.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.3,14,669/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 05.03.2016. The complainant sold her subject flat to a third party on 11.11.2016.
  313. The complainant at Serial No.298, namely, Sharad Mohan booked apartment no. NWB5052 and executed the ABA on 04.08.2009.  The possession was to be handed over to him by 04.08.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 4,23,668/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 17.10.2016.
  314. The complainant at Serial No.299, namely, Sanjoy Paul, booked an apartment No.NWA2095 and executed the ABA on 31.03.2010.  The possession was to be handed over to him on 31.03.2013.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of 2,48,890/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.07.2016.
  315. The complainants at Serial No.300, namely, Rahul Arasakumar booked an apartment No.NWA5172 and executed the ABA on 23.04.2011.  The possession was to be handed over to him on 23.04.2014.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of 1,21,393/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 25.03.2016.
  316. The complainants at Serial No.301, namely, Satirtha Nandy booked an apartment No.NWB4173 and executed the ABA on 09.09.2010.  The possession was to be handed over to him on 09.09.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 2,27,947/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 10.11.2016.
  317.   The complainant at Serial No.302, namely, Gireesh Kunnathattil booked an apartment No.NWA3144 and executed the ABA on 17.09.2010.  The possession was to be handed over to him on 17.09.2013.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 03.12.2016.
  318. The complainants at Serial No.303, namely, Naveen Kumar Sinha booked an apartment No.NWB1043 and executed the ABA on 07.08.2009.  The possession was to be handed over to him on 07.08.2012.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 3,21,766/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 06.06.2017.
  319. The complainant at Serial No.304, namely, Himanshu Mehta booked an apartment No.NWA7163 and executed the ABA on 12.01.2010.  The possession was to be handed over to him on 12.01.2013.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 20.12.2016.
  320. The complainant at Serial No.305, namely, Sachin Singhal booked an apartment No.NWB5113 and executed the ABA on 24.08.2009.  The possession was to be handed over to him on 24.08.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 4,20,354/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 02.01.2018.
  321. The complainant at Serial No.306, namely, Namita Jain booked an apartment No.NBW3144 and executed the ABA on 23.01.2010. The possession was to be handed over to her on 23.01.2013.  Possession was offered to her on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 3,72,169/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 15.06.2017.
  322.   The complainants at Serial No.307, namely, Rajesh Prabhu booked an apartment No.NWD2015 and executed the ABA on 14.07.2009.  The possession was to be handed over to him on 14.07.2012.  Possession was offered to him on 21.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,77,642/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 20.03.2015.
  323. The complainants at Serial No.308, namely, Venkatramana Pai S. booked an apartment No.NWA4042 and executed the ABA on 07.08.2009.  The possession was to be handed over to him on 07.08.2012.  Possession was offered to him on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of 3,12,424/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 28.04.2016.
  324.   The complainant at Serial No.309, namely, Surendra Baswaraj Sindol booked an apartment No.NWD2065 and executed the ABA on 07.12.2009.  The possession was to be handed over to him on 07.12.2012.  Possession was offered to him on 21.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,45,430/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 13.05.2015. Complainant sold his subject flat to a third party on 11.07.2017.
  325. The complainants at Serial No.310, namely, Abhishek Kumar Verma booked an apartment No.NWD1166 and executed the ABA on 23.04.2011. The possession was to be handed over to him on 23.04.2014.  Possession was offered to him on 01.10.2014 after the OC was obtained on 18.06.2014.  After the amount of 39,009/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 12.06.2014.
  326. The complainants at Serial No.311, namely, Ajay Agrawal booked an apartment No.NBW3154 and executed the ABA on 07.03.2010. The possession was to be handed over to him on 07.03.2013.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 3,57,232/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.10.2016.
  327.   The complainants at Serial No.312, namely, Ranajit Ghosh booked an apartment No. NBW4125 and executed the ABA on 14.07.2010. The possession was to be handed over to him on 14.07.2013.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 2,37,512/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 12.09.2016.
  328.   The complainants at Serial No.313, namely, Ranjith Keloth booked an apartment No.NBW6165 and executed the ABA on 19.04.2011. The possession was to be handed over to him on 19.04.2014.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation according to ABA. The complainant took the possession of the subject property on 03.12.2016.
  329.   The complainant at Serial No.314, namely, Styajit Biswas is the subsequent allottees Apartment No. NWA3103 was allotted to the original allottee and ABA was executed on 26.03.2013. The possession was to be handed over to him on 26.03.2016.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation according to ABA and also since he is the subsequent allottee.  The original allottee took the possession of the subject property on 27.02.2016.
  330.   The complainants at Serial No.315, namely, Rajesh K. booked an apartment No.NWD1025 and executed the ABA on 10.07.2009.  The possession was to be handed over to him on 10.07.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,79,294/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 27.11.2014.
  331.   The complainant at Serial No.316, namely, A. G. Jayachandiran booked an apartment No.NWD2025 and executed the ABA on 20.07.2009.  The possession was to be handed over to him on 20.07.2012.  Possession was offered to him on 21.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,77,902/-towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 27.11.2014.
  332. The complainant at Serial No.317, namely, Jitendra Sharma booked an apartment No.NWC4051 and executed the ABA on 24.11.2009.  The possession was to be handed over to him on 24.11.2012.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 17.10.2016.
  333. The complainants at Serial No.318, namely, Dipansu Sadhukhan booked an apartment No.NWA2093 and executed the ABA on 04.08.2009.  The possession was to be handed over to him on 04.08.2012.  Possession was offered to him on 13.01.2016 after the OC was obtained on 07.08.2015.  After the amount of 3,06,436/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 07.03.2016.
  334. The complainants at Serial No.319, namely, Prakash Chand Mehta booked an apartment No.NWC3055 and executed the ABA on 18.06.2011.  The possession was to be handed over to him on 18.06.2014.  Possession was offered to him on 10.08.2016 after the OC was obtained on 25.07.2016.  As per OP the complainant is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 08.12.2016.
  335. The complainants at Serial No.320, namely, Rajesh Bhadra booked an apartment No.NWD2093 and executed the ABA on 21.12.2009. The possession was to be handed over to him on 21.12.2012.  Possession was offered to him on 08.09.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,48,036/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 11.08.2014.
  336. The complainant at Serial No.321, namely Sandeep Kumbhat, booked apartment No.NWC3051 and executed the ABA on 07.06.2011.  The possession was to be handed over to him by 07.06.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 1,96,329/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 08.12.2016.
  337.   The complainants at Serial No.322, namely, Prem Narayan Sharma, booked apartment No.NWA2126 and executed the ABA on 25.08.2009.  The possession was to be handed over to them by 25.08.2012.  Possession was offered to him on 07.01.2016 after the OC was obtained on 07.08.2015 As per OP the complainant is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 17.10.2016.
  338.   The complainant at Serial No.323, namely, Koshy Philip booked apartment No.NWA5146 and executed the ABA on 12.03.2010.  The possession was to be handed over to him by 12.03.2013.  Possession was offered to him on 08.01.2016 after the OC was obtained on 07.08.2015.  After the amount of Rs.2,17,238/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 06.05.2016.
  339. The complainants at Serial No.324, namely Prakash Nair booked apartment No.NWA2155 and executed the ABA on 18.12.2009. The possession was to be handed over to him by 18.12.2012.  Possession was offered to him on 07.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 04.03.2016.
  340.   The complainants at Serial No.325, namely Madhu Satiyaseelan booked apartment No.NWB4123 and executed the ABA on 19.12.2009.  The possession was to be handed over to him by 19.12.2012.  Possession was offered to her on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 2,90,179/- towards delay compensation as per ABA was credited in her account and thereafter only she took the possession of the subject property on 15.02.2017.
  341.   The complainant at Serial No.326, namely, Rajendra Prasad Aggarwal, booked apartment No.NWA7111 and executed the ABA on 11.08.2009.  The possession was to be handed over to him by 11.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015. After the amount of 3,13,025/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 21.07.2016.
  342.   The complainants at Serial No.327, namely, Saurabh Taran, booked apartment No.NWC2105 and executed the ABA on 02.09.2011.  The possession was to be handed over to him by 02.09.2014.  Possession was offered to him on 12.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 1,71,788/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 27.01.2017.
  343.   The complainant at Serial No.328, namely, Dinesh Koragapaa Puthran, booked apartment No.NWA6P03 and executed the ABA on 07.01.2011.  The possession was to be handed over to him by 07.01.2014.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of 1,81,979/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 19.12.2016.
  344. The complainants at Serial No.329, namely David Cyril Dlima, booked apartment No.NWA4066 and executed the ABA on 19.08.2009.  The possession was to be handed over to him by 19.08.2012.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation as per ABA. The complainant took the possession of the subject property on 14.03.2016.
  345. The complainant at Serial No.330, namely, Charles Lobo, booked apartment No.NWA4076 and executed the ABA on 19.08.2009.  The possession was to be handed over to him by 19.08.2012.  Possession was offered to him on 12.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainants is not eligible for compensation.  Thereafter the complainant took the possession of the subject property on 14.03.2016.
  346. The complainants at Serial No.331, namely, Sourav Sipani & Nitika Jain, apartment No.NWA6164 and executed the ABA on 03.11.2009.  The possession was to be handed over to them by 03.11.2012.  Possession was offered to them on 14.01.2016 after the OC was obtained on 07.08.2015.  After the amount of 3,29,538/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 10.07.2016. The complainants sold their subject flat to a third party on 02.11.2017.
  347. The complainant at Serial No.332, namely Vishal Sagwal, booked apartment No.NWB2022 and executed the ABA on 14.10.2009.  The possession was to be handed over to him by 14.10.2012.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.  After the amount of 3,01,046/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 01.10.2016.
  348.   The complainant at Serial No.333, namely Sanjeev Kumar Mehra, is the subsequent allottee. Apartment No. NWA4064 was allotted to the original allottee, ABA was executed on 25.08.2015 and the possession was to be handed over to him by 25.08.2018.  Possession was handed over to him on 11.01.2016 after the OC was obtained on 07.08.2015.  As per OP the complainant is not eligible for compensation as per ABA and also he is the subsequent allottee. The possession of the subject property on 11.04.2016.
  349. The complainant at Serial No.334, namely Killamchetty Maleswar Rao Subudhi, booked apartment No.NWB1122 and executed the ABA on 21.08.2009.  The possession was to be handed over to him by 21.08.2012.  Possession was offered to him on 11.01.2016 after the OC was obtained on 07.08.2015.  After the amount of 3,08,611/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 24.02.2016.
  350. The complainant at Serial No.335, namely, Gautam Gupta booked apartment No.NWD1046 and executed the ABA on 23.10.2009.  The possession was to be handed over to him by 23.10.2012.  Possession was offered to him on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,56,037/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 02.07.2015.
  351. The complainants at Serial No.336, Ravi Sharda & Shweta Sharda, booked apartment No.NWD1141 and executed the ABA on 18.02.2011.  The possession was to be handed over to him by 18.02.2014.  Possession was offered to them on 29.09.2014 after the OC was obtained on 18.06.2014.  After the amount of 53,183/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 17.11.2014.
  352. The complainant at Serial No.337, namely, Soumithri Muthegere booked apartment No.NWC3171 and executed the ABA on 17.03.2011.  The possession was to be handed over to him by 17.03.2014.  Possession was offered to him on 14.08.2016 after the OC was obtained on 25.07.2016.   After the amount of 2,19,460/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 04.11.2016.
  353. The complainants at Serial No.338, namely, Tushar Garg & Nupur Gupta booked apartment No.NWD1036 and executed the ABA on 24.11.2009.  The possession was to be handed over to him by 24.11.2012.  Possession was offered to them on 22.08.2014 after the OC was obtained on 18.06.2014.  After the amount of 1,49,497/- towards delay compensation as per ABA was credited in their account and thereafter only they took the possession of the subject property on 17.10.2014.
  354. The complainant at Serial No.339, namely, Bipin Chandra, booked apartment No.NWD2012 and executed the ABA on 14.10.2009.  The possession was to be handed over to him by 14.10.2012.  Possession was offered to him on 26.08.2014 after the OC was obtained on 18.06.2014.   After the amount of 1,56,841/- towards delay compensation as per ABA was credited in his account and thereafter only he took the possession of the subject property on 13.11.2014.                   
  355. All the complainants have filed two sets of rejoinders to the written version, one by Complainant Nos. 1 to 197 and other by Complainants Nos. 198 to 339. In the rejoinder they have denied all the contentions of opposite parties and have reiterated the contentions raised by them in the complaint. Complainant No. 1 to 197 in their rejoinder have stated that opposite parties have made a false statement that they did not receive any communication for four months of their application dated 24.01.2014. It is submitted that the information received through RTI shows that vide letters dated 28.02.2014 and dated 24.02.2014, BBMP sought informations and documents from opposite party No.2. It is submitted that this belies the contention of opposite parties that BBMP did not respond for four months. It is further submitted that their plea that due to accident on 30.06.2011 the construction had stopped for six months, is false because they did not stop raising the demands from the allottees. One of such allottees, Shri Madhusudan Pattnaik had received a demand letter on 11.01.2012. Similarly, road extension by BBMP and construction of flat by opposite parties were totally independent activities and had no connection with each other. In a letter dated 18.06.2013, sent by DLFSHPL dated 30.05.2013 enclosing email of Ms. Ananta Singh Raghuvanshi, Director Sales and Marketing there was no mention of force majeure condition and she had promised to deliver the flat before end of 2013. None of the facilities and amenities as promised by opposite parties in numerous newspapers advertisements and the brochure have been provided to the complainants and therefore there are no signs of these facilities in near future. This fact is admitted by opposite party No.2 in their reply filed by them in complaint No. CC/1056/2015 titled as R. Jambunathan vs. DLF Ltd. & Ors. It is further submitted that on their website, the opposite parties had indicated on 22.3.2012 that the construction of the entire project alongwith club house/amenities would be handed over by the third quarter of 2012. Thereafter on 06.06.2012 the said website was updated and it was stated that possession would be offered by third quarter of 2013. It is submitted that cause of action is a continuous cause of action and therefore the complaint is not barred by limitation. It is further submitted that the 2nd allottee merely stepped into the shoes of first allotted and therefore there is no distinction between the first allottee and the 2nd allottee and the 2nd allottee has all the rights which the first allottee had. The complainants have also placed reliance in their rejoinder on the demand letter dated 17.02.2016 raised on complainant No.9 after raising final demand notice dated 17.02.2016. It is also submitted that the opposite parties had made the complainants sign the ABA without showing them the terms and conditions, under the threat of forfeiture of the booking amounts. They thus had no option but to sign it although it contained unfair terms and conditions. It is contended that the opposite parties had adopted unfair trade practice and the element of freewill and mutual consent on the side of the complainants was completely missing. Clauses in the ABA are unreasonable and one sided. It is contended that since opposite parties had been utilizing the money paid by the complainants for their own purposes they are liable to pay adequate compensation to the complainants. It is further contended that the opposite parties were supposed to start construction of the project in 2009 and had promised to deliver possession to many of the complainants in 2012 itself but they applied for environment clearance only in July, 2012 and submitted a revised proposal at a belated stage and this shows that the delay committed by them in completing the construction of the project was intentional. It is further submitted that the amount charged for the car parking is completely illegal and also in conflict of the law laid down by the Hon’ble Supreme Court in the case of Nahal Chand Pvt. Ltd. vs. Panchali Co-operative  Housing Society Ltd. (2010) 9SCC 536. It is further submitted that in view of the judgment of High Court of Delhi in Suresh Kumar Bansal vs. Union of India & Ors. W.P. (C) 2235 of 2011, the opposite parties are liable to refund the service tax. It is further submitted that the entire project is composite project consisting of service element and non-service element and therefore the opposite parties have illegally collected service tax from the complainants.
  356. It is further submitted that vide letter dated 16.02.2016, 01.12.2.016 and 21.12.2016 the opposite parties had conveyed to the complainants Mr. Tirthankar Das, Mr. Suraj Desai & Mr. Arun Kumar Malik and Soumalik Das that if the acceptance of offer of possession is being conveyed by the allottees under protest, the company would not be in a position to hand over the possession and execute the conveyance deed. The possession has been taken by most of the complainants only after the institution of the present complaint. It is further contended that the complaint is maintainable in view of the order of the Hon’ble Supreme Court dated 28.9.2018 whereby this Commission was directed to proceed with merit of the case since the sameness of the interest was proved by the complainants before the Hon’ble Supreme Court. It is submitted that since application under Section 12(1) (c) of the Consumer Protection Act, 1986 has been allowed by the Hon’ble Supreme Court, the objection that the present complaint under Section 12 (1) (c) of the Act is not maintainable, is not tenable.
  357. It is further submitted that the complainants are giving up prayer clause of PLC & G,L,N,O,R,S,T and will not be pressing the same.
  358. It is further submitted that the opposite parties are liable to pay compensation for the delay in handing over the possession and in their final demand note they have unilaterally calculated the delay compensation @ Rs.5 per sq. ft. and have imposed this meagre amount on few of the complainants and they had no option but to make the payments shown in the  final demand letters (after adjusting the delayed compensation payable by the opposite parties) because the non-payment would have resulted in imposition of interest @ 18% p.a. as per clause of the ABA and the possession of the subjective flat would not have been  handed over by the opposite parties. It is denied that the complainants have bought their flat for commercial purposes. It is submitted that they are not indulging in any real estate business and that purchase of two flats simpliciter does not make it commercial purpose. It is denied that complainants have willingly taken possession of the flats and have received the compensations towards full and final settlements of all contractual obligations of the opposite parties and that they had given the affidavits on their free-wills and so not entitled to any compensation. It is further submitted that since complainants were forced to sign the settlement deeds the same are not binding on them.
  359. It is contended that the complainants have specifically alleged deficiency in service, unfair trade practice and restrictive trade practice on the part of the opposite parties for which the jurisdiction lies with this Commission. It is further submitted that there was no reason for claiming force majeure on the part of the opposite parties. It is further submitted that there is no merit in the contention of the opposite parties that there was no deficiency in service or they had not adopted unfair trade practice and restrictive trade practice. It is further submitted that the contention of the opposite parties that the relief claimed cannot be granted to the complainants, has no merit. It is submitted that the complainant Nos. 1 to 197 are entitled to the reliefs claimed.
  360. In the separate rejoinder filed by complainant Nos. 198 to 339 they have also denied all the contentions in the written version and have reiterated the contentions in the complaint. It is submitted that time was the essence of the agreement and the subject flats were not offered within the agreed time. It is further contended that complainant Nos.198 to 339 had to accept the possession and execute the sale deed without any objection otherwise in terms of the agreement the opposite parties would not have given them the possession of the apartment and would have cancelled it. It is further submitted that it was for this reason that the complaints had filed IA/791/2016 and IA/2583/2017. It is submitted that they were forced to sign all these documents. It is submitted that the opposite parties have illegally charged the complainants, the money/fee paid by them to Dua Associates. It is submitted that since the documents were executed by 278 complainants under pressure and on gun point and threat of cancellation of the allotment, these documents were not executed out of freewill and these are not binding on them. It is submitted that as per Section 7 of Karnataka Ownership of Flat Act 1972, opposite parties were under the obligation to fix defects till one year of the possession which they had failed to do so. It is further submitted that there is pending case relating to land which would lead to encumbrances on the undivided piece of land. It is further submitted that there is no prohibition under the law to own two flats by one person and the burden is on the opposite parties to prove that such a complainant was dealing in the real estate business. It is further submitted that signing of conveyance deed and affidavits are inconsequential to asking for compensation for delay and other reliefs.  Reliance is placed on the finding of this Commission in the case of Mr. Beatty Tony vs. Prestige Estate Projects Pvt. Ltd. III(2015) CPJ 63 (NC)  It is further submitted that the project is still incomplete. Opposite parties have not fulfilled its obligation to file deed of declaration under Section 2 of Karnataka Apartment Ownership Act. Reliance is placed on M/s DLF vs. Manmohan Lowe and Ors. CA10930/2013 SLP (C) 34725/2009. It is denied that the complaint is pre-mature. It is further submitted that prayer (O) which relates to PLC charges is not pressed by the complainant Nos.198 to 339 but the Commission can proceed to decide other prayers.
  361. It is further submitted that some of the complainants are not positioned in Bangalore and therefore they cannot shift to their flats and therefore they had to rent it out and that cannot be a ground for denial of the compensation. It is further contended that this Commission has the jurisdiction to entertain the present complaint and the complaint is not barred by limitation and the complainants are consumers under the Consumer Protection Act, 1986. It is further contended that the complaint can be dealt with summarily under the Act. It is further contended that since the various clauses of the ABA were completely one sided which the complainants had signed in good faith, does not take away their valuable right as a buyer. Reliance is placed on Spice Jet vs. Ranju Aery I (2017) CPJ 564 (NC).
  362. It is further submitted that the grounds taken for claiming force majeure have no merit and therefore are not tenable. It is further submitted that the opposite parties are engaging into unfair trade practice and restrictive trade practice. It is denied that the relief claimed is in the nature of specific performance. It is denied that the complainants have not approached this Commission with clean hands. It is further submitted that due to failure on the part of the opposite parties to provide numerous facilities/amenities as promised, the market value of the flats had been adversely affected. The complainant Nos.198 to 339 have submitted that they are entitled for all the reliefs as claimed by them in prayers a to h, i, j, l, m, n, o, p, q, r, s, t, u in the complaint.
  363. It is submitted that the opposite parties have not only failed to deposit the Government taxes which  they had collected from the complainants, but have also failed to provide the amenities they had promised to them. It is submitted that they have made an admission in one of their letters that they would not be in a position to provide all the facilities as promised by them in their brochure and numerous newspaper advertisements. It is further submitted that opposite parties had applied for environmental clearance on 23.8.2008 for construction of residential project. It is submitted that in the revised proposal the opposite parties have removed many things such as commercial complex etc. and this shows that the complainants have been misled by the opposite parties. It is further submitted that the opposite parties have cheated the complainants. It is submitted that due to the delay the complainants have to pay higher rate of service tax.
  364. It is further submitted that opposite parties have also failed to form an association under Karnataka Apartment Ownership Act, 1972 (KAO) rather they had created an association under Karnataka Societies Registration Act, 1960 whose membership merely consists of employees of the opposite parties and thus they are forcing the complainants to pay money to this association. It is also submitted that the said association is not empowered to do the act of maintenance for which it had been floated. It is further submitted that opposite parties are forcing the complainants to sign a tripartite maintenance agreement at the time of handing over of possession and forced them to sign a blank agreement. It is submitted that the association for maintenance has to be an association formed under KAO Act. The demand notice of complainant Kartikeya Khanna clearly shows the malafide intention of the opposite parties. It is further submitted that opposite parties be directed to refund the amount collected from the complainants and be directed to form welfare association under KAO Act, 1972. It is further submitted that opposite parties have collected Rs.60,000/- from each of the complainants towards lifetime membership of the club house and the club house till date is not in existence. It is further submitted that till the opposite parties provide the club house and other common facilities they should continue paying the delay penalty.
  365. It is further denied that the complaint of all the complainants regarding the quality of workmanship and the other defects were promptly attended by opposite parties. It is further submitted that opposite parties have illegally charged for the car parking which they were supposed to provide free of cost. The contention of the opposite parties that Rs.2 lakhs is not demand of water and electricity charges is baseless. It is further submitted that the demand of the amount of Rs.68.21 per sq. ft. of saleable area in January, 2016 even from those to whom the possession has been given and sale deed executed, is not tenable and amounts to abuse of terms and conditions. It is submitted that the charges which were collected as EDC is not chargeable because in Bangalore there is no such charges called EDC and the amount of Rs.626,04,603/- which was loaded on all buyers vide CA certificate dated 09.08.2014 is to be refunded in proportionate share.
  366. It is further submitted that opposite parties have unilaterally increased the area of each flat and loaded the excess cost of each flat on the buyers and this amounts to restrictive trade practice wherein unjustified cost have been loaded on the buyers without even informing them. It is further submitted that the complainants are aggrieved by the fact that they were made to pay property tax prior to the date of execution of the agreement and the same should be refunded to them. It is submitted that the complainant Nos.198 to 339 do not press prayer clause (O) of the complaint.  On this contention, it is submitted that the plea of the opposite parties in its written version is not tenable and the written version is liable to be rejected.
  367. The parties were required to lead evidences. The complainants before us are contesting in two groups. One group is of complainants Nos. 1 to 197 and other is of complainants Nos. 198 to 339. Both groups are being represented by separate learned counsels & learned Senior Counsels. Complainant Nos. 1 to 197 had initially filed their affidavit of evidence alongwith rejoinder but on 06.02.2019 they withdrew the said rejoinder and affidavit of evidence and subsequently filed fresh rejoinder and, affidavit of evidence dated 30.01.2019. However, no affidavit of evidence is filed by group of complainants Nos.198 to 339. It is apparent from the order sheet dated 15.05.2019 that the learned counsel representing these complainants, had submitted that these complainants have filed separate rejoinder which has been placed in Part-1 Vol. 1 & 2 and  also submitted on instruction that adopt the same affidavit of evidence which had been filed by complainant Nos.1 to 197 and did not wish the file any separate affidavit of evidence. Although learned counsel for the complainants Nos. 198 to 339 was directed to sign the order sheet dated 15.5.2019 but the learned counsel did not sign the order sheet. It is also a fact that on subsequent hearings no separate affidavit of evidence had been furnished on behalf of complainant Nos. 198 to 339. Affidavit of evidence was also filed by the opposite parties.
  368. Thereafter, group of complainants Nos.1 to 197 have furnished one set of written submissions. Complainant Nos. 198 to 339 have furnished separate set of written submissions. The proceeding as recorded in this case, also shows that after the learned counsels for the complainants had concluded their arguments and during the hearing of the arguments on behalf of the opposite parties, learned counsel Mr. Chandrachur Bhattacharya representing complainant Nos.1 to 197, sought permission to withdraw his Vakalatnama on behalf of complainant No.2 i.e. Kartikey Khanna who was also present in the Court at that time. Subsequently Mr. Chandrachur Bhattacharya submitted an application for withdrawal of his Vakalatnama executed in his favour by complainant No.2 Kartikey Khanna. This Commission thereafter permitted complainant No.2 Mr. Kartikey Khanna to either argue his matter personally or engage a counsel. He, thereafter furnished his separate written submissions and also argued orally. Written submissions have also been furnished by the opposite parties.
  369. Learned Senior counsels of the parties and complainant No.2 Kartikeya Khanna have addressed oral arguments. The learned Senior Counsels for the complainants and complainant No.2 Kartikeya Khanna have also addressed arguments in rebuttal.
  370. In the detailed written submissions, the complainant Nos.1 to 197 have submitted that they are pressing their prayers relating to delay, non-provision of amenities and facilities and compensation on account of non-provision, tax irregularities and abuse of clauses 1.10, 1.14, 1.14 & 23 of ABA relating to electricity charges and water charges and the arbitral increase in the price of the flats through the gateway of these clauses. It is submitted that these four grievances are common to all 1 to 197 complainants. The complainant Nos.198 to 339 in addition to the issues raised by complainants Nos. 1 to 197 have also addressed the arguments on the issue of car parking and re-manipulation of pricing and the allegations regarding hidden charges. Besides filing the written submissions the complainant No.2 has also addressed arguments on all the issues which have been raised by the other complainants in their written submissions. The opposite parties in their written submission had although challenged the maintainability of the complaint, during the course of oral submissions they have not pressed this argument. Similarly, they have also given up their contentions relating to pecuniary jurisdiction and class action.
  371. We have given thoughtful consideration to the rival contentions of the parties, the evidence led by them, the documents produced by them and the written submissions and the oral arguments addressed by them. Our findings are as under: –
  372. The learned Counsel Mr. Chandrachur Bhattacharya for complainants Nos.1 to 197 and Mr. Shankar Divate learned counsel for complainant Nos.198 to 339 have also furnished their affidavits on behalf of the complainants and have given up prayer clauses Nos. G, L, N, O, R, S, T in the amended complaint. The prayers with which this Commission has to deal with are as under: –

