National Consumer Disputes Redressal
Neena Aneja & Anr. vs Jai Prakash Associates Ltd. on 3 May, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 566 OF 2020 1. NEENA ANEJA & ANR. S/O LATE SURESH LALA ANEJA R/O 213-F, MIG FLATS, RAJOURI GARDEN, NEW DELHI-110027 2. GAURAV ANEJA S/O LATE SURESH LALA ANEJA R/O 213-F, MIG FLATS, RAJOURI GARDEN, NEW DELHI-110027 ...........Complainant(s) Versus 1. JAI PRAKASH ASSOCIATES LTD. (THROUGH ITS AUTHORIZED REPRESENTATIVE) JAYPEE GREENS, SECTOR-128, NOIDA-201304 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER
For the Complainant : Mr. Saurabh Kalia, Advocate
Mr. Rahul Ahuja, Advocate
Ms. Ruchi Kumar, Advocate. For the Opp.Party : Mr. Sukumar Pattjoshi, Sr. Advocate
Mr. Daksh Pandit, Advocate.
Dated : 03 May 2023 ORDER
JUSTICE SUDIP AHLUWALIA, MEMBER
This Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986, seeking refund of Rs.53,84,328/- along with interest at the rate of 18% p.a. from the respective dates of payment till the date of filing of the complaint, totalling to Rs.2,18,86,850/-, and other ancillary reliefs.
2. The brief facts leading upto the present Complaint are that the Opposite Party had contracted/undertaken to render service of Housing Construction to the Complainants by developing and delivering residential premises in an upcoming group residential complex, namely KRESCENT Homes Project situated at Jaypee Greens, Noida. It is the case of the Complainants that based on representations of the Opposite Party, they booked a Flat for a total consideration of Rs.56,45,580/- in the said project, and paid Rs.3,50,000/- as booking advance. It is further averred that the Complainants were subsequently allotted a Flat bearing No. KRH0080404 having a super area of 114.27 sq. mtrs. in the said Project, vide Provisional Allotment Letter dated 29.11.2011 which also stated that the possession was to be handed over within 42 months i.e., by 29.05.2015. It is further pleaded that the Provisional Allotment Letter was wholly one-sided, containing unilateral, exploitative and untenable terms. It is further contended that the Complainants had paid Rs.53,84,328/- till the date of filing of the present complaint.
3. It is further their case that insolvency proceedings were initiated against Jaypee Infratech Limited under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC) vide order dated 09.08.2017 passed by NCLT, Allahabad, and an Interim Resolution Professional (hereinafter referred to as IRP) was appointed for the Company. It is further averred that claims were invited from all the creditors of the company by way of a public announcement dated 10.08.2017 and accordingly, the Complainants also submitted the requisite form. However, no amount has been received by way of the said proceeding. It is submitted that whenever the Complainants visited the Opposite Party, they were asked to wait for more time for the possession and vide newspaper report dated 18.04.2017, the Executive Chairman and CEO of Jaypee Group assured that the housing units will be delivered by 18.04.2020. It is also submitted that till filing the complaint there has been no outcome of the insolvency proceedings, and the complainants being hopeful of either getting the Flat or their refund from the said insolvency proceedings were prevented from filing the Consumer Complaint earlier. The Complainants have therefore filed the present complaint, having lost hope and interest in the Project, and being aggrieved by the failure of the Opposite Party in giving possession of the Flat, and causing inordinate delay in construction of the Flat. It is further averred that the Complainants are 'Consumers' under the Consumer Protection Act.
4. Furthermore, the case of the Complainants is that the Payment Demand Notice dated 30.11.2011 was issued by Jai Prakash Associates Limited and the Invoice by Jaypee Infratech Ltd.; Provisional Allotment Letter is signed and executed by Jai Prakash Associates Ltd. and Jaypee Infratech Ltd. Permission to mortgage dated 30.12.2011 and Quadripartite Agreement dated 28.12.2011 were also signed and executed by Jaiprakash Associates Ltd. and Jaypee Infratech Ltd. Hence, it is submitted that the Complaint is maintainable against Jaiprakash Associates Ltd. and the Complaint does not suffer from any defect on Non-joinder of necessary parties. The Complainants have further relied upon the judgement of this Commission dated 01.10.2019 in 'Anish Singhal v. Jaiprakash Associates Limited & Anr' and judgement of this Commission dated 14.02.2020 in 'Rabinder Man Verma v. Jaiprakash Associates Limited Anr'.
