1.      Heard Dr. Maurya Vijay Chandra, Advocate, for the complainants and Mr. Sumeet Sharma, Advocate, for the opposite party.

2.      Lalit Kumar Sehgal and Veena Kumari Sehgal have filed above complaint, for directing the opposite party to (i) handover possession of unit No.K-4, 402, Kalypso Court, Jaypee Greens, Sector-128, Noida with all facilities as promised; (ii) refund the amount of Rs.1911754/- with interest @ 12% till the date of realization; (iii) pay unliquidated damages of interest on the total amount paid by the complainants till the date of possession and the amount paid thereafter; (iv) pay interest @ 12% from the date of payment i.e. Rs.16496146/-; (v) pay Rs.5000/- per day to the allottee of the flat for the delay in possession; (vi) refund the amount taken from the complainants on account of increased area of the flat, alongwith interest; (vii) pay Rs.100000/- towards litigation cost; and (viii)  any other relief which is deemed fit and proper in the facts of the case.

3.      The complainant stated that Jaiprakash Associates Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Kalypso Court” at Sector-128, Jaypee Greens, Noida-201301, in the year 2007 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainants booked Unit Reference No.K-4-402, having super area of 3140 sq. ft. for a consideration of Rs.18407900/-. They were allotted the said unit, vide provisional allotment letter dated 21.05.2008. As per provisional allotment letter, possession of the unit was to be delivered within 36 months from the date of the allotment with grace period of 90 days. On 24.05.2008, the complainants deposited an amount of Rs.1770300/-. On 02.07.2008, the complainants made another payment of Rs.1994560/-. The opposite party sent an email dated 29.03.2010 informing the complainants that if the complainants make payment of the instalment before the due date, they will be given rebate of 12%, which amount will be adjusted in the next instalment. The complainants paid the amount in advance. The complainants paid most of the payment in advance upto 2012. The opposite party vide letter dated 03.02.2016, issued statement of account and asked for payment of balance amount. The opposite party arbitrarily increased the area of the unit from 3140 sq. ft. to 3425.43 sq. ft. and asked for payment of the enhanced area. As per statement of account, the complainants have already paid excess amount of Rs.1911754/-. The complainants visited the office of the opposite party and also wrote emails for refund of the excess amount and they were assured that the excess amount would be refunded within six months after approval by the competent authority. The complainants were informed that the flat would be ready by 08.02.2016. Thereafter, the complainants were informed that the flat is ready for handing over possession. The complainants visited the flat and found that there were several defects in the construction of the flat and several other amenities were not provided. The complainants made representation to the opposite party requesting for handing over possession of the flat. When the opposite party failed to handover the possession, the complainants, vide email dated 01.07.2016, asked for refund of the excess amount with interest @ 12% p.a. Thereafter, the complainants made representations for refund of the excess amount, to the Director and the Chief of Finance of the opposite party dated 20.07.2016 and 21.07.2016 respectively but all in vain. Then the complainant filed the above complaint on 24.11.2016.

4.      The opposite party filed written reply on 19.05.2017, in which allotment of the flat and deposits made by the complainants are not disputed. The opposite party stated that due to force majeure reasons, the construction could not be completed on time. State of U.P. conceived a project for construction of Taj Expressway (now named as Yamuna Expressway) from Noida to Agra in the year 2001. Under the scheme of the government, in lieu of construction of expressway, 25 million sq.mtrs. land was granted for development of township. Bid of M/s. Jaiprakash Industries Limited was lowest and accepted by State of U.P. and a Concession Agreement was executed on 07.02.2003 between the parties, under which the government required for incorporation of a special purpose vehicle, for completion of the project. Jaypee Infrateck Limited was incorporated as a “special purpose vehicle”. Entire land for development of township at five locations (including the land of Jaypee Greens Wish Town) was leased to Jaypee Infrateck Limited, who launched the project of “Kalyspo Court” in the year 2007. However, the farmers started violent agitations against land acquisition, due to which, possession of the land of township could not be taken except small part of land at village Mirzapur. State of U.P. has decided not to handover a part of expressway to the opposite party, in the year 2012. National Green Tribunal, vide order dated 10.01.2013, stopped use of ground water in construction in Noida and Greater Noida region. Due to scarcity of water, the construction was stopped. The opposite party arranged water from alternate source, which required carriage of water in tanker, which increased the cost and slow down the progress in construction. National Green Tribunal, vide order dated 14.08.2013, stopped construction within a radius of 10 KM from Okhla Bird Sanctuary. Although the builders challenged this order by moving recall application and also approaching Supreme Court but could not succeed. This order continued till notification of Echo-sensitive Zone by State of U.P. dated 19.08.2015. In order to satisfy the demands of the farmers, State Government, vide order dated 29.08.2014 directed to pay 64.70% more compensation as an incentive. The farmers stopped the construction till payment of this additional compensation. The opposite party is entitled for extension of period of force majeure under clause-7.2 of Standard Terms and Condition. The complainant applied for allotment, in February, 2010 and had knowledge of above hurdles on the spot. The opposite party has issued offer of possession dated 03.02.2008, which the complainants have accepted and also completed the formalities for registration and sub-lease deed has also been executed in their favour on 22.03.2016, wherein it is mentioned that the complainants are satisfied in all respect. Now, the complainants are estopped from making any claim against the opposite party. The opposite party has also paid rebated of Rs.1431840/- for delay possession and also gave early payment discount of Rs.3182482/-, which is mentioned in the offer of possession dated 03.02.2016. The opposite party also sent reminder dated 22.07.2016 to the complainants to take possession of the unit but instead of taking possession, they have filed the consumer complaint in this Commission. Amount of Rs.1911754/- shown as credit balance in the statement of account and in the offer of possession is due to clerical mistake, as double entry has been made Serial No.15 & 24, which has been rectified by the opposite party. However, a credit balance of Rs.750999/- is due, which will be paid to the complainant at the time of taking possession of the unit. Jaypee Infrateck Limited was lessee of the project land and also signatory in the allotment letter, which is a necessary party in the complaint. The complaint is liable to be dismissed for non-joiner of necessary party. Clause-10.9 of Standard Terms and Conditions contains an arbitration clause and the complaint is barred under Section 8 of Arbitration and Conciliation Act, 1996. 