“A.    Direct the opposite parties to refund to the each of the complainants and to the entire class of buyers having the same interest a total sum being 50.75% of the proportionate cost paid by each of the buyers for their individual dwelling units for having reduced the project cost by 50.75% (From INR 536 crores to INR 264 crores) three years after entering into the contracts with 24% interest per annum.

  1. Direct the opposite parties to refund to all the complainants and the entire class of buyers having the same interest the sum of money which opposite parties have illegally and unfairly charged the complainants/buyers under the grab of tax (paid or payable) through the gateway of clause 1.10 of ABA with 24% interest per annum and restrain the opposite parties from invoking the s aid clause in future.
  2. Direct the opposite parties to provide all the facilities or amenities which they promised in the brochure and in various advertisements without charging any additional sum/fee from the buyers or in the alternative impose punitive costs of Rs.10,00,000/- to be paid to the each of the complainants, and to the entire class of buyers having the same interest.
  3. Direct the opposite parties to refund to the complainants and to the entire class of buyers having the same interest the sum of money raised through the gateway of clause 1.14, 1.15 and 23 (b) alongwtih 24% interest per annum and restrain them from invoking the said clauses in future.
  4. Direct the opposite parties to pay to all the complainants and to the entire class of buyers having the same interest, interest @ 24% per annum for the period of abnormal and inordinate delay in handing over possession of the flats to the buyers.
  5. Impose a punitive cost of Rs.10 lakhs each per complainant/buyer on the opposite parties to be paid to all the complainants and to the entire class of buyers having the same interest on account of mental harassment and agony caused due to the unfair trade practice, restrictive trade practice and deficiency in service adopted and rendered by the opposite parties.
  6. Direct the opposite parties to refund amount illegally collected by way of car parking with 24% interest to all the complainants and to the entire class of buyers having the same interest.
  7. Direct opposite parties to refund amount charged by way of fee payable to Dua Associates alongwith 24% interest to all the complainants and to the entire class of buyers having the same interest.
  8. Direct the opposite parties to compensate the complainants and to the entire class of buyers having the same interest on account of higher registration charges on the guidance value paid or payable by them because of the delay by the opposite parties alongwith 24% interest.
  9. Direct the opposite parties to compensate the complainants and to the entire class of buyers having the same interest on account of higher service tax rate paid by them because of the delay by the opposite parties alongwith 24% interest.
  10. Direct the opposite parties to refund to the complainants and to the entire class of buyers having the same interest the amounts charged fraudulently on account of increase in super area alongwtih 24% interest.
  11. Direct the opposite parties to refund to all the complainants and to the entire class of buyers having the same interest the extra amounts charged in the name of labour cess alongwith 24% interest.
  12. Direct the opposite parties to refund to the complainants and to the entire class of buyers having the same interest the amount collected in the name of Association membership fees and/or subscription fees and restrain them from charging such fees in future.
  13. Direct OPs to refund to the complainants and to the entire class of buyers having the same interest amounts collected illegally in the name of club house and restrain them from collecting such amounts in future.
  14. Award cost of the petition to the complainants.
  15. Pass any further orders or orders which the Hon’ble Commission deems fit and proper in the interest of justice.”

 

  1. It is argued by learned Senior Counsel for opposite parties that since they have been given liberty by the Hon’ble Supreme Court vide its order dated 28.09.2018 to contest the case of each of 339 complainants on merits, Commission shall not treat this complaint as a class action suit but shall decide the entitlement of individual complainant. It is submitted that the Hon’ble Supreme Court vide its order dated 28.09.2018 has clearly held “it will be open for the respondents to give their say on the merits of each of the 339 complainants” and therefore all the complainants need to prove their individual case and that the complainants have not filed their individual affidavits of evidences in relation to the facts and circumstances of each of 339 complainants. It is submitted that in the rejoinder, in this regard, they have raised the following arguments which the opposite parties have reproduced in its written submission and we hereby quote it as under:-

“The opposite party has in addition to common also given individual response on each of the 339 complainants who have joined this case. The individual response given by the opposite party is laden with factual errors. The complainants are not going into the same since this is a class action complaint and all the complainants have a common interest/same interest. Whatever documentation and information is required for the adjudication of this complaint has already been provided by the complainants in the amended complaint and in this rejoinder.”

 

  1. It is contended that the complainants are approbating and reprobating in this regard. Where it suits them, they take the plea that the complaint is on behalf of 339 complainants in terms of the Hon’ble Supreme Court order and no other persons could be impleaded in the complaint, which otherwise is permissible in a class action suit, while when it comes to pleadings and proving the facts and circumstances of individual complainants, they take the plea that this being a class action suit, there is no requirement to plead and prove individual facts and circumstances including allegation of coercion. It is also contended that the complaint is liable to be dismissed since no affidavit of individual complainant has been filed to prove their individual grievances. It is submitted that the person who has deposed on their behalf, was not even duly authorized by the complainants. It is submitted that no notarized power of attorney was issued in favour of Mr. Arifur Rehman Khan. The alleged authority letters in favour of Mr. Arifur Rehman Khan, complainant No.3, who has deposed on behalf of complainant Nos. 1 to 197, are not duly executed/registered/notarized power of attorneys. It is submitted that the power of attorney/authority letters issued by complainant Nos. 1 & 2 and 4 to 197 in his favour are not as per the settled proposition of law. In some cases the authority letters, instead of complainants, have been issued by some other persons, having no authority of the complainants to do so. It is also argued that mostly the authority letters are photocopy/photograph of alleged authority letters. It is submitted that there are no valid authorization to depose in favour of Mr. Arifur Rehman Khan on behalf of these complainants in the eye of law. It is further submitted that as far as complainant Nos. 198 to 339 are concerned, they have not authorised Mr. Arifur Rehman Khan to depose on their behalf since they have not executed any authority letter in his favour. It is submitted that the approach as adopted by the complainant Nos. 198 to 339 is casual. Their counsel had just made a statement that these complainants adopt the same affidavit of evidence which has been deposed by Mr. Arifur Rehman Khan on behalf of complainant Nos. 1 to 197. It is argued that this clearly shows that these complainants have not led any evidence to prove their individual cases and to disprove the contentions raised by the opposite parties qua them. It is submitted that complainants have in a way made the mockery of process of law governing the procedure of this Commission.
  2. It is a settled proposition of law that the procedure which is followed by this Commission is a summary procedure. It is also the settled proposition of law that the facts which can be proved by documents, no oral testimony is needed. The oral deposition is required to be made to prove the facts which cannot be proved by way of a document. In the present complaint, the contentions of the parties are based on the documents executed between them and therefore to deal with these issues, no oral testimony is relevant. The complainants have also alleged and contended that they had been forced and coerced and unduly influenced to sign on dotted lines of ABA and conveyance deed. We will discuss if these contentions can be ascertained from documents or can only be ascertained by oral testimony. It is apparent that the group of complainants 198 to 339 have not produced any oral testimony in support of their plea of force, coercion and undue influence and that they had not exercised their free will while signing on the documents like ABA and the conveyance deeds and the affidavits of settlement or the settlement deeds. The law does not permits the adoption of the testimony of a witness. A witness deposes the facts based on his knowledge of such facts. A person cannot depose on  behalf of another person without being so authorized. The group of complainants to 198 to 339 have since not authorized Mr. Arifur Rehman Khan who had filed his affidavit of evidence on behalf of the group of complainants No.1 to 197, his testimony cannot be read as testimony of group of complainants Nos.198 to 339.
  3. On the basis of pleadings of the parties the complainants can be grouped as under: –

Group A.    The complainants who had taken possession of their subject flats before the filing of the complaint/impleadment applications.

Group B.     The complainants who have taken possession and executed conveyance deeds during the pendency of the complaint/impleadment applications.

Group C      Complainants who have taken possession during the pendency of the complaint/impleadment applications but have not executed the conveyance deed.

Group D.    The complainants who have settled their dispute during the pendency of the present complaint/ impleadment applications.

Group E.     The complainants who have sold their subject flats to third persons during pendency of the complaint/impleadment applications.

Group F.     The complainants who have not taken possession of the flats and have not executed the conveyance deed.

 