5. Hence, the complaint was filed, as the Complainants were aggrieved by the inordinate delay of more than 8 years in handing over of possession. It is further submitted that the present Complaint is within the pecuniary jurisdiction of this Commission as the relief along with interest totalling to Rs.2,18,86,850/-. It is further averred that the Complainants took a loan for the said Flat and paid up the loan of Axis Bank and the Bank issued the Certificate for loan amount fully closed to the Opposite Party as well as to the Complainants on 31.01.2014. It is also pleaded that the Opposite Party vaguely demanded payments in the name of increased EDC and IDC service tax liabilities, which were paid by the Complainant as Rs.5,150/- and Rs.18,055/-. Hence, the Complainants pray as follows:
"In the facts and circumstances mentioned herein above, this Hon'ble Commission may be pleased to:-
Direct the opposite Party to refund the principal amount of Rs.53,84,328/- paid by the Complainant to the Opposite Party and grant interest @ 18% p.a. from the respective dates of payment as calculated in Annexure C-10 (till the date of filing of complaint) totalling to Rs.2,18,86,850/- and thereafter interest @18% p.a. till the actual payment by the OP, and
Direct the Opposite Party to pay compensation of Rs.5,00,000/- towards mental agony, harassment and trauma suffered by the Complainant due to wrongful, illegal and unlawful act of the Opposite Party along with interest of 20% per annum from the date of filing of the complaint till its realization and
Sum of Rs.2,00,000/- towards cost of litigation and/or
Any other order which this Hon'ble Commission may deem fit and proper in the circumstance of the case." 6. The Opposite Party has filed its Written Version to resist the present Complaint. The Opposite Party has at the outset denied deficiency in service on its part and all the allegations except those that have been specifically admitted. The Opposite Party has raised the following objections- a.That the present Complaint is devoid of merits and a complete abuse of process of law. The present complaint is not maintainable before this Commission; b.That the Complainant has itself admitted that the possession was to be handed over on 29.05.2015, however, the present Complaint was filed before this Commission after 18.06.2020, i.e. after more than 5 years from the admitted date of cause of action. It is also averred that Section 24A of the Consumer Protection Act, 1986 explicitly mandates that this Commission shall not admit a complaint unless the same has been filed within 2 years from the date of cause of action. Hence, the Complaint is liable to be dismissed for being barred by limitation. Moreover, the first demand for refund was made by the Complainant vide email dated 27.04.2020 at a very late stage; c.That this Commission lacks pecuniary jurisdiction to adjudicate upon the present Complaint as the Complainants admit that the principal consideration involved is Rs.53,84,328/- which is below the threshold of Rs.1 Crore, and, in order to justify the filing of present before this Commission, the Complainants have sought highly inflated rate of interest. In this regard reliance has been placed on Judgement dated 15.12.2015 passed by this Commission in Consumer case titled as 'Padmini Malhotra v. ERA Land Marks(India) Ltd.'; d.That the Unit in question in the present Complaint is being developed and promoted by Jaypee Infratech Limited, and the Opposite Party, Jaiprakash Associates Limited is only the construction, marketing and booking agency for carrying out the work on behalf of JIL;
That the performance of obligations under the Standard terms and conditions and the Provisional Allotment Letter dated 29.11.2011 has to be carried out by JIL and the Opposite Party was not liable for the same. It is also submitted that all the payments were paid to JIL and the same were explicitly specified in the provisional Allotment Letter;
That the Project wherein the unit in question is located is promoted and developed by JIL as is evident from the list of projects issued by JIL's IRP, and the fact that the Complainants themselves have filed claim before the IRP under the IBC, 2016;
That the Complainants have sought to justify filing of the present Complaint by stating that they have already filed a claim before JIL's IRP under IBC, and there are only filing the Complaint because they complainant have lost patience and do not want to wait for JIL's insolvency proceedings to finish. The Complainants have thus been engaging in Forum shopping under different Acts. It is also a settled principle of law that a claimant cannot be allowed to claim the same relief on the same cause of action, on the same ground, against the same parties before different Fora. In this regard reliance has been placed on the Judgement passed by the Hon'ble Supreme Court of India in 'Union of India & Ors. v. Cipla Limited & Anr.' (2017) 5 SCC 262;
