Sunil Goel has filed the instant consumer complaint alleging that the opposite party launched a residential apartment project known as “Unitech Verve” on plot No.11 Sector Pi-II, Greater Noida, U.P. On coming across the advertisement of the project the complainant visited the sales office of the opposite party with a view to book a five bedroom apartment in the project. Since no five room bedroom apartment was available in the project the complainant booked two flats being (i) a two bedroom apartment with super area 1588 sq. ft. and (ii) a three bedroom apartment with super area of 1785 sq. ft. for consideration amount of Rs.58,84,804/- and Rs.68,58,405/­- respectively in the said project. The complainant made payment of Rs.53,07,180/- against the consideration amount of two bedroom flat in instalments. Similarly, the payment of Rs.62,12,223/- was made against the consideration amount of three bedroom flat in instalments.

2.         It is the case of the complainant that as per the respective allotment letters issued by the opposite party in respect of the aforesaid two flats, the opposite party had promised to complete the construction within 36 months from the date of issue of the allotment letter. Thus, the possession of the apartment was required to be handed over latest by 16.3.2010. It is alleged that the complainant remained in constant touch with the opposite party and on every occasion he was informed that the project was moving at the schedule pace. The opposite party, in fact, issued letter dated 17^th December, 2007 informing the complainant that the opposite party would start delivering possession of the apartments from 3^rd quarter of 2009. According to the complainant despite of having received almost entire consideration amount, the opposite party failed to deliver possession of the subject flats. The complainant thereafter wrote two letters to the opposite party on 19^th May, 2012 seeking refund of the money paid to the opposite party together with interest @ 36%. However, no response was received from the opposite party. Being aggrieved of the failure on the part of the opposite party to deliver possession of the subject flats or to refund the sum of Rs.1,15,19,403/- received against the consideration amount, the complainant has filed the instant complaint seeking refund of the aforesaid amount alongwith interest @ 36% p.a. besides compensation to the tune of Rs.2 crores on account of loss of interest, harassment, mental agony and loss of opportunity.

3.         The opposite party in its written statement took the preliminary objection that the instant complaint is not maintainable as the complainant is not a consumer having hired the services of the opposite party for commercial purpose. It is also pleaded that the complaint is barred by limitation as the subject flats were booked by the complainant in the year 2007 and the consumer complaint has been filed in the year 2013. The opposite party also raised the issue of pecuniary jurisdiction. On merits, the opposite party has not denied booking of the subject flats by the complainant, payment against the consideration amount as narrated above as also the failure on the part of the opposite party to deliver possession within the stipulated period. The opposite party, however, has taken the plea of force majeure for delay in completing the construction and delivering the possession of subject flats to the complainant. It is pleaded that the delay in construction occurred because of reasons beyond the control of the opposite party, namely, farmers’ agitation in Noida and Greater Noida, filing of hundreds of writ petitions before the High Court at Allahabad which were decided on 21.10.2011. It is also alleged that several farmers had even approached Hon’ble Supreme Court challenging the order of the High Court dated 21.10.2011. The opposite party has, thus, alleged that there is no deficiency in service and the complaint is liable to be dismissed. Both the parties have adduced evidence by way of affidavit in respect of their respective contentions.

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

5.         The first question which needs determination in this complaint is whether or not the complainant is a consumer? Learned counsel for the opposite party has contended that undisputedly the complainant has booked two flats which itself is an indication that the intention of the complainant was not to use the flats for residence but to sell the same at a subsequent stage to cash the increase in the value of the real estate. We do not find merit in this contention. Perusal of the complaint would show that it is specific case of the complainant that he had approached the opposite party for booking a five bedroom flat as per his requirement and since five bedroom flat was not available the complainant settled on booking two flats, namely, a three bedroom flat and a two bedroom flat. Merely because the complainant has booked two flats, it is not reason to presume that he had booked those flats with the intention to cash on increase in value of the real estate. Thus, it cannot be said that the complainant booked the said two flats for commercial purpose.