  1. Group A & B.     The complainants who had taken possession of their subject flat before filing of the complaint/impleadment applications and the complainants who have taken possession and executed conveyance deed during pendency of the complaint/impleadment applications.
  2. It is argued by learned Senior Counsel on behalf of the opposite parties that out of 339 complainants, 211 complainants have already executed the conveyance deed without demur. Out of this 67 complainants had executed the conveyance deed even prior to the filing of the complaint or impleadment applications. That the terms of conveyance deed clearly states that they are satisfied with the flats and they have discharged the builder of all its obligations under ABA.
  3. It is further argued that these complainants have executed the sale deed on their own free will accepting the delayed compensation and no coercion or undue influence has been used upon them and that such complainants have not produced even an iota of evidence to prove the element of coercion in execution of conveyance deed or taking possession. Reliance is placed on the findings in Pochampally Handloom House vs. United India Insurance Co. Ltd., NCDRC: OP No.38/2002, Synco Industries, Vs. State Bank of Bikaner & Jaipur, (2002) 2 SCC 1, Amit Chawla vs. Parsvnath Developers Ltd., NCDRCFA/1156/2014, Mandeep Kumar vs. Estate Officer, Greater Mohali Area Development Authority, RP/4160/2014
  4. It is argued by learned Senior Counsels of the complainants that they were forced to execute the sale deed and affidavits with terms and conditions which are wholly one sided, unfair and unreasonable and are harsh, oppressive and inconsolable and thus unfair and unreasonable clauses in the conveyance deed are not enforceable. It is argued that conveyance deed is also a contract and a term of contract will not be final and binding. It is argued that the complainants had no option but to sign on the dotted lines. They were not allowed to accept the possession under protest and execute the conveyance deed under protest because the opposite parties had threatened them not to give possession and execute the conveyance deed in case of any protest from the complainants. It is submitted that this fact is clear from the communications dated 16.02.2016 in the form of email sent to complainant Tirthanker Das and similar emails dated 21.12.2016 sent to complainant Suraj Desai and to Arup Kumar Mullick and Soumalik Das dated 24.12.2016. It is further argued that because of these communications these complainants unconditionally accorded their consent for the possession and executed the conveyance deed. It is further argued that these conveyance deeds and affidavits nowhere state that the complainants have discharged the opposite parties from its obligation under Consumer Protection Act.  It is further contended that the unfair clauses in the conveyance deed have no binding effect and cannot be enforced and it constitutes an unfair trade practice. Reliance is placed on Beatty Tony (supra) wherein this Commission has held that unilateral discharge of liability is not binding and does not defeat the rights of the complainant to claim compensation under ABA. Reliance is also placed on the finding of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. vs. Gouvindan Raghavan Civil Appeal No.12238/2018 on paragraphs 3.8, 6.3, 6.6 & 6.7 and it is argued that in this case Hon’ble Supreme Court has clearly held that if the terms of contract are harsh, oppressive and unconscionable to one of the parties, such a contract cannot be relied upon and Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is further argued that in this case the Hon’ble Supreme Court has also held that the term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted lines, on a contract framed by the builder. On these contentions, it is argued that the terms of the conveyance deeds which is nothing but a contract are not final and binding since these terms are unfair and unreasonable and it cannot be said that by executing the conveyance deed the complainants have discharged the opposite parties of its obligations under ABA. It is further argued that simply because a conveyance deed has been executed by the complainants, they are not debarred from challenging the terms and conditions of ABA being unwarranted and unreasonable and fraught by unfair and restrictive trade practices.
  5. We have given thoughtful consideration to the rival contentions on this point. It is not a disputed fact that the opposite parties had adjusted the delay compensation payable by it in the final demand letter while handing over the possession which was calculated in terms of ABA. This compensation was calculated at the rate agreed by the parties to ABA. These complainants after making the payment as shown in the final bill took the possession and executed conveyance deed. Some of these complainants had taken possession and executed conveyance deed before the filing of the complaint/impleadment application. These complainants had taken the possession and executed the conveyance deed without any demur i.e. they did not approach the Commission as a consumer with their grievances before accepting the delayed compensation or taking possession or executing conveyance deed. It is argued on their behalf that the present complaint be treated as their protest. There is another group of complainants, who have also taken the possession and executed the conveyance deed during the pendency of the present complaint without permission of this Commission.
  6. These complainants in order to prove that they were in a non-bargaining position and had to follow the lines drawn by the opposite parties as they were threatened that the possession be not given and the conveyance deed be not executed if the protest is there, have relied on the emails sent by the opposite parties to four of such complainants. It is argued that these emails sufficiently prove that the opposite parties had used coercion upon the complainants thereby leaving to them no choice but to execute the conveyance deed and take possession. Except these four e-mails, no other document or other threatening e-mails received by the complainants, is shown. We have been urged to give findings of coercion etc. on the basis of these four emails.
  7. The opposite parties have placed on record number of emails sent to the other complainants which shows that they had simply asked the allottees to make the payments as per the final demand letter and take possession and execute conveyance deed. It is argued that pursuant to these emails, these complainants had taken the possession and executed the conveyance deed without demur and these e-mails show that the complainants were not threatened or pressurized to take possession. They were offered possession in terms of ABA, which they had accepted without demur, voluntarily and now cannot take such pleas at later stage.
  8. It is a settled proposition of law that the finding of the fact cannot be given on the basis of surmises and conjecture and presumptions. The existence of element of coercion being used upon each and every of such complainants who have taken possession and executed conveyance deed, cannot be presumed. These complainants need to produce evidence to prove their contention of coercion. In order to prove coercion and force and undue influence, these complainants have relied on the four emails as mentioned above and have urged us to give findings on existence of element of coercion. On the other hand, the opposite parties have produced on record more number of emails which are polite letters to the allottees to accept possession and execute conveyance deed. 398.   Even if for the sake of arguments, we presume that these complainants were coerced into signing conveyance deed, a conveyance deed transfers the rights in a property. It is not a service agreement rather it creates right and title in an immoveable property. Since conveyance deed is not a service contract the forceful execution of this document cannot be challenged under the Consumer Protection Act. Any challenge to the execution of the conveyance deed on the grounds that these complainants were forced or coerced or threatened to execute it and hence it is not binding or a challenge as to the validity or legality of the terms and conditions of the conveyance deed on any ground is not open to challenge before a Consumer Court. Since the conveyance is not a service contract this Commission has no jurisdiction to deal with its validity or its binding nature, the rights of such complainants to challenge the terms and conditions of the conveyance deed and/or they were forced to execute conveyance deed, lies before a Civil Court. Thus the 67 complainants who had executed the conveyance deed before the filing of the complaint cannot under Consumer Protection Actchallenge the execution of the conveyance deed on the ground of undue influence, imbalance of power or force or coercion or any other ground firstly because the conveyance deed is not a service contract and secondly because by executing the conveyance deed, they have accorded their satisfaction and voluntarily discharged the opposite parties of all their liabilities under ABA The contention that the filing of the complaint should be treated as their protest, is of no consequence because what actually they are challenging is the execution of conveyance deed and its terms & conditions. The jurisdiction does not lie with this Commission. The remaining complainants who have taken the possession and have executed the conveyance deed during the pendency of the present complaint have done so without the permission of this Commission. They have not even brought this fact to the notice of the Commission. No explanation has come forward as to why they have not informed this Commission about these developments. They have executed the conveyance deed without the permission of this Commission and thereby without reserving their rights and contentions raised by them in the present complaint. Also in the conveyance deed they have accorded their satisfaction to the services provided by the opposite parties and have discharged the opposite parties of all their obligations under the ABA.
  9. The Complainants in support of their contentions that conveyance deed is a contract and if the buyer is made to sign on dotted lines, the terms of such contract are not binding, have relied on para 6.7 of Pioneer Urban Land and Infrastructure Ltd. vs. Gouvindan Raghavan(supra). The relevant paragraphs are reproduced as under: –

“6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.

The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

  1. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.”

           

  1. We have given thoughtful consideration to the finding of Hon’ble Supreme Court in Pioneer Urban Land (supra). It is a settled proposition of law that the findings in a case are given on the facts of that case. The binding nature of the findings depends upon the similarity of facts. The factual matrix in Pioneer Urban Land (supra) was that the builder had launched a residential project and the flat purchaser had entered into an apartment buyer agreement. As per clause 11.2 of the said agreement, the builder was to apply for occupancy certificate within 39 months from the date of excavation with a grace period of 180 days. The builder failed to comply with this stipulation as it failed to apply for occupancy certification and the flat purchaser filed the consumer complaint alleging deficiency of service for failure to obtain occupancy certificate and hand over possession of the flat and the buyer prayed for the refund of the entire deposited amount and also compensation  for mental agony and harassment and refund of certain taxes etc. It was on these facts that the Hon’ble  Supreme Court has given the  findings as noted above in para 6.7. It is therefore apparent that the finding relates to the nature of contract which was the apartment buyer agreement. The Hon’ble Supreme Court in Pioneer case (supra) had no occasion to deal with the terms of conveyance deed. Findings relate to terms & conditions of ABA, and this group of complainants has discharged the opposite parties of their obligations under ABA after executing the conveyance deed. After execution of the conveyance deed the earlier agreement, i.e. ABA is not in existence and there is no existing relationship of consumer and service provider between the parties under the said ABA. In the case of Pioneer Urban Land (supra), the Hon’ble Supreme Court had no occasion to deal with the terms and conditions under a conveyance deed. The findings in the Pioneer Urban Land (supra), therefore is of no help to the  complainant.
  2. The complainants have also relied on the findings in the case of Beatty Tony vs. M/s Prestige Infrastructure(supra) in support of the argument that on execution of the conveyance deed or on taking possession, the liabilities of the opposite parties under the ABA does not get automatically discharged and it can be enforced because one side discharge is not acceptable. The findings in Beatty Tony (supra) are given on the sets of facts before the Commission. The facts of the case in Beatty Tony (supra) shows that as per Apartment Buyer Agreement, the possession was to be delivered and transaction was to be completed within 39 months with a grace period of 3 months. In the event of default the builder was liable to pay interest @ 7% p.a. The possession was delivered to the allottee on 23rd December, 2011 and the balance money was paid by the allottee on 24th December, 2011 and after taking the possession the buyer approached the District Forum, claiming compensation for the delay in handing over the possession and challenged the term whereby the builder was to pay penalty @ 7% p.a. It was on these facts that this Commission while rejecting the arguments of the opposite parties that the possession has since been accepted without protest and builder stands discharged of its liabilities under agreement, the allottee cannot be allowed to claim interest at a later date on account of delay in handing over of the possession of the apartment to him, has held as under: –

          “The learned counsel for the opposite parties submits that the complainant accepted possession of the apartment on 23/24.12.2011 without any protest and therefore cannot be permitted to claim interest at a later date on account of the alleged delay in handing over the possession of the apartment to him.  We, however, find no merit in the contention.  A perusal of the letter dated 23.12.2011, issued by the opposite parties to the complainant would show that the opposite parties unilaterally stated in the said letter that they had discharged all their obligations under the agreement.  Even if we assume on the basis of the said printed statement that having accepted possession, the complainant cannot claim that the opposite parties had not discharged all their obligations under the agreement, the said discharge in our opinion would not extend to payment of interest for the delay period, though it would cover handing over of possession of the apartment in terms of the agreement between the parties.  In fact, the case of the complainant, as articulated by his counsel is that the complainant had no option but to accept the possession on the terms contained in the letter dated 23.12.2011, since any protest by him or refusal to accept possession would have further delayed the receiving of the possession despite payment having been already made to the opposite parties except to the extent of Rs. 8,86,736/-.  Therefore, in our view the aforesaid letter dated 23.12.2011 does not preclude the complainant from exercising his right to claim compensation for the deficiency on the part of the opposite parties in rendering services to him by delaying possession of the apartment, without any justification condonable under the agreement between the parties.”

                                                                                               (Emphasis supplied)  

  1. It is apparent that this Commission had rejected the unilateral discharge of the obligations of the builder under the agreement at the time of giving the possession. This act of unilateral discharge was of the builder and the buyer had not discharged the builder of its liability under the agreement and he immediately approached the District Forum without executing any conveyance deed. By not executing the conveyance deed the buyer had not accorded the discharge of the obligation of the builder. The case of this group of complainants who have executed conveyance deed is entirely different. These complainants have taken the possession and executed the conveyance deed without any demur and by executing the conveyance deed they have discharged the opposite parties of their obligations under ABA. The findings in the case of Beatty Tony (supra) since being given on the facts which are different from the facts and circumstances of this case is of no help to these complainants.
  2. The opposite parties have relied on the findings of this Commission in the case of Mandeep Kumar vs. Estate Officer, Greater Mohali Area Development Authority & Anr., Revision Petition No.4160/2014. As per the facts of this case, on 1.9.1998 a flat was allotted by the builder and the allottee after taking possession, executed the conveyance deed. There were some leakage & choking in the bathroom and kitchen etc. in the flat and allottee filed the consumer complaint praying for a direction to the builder to remove the defects and pay compensation towards loss and mental tension. The builder challenged the maintainability of the complaint on the grounds that there was no cause of action and that the allottee was not a consumer within the Consumer Protection Act. This Commission has held as under: –

Moreover, on execution of conveyance deed in respect of the said flat on 28.01.2009, rights and obligations of the parties under the Hire Purchase agreement stood extinguished.  Thus, there was no occasion for him to allege deficiency of service on the part of Respondent No. 1 in not taking action for getting the alleged leakage/blockage rectified.  Having held so, the Petitioner cannot be said to be “consumer” within the meaning of section 2(1)(d) of the Act, qua Respondent No. 2, and therefore, a complaint under the Act was not maintainable against him. 

(Emphasis supplied)  

  1. In this case the Court had dealt with the issue whether on execution of conveyance deed, terms & conditions of the ABA can be challenged and it has answered in negative. In view of the above settled proposition of laws, we hereby hold that these complainants who have executed the conveyance deeds and thereby terminated the ABA and discharged the opposite parties of their liabilities, are not consumers within the meaning of Consumer Protection Actand therefore not entitled to any relief.
  2. Group C.     Complainants who have taken possession during the pendency of the complaint/impleadment applications but have not executed the conveyance deed.
  3. It is argued by learned Senior Counsels for the complainants that they had no option but to accept the possession or the possession would not have been given to them and the allotment would have been cancelled. It is argued that they were thus threatened with cancellation of allotment and forfeiture of their deposits, and they were forced to take possession. It is further argued that this does not extinguish their rights to challenge the terms and conditions of ABA and reliance is placed on Betty Tony (supra). It is submitted that in that case the buyer had approached the Commission after accepting the possession of the  apartment and demanded the delayed compensation challenging the terms of ABA under which the builder was liable to pay the compensation @ Rs.7/- per sq. ft.
  4. It is argued by the learned Senior Counsel for the opposite parties that these complainants had taken possession of their subject flats during the pendency of the present complaint without demur and therefore they are not entitled to any relief. It is argued that these complainants had the occasion to approach the Commission and state their grievances, relating to coercion, undue influence etc. which they now allege but they chose not to do so and this clearly shows that there was no force or coercion and they have taken the possession and  accepted the delayed compensation on their free will and therefore it does not lie in their mouth to now challenge the terms of ABA and that they cease to be consumers Reliance is placed on para-15 of Harpal Arya vs. Housing Board, Haryana Estate Manager Housing Board, 2016 SCC Online NCDRC 361 wherein it has been held by this Commission: –

Para-15    “Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further, as per possession certificate it is clear, that petitioner had taken the possession, without any pre conditions. Now after getting the possession, it does not lie in the mouth of petitioner to state, that house is not in a habitable condition. Once petitioner, had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The consumer complaint was filed on 25.05.2005, that is, after about seven months of taking over the possession of the house. Therefore, on the face of it petitioner was not a ‘Consumer’ at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone.

 

  1. The reliance is also placed by the opposite parties in the case of T.K.A. Padmanabhan vs. Abhiyan CGHS Ltd., Revision Petition No.1942/2013 para No. 9 decided by this Commission on 04.01.2016. Relevant paragraph is reproduced as under: –

Para-9     “It is an admitted fact, that petitioner had taken the physical possession of the flat on 27.02.2004, though there was delay of 11 months in giving possession on behalf of the respondent. However, the consumer complaint was filed on 08.08.2005, that is, about one and half years, after petitioner got the possession. There is nothing on record to show, that at the time of taking possession of the flat, petitioner had lodged any protest with regard to delay or took conditional possession. When petitioner had taken the possession of the flat on 27.02.2004, unconditionally and without any protest, thereafter he cease to be a Consumer. The agreement executed between the parties, comes to an end. Thus, on the date when Consumer Complaint was filed, there was no privity of contract between the parties. As such, the consumer complaint on the face of it is not maintainable.”

(Emphasis supplied)  

  1. The opposite parties have also relied on para-13 of Smita Roy vs. Excel Construction & Anr., First Appeal No.211/2011, decided on 14.02.2012. Paragraph 13 of this case reads as under: –

          “Once the possession has been received by the appellant with open eyes and without any objection, now it does not lie in her mouth to allege about the location and deficiencies etc.”

 

  1. The opposite parties have also relied on para-5 the case of Pochampally Handloom House vs. United India Insurance Co. Ltd., Original Petition No.38 of 2002 decided on 10.10.2002 by Four Members’ Bench of this Commission. The relevant para is reproduced as under:-

Para-5.       “In this case, the complainant has offered his acceptance for a sum of Rs.14,50,000/- in full and final settlement on 31.7.2001. Not only that/an affidavit has also been sworn on behalf of the complainant to the same effect. Thereafter, on 16.8.2001 the complainant raised the protest against that payment and has alleged that the payment was received under protest. We consider that unless a very strong case is made out on evidence, this petition cannot be entertained particularly when protest has come after 16 days. Furthermore, the allegations of undue influence and coercion cannot be adjudicated without proper evidence, in in our summary jurisdiction, we are not able to embark upon. In this connection it is appropriate to extract the view of Hon’ble Supreme Court in the case of Synco Industries vs. State Bank of Bikaner & Jaipur (2002) 2 SCC which are as under:

     Given the nature of the claim in the complaint and the prayer for damages in the sum of Rupees fifteen crores and for an additional sum of Rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is on appropriate claim for a Civil Court to decide and, obviously, was not filed before a Civil Court to start with because, before the Consumer Forum, and figure in damages can be claimed without having to pay court fees. This, in that sense, is an abuse of the process of the Consumer Forum.

 

  1. This group of complainant had all the opportunity to seek permission of this Commission and reserve their rights under ABA but they have voluntarily with open eyes, without reserving their rights to the contentions raised in the complaint and without the permission of the Commission, had taken the possession during the pendency of the complaint. Subsequently, also no grievances in writing were raised. It is at the stage of final arguments that the plea of undue influence, coercion, force has been raised, without making any complaint to the Commission at any time when they had the occasion and liberty to lodge their protest before this Commission while taking possession or thereafter
  2. The complainants on the other hand have relied on the findings in the case Betty Tony (supra). The findings of this Commission in the case of Betty Tony (supra) is distinguishable. In that case, the buyer immediately on taking possession, approached the Commission challenging the terms of ABA. This commission in that case had clearly observed the fact that there was a unilateral discharge of liabilities by the builder. This shows that in the case of Betty Tony (supra) the complainant had no discharged the builder of its liabilities under the apartment buyer agreement. These complainants, who have come before us challenging the terms of ABA had during pendency of their complaint have taken possession without permission of this Commission or without reserving their rights to such challenge. They have never complained to this Commission. The acceptance letters which they had issued while accepting the possession clearly show that they have duly discharged the builder i.e. the opposite parties of their liabilities under ABA. One of such letter is reproduced herein: –

“I/We have settled the financial terms with the company as far as the cost and other charges pertaining to the cost of this property are concerned and for  this we have no claim, towards the  company on the property mentioned above.

I/We shall inspect the property on taking over and shall be signing a separate acceptance letter so far as the construction is concerned, as is the procedure.

Sd/-

Acceptance from the Allottee             They therefore have voluntarily, without reserving the rights to challenge the terms and condition of ABA have, settled their accounts with the opposite parties and have taken possession and have discharged the builder of its obligations under ABA unlike the buyer in the case of Betty Tonny in which case it was the builder who had unilaterally discharged itself from its obligations under the agreement and which the Court had refused to accept. The findings in Betty Tony case (supra) have been given on different sets of facts and are not binding. The findings of this Commission in Harpal Arya and Mandeep Kumar and T.K. Padmanabhan and Smitha Roy and Pochampalli (supra), are relevant. In this case although the complainants were before this Commission, they  have taken possession without protest, without permission of the Commission and without even lodging any complaint with the Commission after taking possession.

  1. Group D Complainants who have entered into settlement during the pendency of this complaint           It is argued on behalf of the opposite parties that 55 complainants as per chart E (submitted alongwith the written submissions), have voluntarily without any force or coercion, entered into settlements with the opposite parties after filing of the present complaint/impleadment applications and therefore they are not entitled to any relief. In response to this contention, the learned counsel representing complainants 1 to 197, in the written submissions in para-1 under the heading “Complainants response to OP defence” has made the following statement: –

“As far as the allegation that few complainants have executed settlement deed, I being the Vakalatnama holder did not receive any instruction from my client that they want to settle. Coercion proven.”

         

  1. The argument of learned Senior Counsel appearing on behalf of complainant Nos.198 to 339 in their written version is that such a settlement does not, in any manner, exclude these 55 complainants from exercising their right to claim compensation for deficiency in service on the part of the opposite parties.
  2. We have given thoughtful consideration to the rival contentions of the parties. The opposite parties have clearly stated that these complainants have entered into the settlement during the pendency of the present complaint voluntarily. These complainants before entering into any settlement did not seek any permission of the Commission nor have move any application for reserving their rights and contentions in the present complaint, and have on their own entered into such settlement with the opposite parties. It is also clear from the record that subsequent to settlement also no application was moved by any of these complainants alleging force or coercion or undue influence. They have also kept their counsels in dark that is why learned counsel for the complainants Nos.1 to 197 has stated that he had not received any instructions from these clients that they wanted to settle and that it means the coercion proved. This shows that they have acted independently and took decisions in their interests while settling all their disputes with the opposite parties. No material has been placed on record on behalf of these 55 complainants which can suggest that they had settled their dispute under duress, undue influence or coercion. They are complainants before this Commission and we wonder what stopped them from moving appropriate applications for bringing to the notice of this Commission if they were forced to enter into settlements.
  3. All the complainants of the group A, B & C, D have taken a common plea that they had been forced, coerced and threatened and were put under duress and an undue influence had been used upon them for accepting the possession, executing the conveyance deed and entering into settlements. Their contention is that they have not singed these documents on their own free will and free consent.
  4. Free consent is defined in the Indian Contract Actin Section 14, which reads as under: –

“Free consent’ defined.–Consent is said to be free when it is not caused by– –Consent is said to be free when it is not caused by–“

(1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 2021 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.”