That the present complaint is bad for non-joinder of Parties since the entire payment with respect to the subject property had been admittedly made to JIL. Moreover, the land upon which the said project is being developed, belongs to JIL;
That there is a lack of locus against the Opposite Party. The claims as prayed, if any, can be awarded only against JIL. The Complainants are aware of the fact that the unit belongs to JIL and the Opposite Party is merely a contractor/agent of JIL. Further, the terms and conditions mentioned along with the Application for Provisional Allotment dated 29.11.2011 clearly specifies the role of the Opposite Party and that the project in question is constructed on behalf of JIL, and that the actual sale deed will be executed by JIL;
That the Provisional Allotment Letter stated that the possession of the unit was to be delivered with a period of 42 months with a further grace period of 90 days as provided in the Standard terms and Conditions. The expected date of delivery was 29.08.2015 while taking into account the grace period of 90 days which was subject to Force Majeure conditions;
That the Complainants had been made aware of the scheme of developments and the development plan;
That after issuance of Provisional Allotment Letter, the Opposite Party carried out construction work on the said project as a contractor of JIL. However, delay was caused for reasons beyond the control (i.e. Force Majeure) of the Opposite Party and the delivery of project got rescheduled;
That at the time of booking it was agreed between the parties that in case of force majeure events, the Opposite Party would be entitled to extension of time. In this regard reliance has been placed on clauses 7.1 and 7.2 of the Standard Terms and Conditions;
That JIL has been paying delay compensation to the Complainant as per clause 7.2 of the Standard terms and Conditions. The Complainants have deliberately supressed material facts;
That vide order dated 09.08.2017, the Hon'ble NCLT, Allahabad admitted an Application under section 7 of the IBC instituted by the IDBI Bank against JIL and appointed an IRP. The NCLT further directed that moratorium under section 14 of the IBC shall be effective from 09.08.2017 till the completion of CIRP Proceedings or till the NCLT approves a resolution plan or passes an order for liquidation, which prohibits the institution of suits or continuation of pending suits against JIL. Such order was stayed by the Hon'ble Supreme Court on 04.09.2017 in WP(C) NO. 744/2017 titled as 'Chitra Sharma & Ors. v. Union of India & Ors.' The Hon'ble Supreme Court passed an interim order dated 11.09.2017 in the Chitra Sharma Writ Petition directing the Opposite Party herein to deposit Rs.2,000 crores in its capacity as 'Holding Company of JIL' and directed setting up of a web portal for the Home Buyers of JIL, wherein they could indicate their preference for either seeking possession, or refund. The Hon'ble Supreme Court while modifying the order, further directed the IRP to take over the management of JIL and directed that all suits and proceedings instituted against JIL shall remain stayed. It is further contended that the Hon'ble Supreme Court passed its judgement on 09.08.2018, making it clear that it had entertained the said Writ Petition because at the relevant time, the Code had not recognised 'homebuyers' as creditors of JIL and the homebuyers who would seek, refund cannot be paid out of the money deposited by the Opposite Party herein, i.e. JAL (i.e. out of Rs.750 crores deposited by JAL in Hon'ble Supreme Court) pursuant to interim orders in Chitra Sharma Writ Petition;
That the Opposite Party filed a Civil Appeal bearing nos.11320-11329 of 2018 and Civil Appeal Nos.1139-1228 of 2019 impugning the order dated 01.10.2018 passed by this commission in Complaint Case No. 1495 of 2015 titled as 'Arvind Kumar Dhingra v. Jaiprakash Associate Ltd. & Anr.' It is therefore contended that the Hon'ble Supreme Court vide its aforesaid Order in Civil Appeal Nos. 11320-11329 of 2018 issued notice and stayed the proceedings in the above mentioned consumer cases pending before this Commission;
It is further contended that the Hon'ble Supreme Court vide its Final Order dated 15.04.2019 in the above mentioned Civil Appeals clarified that the observations made by this Commission in 'Arvind Kumar Dhingra matter' were for the limited purpose of deciding the preliminary objection taken by the Respondent regarding maintainability of Complaint against JAL. As regards possession and refund, the matter would be adjudicated by this Commission on merits, and the directions issued by this Commission in its final judgement will be subject to final outcome in the NCLT proceedings;
That the period of moratorium, and time for completion of Corporate Insolvency Resolution Process have time and again been extended, and the process of approval of Resolution Plan as passed after voting of Committee of Creditors is awaiting adjudication of the Adjudicating Authority; Hence, the Opposite Party contends that the complaint is liable to be dismissed with exemplary costs.