5.      The complainants filed Rejoinder Reply, Affidavit of Evidence of Lalit Kumar Sehgal and documentary evidence. The opposite party filed Affidavit of Evidence of Navneet Kumar Saxena and documentary evidence. Both the parties have filed their written synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. Regarding non-joinder of necessary party, it is relevant to mention that the complainant has not made any allegation against Jaypee Infratech Limited nor any relief has been sought against it. Therefore, Jaypee Infratech Limited is not a necessary party in this case. Regarding arbitration clause, Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC), held that Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Regarding increase in ‘super area’ from 3140 sq. ft. to 3425.43 sq. ft. counsel for the complainant relied by the complainants in Developers Township Property Owners Welfare Society vs. Jaiprakash Associates Limited (CC/1479/2015 dated 02.05.2016) and submitted that the opposite party has increased the super area arbitrarily. The above judgment is not applicable to the facts of this case because in clause 6.8 of the general terms & conditions, it has been specifically mentioned that ‘super area’ was tentative and there may be variations in the super area and the applicant shall be liable for payment/refund of the amount as per final super area. This fact is also mentioned in the provisional allotment letter. As the increased super area is less than 10%, the complainant cannot challenge the same. Supreme Court has also upheld this proposition in DLF Home Developers Limited Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537. Regarding refund of excess payment of Rs.19,11,754/- as shown in the statement of account, it is submitted by the opposite party that this is a clerical mistake and the actual amount paid in excess by the complainant is Rs.750999/-. Alongwith the written arguments filed by the opposite party on 15.02.2019, statement of account has also been filed showing Rs.750999/- as credit balance of the complainants. The complainant has not filed any evidence to challenge the said statement of account. Therefore, the opposite party is liable to refund the excess amount of Rs.750999/- to the complainant with interest @ 6% p.a. Regarding delay in handing over possession of the unit, possession was to be handed over within 36 months from the date of the allotment. Admittedly, allotment was made on 21.05.2008 and the possession was to be handed over by 21.08.2011. The opposite party failed to handover the possession within the stipulated period. Therefore, the complainant is entitled for compensation till the date of offer of possession. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537, held that 6% p.a. interest on the deposit of home buyers for the delayed period is appropriate delayed compensation.

7.      Force Majeure has been statutorily recognised under Section 56 of the Contract Act, 1872. Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285, held that an analysis of the rulings on the subject shows that where reference is made to “force majeure” the intension is to save the performing party from the consequences of anything over which he had no control. On account of scarcity of the water, six months delay may be accepted. National Green Tribunal stopped construction from 14.08.2013 till 19.08.2015. The opposite party was expected to handover the possession by 21.08.2011 and the National Green Tribunal stopped the construction activities vide order dated 11.01.2013. Therefore, the opposite party cannot take shelter of the order dated 11.01.2013. Moreover, the statement of account issued by the opposite party (annexure-7 of the complaint) shows that the opposite party has issued the demand letters dated 17.01.2012, 31.03.2012, 24.07.2012, 14.05.2013, 02.09.2013 and 02.02.2016. When the opposite party was aware that the construction of the unit cannot be raised due to the order of the National Green Tribunal, it should not have raised the payment demands. Admittedly, the opposite party issued offer of possession on 03.02.2016 after obtaining the completion certificate, though the complainant obtained the possession on 25.02.2019. The opposite party is liable to pay interest for delay in issuing offer of possession. Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318 held that the compensation cannot be awarded in multiple heads. As such award of compensation of Rs.5000/- per day for delay in handing over possession is liable to be set aside.

ORDER

In view of aforesaid discussions, the complaint is partly allowed with cost of Rs.50000/-. The opposite party is directed to give delay compensation in the form of interest @6% per annum on the deposit of complainant from the due date of possession (22.08.2011) till the date of offer of possession (03.02.2016). The opposite party is also directed to refund the excess amount of Rs.750999/- with interest @ 9% p.a. from the date of deposit till realization. Above directions will be complied with within two months from the date of this judgment.