 

 Section 15 defines the coercion as under: –

  1. ‘Coercion’ defined.–‘Coercion’ is the committing, or threatening to commit, any act forbidden bythe Indian Penal Code(45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. –‘Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.” Explanation.–It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed. Illustrations A, on board an English ship on the high seas, causes B to enter into an agreement by an act amounting to criminal intimidation under the Indian Penal Code (45 of 1860). A afterwards sues B for breach of contract at Calcutta. A afterwards sues B for breach of contract at Calcutta.” A has employed coercion, although his act is not an offence by the law of England, and although section 506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place where the act was done. A has employed coercion, although his act is not an offence by the law of England, and although section 506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place where the act was done.”

 

Section 16 defines undue influence as under: –

[16. ‘Undue influence’ defined.–

(1) A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. 1[16. ‘Undue influence’ defined.–(1) A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.”

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another–

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).

 

Fraud is defined under Section 17 as under: –

  1. ‘Fraud’ defined.–‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:– –‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract\:–“

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent. Explanation.–Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak2, or unless his silence, is, in itself, equivalent to speech.

 

Similarly, misrepresentation is defined under Section 18 as under: –

  1. “Misrepresentation” defined.–“Misrepresentation” means and includes– –“Misrepresentation” means and includes–“

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;

(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.

 

  1. From the bare reading of these provisions it is apparent that the consent given by a person shall be deemed to be a free consent and would be binding on the parties to the contract unless it is shown by such person, alleging coercion, undue influence, fraud, misrepresentation, mistake or duress that he signed that contract/settlement under those circumstances. The burden therefore is upon such person i.e. the complainants to prove such facts by leading evidences which show that the consent given by such person while entering into a settlement, was not free. This commission in the case of Aaradhna Fabric Pvt. Ltd. vs. United India Insurance Co. Ltd. 2015 SCC online NCDRC 25 has considered this issue at length and after considering the law laid down by the Hon’ble  Supreme Court in the case of National Insurance Co. Ltd. vs. Boghara Polyfab Pvt.Ltd(2009) 1 SCC 267 and United India Insurance Co. Ltd. vs. Ajmer Singh Cotton & General Mills (1999) 6 SCC 400 and also New India Assurance Co. Ltd. vs. Genus Power Inf. Ltd AIR SCS (1) 67 has held as under: –
  2. The legal proposition, which emerges from the above referred decisions of the Hon’ble Supreme Court is that though, issue of a discharge voucher accepting a particular amount in full and final settlement of its claim is not conclusive when there are allegations of fraud, undue influence etc., mere bald allegations are not sufficient in this regard and such allegations cannot be accepted by the Court, unless the insured places material before the concerned Court / Forum, which would substantiate the plea of fraud, undue influence etc., taken by him and establish that the discharge voucher executed by him was not voluntary and was in fact a product of exercise of fraud, undue influence, coercion, misrepresentation etc., on the part of the insurer.  The onus will be upon the insured to substantiate the plea of fraud, undue influence etc., taken by him.  As observed in Boghara Polyfab Pvt. Ltd. (supra) if it is found that there was no fraud, coercion, undue influence, the Court/forum concerned has to accept the voucher as being in discharge of the contract and reject the claim without examining it on merits.  If however, it is found that the discharge voucher was obtained by use of fraud, undue influence, coercion etc., it has to be ignored and the claim needs to be examined and decided on merits.

9 .     In the present case, the complainant was already before this Commission when the discharge voucher came to be executed and submitted by it, to the insurance company.  Interim payment of Rs.3.00 crores had already been made to the complainant before it approached this Commission .  If the insurance company offered a sum of Rs.2,00,46,882/- to it and the said offer was not acceptable to the complainant, nothing prevented it from filing an application before this Commission for a direction to the insurance company to make payment of the aforesaid amount of Rs. 2,00,46,882/- without prejudice to the rights and contentions of the parties.  Had such a course been adopted by the complainant which was duly represented by a counsel; it would have been possible for this Commission to pass such an order and thereafter adjudicate the claim on merits.  That however, was not done and the complainant has not given any explanation for not adopting the aforesaid course of action.  The inevitable inference therefore would be that the complainant voluntarily entered into a settlement with the insurance company accepting the amount of Rs.2,00,46,882/- in full and final settlement of its claim.

  1. Admittedly, the complainant signed the letter dated 19th October, 2009 to the insurance company only after it had already encashed the cheque of Rs.2,00,46,882/- taken from the insurance company.  If the complainant did not voluntarily execute the discharge voucher, it could easily have withheld the encashment of the cheque received from the insurance company for a few days and filed an application before this Commission, seeking permission to encash the said cheque without prejudice to the respective rights and contentions of the parties.  Even that course of action was not adopted by the complainant and no explanation is forthcoming for not resorting to such a course of action, despite the complainant being represented by a counsel.
  2. Thus the consent given by a person would be deemed to be free consent and would be binding upon the parties to the contract unless it can be shown that it was obtained by exercise of coercion, undue influence, fraud, misrepresentation and mistake as defined in Section 15161718 or by mistake subject to provisions of Section 20 to 22 of the Indian Contract Act.
  3. “Coercion” is the committing, or threatening to commit, any act forbidden bythe Indian Penal Code(45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

Explanation: It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed.

 

  1. Therefore it is clear that the burden is upon the person who alleges coercion, undue influence etc. to prove on record the facts which constitute coercion undue influence etc. In the present case no specific allegations have been made by the complainants which constitute inducement, coercion or force. It is their duty to submit such details and particulars which constitute inducement, force or conversion. It has been so held by Hon’ble Supreme Court in the case of Alva Aluminium Ltd., Bangkok vs. Gabriel India Ltd. (2011) 1 SCC 167.  The relevant paragraphs is reproduced as under: –

Para-20    “So also the assertion of the respondent that the petitioner had mis-directed, enticed or mis-guided Shri Dabri who was admittedly negotiating the contract on its behalf, had no authority to do so need be noticed only to be rejected. There are no particulars leave alone any material to establish that the signatures appended by Shri Dabir to the contract document in token of its acceptance, was vitiated by any misrepresentation or such other considerations that could have the effect of vitiating the contract. In the absence of details and particulars of what, according to the respondent, constituted inducement, mis- guidance or mis-direction referred to in paragraph 8, it is difficult to see how a fluent use of such expressions can help the respondent in avoiding a contract that had come into existence between the parties. A heavy duty lies upon the party who seeks to avoid a contract on the ground of mis- representation, fraud or coercion to prove any such allegation. Nothing of the sort has been done in the instant case by the respondent. So much so the respondent has not  20even placed on record any charter of duties and powers of Shri Dabir and Shri Sengupta nor has it chosen to place on record any material to suggest that any action was indeed taken against Shri Dabir for the alleged transgression of the limits of his authority and if so the nature of the disciplinary action taken against him. All this information and material was within the special knowledge of the respondent. Non- furnishing of such information must, therefore, give rise to an adverse interference against it. The petitioner company had in any event no reason to believe or even suspect that Shri Dabir with whom it was dealing did not have the authority to sign the contract which was finalized between the two companies acting through their representatives. That is so especially when even according to the respondent, Shri Dabir had been authorized to negotiate the terms on behalf of the respondent. If Shri Dabir was competent to negotiate the terms of the contract, the petitioner cannot be said to have induced or defrauded him into signing of the contract, which was forwarded to the respondent and which  21was returned duly signed by Shri Dabir. The petitioner was in this backdrop justified in proceeding on the basis that the contract was duly negotiated and signed on behalf of the respondent company.        

 

  1. The Bombay High Court in the case of Bajranjlal Anilkumar Jaju vs. Vyasya Bank Ltd. 2015 SCC Online Bom. 4154 has elaborately discussed the expression undue influence and coercion. The Court has held as under:

Para-43       “……43. It would, therefore, have to be seen whether the coercion alleged by the plaintiff in para 28 of the plaint and upon which the aforesaid issue has been framed, would be coercion as defined in Section 15 of the Indian Contract Act, 1872, which runs thus:

“15. “Coercion” defined – ” Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement”.

     No party is shown or proved to have made the plaintiff sign the consent terms under threat of committing any offence under the IPC for eg., of intimidation. The plaintiff has not alleged that any party had unlawfully detained the consignment of goods or threatened to detain it if the consent terms were not signed to the prejudice of the plaintiff so that the plaintiff would be constrained to sign the consent terms.

  1. It does not require authority to determine that entering upon the consent terms by the plaintiff herein (as defendant No. 1 in the action of the shipper) would not amount to coercion for selling the goods to pay off the legitimate claims of various parties. Indeed the plaintiff as the importer would have legal obligations to various parties including the shipper, exporter and the bank upon whom the LCs were opened, the custom authorities as also the port authorities, nothing of which is shown to have been separately and independently discharged by the plaintiff by payment to any of these parties. Even if genuine LCs were opened by the plaintiff they would be for payment to the exporter or the shipper. If not paid there would be legitimate mediation by the bank and/or the exporter or the shipper in respect of the consignment of goods imported for which the LCs were opened. The plaintiff as the prudent businessman would consider that amount it was obliged to pay including demurrage charges for the goods lying in the port, charges of penalty imposed by the custom authority as also the amount which would legitimately be expected to be claimed by the exporter, who had to be paid under the LCs, would be settled by sale of the consignment itself.
  2. Coercion, which is expressed as duress in English law has been extensively considered with regard to the unlawful and illegitimate pressure exercised on a contracting party more specially in commercial transactions resulting in, what has been termed as, economic duress, which is voidable at law. Anson’s Law of Contract, 29th Edition at page 350 shows the law on duress. In modern cases the pressure exercised to constitute duress is shown as ‘illegitimate pressure’. Anson considers that the various pressures must be distinguished. The pressure which the contracting party is not expected to submit to is an illegitimate pressure as against legitimate pressures which the law does not take into account. Consequently illegitimate pressure may not be unlawful, but is yet illegitimate. Unlawful pressure occurs with the coercive party threatens to do something that is a breach of common law or a statutory duty. It may be a crime, a tort or a breach of contract. A contract executed under such pressure may be set aside by the other party. However the position is different where what is threatened is not an unlawful act. It is not duress to threaten to do that which one has a legal right to do for e.g., to refuse to enter into a contract or to terminate the contract lawfully.

Hence a party may threaten to take legitimate legal proceedings or having taken such proceedings may legitimately threaten to enforce it. Another party, weighing the situation may agree to settle. The threat to prosecute or continue a litigation legally would not result in illegitimate pressure. Hence the settlement entered into between the parties could not be termed as under coercion or duress.

  1. ……At page 78 of the judgment it was held that the guarantee was not avoidable. It was held not to be duress as a coercion of the will so as to vitiate consent. It was observed that duress required coercion so as to vitiate consent and commercial pressure alone does not constitute duress. This could be seen from the fact of whether such party did or did not protest; whether he had an alternative course open to him (such as an adequate legal remedy) at the time of the alleged coercion, whether he was independently disposed and whether after entering into the contract he had taken steps to avoid it.

It was observed that in that case the defendant considered the matter thoroughly, chose to avoid litigation and formed the opinion that it was more apparent than real. It was held that there was commercial pressure, but no coercion.

The Court considered the aspect of ‘economic duress’. It held that the compulsion had to be such that the party was deprived of ‘his freedom of exercising his will’. He must have entered into the contract against his will, must have had no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure….

  1. In India the Gujarat High Court came upon such facts in the case of Vijaysinh Mohansinh Solanki v. The Transport Manager, Ahmedabad Municipal Transport Service, AhmedabadAIR 1982 Gujarat 307. It is succinctly held that for consent to be caused by coercion the cause must be proximate and immediate. The coercion must have directly weighed with the promisor in acting in a particular manner. The consent can be vitiated only if it is shown that but for causes of coercion the effect would not have ensued. Hence if the act in question was not instrumental in making the promisee to do the act it would be of no avail. The word “cause” is not a term of art, but it is a term of science. Hence the effect of the coercion is the direct outcome of the cause. If the cause is distinct and remote, but not proximate and immediate it cannot be a cause in legal parlance. Casual relationship can be established only when certain factors weighed upon the promisor without which the promiser would not have acted as he did.
  2. Hence the coercion, if any, practiced by the defendant bank should have been such as to be so unconscionable that a prudent businessman like the plaintiff would have rejected the offer of the shipper or the bank herein to allow the bank to sell the consignment to pay off the dues of the bank and also the exporter. That could have been so only if the transaction was genuine and bonafide LCs opened by the plaintiff under which the plaintiff was prepared to make the payment through his bank to the bank of the exporter or the shipper to the export.

 

  1. From the findings in the case of Alva Aluminium Ltd. (supra) and Bajranjlal Anilkumar Jaju (supra) it is clear that every such complainant who alleges coercion, force or undue influence in executing the conveyance deed or discharge letter at the time of taking possession and executing  settlement deeds before the filing of the complaint or during the pendency of the complaint/impleadment applications, have to plead specific facts and circumstances which made them to surrender their free will. No specific facts and circumstances have been pleaded by the complainants. Their only plea is that they had accepted the possession and executed the conveyance deed or the settlement only because the opposite parties otherwise would have cancelled the allotment. They have also alleged that they had signed on the dotted lines of the ABA because otherwise the opposite parties would have cancelled their allotment and forfeited the initial deposits made by them at the time of applying for the allotment. These are bald statements. These complainants had ample opportunity to bring to the notice of this Commission any of such act of the opposite parties during the pendency of the present complaint and no explanation has come forward as to why this course had not been adopted. This Commission had been kept in dark all along. Not only that complainants who have settled, did not seek the advice of counsel and also kept them in dark. The conduct of complainants shows that after weighing every aspect, they decided to accept possession, execute conveyance deed and settled the matter. They have therefore acted on their own free will and it cannot be said that they had not signed these documents voluntarily and with a free will. These complainants all the time had the alternative to come to the Commission and raise their dispute even before signing on the dotted lines of the ABA but they had chosen not to do so. Even if they feared that their deposits would be forfeited they could have complained to this Commission and could have prayed for appropriate directions. No explanation has come as to why these options had not been exercised.
  2. It is also apparent that complainants 198 to 339 have not even produced any evidence. They have not examined themselves either individually or through any authorized person. It is therefore apparent that there is not even an oral statement on behalf of complainants No.198 to 339 to the effect that they were forced to surrender their free will. Complainants No.1 to 197 have examined Shri Arifur Rehman Khan who had submitted his affidavit in evidence and stated to have authority to depose on behalf of 1 to 196 complainants. The fact relating to existence of force and coercion and thereby their inability to exercise their free will is a fact which can be said to be within the exclusive knowledge of said complainants. In the case of Janki Vasudeo Bhojwani & Ors. Vs. Indusind Bank Ltd. & Ors. (2005) 2 SCC 217 the Hon’ble Supreme Court has clearly held that the facts which are within the exclusive knowledge of a petitioner needs to be proved by him by entering the witness box and since his power of attorney does not have the personal knowledge of the matter he cannot depose on that facts. Hon’ble Supreme Court has held as under:-

Para-12      “In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them.

The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal.

Para-13      Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.

 

  1. The existence of undue influence, force or coercion being exercised upon the complainants which made them to surrender their free will, therefore, is a matter which can be said to be within the exclusive knowledge of the individual complainants and these facts cannot be proved by any authorized person. It is also apparent that ABA’s were signed by these complainants between the years 2009- 2012 and the terms and conditions of the ABA were very much in their knowledge. They did not challenge the various terms & conditions of the ABA earlier but continued to comply with it.
  2. We, hereby hold that these complainants have failed to prove their plea of element of coercion, undue influence or duress or force. This group of complainants not being consumers within the meaning of the Act- not entitled to any relief.
  3. Group E.    The complainants who have sold their subject flats to third persons during pendency of the complaint/impleadment applications.
  4. It is argued by learned Senior Counsel on behalf of the opposite parties that 11 complainants out of those who had taken possession and executed conveyance deed, have already sold their subject flats to third persons in the open market and have concealed this fact from this Commission and thus have not acted fairly and are trying to earn undue advantage by keeping the Commission in dark. They have no surviving cause of action in their favour since they have already transferred their interest in the subject property in favour of the third person and thus, they are not entitled to any relief. Reliance has been placed by the opposite parties on the finding in the case of M/s Honda Car vs. Jatinder Singh Madan, decided by NCDRC on 11.10.2013. Learned Senior Counsel appearing on behalf of the complainants have not dispute that some of the complainants have already sold their flats. It is argued that they can still claim the relief.
  5. We have given thoughtful consideration to this argument. Cause of action has not been defined in the Consumer Protection Act. However, the Consumer Protection Actclearly defines the complaint and the complainants as under: –

Section-2 (c) “complaint” means any allegation in writing made by                 a complain­ant that– 

(i)      an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;

(ii)     the goods bought by him or agreed to be bought by him; suffer from one or more defects;

(iii)    the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;

(iv)     a trader or service provider, as the case may be,  has charged for the goods or for the service mentioned in the com­plaint a price in excess of the price –

(a) fixed by or under any law for the time being in force

(b) displayed on the goods or any package containing such goods ;

(c) displayed on the price list exhibited by him by or under any law for the time being in force;

(d)    agreed between the parties;

(v)      goods which will be hazardous to life and safety when used or being offered for sale to the public,–

(A)     in contravention of any standards relating to  safety of such goods as required to be complied with, by or under any law for the time being in force;

(B)    if the trader could have known with due diligence that the goods so offered are unsafe to the public”

 

            “complainant” means–

(i)      a consumer; or

(ii)     any voluntary consumer association registered under the Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or

(iii)    the Central Government or any State Government,

(iv)     one or more consumers, where there are numerous consum­ers having the same interest;

(v)      in case of death of a consumer, his legal heir or representative; who or which makes a complaint.”

 

  1. The conjoint reading of these two provisions makes it absolutely clear that a complaint can be filed by a consumer, stating the allegations showing deficiency in service or restrictive trade practices. This shows that only a consumer can file the complaint . Such a consumer should have an existing right under the service contract to claim deficiency in service. To be entitled for a relief, the complainants should have an existing rights and since they have sold the subject property, it cannot be said that they have cause of action in their favour. The persons who have purchased the subject property from these 11 complainants are not party to present complaint. They cease to be a consumer on the date they had sold the subject flats. Another important factor is that these 11 persons have neither sought permission of the Commission, nor informed the Commission of this fact. Opposite parties have also placed on record the conveyance deeds alongwith Chart No.F alongwith the written submissions. These documents also show that these 11 complainants have sold the property not in loss but for handsome profit about triple the cost of flat. Following the finding in the earlier decision in 2562 of 2012 Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami) & Anr, this Commission in the case of M/s Honda Car vs. Jatinder Singh Madanhas clearly laid down the following proposition of law as under: –

Learned Counsel for the petitioner submitted that as during pendency of appeal car has been sold by Respondent No. 1 to Amritpal Singh on 13.4.2010 and further it has been transferred to Rajinder Bawa on 17.6.2011 without permission from State Commission, Respondent No. 1 remains no more consumer under the Consumer Protection Act and not entitled to any relief. Perusal of copy of registration certificate proves fact of transfer of vehicle by complainant to Amritpal Singh and in turn to Rajinder Bawa.

Learned Counsel for the Respondent no. 1 also admitted sale of vehicle. Learned Counsel for Respondent No. 1 has nowhere submitted that vehicle was transferred during pendency of appeal with the permission of State Commission.