7. Rejoinder has been filed on behalf of the Complainants. The Complainants at the outset have denied the contents of Reply filed by the Opposite Party except the contents which are specifically admitted. The Complainants have stated that a Complaint titled as 'Rajeev Kumar Singh v. Jai Prakash Associates & Anr.' bearing Consumer Case No. 975 of 2017 has been decided earlier by this Commission on virtually identical issues/Prayers against the Opposite Party. It is further mentioned that the said Complaint involves the same project as that of the Complainants, involving the issues of deficiency of service, unfair trade practice, praying for refund with interest and compensation and maintainability of the Complaint against Jaiprakash Associates Limited. It has been further submitted that the present Complaint is well within time, since the possession has still not been delivered to the Complainant. Hence, the cause of action is continuous. It is also contended that the Complaint is well within jurisdiction, and reliance has been placed on 'Shaheena Chadha v. Ireo Grace Realtech Pvt. Ltd.' in this regard. It is further claimed that the Opposite Party had made timely payments, a pre-requisite condition, failing in which would have attracted heavy penalty in the form of 18% interest and, failed to give the same significance to a timely handing over of possession. Further, reliance has again been placed on 'Arvind Kumar Dhingra v. Jaiprakash Associates Limited and Anr.' wherein this Commission had held that JAL (Opposite Party) was a co-service provider along with JIL and not an agent of JIL, and it was also ruled that the Complaint against JAL is maintainable, since it has been upheld by the Apex Court in Civil Appeal 11320-11329 of 2018 titled as 'Jaiprakash Associates Ltd. v. Gaurav Goyal'. It is further contended that the Apex Court in 'Jaiprakash Associates Ltd. Vs. Gaurav Goyal' had held that a consumer can move to the Consumer Fora against JAL, the parent Company of JIL, and noted that a Consumer cannot approach against JIL due to the moratorium. Further, reliance has also been placed on 'Poonam Aggarwal v. Jai Prakash Associates' dated 01.10.2018 and 'Ireo Grace Realtech v. Abhishek Khanna'.
8. Both the Complainants filed the Affidavit jointly. Affidavit in Evidence has been filed by Mr. Roshan Lal Garg on behalf of the Opposite Party.
9. It has been argued by the Complainants that in addition to the above pleadings, this Commission has dealt with the issue of maintainability of a Complaint against Jai Prakash Associates Ltd. and has decided that the same is maintainable. Reliance has been placed on order dated 26.09.2022 in the case titled as 'Jai Prakash Associates Limited v. Deepti Kumar and 2 Ors.'