(Emphasis supplied)  

  1. Learned counsel for the complainants have not brought to our notice any case law contrary to these findings which can help them. We, therefore, hold that these 11 complainants are not entitled to any relief.
  2. Group F.    The complainants who have neither taken possession nor have executed conveyance deed and have also not settled their disputes.
  3. Learned Senior Counsel for the opposite parties has urged that out of 339 complainants, 337 complainants have taken possession of their subject flats and there are only two complainants who although have received the compensation offered in final demand letter, have not so far taken possession. There is not specific denial of this fact by complainants. We have already stated above that those complainants who have taken possession and/or executed conveyance deed and those who have settled their disputes and those who have sold their flats, are not consumer and not entitled to any relief. This leaves us to deal with the claim of two complainants, namely, Shri Rakesh Kumar Sadhubhai Patel at serial No.71 and Shri Chandan Borah & Aradhna Bordoloi at serial No.135. These complainants have although accepted the delayed compensation but have not accepted the possession and therefore had not discharged the opposite parties of their obligations under ABA. These complainants form part of the group of complainants Nos. 1 to 197. These complainants have given up the prayers G, L, N, O, R, S, T and have pressed their prayers A, B, C, D, E, F, H, I, J, K, M, P, Q, U, V & W of their amended complaint.
  4. The first claim of the  complainants is that the opposite parties have not reduced the cost of the flats proportionately despite the reduction of the project cost by 50.75% i.e. from INR 536 crores to INR 264 crores and have prayed for the refund of the excess amount so charged alongwith interest @ 24%.
  5. It is argued by learned Senior Counsels that the initial cost of the project was Rs.536 crores when the environment clearance from State Environment Impact Assessment Authority (SEIAA) on 21st November, 2009 for the project was obtained. It is further argued that In the year 2012 the opposite parties, on modification of the project applied for environment clearance. They reduced the cost of the project to Rs.264 crores which fact is clear from their application filed before to SEIAA authorities. It is argued that the reduction in the cost of the project by about 50.75%, the cost of the flats of the complainants were not reduced proportionately. It is argued by the learned Senior Counsels that this amounts to unfair and restrictive trade practice within the meaning of Section 2(r) and 2 (nn) of the C.P. Act. The opposite parties, however, have argued that by these submissions, the complainants are urging this Commission to do the pricing of the flats which is beyond the jurisdiction of this Commission and has placed reliance on Manohar Lal Sharma vs. D.D.A & Ors. 1994 (1) CPJ 29 (NC) Mukund Damodar Raghuvir vs. SIDCO Ltd. III (2015) CPJ 29 (NC) and Yash Bir Jaggi vs. Unitech Ltd. IV (2006) CPJ 123 (NC). It is also argued that this argument of the complainants is also misconceived and contrary to the record. It is submitted that in fact the cost of the project was increased from Rs.536 crores in the year 2009 to Rs.937.60 crores by the time the project was delivered on 31st March, 2016. It is further argued that the agreement with the complainants was escalation free. The application to SEIAA for environment clearance of modified project was filed since the total build up area in the project was increased by 31.6602 sq. meter. It is argued that it is only logical that with the increase of build up area under the expansion project, the cost of the project had to increase. It is argued by learned Senior Counsel that on account of typographical mistake figure of Rs.264 crore is shown in the application. It is further argued that the final clearance given by SEIAA on 10.10.2012 to the modification proposal in 2012 clearly shows that the project cost on account of expansion of the built up area had increased from Rs.536 crores to Rs.587 crores. It is argued that intentionally the opposite parties have not placed on record the approval letter of SEIAA. It is argued by learned Senior Counsel for the opposite parties that the complainants are intentionally trying to take undue advantage of this typographical mistake by concealing true facts (clearance letter of SEIAA). It is further submitted that the project being escalation free the complainants were not burdened with any additional cost and the opposite parties have suffered a net loss of Rs.81.26 crores.
  6. We have given thoughtful consideration to the rival contentions. In order to prove that the cost of project had gone down, the complainants have relied on the application of opposite parties submitted with SEIAA. The opposite parties contend that it was a typographical mistake and the project cost had increased on the expansion of the project. Their contention is supported by the approval letter of SEIAA dated 10.10.2012 which shows that the cost on account of expansion of the buildup area had increased from Rs.536 to Rs.587. Admittedly, the opposite parties had applied to SEIAA for environment clearance on account of modification/expansion of the project whereby the total buildup area of the project had been increased. The initial cost of the project was Rs. 536 crore in the year 2009. It is only logical that cost of project on expansion of the project in the year 2012, would only increase. By no stretch of imagination it can be presumed that on expansion /modification of the project after three years, the cost of the project would reduce to half. The complainants have not placed any document on record and are trying to take advantage of a typographical mistake in the application of opposite parties to SEIAA. No other evidence is produced by the complainants to prove that the cost of the project has in fact been reduced. Leaving aside this, even otherwise, the complainants are urging us to do the pricing of the flats. This Commission in the case of Manohar Lal Sharma (supra) (Three Member Bench) has clearly held as under: –

          “After adverting to the relevant decisions on the point this Commission held that the question of pricing cannot be gone into by the Consumer Forums since the price of the flats is not fixed by any law and that even if any excess charge has been collected by way of price that will not constitute a ground for contending that there is a deficiency in service on the part of the opposite party.”

 

  1. This Commission has again in the case of Mukund Das (Supra) on this issue held as under:-

“10.  Before we go into the merits of the case, we address ourselves to the point raised by the Respondent  whether this Commission has jurisdiction to entertain matters  with respect to the discretion of the Housing Authority in fixing  the prices of the flats.   We place reliance on the Judgment of the Apex Court reported in (1989) 2 SCC 116, between Bareilly Development Authority vs. Ajai Pal Singh & Ors., in which the Apex Court has laid down that substantial enhancement in cost and rate of instalments and alteration in other terms and conditions by the Authority at the time of allotment of the houses/flats is not arbitrary.  The registered persons cannot, therefore, challenge under Article 226 of the Constitution the subsequent alterations by the Authority on ground of arbitrariness. In Sheela Wanti vs. Delhi Development Authority and other batch of cases, the Full bench of Delhi High Court held that the mechanics of Price Fixation have necessarily to be left to the executive unless there is hostile discrimination and arbitrariness which is not so in the instant case. 

  1. The Apex Court in DDA vs. Ashok Kumar Behal & Othersreported in (2002) 7 SCC 135 laid down that the consistent view taken by the Hon’ble Supreme Court  is that fixation in prices of flats under different schemes cannot be challenged under Article 226 of the Constitution and laid down the principle that Pricing of flats lies only within the domain of the Housing Authority.   As pricing of flats by Housing Authority cannot be questioned under Article 226, it is clear that the scope of judicial review, with respect to fixation of prices, under the Consumer Protection Act, 1986, is still more  limited. 
  2. Keeping in view the aforesaid, we hold that the State Commission and the District Forum have not committed any irregularity or jurisdictional error while passing the order in question.”

436    In view of the above, it is apparent that this claim has no merit.

  1. The another claim of these complainants is that the opposite parties have illegally and unfairly has charged money from the complainants buyers under the garb of taxes (paid or payable) through the gateway of 1.10 of ABA a nd that they should be directed to refund the said money alongwtih interest @ 24%. It is submitted that     it is an attempt to shift its tax liability on the complainants. It is submitted that under Article 265of the Constitution of India no tax shall be levied or collected except by the authority of law and opposite parties being a private parties have no authority to collect any tax from the complainants and therefore clause 1.10 is ultra vires to Article 265 of the Constitution and cannot be held binding on the complainants and the entire tax collected by the opposite parties are required to be refunded to the complainants with 12% interest. It is further argued that the complainants were coerced to pay the liability of opposite parties and that opposite parties have also defaulted in paying their tax dues and shifting the liability on the complainants and it amounts to unfair trade and restrictive trade practices. It is also argued by learned Senior Counsels of complainants that opposite parties have not provided any evidence that the tax collected from them had been deposited with the exchequer and this amounts to misappropriation of funds, unfair trade practice and restrictive trade practice. It is submitted that the opposite parties are abusing clause 1.10 of ABA and has arbitrarily increased the cost of flat in the garb of taxes and has levied a sum of Rs.1,96,637.47 in the name of taxes. It is further submitted that at the bottom of the page 281 tax means, “all taxes paid or payable by the company.” It is further argued that the opposite parties were wrongly invoked clause 1.10 and clause IV-A & IV-B of the said final demand note and imposing extra amount in the name of taxes. They are collecting taxes payable and defaulting in its tax obligation and in return slapping the complainants with interest and penalty. It is further argued that the default committed by the opposite parties in their tax obligation is evident from the CA certificate dated 26th July, 2013. Para 2 of this certificate clearly shows that the opposite in are collecting money in the name of taxes payable by the opposite in which fact is clear from the CA certificate dated 09.08.2014 enclosed at page 15 of affidavit of evidence of opposite parties. This document shows that the opposite parties are collecting taxes “including interest thereon.” It is submitted that the question of collecting interest comes when a parties default in its tax obligations. Copy of CA certificate dated 26th July, 2013 is also enclosed as annexure DD and CA certificate 09.08.2014 is enclosed as annexure EE alongwith the written submission. Opposite parties have not discharged its liability of taxes and that is why penalty and interest was slapped on the opposite parties and it cannot be shifted on the complainants and therefore complainants are entitled for the refund of the same.
  2. The counsel for these complainants has also adopted the arguments of Learned Senior Counsel for the complainants Nos.198 to 339 who has argued and submitted in his written submissions that by invoking clause 1.10, 1.14 & 1.15 of ABA, the opposite parties are collecting service tax and also collecting Rs.250.46 per sq. ft. under the head “Cost” and collecting works contract tax (VAT) @ Rs.40.56 per sq. ft. and also raised a demand towards labour cess based on CA certificate dated 9th August, 2014. It is submitted that labour cess @ 1% of the cost of construction has to be paid at the time of plan approval and the revised project cost being Rs.264 crores the labour cess can be levied only on this amount and therefore, they have illegally collected labour cess on the original cost of project. It is further argued that although the amount which approximately comes to Rs.6 to 7 lakhs per apartment has been collected by the opposite parties but it does not seem to have been paid to the exchequer. It is submitted that the money so collected by the opposite parties have been used to earn huge interest for themselves and because of this default by the opposite parties, State Government is imposing penalty and interest on it. It is further submitted that it is corroborated by their own letter dated 26th March, 2015 written to Karnataka State Commercial Authorities. It is further submitted that the VAT authorities have imposed heavy penalty and interest on the opposite parties and this is established by VAT assessment order for the year 2009-2011 and this act of the opposite parties constitutes unfair and restrictive trade practice.
  3. It is submitted by learned Senior Counsel on behalf of the opposite parties that the penalty imposed upon the opposite parties have not been transferred on consumers including the complainants. It is argued that under clause 1.10 it was agreed between the parties that whatever taxes are payable that would be recovered from the allottees. It is submitted that the amount demanded by the opposite parties under clause 1.10 is backed by proper C.A. certificate dated 26th July, 2013 and 9th August, 2014. It is submitted that all the allottes who are in possession have made payments in terms of clause 1.10 without demur and there were no protest on their part at any stage. It is further submitted that the construction in the present project had started in 2009 and at that time there was no clarity as to whether the works contract tax is to be paid in relation to the agreement between owner/developer and allottee and therefore the opposite parties had not recovered any proportionate work tax from the allottees. It is argued that it was only in the year 2013 that the Hon’ble Supreme Court vide its order in M/s L & T Ltd. and Anr. vs. State of Karnataka(2014) 1SCC 708 held that the work contract tax would also be payable in respect of the contract of the nature of owner-developer and the allottee that the clarity came. Also many developers including the DLF, sought the review/reconsideration and clarification of the aforesaid judgment from the Hon’ble Supreme Court. By 2014 it was clear that the work contract tax is required to be paid in terms of the said judgment. It is argued that opposite parties had to recover work contract tax proportionately from the allottees according to the judgment of Hon’ble Supreme Court in the case of L&T (supra). It is submitted that thereafter when the Works Contract Tax was computed the interest on the unpaid amount became payable. It is submitted that in terms of clause 1.10 of ABA Tax is to be paid by the allottees. It is further argued that the complainants since have not paid any taxes of this nature, for about five years, this money was utilized by them for their benefits. They have not suffered any losses. It is further submitted that the allottees were explained the implication of the judgment of the Hon’ble Supreme Court in the matter of M/s L & T (supra) and it was thereafter that majority of the allottees had made the payment without demur. It is further submitted that the issue relating to taxes is a complex issue and cannot be determined by way of summary procedure. Reliance is placed on Synco Industries vs. State Bank of Bikaner & Jaipur and  Ors. 2002 (2) SCC 1.
  4. As regards the liability to pay service tax is concerned, it is argued that the variation in guidance value for registration or the rate of service tax is not in the hands of the opposite parties and therefore, it does not amount to deficiency in service. It is submitted that the argument regarding prayer for refund of the labour cess which according to the complainant has been wrongly charged at Rs.536 crores i.e. on cost of the project, but ought to have been charged on Rs.264 crores, the reduced cost of the project, is misconceived. It is submitted that final project cost is of Rs.937.69 crores.
  5. We have given thoughtful consideration to the rival contentions of the parties. The ABA defines the taxes as under:-

          “Taxes” shall mean any and all taxes paid or payable by the company/LOC and/or its contractors, suppliers, consultants etc. by way of value added tax (VAT), state sales tax, central sales tax, works contract tax, service tax, cesses, levies and educational cess and any other taxes, levies, charges by whatever name called, levied and collected by any Governmental agency in connection with the development/construction of the said apartment/said building/said complex/said project.”

 

  1. It is also apparent from the terms of ABA that the parties had agreed that the price of the flat is to be calculated on the basis of super  area of the said apartment and does not include any other amounts, charges payable by the allottee as demanded by the  company which also includes “Taxes.” Under clause 1.10 the allottees had agreed to pay such taxes. The relevant clause reads as under:

“1.10          The allottee agrees and understands that in addition to total price, the allottee shall be liable to pay the taxes, which shall be charged and paid as under:

A sum equivalent to the proportionate share of taxes shall be paid by the allottee to the company. The proportionate share shall be the ratio of the super area of the said apartment to the total super area of all the apartments other buildings, shops club of the said complex.

The company shall periodically intimate to the allottee herein, on the basis of certificate from a Chartered Engineer and/or a Chartered Accountant, the amount payable as above which shall be final and binding on the allottee and the allottee shall make payment of such amount, within 30 (thirty) days of such intimation.”

 

  1. From the terms of the ABA it is apparent that the complainants have taken up the liability to pay taxes which was in addition to the total price. The argument of learned Senior Counsel that demand of taxes is ultra vires to Article 265of the Constitution, does not have any merit. The complainants have to pay the taxes on services availed by them. No provision of law is brought to our notice which states that the liability to pay taxes is that of service provider. Therefore, the agreement for payment of taxes by the complainants, is not hit by any statutory provision of law and it cannot be said that such a clause in the agreement is ultra vires or amounts to unfair and restrictive trade practices. Under the ABA the complainants have given the authority to the opposite parties to collect the taxes from them which has been paid or are payable and it therefore cannot be said that the opposite parties have acted without any authority. 
  2. The next argument is that the opposite parties had defaulted in depositing the tax and that is why penalty and interest has been levied upon it and the interest and penalty cannot be recovered from the allottees and allottees cannot be held liable for the default on behalf of the opposite parties. Complainants have relied on the CA certificate of the opposite parties. CA certificate dated 26th July, 2013 is reproduced as under: –

 

CERTIFICATE We have reviewed the records as maintained and produced for our verification by DLF Southern Homes Private Limited having its registered office at 1E, Jhandewalan Ext. Naaz Cinema Complex, New Delhi-110 055 in connection with the construction of Group Housing Project at BEGUR, Bangaluru.

The amount recoverable (Interim Basis) from allottees pursuant to the contractual agreement towards taxes paid or payable by the company and/or its contractors/suppliers by way of Value Added Tax on supplies, Central Sales Tax, Works contracts, Service Tax and Labour Cess etc. upto 31st March, 2013, as per records maintained by the company amount to Rs.128.21/- per sq. ft. of saleable area, details of which is enclosed in Appendix -1 to the certificate.

Appendix-1 has been certified from the records produced for our review and explanations provided by the management.

 

Sd/-

Arun Jain B.Com (Hons), FCA, ACS Partner, Prem Arun Jain & Co.

Chartered Accountants Membership No.81455     Appendix 1 DLF Southern Homes, Private Ltd.

PROJECT: BEGUR, Bangaluri Interim Taxes Recoverable from Allottees per Unit of Saleable Area upto31.3.2013   Particulars                                                                       Amount (Rs.) A.      VALUE ADDED TAX/CENTRAL SALES TAX           PAID ON TOTAL MATERIAL PURCHASED            6,81,52,251.00 B.      WORK CONTRACT TAX               CONTRACTS EXECUTED/UNDER EXECUTION    12,13,71,679.00   C.      SERVICE TAX ON           CONTRACTS EXECUTED/UNDER EXECUTION    9,85,79,633.00   D.      CESS           LABOUR CESS                                                            2,30,02,700.00   E.      EXTERNAL DEVELOPMENT CHARGES           (BETTERMENT CHARGES           PAID TO BBMP (Proportionate to phase 1)                            6,26,04,603.00             TOTAL TAXES (A TO E)                                            37,37,10,866.00             SALEABLE AREA IN SQ. FT           (AS CERTIFIED BY MANAGEMENT)                              29,14,850             TAXES RECOVERABLE PER SQ. FT. OF           SALEABLE AREA                                                           Rs.128.21                         Sd/-

          Surojit Basak           Director”

             

          This certificate clearly shows that the amount so recovered from the complainants are VAT, Central Sales Tax, Work Contract Tax, Service Tax, Labour Cess etc.  upto 31st March, 2013 and were raised on interim basis.

  1. CA certificate of opposite parties dated 9th August, 2014 on which the complainants have placed reliance is reproduced as under: –

CERTIFICATE We have reviewed the records as maintained and produced for our verification by DLF Southern Homes Private Limited having its registered office at 1E Jhandewalan Extension, Naaz Complex, New Delhi-110055, in connection with the construction of the Group Housing project “Westend Heights at New Town, DLF BTM Extension” at Begu, Bengaluru.

The balance amount recoverable after affecting interim taxes recoverable of Rs.128.21 per sq. ft., from allottees pursuant to the contractual agreement towards Taxes paid or payable by the company and/or its contractors/suppliers by way of Works Contract Tax (VAT) including interest thereon likely to be payable on aforesaid transfer, Value Added Tax on supplies, Central Sales Tax, Service Tax, Entry Tax, Betterment Chrges, Property Taxes and Labour Cess etc. as per records maintained by the company amounts to Rs.162.91 per sq. ft. of saleable area, details of which is enclosed in Appendix 1 to the certificate.

Appendix-1 has been prepared on the basis of records produced for our review and explanations provided by the management in regard to the project.

 

Sd/-

ARUN JAIN B.COM (HONS), FCA, ACS Partner GURGAON                                                     PREM ARUN JAIN & CO.

Dated 9th Aug 2014                                                         Chartered Accountants Membership No.81455 Appendix   DLF Southern Homes Pvt. Limted 1 E Jhandewalan Extension, Naaz Complex, New Delhi-110055   PROJECT: Westend Heights at New Town, DLF BTM Extension Begur   Taxes Recoverable from Allottees per Unit of saleable area       Sl.

Particulars Amount (Rs) Claim Earlier as per certificate dated 26 July 2013 (Rs.) Balance Amount (Rs.) A Work Contract Tax (VAT)/CST paid and payable (on contract executed/ under execution) including the Hon’ble Supreme Court verdict in the case of M/s Larsen & Tourbo v/s State of Karnataka) 49,79,45,566 18,95,23,930 30,84,21,636 B Service Tax (on contract executed/under execution 18,77,40,135 9,85,79,633 8,91,60,502 C Labour Cess 6,23,42,539 2,30,02,700 3,93,39,839 D External Development Charges (Betterment Charges) paid to BBMP (Proportionate to Ph-1) 6,26,04,603 6,26,04,603

E Property Tax 21,09,457

21,09,457 F Entry Tax 60,58,748   60,58,748 G Total Taxes (A to F) 81,88,01,048 37,37,10,866 44,50,90,182 H Saleable area in sq ft. as per final architect certificate 28,12,609 29,14,850

I Balance Taxes recoverable sq. ft. of saleable area 291.12 128.21 162.91                                Sd/-                                                                            Sd/-

JAYKRISHNA SUBRAHMANIAN                              ATUL GOYAL”

 

          The appendix attached to this letter clearly shows that the substantial amount of tax which is working contract tax has been raised on account of judgment of Hon’ble Supreme Court in the case of M/s L & T (supra). Therefore, whatever tax liability is there under the terms of the contract, that has to be paid by the complainants and a majority number of complainants at the time of taking possession and at the time of execution of conveyance deed have cleared all the taxes without demur. It is also argued that the opposite parties cannot transfer their liability to pay interest on unpaid/deposited taxes with the concerned authority and it also amounts to deficiency in service. The opposite parties have duly explained that they have re-calculated the work contract tax after the judgment of the Hon’ble Supreme court in the case of M/s L & T (supra). It is further argued that the issue whether work contract tax on the kind of agreement between the parties, is payable or not was pending before Hon’ble Supreme Court and therefore no taxes had been raised by the opposite parties and re-calculation of the liability to pay taxes was done after the judgment on this issue was pronounced. It is further submitted that the penalty which has also been imposed on this count, had been borne by the opposite parties and it had not been passed on to the complainants. It is further submitted that complainants have not suffered in any way on account of this because they had saved that money during all these years. It is further argued that the complex issues pertaining to taxes cannot be determined in summary procedure, based on assumption, presumption, conjecture and surmises and reliance is placed on Simco Industries (supra). There is no doubt that the calculation of taxes payable under different heads and whether it had been correctly calculated or not, is a complex question of law and fact and cannot be determined by this Fora by way of summary procedure. No surmises of conjectures can be raised on this count. Hon’ble Supreme Court has clearly held that the disputes which require elaborate evidences cannot be decided by the Consumer Forum. The issue before this Commission in that case was whether the  Bank was entitled to reduce the loan facilities or not and this Commission has held that it was not a fit case to be tried under the Consumer Proteciton Act. The finding of the Commission were upheld by the Hon’ble Supreme Court and the Hon’ble Supreme Court has held as under: –

      “Given the nature of the claim in the complaint and the prayer for damages in the sum of Rupees fifteen crores and for an additional sum of Rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is on appropriate claim for a Civil Court to decide and, obviously, was not filed before a Civil Court to start with because, before the Consumer Forum, and figure in damages can be claimed without having to pay court fees. This, in that sense, is an abuse of the process of the Consumer Forum.”

 

The complainants have failed to point out any deficiency in service or unfair trade practices on the part of opposite parties on this count.

  1. The complainants have also claimed refund of labour cess on the ground that the labour cess had been charged on the basis of cost of project calculated @ 536 crore while the cost of project is reduced to 264 crores. Learned  counsel for the opposite parties have argued that the cost of project has not been decreased rather it has been increased beyond 536 cr. We have already rejected the contention of the complainants that the cost of project is reduced from 536 cr. to 264 cr. Hence, the complainants are not entitled to any refund of labour cess which had been charged @ 1% of the cost of project.
  2. The complainants have also claimed punitive cost of Rs.10 lakhs on account of failure on the part of opposite parties to proived facilities/amenities as promised in the brochure and in various advertisements and also sought direction to provide the same to the complainants. It is argued on behalf of the complainants that in the brochure the opposite parties had advertised that the promised project would be state of art project having health facilities with competent medical professionals, play schools for children, shopping facilities and numerous other amenities. They have also advertised the same in the newspaper and had shown that all approvals had been obtained for the same and they thus had promised Shopping Centre, Health Care Centre to the allottees and the reference of commercial complexes in the new town was also made in the agreement entered into between the parties. It is submitted that the opposite parties have admitted that these facilities have not been provided by them in their written version at page 86 wherein they have stated that the school, commercial complex and health clinic are part of the facilities which will be provided upon the completion of new town project as these facilities with existing population cannot be sustained and that the advertisement/brochure explains the new town which is proposed to be developed as a concept of town and the same when completed will have these facilities. It is argued that it amounts to deficiency in service. Reliance is placed on the finding in the case of M/s Madan Builders through Mr. V.K. Madan Managing Partner vs. R.K. Saxena (2009) 1 CPJ 217 (NC) of this Commission and it is argued that this Commission has held that “there were deficiencies in service as appellant had failed to provide the facilities promised in the representation made as per advertisement and brochure.” Reliance is also placed on Rajasthan Housing Board and Anr. vs. Gyan Singh2015 SCC online NCDRC 2212 and it is argued that this Commission has compensated the allottees and has held that “In the light of aforesaid discussion, it becomes clear that complainant is entitled to Rs.1,00,000/- as compensation from OP for not providing facilities as projected in the booklet.”
  3. The opposite parties have submitted that the brochure includes not only the amenities which belongs to the complex i.e. Westend Heights located within 24 acres of the complex but also the amenities which were part of larger project “New Town” covering 80 acres. It is argued that facilities in the project (New Town) and complex (Westend Heights) are different and independent. It is submitted that in the ABA it has been clarified that the allottes of the Westend Heights will have no right or interest in the amenities in the New Town project and that possession of the flats in the Westend Heights to the allottees was in no way linked to the facilities and amenities in the project New Town being functional at the point of time when the possession is offered.  It is further argued that over the period of time the neighborhood of the complex has become well developed and numerous shopping centres, medical facilities have come up in the nearby area. It is argued that this contention of the complainants have no merit and it does not amount to deficiency in service on the part of the opposite parties and the prayer is misconceived. It is further argued that the complainants have failed to show any loss or injury suffered by them due to failure on the part of the opposite parties to provide the facilities which they had promised to provide in the Westend Heights project- New Town. It is argued that unless it is shown that due to some deficiency the complainants have suffered loss and injury, they are not entitled for any compensation and reliance is placed on Section 14of Consumer Protection Act.

449    We have perused the relevant record and given thoughtful consideration to the rival contentions of the parties. Following is the brochure which had been published by the opposite parties: –

“DLF WESTEND HEIGHTS PHOTO       New Town- the premier choice for Bangalore living. A premium residential enclave that celebrates life in all its radiant splendour. Featuring spacious apartments and a rich selection of amenities. You will find in New Town, a residence specially appointed to maximize your comfort and convenience. In New Town premium high rise apartments are set against the backdrop of a vibrant living environment where fun, comfort, security, and serenity blend in perfect unison. Life at New Town satisfies all your needs and fulfils your heart’s desire. Imagine a place where leisurely pursuits are always within reach. Imagine living where convenience is never more than around the corner.

 

Westend Heights at New Town, DLF BTM Extn.

Design, keeping in mind the modern day requirements and meeting them with apt amenities, Westend Heights is the first phase of New Town with premium high-rise apartments at affordable prices. The complex brings you comfort living embodied in individual towers overlooking sprawing parks and vistas. This project is being developed in a land area of 27.5 acres. The project consists of 1980 units spread across 19 towers that are Stilt+18 floors high.”

 

  1. From the bare reading of brochure it is apparent that the opposite parties had planned to develop a project called New Town in which it had advertised premium high rise apartments to be developed in an area of 27.5 acres consisting of 1980 units spread across 19 units consisting of stilt + 18 floors high. It is further clear that the brochure contains two projects one new town which is a township and in that township residential area called Westend Heights to be constructed within 27 acres. For allotment of the flats in the said Westend Heights, the allottee had to fill an application. Those applications defines the subject complex as “said complex means complex to be developed as part of the said project comprising of residential apartment building under the name and style of Westend Heights” The expression said project is defined as “said project means the project in the name and style of New Town DLBBTM expansion to be developed on 86.5 acres” Clause 5 of the said application form reads as under: –

“The applicant confirms and represents that he has not made any payment to the company in any manner whatsoever and that  the company has not indicated/promised/ represented/given any impression of any kind in an explicit or implicit manner whatsoever that the applicant shall have any right, title or interest of any kind whatsoever in any lands, buildings, common areas, facilities and amenities falling outside the said complex save and except the use of common area (for the purpose of direct exit to a nearest public street/nearest ro0ad only) to be identified by the company in its sole discretion and such identification by  the company in its plans now or in future shall be final, conclusive and binding on the applicant. The applicant understands and confirms that the company may carry extensive developmental/construction activities in future in the entire area falling within/outside the said complex and the applicant shall not have any right to object or make any claim or default in any payments as demanded by the company on account of inconvenience. If any which may be suffered by the applicant due to such developmental/construction activities or incidental/related activities. It is agreed by the applicant that all rights including the ownership thereof of land(s), facilities and amenities outside the said complex, shall vest solely with the  company and the company shall  have the sole and absolute authority to deal in any manner with such land(s), facilities and amenities including but not limited to creation of further rights in favour of any other party by way of sale, transfer, lease, collaboration, joint venture, operation and management or any other mode including transfer to Government, Semi-Government, any other authority, body any person, institution, trust and/or any local body(ies) which the company may deem fit in its sole discretion.”

 

          From this clause in the application form which is signed by the allottees on every page of it, it is apparent that what the allottee had applied for was allotment for a flat in the Westend Heights and it was made clear to them that at the very first stage the applicants shall have no right title or interest of any kind whatsoever in any lands, buildings, common areas, facilities and amenities falling outside the said complex except the use of common areas that too for the purpose of exit to a nearby road or street. Therefore, at the time when the complainants had entered into the ABA, they were very well aware that they would have no right on the facilities which were to come up in the project and that construction of those facilities in the new town would be done in the future. In ABA also the parties had agreed to such an arrangement Clause 1.21 of ABA reads as under: –

          “The allottee acknowledges and confirms that the allottee is not entitled to or has not paid for the lands outside the said land/said complex whether the same is within said project or other. The said project would comprise of many complexes similar on different to said complex. Allottee has not paid any amount towards any other lands, areas, facilities and amenities including but not limited to those listed below, and as such, the allottee shall have no right interest of any nature whatsoever in the same and the same are specifically excluded from the scope of this agreement. The allottee acknowledges that the ownership of such land and facilities and amenities shall vest solely with the company/LOC and its associate companies subsidiaries and they alone shall have sole right and absolute authority to deal with the same including their usage and manner/method of use, disposal etc. creation of rights in favour of other person by way of sale, transfer, lease joint venture, collaboration or any other including transfer of government, semi-government, any other person.”

 

          Subject clause 1.21 of ABA makes it abundantly clear that the opposite parties shall carry out the development in the said project for many years in future and that the same are specifically excluded from the ABA. This clearly shows that the facilities to be built in new town, health care, school etc. were not linked to the construction and allotment of Westend Heights which is called the said complex. The construction of Westend Heights  complex was independent of the ‘said project’ to  be developed by the opposite parties in many years. It is thus apparent that complainants were well aware that the facilities in their complex and New Town are independent.  They were at no time kept in dark. In the light of these facts, non-availability of the facilities mentioned in brochure to be provided in the project New Town at the time when possession of the flats in Westend Heights be given, cannot be termed as deficiency in service because they were not lured by the brochure and at the time of booking of flats and signing ABA and were aware of their position.

  1. Also strangely the argument of complainants is not that they have been suffering because of non-availability of these facilities or that they had booked the flat only on the assurance of the opposite parties that these facilities would be provided alongwith the flats.
  2. In support of the contention that it amounts of deficiency in service on the part of the opposite parties, complainants have relied on the findings in the case of Madan Builders (supra). In Madan Builders case a complaint was filed on the ground that the builder had issued a fresh advertisement in April, 1989 regarding the construction of business complex at Gurgaon. In the said brochure and in the publicity material the builder had made many promises to prospective buyers to allure them to buy the shops which included a six storey complex two floor office complex including ten spacious entrance lobbies, six staircases, two glass capsule lifts, 400 vehicle parking space, 24 hrs. water and electric supply, 25 KVA generator for all shops, offices and todown, telephone pint. The complainants in that case had complained that the shopping complex was still incomplete and several facilities/amenities as promised at the time of booking and reflected in the brochure such as glass capsule lifts and 24 KVA standby generator had not been provided, besides raising other contentions. It was on these facts that the Commission has held as under: –

          “The respondent had booked shop No.G-50 and 51 which were changed by the appellant to G-38 and 39 without his consent and were allotted to Ved Arya and Rajesh Gupta. The allegation that the shops were unilaterally and arbitrarily changed and sold to the third parties has not been denied by Mr. V.K. Madan, proprietor of the appellant, in his affidavit. There was deficiency in service as the appellant failed to provide the facilities promised in the representation made as per the advertisement and brochure. The changing of shops originally allotted to the complainant from shop Nos. 50 and 51 to No.38 and 39 was certainly an unfair trade practice. Respondent, in the above circumstances, was justified in declining to take alternate shops allotted to him and seeking refund of the amount deposited by him along with interest and compensation.”

   

          It is apparent that the Commission had noted that the builder had promised to provide in the complex where the shops had been purchased by the buyer to provide certain facilities in the advertisements and the brochures but had failed to supply it and accordingly found that there was deficiency in service. The complainants herein have put up a claim for deficiency in service on the grounds that the brochure had talked about certain facilities which they would provide in the New Town and that had not been provided. This claim does not talk about the deficiencies in their Westend Heights complex. The finding in the case of Madan Builder (supra) therefore is distinguishable.

  1. The complainants have also relied on the findings in the case of Rajasthan Housing Board. In this case since the builder had failed to provide the facilities at the time possession letter was issued in the Mewar Apartments built by it and wherein the complainant had been allotted a flat, that this Commission finding deficiency in service on this count and granted compensation. Section 14h(b) of Consumer Protection Act confers the jurisdiction upon this Commission to compensate only when it reaches to the conclusion that the loss or injury has been suffered. The complainants herein have not even contended that they have suffered any loss or injury on account of failure of the opposite parties to develop New Town project as mentioned in the brochure. Their argument is had such a brochure not been issued, the opposite parties would not have been able to sell even a single flat in Westend Heights and thus the opposite parties have lured the complainants. The argument has no merit in view of the fact that at the time they signed the application form and ABA, it was made clear to them by the opposite parties that both facilities had no link. The opposite parties have urged that the complainants have not suffered any loss or injury on this count since all the facilities like schools, healthcare and shopping facilities, are available in that area. It is submitted that the value of the property in the Western Heights complex has also considerably increased which fact is clear from the conveyance deeds executed by the 11 complainants who have sold their properties to third persons during the pendency of the complaint and have earned huge profit which ranges to 3 to 4 times of the cost of the flat. While the opposite parties have placed on record the conveyance deeds of the complainants who have sold their property, the complainants have not placed on record any document and not even have contended that they have suffered any loss or injury. The complainants are not entitled to any relief on this count.
  2. The complainants have also claimed the refund of Rs.2 alongwith interest @ 24% per annum lakhs which they allege has been charged additionally towards electricity and water charges through the gateway of clauses 1.14, 1.15 & 23 b although opposite parties it is argued had already charged a sum of Rs.1.50,000/- towards electricity and water charges. It is submitted that charging twice for the same facilities amounts to misuse of this clause.  It is submitted that these clauses are unfair. It is submitted that these additional charges have been calculated under the head ‘infrastructure development charges’ towards establishment of 66/11 KV station and this has been done citing better quality of uninterrupted power supply after a lapse of more than 7 years of advertising the project. Even otherwise under clause 1.14, 1.15 and 23 (b) of ABA the opposite parties do not have any authority to raise the demand for additional expenses for infrastructure development charges towards installation of K.V. station. It is submitted that these clauses have been manipulated to collect extra money from buyers and this amounts to unfair and restrictive trade practices.
  3. The argument of opposite parties is that this demand is a valid demand and is duly supported by the C.A. certificate. It is submitted that while raising the said demand a letter was written to all the allottees wherein they have been informed of all the developments. Reliance is placed on the relevant paragraph of the letter and which is quoted as under:-

          “Our initial effort was to obtain and energize the power supply to the entire project of 1830 apartments through individual 11KV feeders from Golahalli 66/11 substation. On this basis, the costing for infrastructure towards provisioning of utilities as per clause 1.14, 1.15 and 23 (b) and IDC of ABA was estimated to Rs.127.96/sft. which was reflected in the final demand to D Block customers. However, after a detailed evaluation of the load requirement for the project as per norms, BESCOM has now stipulated that in accordance with clause 3.2.4 of KERC Regulations, we establish a dedicated 66/11 KV substation within our project site to cater to the needs of the project, instead of the earlier proposed scheme of 11KV feeders from Golahalli. The increase in cost because of this new sub-station and allied works, over and above the originally envisaged 11KV scheme is estimated @ Rs.18.01 Cr. Thereby increasing the total infrastructure cost recovery towards provisioning of utilities to Rs.188.00/sft. In view of the above said amounts are being recovered on the basis of provisional estimates. ON commissioning and energizing the substation, the company shall arrange a certificate from independent chartered accountant/chartered engineer to arrive at the actual cost incurred. Your share of the said actual cost by the company shall be duly intimated to you accordingly. If it is found that excess amount paid by you, over and above the actual cost incurred by the company, said excess amount so collected shall be refunded to you without interest. If the actual expenses exceeds the estimated amount computed @ Rs.188/st. ft. then demand for the shortfall amount shall be raised through further demand on the owner of the property and shall be payable by you. We would further like to bring to your kind attention that the provision of 66/11 KV substation will ensure better quality uninterrupted power supply as compared with the previously planned scheme of 11 KV feeders.”

 

          It is submitted that 66/11 KB substation has been constructed by the opposite parties in terms of directions issued by K.P.T.C.L./BESCOM and they have relied on the letters dated 27th May, 2015 and 9th June, 2016 of BESCOM. It is further submitted that the opposite parties could have applied to BESCOM only after receipt of the occupation certificate in relation to the individual towers and therefore prior to the receipt of the occupation certificate, the issue of substation did not arise. It is submitted that in terms of specific clause in the ABA, it is not open to the complainants to challenge this demand. It is further submitted that majority of the complainants have made the payments without any demur and protest.

  1. We have given thoughtful consideration to the arguments of learned Senior Counsel of all the parties. Admittedly, the issue of providing connections to individual towers would have arisen only after receipt of occupation certificate. The letter dated 27th May, 2015 of BESCOM is reproduced as under:-

 

“27/05/2015 To, M/s. Annabel Builders and Developers Pvt. Ltd.

Sy. No. 356/1, 354/2, 355; 356/4A, 356/B, 356/5 360/1, 360/2, Begur Village, Bangalore.

Sir, Sub:- Arranging additional LT power supply to an extent of 3453 KVA to the additional new MSB (residential) Blocks A1 to A7 to the sanction load of 1310 KVA for the building blocks D1 & D2 totalling to 4763 KVA in favour of M/s. Annabel Builders and Developers Pvt. Ltd. Sy. No. 356/1, 354/2, 355; 356/4A, 356/S, 360/1, 360/2, of Begur Village, Bangalore pertains to S-10, Sub-Division of HSR Division.

Ref:- 1. Ltr. No. CEE (P&C)/ SEE/ (Plg)/EEE(Plg-S)/ KCO-95/F-37091/2011-12/R-56(18)/1310-1312/15.05.2015

  1. Ltr. No. BC-18/CGM(Op)/DGM-3/AGM(Op)-1/F-533(105)/15-16/2304-05/20.05.15.

**********           With reference to the above, as per the letters cited under reference, approval is hereby accorded for arranging additional LT power supply to an extent of 3453 KVA to the additional new M.S. Building (residential) block A1 to A7 to the sanctioned load of B10 KVA for the building blocks D1 & D2 totaling to 4763 KVA in favour of M/s. Annabel Builders and Developers Pvt. Ltd. Sy. No. 356/1, 354/2, 355; 356/4A, 356/B, 356/5 360/1, 360/2, Begur Village, subject to following conditions:

Regular Source: By drawing new 11 KV feeder from 66/11 KV Bannerghatta (Gollahalli) substation using 3X400 Sqmm HT UG cable up to your premises duly providing 11 KV matching breaker at the station.