10. It has been argued by the Opposite Party that the claim amount submitted by the Complainant before the IRP was duly admitted by the IRP which is evident from claim details dated 29.05.2021. It is further stated that the Complaint is barred by limitation and reliance has been placed on 'Perin Bazun Ditta & Ors. v. Emaar Hills Township Pvt. Ltd. & Ors.'. It is further contended that the Complainants are estopped from filing a Complaint in this Commission after electing the remedy to file its claim before the IRP, and in this regard, reliance is placed on 'Shailesh Gupta v. Puri Construction Pvt. Ltd.'. It is also claimed that a moratorium was imposed on JIL, which has been extended from time to time and the moratorium stays in effect till the resolution plan is approved by NCLT. It has also been argued that the Complainants have heavily relied upon the judgement of this Commission dated 01.10.2019 in CC 2194 of 2016, 'Anish Singhal v. Jaiprakash Associated Ltd.'. However, the same has been set aside by the Hon'ble Supreme Court by way of Civil Appeal Diary No. 5804 of 2020. Also, the operation of the judgement in 'Rajeev Kumar v. Jaiprakash Associates Ltd.' has been stayed by the Hon'ble Apex Court vide Order dated 27.08.2021 in C.A. no. 4722 of 2021.
11. The present Complaint was dismissed by this Commission vide order dated 30.07.2020 for want of pecuniary jurisdiction. A Review Application bearing No. RA/124/2020 was filed seeking review of the above Order dated 30.07.2020. However, the same was also dismissed vide Order dated 05.10.2020. The Complainants/Appellants filed Civil Appeal bearing Nos. 3766-3767 of 2020 before the Hon'ble Supreme Court challenging the dismissal of the Complaint. And the Hon'ble Supreme Court vide its Order dated 16.03.2021 allowed the Appeals and directed that all the proceedings instituted before 20.07.2020 under the Act of 1986 would continue to be heard by the Fora corresponding to those designated under the Act of 1986, and not be transferred in terms of any new pecuniary limits.
12. Heard Ld. Counsel for the parties. Perused the material available on record.
13. Having carefully considered the submissions made on behalf of both the sides alongwith the available material on record, this Commission is of the opinion that in view of the inordinate delay in offering possession to the Complainants long after passing of the stipulated date for that purpose, the Complainants would be well within their rights to retract from the Agreement and seek appropriate relief(s).
14. This is so because as per the original Allotment Letter issued on behalf of the Opposite Party, possession of the Apartment was to be handed over within 42 months i.e. by 29.5.2015 for which a grace period of 90 days was also provided in the standard Terms and Conditions. As such the possession in any case ought to have been delivered by 29.8.2015. But, in filing of the complaint in the month of June, 2020, the Complainant had waited for almost five years over and above the promised time-line including the extended grace period.
15. In such circumstances, the present case would appear to be squarely covered by the decisions of the Hon'ble Supreme Court in C.A No.3182 of 2019 dated 25.03.2019, "Kolkata West International City Pvt. Ltd. Versus Devasis Rudra", and in C.A. No. 12238 of 2018 dated 02.04.2019 "Pioneer Urban Land & Infra Ltd. versus Govindham Raghavan", in which it has been observed that a Purchaser/allottee cannot be made to wait for an indefinite time.
16. In "Kolkata West International City Pvt. Ltd. Versus Devasis Rudra" (supra), it was observed by the Apex Court-
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.......".
17. In "Pioneer Urban Land & Infra Ltd. versus Govindham Raghavan" (supra), it was held -
"9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant-Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent- Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent- Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent- Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @ 10% to the Bank. In the meanwhile, the Respondent- Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent- Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest".
18. Another ground on which the claim of the Complainants has been resisted is that the Complainants are entitled for a delay compensation only in terms of Clause 7.2 of the standard Terms & Conditions in the Allotment Letter issued by the Opposite Party, which was fixed at Rs. 5/- per sq.ft. per month of the super area in the eventuality of any delay.
19. A bare perusal of the aforesaid standard Terms & Conditions, however, also goes to show that the rate chargeable for delayed payment of any instalment on the part of the allottees was to be @ 1.5% per month i.e. 18% p.a., whereas the compensation for delay in delivering possession was provided for only at a rate of Rs. 5/- per sq.ft. super built area which mathematically comes to around only interest @ 1% p.a. This would suggest that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement, which is one-sided and unfair in the light of the recent Judgment of the Apex Court in Pioneer Urban Land(supra)wherein it was observed-
"6.7. A terms 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."