Alternate Source: By drawing new 11 KV feeder from 66/11 KV BTM substation using 3 X 400 Sqmm HT UG cable up to your premises duly providing 11 KV matching breaker at the station.

Arranging additional power supply is feasible only after the commissioning of 220 KV Jigani Sub-station.

In case of alternate power supply, if the approval is not obtained from KPTCL for installing of breaker, power supply shall be tapped from any of the existing feeder which can take a load of 4763 KVA by installing new RMU outside the MUSS.

11 KV system shall be established as per BESCOM standards practices.

In future the power requirement exceeds 7500 KVA, the developer shall establish 66/11 MUSS in their premises under self-execution as per clause 3.2.4 of KERC (Recovery of Expenditure for supply of Electricity) Regulations-2004.

All the above works shall be carried out through class-I Electrical Licenses holder under the supervision of KPTCL/ BESCOM.

You have to pay the following amounts at the O/o Assistant Executive Engineer (Ele.), C,O& M, S-10 sub-division, BESCOM, Banglore within period of 90 days from the date of this letter failing which the sanction will stand cancelled:

10% supervision charges is Rs.15,00,000/- (Rupees fifteen Lakhs Only) UG Cable Testing Charges Rs.20,000/- (rupees Twenty Thousand Only) 23     Other conditions specified in the Addl. Clause 3-2-1 of Conditions of Supply of Electricity should be fulfilled.

  1. After payment of necessary charges, administrative approval will be issued from this Office.
  2. In case if applicant fail to meet any of the above conditions, the intimation letter is deemed to be cancelled.

 

Yours faithfully,   Chief Engineer Ele.

(C, O&M), BMAZ, BESCOM”

     

  1. Another letter dated 9.6.2016 is reproduced as under: –

“Date: 09-06-2016 To, M/s. Annabel Builders and Developers Pvt. Ltd.

Sy. No. 356/1, 354/2, 355; 356/4A, 356/4B, 356/5, 360/1, 360/2, Begur Village, Bangalore.

 

Sir, Sub:- Arranging LT power supply to the additional new residential MSB Block B1 to B6 & C1 to C4 to an extent of 4857.38 KVA to the additional new MSB (residential) Blocks A1 to A7 to the sanction load of 1310 KW, the power sanction to the earlier building  for the building blocks D1 to D2 to an extent of 1113KW and Block A1 to A7  to 4763 KVA to an extent of 2935KW in total 8905.38 KW (10477 KVA) in favour of M/s. Annabel Builders and Developers Pvt. Ltd. Sy. No. 356/1, 354/2, 355; 356/4A, 356/B, 356/5 360/1, 360/2, Begur Village, Bangalore pertains to S-10, Sub-Division of HSR Division.

Ref:- 1. Ltr. No. CEE (P&C)/ KCO-95/F-64221/2016-17/R-67(74)/766-771/15.04.2006.

  1. Ltr. No. BC-18/CGM(Op)/ F-533(105)/15-16/4610 Dtd: 02.06.16.
  2. T.O. Ltr. No. CEE/BMAZ/F-148/2014-15/4823 Dtd; 22.09.2015 ***********           With respect to the above, as per the approval in the letter cited under ref(2) and in contribution to T.O. letter cited under ref(3), approval is hereby accorded for arranging LT power supply to the additional new residential MSB blocks B1 to B6 and C1 to C4 to an extent of 4857.38 KW, the power sanctioned to the earlier building block D1 to D2 to an extent of 1113 KW & Block A1 to A7 to an extent of 2935 KW in total 8905.38 KW (10477 KVA) in favour of M/s. Annabel Builders and Developers Pvt. Ltd. Sy. No. 356/1, 354/2, 355; 356/4A, 356/4B, 356/5 360/1, 360/2, Begur Village, Bangalore pertains to S-10, Sub-Division of HSR Division, subject to following conditions:

The applicant shall establish 2X12.5 MVA, 66/11 sub-station in their premises as per KPTCL specification at their own cost under self-execution basis and shall hand it over to KPTCL upon completion of work and shall stand guarantee for a period of one year from the date of commission.

The applicant shall construct 66 KV line using 630 sq.mm UG cable from proposed 66/11 KV Saudela sub-station or in case 66/11 KV Saudela sub-station does not come up, then 66 KVline using 630 Sqmm UG cable from 66/11 KV BTM 4th phase sub-station may be drawn to proposed 66/11 KV sub station at their premises duly constructing the 66 KV bay and extending 66KV bus and providing associated control equipment’s under self execution basis.

The applicant shall purchase suitable adjacent land to the proposed 66/11 KV Saudela/ BTM 4th phase sub-station, for construction of 66 KV terminal bay at their own cost and carry out all the necessary modification works at 66/11 KV Saudela/ BTM 4th phase sub-station, under slef-execution.

11KV system shall be as per BESCOM standard practice.

Already serviced and yet to be serviced load shall be transformed on to the proposed new 66 /11 KV sub station after its commissioning.

The connectively for arranging power supply is feasible only after completion of following works.

Laying 66 KV 1000 Sq. mm UG cable from new 220/66 KV Khodays Glass Factory sub-station to 66/11 KV BTM 4th stage sub-station and releasing of the loads of 66/11 KV Sarakki and Jayadeva sub-station and shifting onto 220 KV Nimhans sub-station, only completion of laying 66 KV UG cable work from 220 KV Nimhans to Jayadeva Sub-station by KPTCL and Commissioning of 66/11 KV Saudela sub-station by M/s Saudela construction Pvt. Ltd. and handing it over to KPTCL.

All the above works shall be carried out by Karnataka Government Licensed Super Grade Electrical Contractor under the guidance of BESCOM/KPTCL.

 

Yours faithfully, Chief Engineer Ele.

(C, O&M), BMAZ, BESCOM”

 

  1. These documents clearly show that the demand has been raised pursuant to these communications of BESCOM. The question is whether for construction of this sub-station the opposite parties can raise additional demands from the complainants. The liabilities of the parties are governed by the ABA. This ABA was entered into by the complainants in the year 2009-2012 and they have not challenged the terms and conditions of this agreement before any Court of law. For the first time they are challenging these clauses in the present complaint stating that these clauses have been imposed upon them and they are therefore unfair and unjust and therefore liable to be scored out from the agreement. Although the complainants have relied on clause 1.14 in support of their argument but this clause relates to the fire and not the electricity therefore is not relevant for determining of the issue before us. The relevant clause which deals with the electricity is 1.15 and is reproduced herein: –

“1.15 The Allottee agrees and understands that the company or its agents/ its subsidiaries/ associates/ affiliates or sister concerns, may at its sole discretion and subject to such Government approvals as may be necessary; enter into an arrangement of generating and/or supplying power to the Said Project/ Said Complex and any other project/ complex which the company may develop in future. In such an eventuality the Allottee fully concurs and confirms that the Allottee shall have no objection to such arrangement for generating and/ or suplying power and the Allottee gives complete consent to such an arrangement including it being exclusive source of power supply to the Said Complex or to Said Apartment directly and the allottee had noted the possibility of it being to the exclusion of power supply from BESCOM/ any other source. “

 

The another relevant clause is 23 (b), is reproduced as under: –

        “23.(b) Payment and other charges for bulk supply of electrical energy If company or the Maintenance Agency decides to apply for and thereafter receives permission from BESCOM or from any other body/ commission/ regulator/ licensing authority constituted by the Government of Karnataka for such purpose, to receive and distribute bulk supply of electrical energy in the Said Project/ Said Complex then the Allottee undertakes to pay on demand to the Company proportionate share as may be determined by the Company of all payments and charges paid/ payable by the company or the Maintenance Agency to BESCOM/ any other body. Commission/ regulator/ licensing authority constituted by the government of Karnataka, failing which the same shall be treated as unpaid proportion of Total Price payable by the Allottee and the  conveyance of the Said Apartment may be withheld by the Company till full payment thereof is received by the company. The proportionate share of cost incurred by the Company for creating infrastructure like HT feeder, EHT sub station etc. shall also be payable by the Allottee on demand. Further the Allottee agrees that the Company shall be entitled in terms of the Maintenance Agreement to withhold electricity supply to the Said Apartment till full payments of such amounts and charges are received buy the Company or the Maintenance Agency. Further in case of bulk supply of electrical energy, the Allottee agrees to abide by all the conditions of sanction of bulk supply including but not limited to waiver of the Allottee’s right to apply for individual/ direct electrical supply connection directly from BESCOM or any other body responsible for supply of electrical energy. An undertaking in this regard executed by the Allottee is attached as annexure-IX to this Agreement. The Allottee agrees to pay increase in the payments, charges for bulk supply of electrical energy as may be demanded by the Company from time to time.”

 

          The conjoint reading of both these clauses clearly shows that the allottee had agreed to pay the expenditure incurred for providing the infrastructure for supply of electricity energy in the said complex pursuant to the Rules & Regulations of BESCOM. They had agreed to pay proportionate share of cost incurred by the company for creating infrastructure like sub-station on payment. Allottees are bound by the terms of the contract and therefore the act of the opposite parties does not constitute deficiency in service or unfair and/or restrictive trade practice. The allottees on the other hand will get tremendously benefited by uninterrupted supply of electricity and therefore it cannot be said that due to this act of the opposite parties they had suffered any injury. It also cannot be said that by paying additional money towards infrastructure, they have suffered any loss because they are paying charges for better facilities. The complainants have also not disputed that majority of the complainants have paid these charges without any demur or protest. This prayer of the complainants has no merit.

  1. The issue relating to the charges towards exclusive car parking has been argued by the learned Senior Counsel for complainants Nos.198 to 339 and Senior Counsel for the complainants Nos. 1 to 197 has adopted the same arguments. It is argued that the opposite parties have charged from each buyer a sum of Rs.2,25,000/- towards one car parking and this demand is contrary to the finding of Hon’ble Supreme Court in the case of Nahal Chand Lalochand Pvt. Ltd. vs. Panchali Co-Op Housing Society (2010) 9 SCC 536 wherein it has been clearly held that a builder or promoter is not entitled to charge for parking spaces as these are part of common area. It has been prayed that this amount be refunded with interest @ 24%.
  2. Learned Senior Counsel for the opposite parties has relied on clause 1.16 of ABA and has argued that the allottees have been provided a dedicated car parking which is in their exclusive use. It is further argued that the findings of the Hon’ble Supreme Court in the case of Nahal Chand Lalochand (supra) is not relevant because the said judgment had been given in context of the Maharashtra Ownership of Flats Act, 1963 (MOFA) and Development Control Regulations in Mumbai and thus it had been passed on its own facts and does not have a universal application. It is submitted that this aspect of the Nahal Chand Lalochand (supra) has been discussed by Hon’ble Supreme Court in the judgment in DLF Ltd. vs. Manohan Lowe(2014) 12 SCC 231. It is submitted that despite this fact, the complainants have selectively referred only the judgment of Nahal Chand Lalochand and have not brought to the notice of this Commission the subsequent judgment in the matter of Manohan Lowe. It is submitted that as per the bylaws 16 of Bruhat Bengaluru Mahanagar Palike (BBMP) one car parking space with any apartment over the size of 50 sq. mt. has been mandated. It is further submitted that there is no restriction on the sale of car parking. The Guidance Value notification issued by the Government of Karnataka specifically provides that the charges for car parking have to be mentioned separately in the conveyance deed and to be taken in computation for payment of stamp duty and registration charges. It is argued that the findings of Hon’ble Supreme court in the case of Nahal Chand Lalochand (supra) are therefore not applicable on the facts of this case. It is further submitted that there is no sale of parking space under ABA. It is only an exclusive right of use akin to the limited common area as defined under Karnataka Apartment Ownership Act and also as per the guidance value notification. It is further submitted that majority of complainants have already paid these charges. It is submitted that the opposite parties have raised these charges as per the agreement between the parties.

459    We have given thoughtful consideration to the rival contentions of the parties. In the case of Manohan Lowe (supra) Hon’ble Supreme Court has duly considered its finding in the case of Nahal Chand Lalochand (supra) and has held as under: –

          “Considerable reliance was placed by the apartment owners on the Judgment of this Court in Naharchand Laloochand Private Limited (supra). First of all, the Judgment is not at all dealing with the community and commercial facilities in a group housing society with reference to the provisions of Section 3(3)(a)(iv) of Development Act. The above-mentioned Judgment was delivered in the context of the Maharashtra Ownership of Flats Act, 1963 (MOFA) and the Development Control Regulation (DCR) framed under the Maharashtra Regional Town Planning Act, 1966. In that case this Court was required to examine as to whether a stilt parking can be considered to be a garage under the definition of “flat” under MOFA. As per the format provided under MOFA only a “flat” or “dwelling unit” or “shop” or “garage” can be sold by a developer. Stilt parking could not be separately sold in terms of the provisions of the MOFA, a statutory format of the agreement and the provisions of the DCR. Such a restriction is not there either under the 1975 Regulation Act or the Apartment Act and there is no occasion to consider whether stilt parking can be sold along with the apartment. In any view, the present case is not concerned with the question of stilt parking. We are in this case, pointedly concerned with the facilities provided under Section 3(3)(a)(iv) of Development Act, consequently, the reasoning of Naharchand Laloochand Private Limited (supra) are inapplicable to the facts of this case, if examined in the light of the Regulation Act and the Apartment Act.

 

          From these findings of Hon’ble Supreme Court in the case of Manohan Lowe (supra) it is apparent that findings of Nahal Chand Lalochand case (supra) relates only to the facts and circumstances of that case i.e. relate to the MOFA the provisions of which were applicable in the State of Maharashtra. Complainants have failed to point out that the Rules and Regulations of the Act governing the building construction activities in the state of Karnataka are akin to MOFA and therefore findings in the case of Nahal Chand Lalochand (supra) are applicable and binding. On the other hand, the opposite parties have placed on record the guidance value notification of State of Karnataka and they have also relied on the Karnataka Apartment Ownership Act to support their contention that the charges for parking have to be mentioned separately in the conveyance deed and computation of payment of stamp duty and registration charges has to be done separately based on the charges of parking space. It is also apparent that majority of the complainants have duly paid these charges pursuant to which their conveyance deeds were executed and they have already paid the stamp duty and registration charges separately on it. From the ABA it is apparent that “the allottees had to pay charges for any additional parking space(s) (other than the parking space) which will be charged at the then prevailing rate and will be offered subject to availability.” This facility of dedicated additional car parking is also in terms of ABA. This claim of the complainants has no merit.

  1. The complainants have also claimed the refund of the money charged from them as money payable to Dua Associates towards charges for execution of the conveyance deed etc. Interest is also claimed on the s aid amount. Admittedly, these complainants have not taken possession and have not executed any conveyance deed and had therefore not paid any money to Dua Associates. No refund therefore can be ordered. Even otherwise, the complainants have agreed to pay all the necessary fees under clause 1.12 of the agreement which reads as under: –   

“… The allottees shall be liable to pay all fees, duties, expenses, costs etc. including stamp duty, registration charges, transfer duty, corporation tax and all other incidental and legal expenses for the execution and registration of the conveyance deed/agreement of the said apartment.”

 

          In terms of this clause, all the incidental and legal expenses for execution of the registration of conveyance deed/agreement is to be borne by the allottees. Besides that, the money also needs to be paid directly to Dua Associates towards other incidental and legal expenses and not to the opposite parties.

          This relief cannot be granted to the complainants.

  1. The complainants have also claimed that the opposite parties had increased the super area unilaterally and without their permission and therefore the said increase in the super area and subsequent additional recovery towards cost of the increased area is not binding on them and it amounts to deficiency in service and the extra money which has been raised by the opposite parties on this count shall be refunded to them alongwith interest @ 24%. It is further contended and argued that there is in fact no increase in super area, rather there is a decrease in the super area since the opposite parties themselves have stated that the saleable area has decreased.
  2. Learned Senior Counsel appearing on behalf of the opposite parties have argued that under clause 1.6 of the ABA, the complainants had agreed that the total cost of the flat is to be calculated on the basis of the super area based on the occupation certificate of the apartment. It is further argued that the permission of the allottee to increase the super area is required only when the total area is increased or decreased by 10%. It is submitted that it is not the case of the complainants that the increase of super area exceeds 10%. It is further submitted that no evidence had been led by the complainants to prove that there is no increase in the super area. It is further contended that they had never objected to the increase in the super area and majority of complainants have duly paid the charges for the increased area without any demur. It is further submitted that the contention of the complainants that since the saleable area has decreased therefore the super area has proportionately decreased, has no merit. It is submitted that the saleable area was decreased on account of reduction in the construction of 92 apartments and this reduction does not in any way affect the super area of individual apartment. It is further contended that the contention of the complainants that they are not required to lead any evidence or produce any proof in view of the admitted fact that saleable area has since decreased so automatically the super area of flat is also decreased, is misconceived and not tenable. It is submitted that increase in super area is evidenced from the fact that there is an addition to kitchen utility area for 2 bhk units; addition of balcony adjoining the master bedroom for 3 BHK + 2 toilet units; addition of 2 balconies in the 3 BHK + 3 toilet + servant units. Besides this, multiple AC ledges were added to all the aforesaid units and the service ledges were substantially enhanced in all the units and this fact is also clear from the building plan on the basis of which the occupation certificate was given. The original sanction plan of BBMP and the As-built plan on the basis of which occupation certificate has been issued, have been placed on record by the opposite parties. It is further submitted that the final apartment plan was also annexed alongwith registered conveyance deed of the units and it is submitted that the increase in the super area was for the benefit of the allottees and the allottees have been charged on the basis of booking rate only and no escalation charges have been claimed from them since the project was escalation free project. On these contentions it is submitted that the complainants are not entitled to the relief as prayed by them. It is further argued that as per clause 10 of ABA the prior permission of the allottee is required if there is increase or reduction in the super area more than 10%. It is submitted that in the cases of the allottees, the increase of super area is less than 10% and therefore their prior permission is not needed.
  3. We have given thoughtful consideration and perused the file. There is no denial on the part of the complainants that there is no increase in the super area. Their argument is that the opposite parties could not have increased the super area unilaterally. It is not the case of the complainants that the increase in super area is more than 10%.  Clause 10 of the agreement stipulates that the consent of the allotees in relation to increase in super area of the flat is needed if the increase is more than 10%. The relevant clause reads as under: –

 

Clause-10   “Alteration/medication In case of any alteration/modification including as mentioned in the clause above, resulting in increase/decrease of more than 10% in the super area of the said apartment…shall intimate in writing to the allottee the proposed changes thereof and the resultant changes if any in the total price of the said apartment to be paid by  the allottee….

         

  1. As per this clause prior notice to the allottees is required only if the alteration or modification is more than 10%. The complainants have not produced any evidence on record to prove that the increase in the super area is more than 10%. They had raised the argument that the reduction in the supper area is evident from the reduction of saleable area of the project. No evidence has also been produced to prove that there is a decrease in the super area of the flats of the complainants. They want the Commission to presume the fact that there is a decrease in the super area of the flats on the ground that the total saleable area of the project is reduced. The opposite parties have explained the reasons for decrease in the saleable area as they have clearly stated that they have abandoned the construction of 92 flats. Since number of constructed flats have been reduced, naturally the saleable area of the complex is reduced. It does not mean that the super area of individual flat is decreased. This Commission cannot raise presumptions and surmises and without any evidence cannot hold that the super area of the flats has been decreased. This too when there is no denial to the arguments of the opposite parties that there is an addition of kitchen utility area for 2BHK units and addition of balcony joining the master bedroom for 3 BHK + 2 toilet unit and there is also addition of two balconies in the 3 BHK + 3 toilet unites an addition of wardrobe space in the servant room and increase in the foyer area of the 3 BHK +3 toilets + 3 servant units and the addition of multiple AC ledges. This claim of the complainants is not only baseless but misconceived. The claim is hereby rejected.
  2. The complainants are also seeking refund of money which has been collected by the opposite parties in the name of association member fee and annual subscription fee and for the club house. It is argued on behalf of the complainants that they have paid a sum of Rs.60,000/- towards club charges but the club was not made functional nor the facilities have been commissioned till date. It is submitted that the collection of this money without providing the facilities of club therefore amounts to deficiency in service. It is submitted that the opposite parties are also additionally charging Rs.30,000/- per apartment towards membership fee for two years and annual subscription charges of Rs.7,000/-. It is submitted that this collection of money amounts to unfair trade practice and restrictive trade practice. It is also submitted that the association member fee and annual subscription fee therefore has been wrongly charged.
  3. On behalf of the opposite parties it is submitted that Rs.60,000/- had been charged as per the terms of the agreement towards construction of the club house. It is submitted that the club house is now ready and its occupancy certificate has been obtained. It is submitted that Rs.60,000/- which has been collected under ABA, and has been utilized for construction of the said club house. It is further submitted that the opposite parties have constituted Westend Heights Condominium Apartment Owner’s Association (WHCAOWA) as per the Act and the membership fee and annual subscription fee amounting to Rs.37,000/- has been charged in terms of clause 1.20 & 1.11 of the agreement. It is submitted that all the allottees were entitled to become member of the association by paying membership charges. It is submitted that the opposite parties are in the process of handing over the club to BDA which will then hand it over to the Condominium Association of the complex in question.  It has been done as per the statutory requirement and as per direction of Hon’ble Karnataka High Court in writ petition No.11380-11381/2015 and writ petition bearing No.43282/2016. It is denied that these membership charges and annual subscription charges have been utilized by opposite parties. It is submitted that even the final demand notice attached to the possession letter clearly shows that these amounts are required to be deposited in the name of Condominium Association of the apartment owners and not in the name of opposite parties. It is submitted that this Condominium Association of the apartment owners shall be responsible for the management, maintenance and running of the club once the same is transferred to them in terms of order of Hon’ble Karnataka High Court. It is submitted that seeking refund of this amounts is contrary to the agreement.
  4. We have given thoughtful consideration to the rival contentions of the parties. It is apparent that in terms of the ABA, the allottees are required to pay club charges. Accordingly, they have paid Rs.60,000/- towards the construction of the club. This payment was in terms of the ABA.
  5. The complainants are also aggrieved by the demand of Rs.30,000/-  and Rs.7,000/- towards membership application and annual subscription charges of the club, which has been demanded by the opposite parties in their final demand letter. In terms of clauses of ABA (clause 1.20), all the allottees had agreed and undertook to join association/s formed under the relevant provisions of the Act. The relevant clause reads as under: –

1.20   The allottee undertakes to join association/s formed under relevant provision of the Act and pay any fees, charges thereof and complete such documentation and formalities as may be deemed necessary by the company for this purpose. The allottee also undertakes to join the master association if and when formed by the company or its nominee(s) for a part or whole of the said land. The draft application form for becoming the member of the association of apartment allottees/ owners is given in annexure VII of this agreement   An association of the name “Westend Heights Condominium Apartment Owners Welfare Association” (WHCAOWA) was formulated and all the apartment owners became members of the said association and it is the Association who shall run the club. It is not in dispute that in terms of clause 1.11 the club facility was planned in the amenity area which was to be transferred by BDA to the opposite parties. The club house could be constructed thereafter only Rs.60,000/- was to be paid towards this club facility. On the formation of the Association the allottees on becoming members of such Association have to abide by the terms and conditions of such club membership. There is no dispute to the fact that the said club is to be run by the association and being a member under clause 1.11 the allottee is bound to pay membership fee and also bound by the other terms & conditions of the club. The relevant clause reads as under: –

1.11  The allottee agrees and acknowledges that the club facility is proposed to be planned in the amenity area (CA Area) for the said project. The applicant is aware that the development of facility is dependent on the allottee and association of apartment allottees/owners applying BDA for transfer of the CA area for establishing the club. The allottee shall apply and cease Association of apartment allottees/owners to apply to BDA for transfer of CA area to association for establishing the club. Further, the allottee and the association shall cause to ensure that the CA area received from BDA is given to the company for the establishment of club on the terms and conditions as decided by the company. The allottee also authorizes and gives consent to the company to apply to BDA on behalf of applicant/association of apartment allottee/owners for giving the CA area to the company to establish the club on the CA received from BDA. The company may, in its sole discretion apply to BDA for transfer of CA and the allottee further agrees and undertakes to execute such other documents, consent letter authorization, as may be required for the said purpose at the request of the company.

         The allottee shall be required to pay an amount of Rs.60,000/- (rupees sixty thousand only) (which is subject to increase at the discretion of the company) towards the club facility. The allottee shall be liable to fill the form for the membership and shall be bound and abide by the terms and conditions of the club membership fee shall be for such term, as specified in the detailed terms and conditions for membership of the club. The alottee shall also be liable to pay such other charges as shall be mentioned in the terms and conditions.”

 

          It is argued by learned Senior Counsel for the opposite parties that the club house has been constructed and the process of transferring it to the Association has already been started and it is also argued that amount of Rs.37,000/- demand of which is raised in the final demand letter is not to be paid to the opposite parties but it has to be paid to the Association of the flat owners. Final statement of account sent to the allottees clearly shows that the opposite parties have only charged Rs.60,000/- towards club facility. Clause 2 of the said final statement of account which was sent to V.K. Sharma and similar letters were issued to other allottees, reads as under: –

“AMOUNT TO BE PAID IN THE NAME OF “Westend Heights Condominium Apartment Owners Welfare Association.”

 

… …… …

… …… …

2 year Club membership fees @ Rs.30,000/- per apartment as per ABA read with membership application and detailed terms                                                                                 30,000.00 Annual subscription charges of the Club @ Rs.7000/- per apartment as per ABA read with membership and detailed terms                                                                                  7,000.00 Service tax15,487.00 Total amount payable by way of DD favouring WESTENND HEIGHTS CONDOMINIUM APARTMENT OWNERS WELFARE ASSOCIATION.                                                   206,391.00″

 

          This clearly shows that the amount of Rs.37,000/- is payable to the Westened Condominium Apartment Owners Welfare Association. This association is association of the owners. If the allottees have any grievance qua the demand of these charges, they can take up the issue against their association. Since this money has not been claimed by the opposite parties it cannot be said that they have adopted any unfair trade practice or restrictive trade practice. We found no merit in the argument and contentions on this count and hold that no relief has prayed can be granted.

  1. The complainants have also claimed compensation for delay in giving possession.  It is argued that the payment of Rs.5/- per sq. ft. as delay compensation by the opposite parties is unjustified and inadequate and they are entitled to more compensation. It is also contended that due to this delay they have to pay higher registration charges on the guidance value and have claimed compensation and cost and any other proper relief which this Commission deems fit. in the interest of justice.
  2. There is no dispute to the fact that the completion of the project had been delayed. Delay had been acknowledged by the opposite parties. They had also offered to these complainants the delayed compensation calculated @ Rs.5/- per sq.ft. of the super area.
  3. It is argued on behalf of the complainants that the term of ABA by which the opposite parties are required to pay the delay compensation @ Rs.5/- per sq. ft. is unfair, unjustified, oppressive and unconscionable and reliance has been placed on the judgment of Pioneer Urban Land (supra). It is further contended that this term of the contract will not be final and binding since the flat purchaser had no option but to sign on dotted line of the contract framed by  the builder and these terms are ex-facie one sided, unfair and unreasonable and therefore amounts to unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 and reliance is against placed on Pioneer Urban Land (supra) and Satish Kumar  Pandey & Anr. vs. Unitech Ltd., CC/427/2014. It is further argued that due to the delay, the complainants have to pay more guidance value of the flat and more service tax and then they would have otherwise paid, had there been no delay. It is further submitted that the complainants had to take loans from the banks at high rate of interest and had paid 95% of the total cost by 2012 itself and are paying EMI and also rent since they were staying in a rented accommodation. It is further submitted that it has also caused mental harassment to them and appropriate compensation be given. On these contentions it is prayed that the complainants be adequately compensated for such delay. Since they have also suffered mental harassment, they should also be compensated for the same.
  4. It is argued on behalf of the opposite parties that the complainants had voluntarily and with open eyes signed the apartment buyer agreement and as per clause 14 of it the company is liable to pay compensation @ Rs.5/- per sq. ft. of the super are in case of delay. It is argued that this clause is akin to clause 18 of the application form. It is submitted that both the clauses are identical and therefore before signing the ABA the complainants were aware of this clause and they were never ambushed about this clause. Since complainants have consented to this clause with open eyes, they cannot now say that this clause amounts to unfair trade practice and restrictive trade practice. It is further contended that the opposite parties have not adopted the unfair trade practice. It is argued that due to the delay for unavoidable reasons the opposite parties have suffered losses worth Rs.81 cr. and this loss was borne by opposite parties and the complainants were not burdened. It is further submitted that the payment schedule was also construction link schedule and the installments were paid by the allottees as per the stage of the construction and therefore it is not a case where the opposite parties had been charging escalation cost and/or collecting the entire cost of the flat and then utilizing it for its own benefit. It is further contended that the complainants cannot be held liable for delay compensation only because there is a delay. It is submitted that complainants are required to prove that they have suffered loss or injury due to such delay. It is submitted that none of the complainants have led any evidence or even contended that they had suffered any loss or injury. It is argued that loss and injury cannot be presumed and that the burden is upon the complainants to prove the facts on record on the basis of which the damage can be calculated. It is further contended that complainants have not led any evidence to prove that they were living in a rental accommodation or that they had raised loans and were paying EMIs. It is submitted that no compensation can be awarded only on bald claim made by complainants. Reliance is placed on the findings of Hon’ble Supreme Court in the matter of GDA vs. Balbir Singh (2004) 5 SCC 65 (paragraph 8) and it is argued that Hon’ble Supreme Court has clearly held that the complainants are to be compensated for loss and injury and it has to be based on evidence of loss and injury and the compensation should correlate with the amount of loss or injury. It is further argued that Hon’ble Supreme Court in the case of Balbir Singh (supra) has further held that the loss could be determined on the basis of loss of rent which could have been earned if possession was given and premises rent out or the consumer had to pay to stay in rented premises. Reliance is also placed on DLF Homes, Panchkula Pvt. Ltd. vs. D.S. Dhanda, Civil Appeal Nos.4910-4941/2019 paragraphs 16 & 17 and it is argued that the Hon’ble Supreme Court has held therein that normally a consumer is bound by the buyers agreement and there cannot be multiple heads for grant of damages and interest when the parties have agreed to pay the damages at a particular rate. It is argued that once the parties agreed for a particular consequence of delay in handing over of possession then there has to be exceptional and strong reason for grant of compensation more than the agreed rate. It is further contended that Hon’ble Supreme Court in the case of D.S. Dhanda (supra) has also clearly held that amount of compensation is not a rule of thumb. It is further argued that the majority of complainants i.e. 337 out of 339 have already accepted the delayed compensation which has been calculated by the opposite parties in terms of clause of ABA and have taken possession without any demur. It is further argued that many of the complainants out of 339 had executed conveyance deed after accepting the delayed compensation calculated in terms of clause of ABA without any demur before filing the present complaint, and without any demur and without permission of this Commission during the pendency of the present complaint. It is further argued that many of the complainants have voluntarily settled their disputes and have accepted compensation and taken possession during the pendency of the present complaint without any demur and without bringing it to the notice of this Commission, which shows that the majority of the complainants were satisfied with the compensation given to them in terms of ABA. It is argued that this shows that this clause under the agreement, is not unfair, punitive or unconscionable. It is submitted that these complainants are therefore not entitled to any compensation than the one offered to them in terms of ABA and their claim is liable to be dismissed.
  5. In rebuttal, it is argued on behalf of the complainants that they had not accepted the delayed compensation but it was adjusted in their final demand letter and therefore it cannot be said that those complainants had accepted the delayed compensation.
  6. We have given thoughtful consideration to the rival arguments on this count. The argument of learned Senior Counsel for the complainants that the complainants had not accepted the delayed compensation but it was adjusted in the final demand, is not tenable. The final demand letter, sample of which is placed on record, clearly shows that the opposite parties had shown therein the delayed compensation calculated in terms of ABA and thereafter this amount is shown to have been deducted from the total money payable by the complainants. These complainants therefore were very well aware of the amount of compensation which the opposite parties were paying. By allowing it, they have accepted the said delay compensation and had taken possession before and during proceedings of the complaint and executed the sale deed. Many of them had settled their dispute voluntarily with the opposite parties without the permission of this Commission. It is also apparent that although the opposite parties have contended that out of 339 complainants, 337 have taken possession, there is no denial to this contention. The opposite parties have also furnished lists (alongwith the written submissions) showing all the necessary particulars which includes the amount paid towards delayed compensation and the dates on which possession was taken by these complainants. This clearly shows that majority of the complainants have accepted the compensation so paid by the opposite parties in terms of the ABA.
  7. Learned Senior counsels for the complainants have argued that the clause by which the opposite parties have bind itself to pay delayed compensation @ Rs.5/- per sq. ft is unreasonable in view of the fact that the opposite parties are charging interest @ Rs.5/- per sq. ft. while from the allottees in case of default or delay in paying the installments it is charging much more interest from them. It is argued that this Commission can balance this inequality and has relied on the case of Pioneer case (supra). It is submitted that the Hon’ble Supreme Court in that case has clearly held that such contractual term of agreement are not binding and amounts  to unfair trade practices and has relied on para 6.7 which is reproduced as under: –

“A term of contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.

          The contractual terms of the agreement dated 08.05.2012 are ex-facie one-sided, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the  flats by the buyers.”

 

We are in total agreement to these findings of  Hon’ble Supreme Court. It is for the complainants to prove that the contractual terms of agreement are unfair and unreasonable. The  Hon’ble Supreme court in the case of Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Ors. (1986) 3 SCC 156 has clearly  held that the  Judges can strike down the terms of a contract. The Hon’ble Court has held that “……this principle is that the courts will not enforce and will, when called upon to do so, strike  down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between the parties who are not equal in bargaining power….” The draft legislation provided by the Law Commission of India in its 199th Report which addresses the issue of ‘Unfair  (Procedural & Substantive) Terms in Contract’ has stated  that “A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties.”

  1. The complainants have also relied on the  findings of this Commission in the case of Satish Kumar Pandey (supra) wherein the agreed compensation on account of delay in possession was @ Rs.5/- per sq. ft. and the Court while granting the delayed compensation at agreed rate had also awarded interest @ 12% p.a. and it is prayed that interest at this rate  shall also be awarded to them for the delayed compensation.
  2. The opposite parties on the hand has relied on latest finding of Hon’ble Supreme Court in D.S. Dhanda (supra). In the case of D.S. Dhanda (supra) Three Judges Bench of Hon’ble Supreme Court has held as under: –

Para 16.       The District Forum under the Consumer Protection Act, 1986 is empowered inter-alia to order the opposite party to pay such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party including to grant punitive damages. But the forums under the Act cannot award interest and/or compensation by applying rule of thumb. The order to grant interest at the maximum of rate of interest charged by nationalised bank for advancing home loan is arbitrary and no nexus with the default committed. The appellant has agreed to deliver constructed flats. For delay in handing over possession, the consumer is entitled to the consequences agreed at the time of 10executing buyer’s agreement. There cannot be multiple heads to grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs.10/- per sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate.

  1. Though the 1986 Act empowers the authorities to award compensation for any loss or injury including building damages but the order of NCDRC or that of SCDRC of awarding compensation is without any foundation being laid down by the complainant on judicially recognised principles and is by rule of thumb. Therefore, we find that grant of compensation under various heads granted by the NCDRC cannot be sustained.

 

In the case of Balbir Singh (supra), Hon’ble Supreme Court has clearly held that loss and injury should correlate with the amount of loss or injury. Hon’ble Supreme Court in paragraphs 8 has held as under: –

          “8. “However, the power and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above, what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

  1. That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher. Further if the construction is not of good quality or not complete, the compensation would be the cost of putting it in good shape or completing it along with some compensation for harassment. Similarly, if at the time of giving possession a higher price or other amounts are collected unjustifiably and without there being any provision for the same the direction would be to refund it with a reasonable rate of interest. If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and a direction to deliver possession can be given. If a party who has paid the amount is told by the authority that they are not in a position to ascertain whether he has paid the amount and that party is made to run from pillar to post in order to show that he has paid the amount, there would be deficiency of service for which compensation for harassment must be awarded depending on the extent of harassment. Similarly, if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered. We clarify that the above are mere examples. They are not exhaustive. The above shows that compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer.”

 

477    From the above propositions of law it is apparent that the compensation for delay in delivery of possession has to be  calculated as per the agreed terms & conditions and where the complainants are able to prove the loss and injury suffered by them due to such delay, the compensation for such loss and injury can also be granted. In the case of Balbir Singh (supra) the Hon’ble supreme Court has clearly stated that it is for the Commission to determine the loss and injuries. This loss could be determined on the basis of loss of rent which the complainant could have earned after taking possession by letting it out or if the complainant is staying in a rented premises, he could have saved by shifting to the allotted accommodation. The burden is upon the complainant to prove such loss or injury. In the present case, the nature of loss or injury suffered by these complainants have not been contended. The facts relating to the loss and injury are the facts which could be in the personal knowledge of these complainants and therefore as discussed above, could only be proved by them by leading evidences of these facts. None of these  complainants have deposed before the Court. The Commission is not supposed to presume or assume the losses or injury simply because there is a delay in giving the possession and for which adequate remedy has been agreed upon by the parties under ABA. The Three Judges Bench of Hon’ble Supreme Court in a latest judgment decided on 10th May, 2019 in D.S. Dhanda (supra) has clearly held that “for the delay in handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyers agreement. There cannot be multiple head to grant damages and interest when the parties have agreed for payment of damages @ Rs.10/- per sq. ft. per month” The  Hon’ble Court has further held that “once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate.”

  1. In the present case the complainants have failed to even contend any exceptional and strong reason for this Commission to award compensation more than the agreed rate. The facts and circumstance on other hand shows that the majority of complainants i.e. 337 complainants have already accepted the delayed compensation at the agreed rate and had taken the possession. The Hon’ble Supreme Court in D.S. Dhanda (supra) had also set aside the compensation awarded by NCDRC on the ground that it was without any foundation being laid down by the complainant on judicially recognized principles. The Hon’ble Court has further held that “the interest and the compensation cannot be granted by applying rule of thumb.” The complainants have failed to even contend and make out any exceptional and strong reason for this Commission to award compensation more than the agreed rate. The facts and circumstances of the case clearly show that majority of the complainants have accepted the compensation as per the terms of agreement. We hold that no exceptional and strong reasons for granting compensation more than the agreed rate, exists.          It is also important to note that while these complainants have not taken possession of the subject flats, they have already accepted the compensation offered by the opposite parties calculated in terms of the ABA.         We hold that these complainants are not entitled to this relief.

   

  1. As a result, this complaint filed by 339 complainants stands dismissed on merits.

  ………………….J DEEPA SHARMA PRESIDING MEMBER …………………. C. VISWANATH MEMBER

 

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