20. The contention raised on behalf of the Opposite Party to the effect that it is not liable for making any re-payment since the payments in question were made by the Complainants only to Jaypee Infratech Ltd., and that the present Opposite Party is only the construction, marketing and booking Agency for carrying out the work on behalf of JIL, is also not tenable. Firstly because, it is the own admitted case of the Opposite Party that it was a signatory to the Quadripartite Agreement between the parties dated 28.12.2011. However, this ground raised by the Opposite Party had already been rejected by this Commission in various earlier Consumer Complaints filed by other allottees/intending purchasers against the present Opposite Party as well as Jaypee Infratech Ltd. of which it claims to be only an Agent. The relevant observations of a co-ordinate Bench of this Commission on this aspect, as made in earlier Consumer Complaint No. 975 of 2017-Rajeev Kumar Singh Vs. Jai Prakash Associates Ltd. & Anr., decided on 15.6.2020; are set out as below -
"13. I have given a thoughtful consideration to the arguments advanced by the Learned Counsel for the parties and examined record. For another project of the Opposite Party, a Consumer Complaint No. 2194/2016 was filed by a Complainant seeking refund of the deposited amount and in that complaint also, similar objections and arguments were raised by the Opposite Party No.1, however, this Commission in Consumer Complaint No.2194/2016 decided on 01/10/2019 (NC), has observed the following on the issue of maintainability of the complaint:-
"10. At the outset, we address ourselves to the submission of the learned Counsel for the Opposite Party that since a moratorium has been ordered against 'Jaypee Infratech Limited' by the National Company Law Tribunal at Allahabad in IDBI Bank Limited Vs. Jaypee Infratech Limited, 2017 SCC OnLine NCLT 12613, this Commission has no jurisdiction to entertain the Complaint against this Opposite Party also. Further, learned Counsel argued that the present Complaint is bad for non-joinder of parties as Jaypee Infratech Limited is not a party here. It is reiterated that Jaypee Infratech Limited is not a party before us and therefore, we are of the considered view that this Complaint against Jaiprakash Associates Limited is maintainable. Be that as it may, this Commission in judgement dated 01.10.2018 in Arvind Kumar Dhingra & Ors. Vs. Jaiprakash Associates Limited & Anr., Consumer Complaint No. 1495 of 2015, while having given its anxious consideration to the question of maintainability of the Complaint against Jaiprakash Associates Limited has observed as follows:
"17. As regards the apprehension that the home buyers would abandon their participation in the proceedings against JIL under IBC and would rush to file claims before this Commission, as noted earlier, nothing in law prevents such flat buyers from proceeding against JAL under the provision of C.P. Act, for the redressal of their grievances, if any, against JAL.
18. As regards the contention that the Hon'ble Supreme Court has already permitted RBI to direct financial institutions to proceed against JAL under the provisions of IBC, and pursuant thereto, ICICI bank has already approached NCLT by way of an Insolvency Petition against JAL, the fact remains that as to day, no Insolvency Petition has been admitted against JAL which is contesting the petition filed by ICICI Bank, and consequently there is no prohibition, at this stage, on institution or continuance of any proceedings against the said company. Mere institution of an Insolvency Petition which is yet to be admitted does not come in the way of the proceeding against JAL at this stage.
19. As regards the contention that under the terms and conditions of allotment it is for JIL and not for JAL to refund the amount received from the allottees, this Commission in my view, would be competent to pass appropriate orders, including payment of compensation by JAL in the event of its ultimately holding that the services rendered by the said company to the buyers were defective and / or deficient, resulting in loss to them. In that event, JAL may have such remedy, if any, as may be open to it against JIL for reimbursement to the extent it is made to pay to the home buyers.
20. Since in my opinion, JAL was a co-service provider along with JIL and not just an agent of JIL, qua the home buyers, I need not examine the contention of the complainants that this Commission should lift the corporate veil and hold JAL to be the service provider, on account of its being the promoter and holding company of JIL.
21. For the reasons stated hereinabove, I hold that the complainants, being consumers not only of JIL but also of JAL, these complaints can, for the present, continue against JAL, though the same cannot at this stage continue against JIL."
11. The Hon'ble Supreme Court in Civil Appeal No (s). 11320-11329 of 2018 has dismissed all the Appeals preferred by Jaiprakash Associates Limited and observed in para 4 to 6 of the order as follows:
"4. We make it clear that Commission may examine "all" contentions available to "both sides" regarding the rights and obligations of the parties inter se on its own merits in accordance with law uninfluenced by any observation made in the impugned judgment.
6. We once again make it clear that the impugned order may not be construed as having given any direction to the respondents in the complaint. The Commission, however, may give appropriate directions in the final Judgment which obviously will be subject to the outcome of the proceedings before the NCLT insofar as JIL is concerned and also subject to the outcome of proceedings against JAL before the NCLT."
12. Hence, we are of the considered view that the question of maintainability of Complaint against Jaiprakash Associates Limited has attained finality and at the cost of repetition at the time of disposal of this Complaint, no insolvency petition has been admitted against Jaiprakash Associates Limited."
14. On the basis of the above findings of this Commission in Consumer Complaint No.2194/2016, Anish Singhal vs. Jaiprakash Associates Ltd. (Supra), there seems to be no necessity of dealing with the question of maintainability again. Thus, the present complaints are maintainable against OP No.1 Jai Prakash Associates Limited as there is moratorium against the OP No.2 Jaypee Infratech Limited and the complaints can be finally decided treating OP No.1 Jai Prakash Associates as the only opposite party."
21. The ratio of this Commission's earlier decision in Rajeev Kumar Singh (supra) is, therefore, also fully applicable to the facts and circumstances of the present case in which the Opposite Party namely Jaiprakash Associates Limited was also the Opposite Party No. 1 in the said Consumer Case (CC/975/2017), and it was held that on account of the moratorium against the Opposite Party No. 1- Jaypee Infratech Limited, the complaint could be decided finally by treating the Opposite Party No. 1 i.e. the present Opposite Party- Jaiprakash Associates Limited as the only Opposite Party. Needless to add, the present Opposite Party was admittedly a signatory to the Quadripartite Agreement dated 28.12.2011. Secondly, as already noted in Para 4 earlier, even the payment demand notice to the Complainants in the present case dated 30.11.2011 was issued by the present Opposite Party and the Invoice by Jaypee Infratech Limited, the Provisional Allotment Letter, and the permission to mortgage dated 30.12.2011 were also all executed by the present Opposite Party alongwith Jaypee Infratech Limited, who are therefore both jointly and severally liable towards the Complainants. The moratorium against the Jaypee Infratech Limited in the circumstances cannot be treated as a bar to curtail the rights of the Complainants qua the present Opposite Party No. 1 who is at least equally, if not more, responsible than Jaypee Infratech Limited for the delay in completion of construction, and the consequent damage caused to the Complainants.
22. As such, following the principles laid down by the Hon'ble Supreme Court in "Kolkata West International City Pvt. Ltd. Versus Devasis Rudra" (supra) and "Pioneer Urban Land & Infra Ltd. Versus Govindham Raghavan" (supra), the Complainants ae clearly found entitled for refund of the entire amount deposited by them with damages and compensation.
23. Consequently, the Opposite Party-Developer is directed to refund to the Complainants Rs. 53,84,328/- ((Rupees Fifty Three Lakhs Eight Fourt Thousand Three Hundred Twenty Eight only) alongwith interest @9% p.a. from the respective date of each deposit till the date of final payment, within 06 weeks from the date of passing of this Order.
24. In the event of non-compliance of this Order, the amount to be paid shall attract an interest rate of 12% p.a. for the same period.
25. Parties to bear their own costs.
26. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
......................J SUDIP AHLUWALIA PRESIDING MEMBER