6.         Learned counsel for the opposite party has also contended that this is a case of misjoinder of parties and causes of action and it has been done by the complainant with a view to increase the pecuniary jurisdiction of the subject matter in order to defeat the hierarchy of the system and bring the matter within the pecuniary jurisdiction of the National Commission. No doubt the above objection was taken by the opposite party as preliminary objection No.2 in the written statement but the predecessor Bench did not decide the issue at the initial stage and proceeded further with the matter. The opposite party also did not press for decision of the preliminary objection. Almost four years have gone by. Therefore, at this stage, we do not think it proper and just to throw out the case of the complainant at this late stage. It cannot be out of place to mention that the object of the Consumer Protection Act, 1986 is to protect and promote the interest of the consumer and as per the scheme of the Act the consumer disputes are required to be decided summarily and expeditiously. Thus, in our opinion dismissing of the case on the aforesaid technical objection at this late stage would be travesty of justice. Accordingly, we reject the preliminary objection of the opposite party.

7.         Coming to merits of the case, it is not in dispute that the complainant booked the subject flats in the development project “Unitech Verve” undertaken by the opposite party in the year 2007. As per the agreement, opposite party was supposed to handover the possession of the flat to the complainant latest by 16.3.2010. It is also not in dispute that the complainant has paid substantial amount against the agreed consideration amount of the subject flat but the opposite party has failed to deliver possession till date. Only plea of the opposite party is that delay in construction has occurred because of reasons beyond the control of the opposite party, namely, farmers’ agitation in Noida and Greater Noida, filing of hundreds of writ petitions before High Court of Allahabad which were decided on 21.102011 and thereafter failing of appeals against the order of High Court in the Hon’ble Supreme Court.

8.         The issue regarding plea of Force Majeure is no more res-integra.  The aforesaid plea has been considered in earlier judgments of this Commission in the matter of R K Jain Vs. Unitech Hi-Tech Developers in CC No. 189 of 2009 decided on 30.05.2017 (relating to the same project) as also in CC No. 1272 of 2015 in Belu Syal Vs. Unitech Hi-Tech Developers Ltd. & Anr. decided on 31.01.2017.  The relevant observations of the Commission in the matter of Belu Syal (supra) are reproduced as under:

“So far as plea of the stay order issued by Hon’ble High Court of Allahabad dated 21.10.2011, it may be noted that this plea was considered and rejected by the Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Pvt. Ltd. and Ors. decided on 20.06.2016. Relevant observations of the Coordinate Bench are as under:

“As far as the judgment of Allahabad High Court dated 21.10.2011 is concerned, learned counsel for the complainant submits that the said judgment did not pertain to the land in question.  He has produced on record a copy of the said judgment and submits that it relates only to the land allotted in Sector 91, 135 and 136.  The learned counsel for the opposite party is unable to show to us how the aforesaid order dated 21.10.2011 pertains to the land on which the project, ‘The Burgundy’ was to be developed by it.  Moreover, our attention has not been drawn to any direction of the High Court restraining the opposite party from carrying out development on the land in question.  Hence, reliance upon the aforesaid order dated 21.10.2011 in Writ Petition No. 37443 of 2011 is wholly misplaced.

We find no reason to disagree with the judgment of the Coordinate Bench.  Hence, the reliance placed by the opposite party on order of Hon’ble High Court dated 21.10.2011 in writ petition no. 37443 of 2011 is wholly misplaced.

The opposite party in support of Force Majeure has relied upon order dated 11.06.2013 passed by National Green Tribunal in application no. 59 of 2011 Vikram Singh Vs. Union of India and Ors. which prohibits extraction of ground water for the purpose of construction activities till the next date of hearing before the said Tribunal.  The stay order by the National Green Tribunal in our view can be no justification for non-completion of project and delivery of possession of the apartment to the complainant.  Similar plea came to be considered and rejected by the Coordinate Bench of this Commission in the matter of Cap. Gurtaj Singh Sahni & Anr. Vs. The Manager, Unitech Ltd. & Anr. in CC No. 603 of 2014 decided on 02.05.2016.  Relevant observations of the Coordinate Bench are reproduced as under:

“As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section 5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.”

Even in the instant case, the written statement of the opposite party does not record any effort made by the opposite party to obtain water for construction from alternative sources. Thus, in our view, the reference to the direction of National Green Tribunal in only an excuse to justify the inordinate delay on the part  of the opposite party to complete the project and failure of delivery of possession to the complainant.

            The opposite party has also taken a defence that it was prevented from completing the project in time because National Green Tribunal vide order dated 17.09.2013 put a restrained order on the construction within a radius of 10 km around Okhla Bird Sanctuary.  The aforesaid defence was considered and rejected by Coordinate Bench of this Commission in CC no. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Pvt. Ltd. & Ors. We do not find any reason to differ from the aforesaid view.  It is pertinent to note that order of National Green Tribunal is of no avail to the opposite party for the reason that as per the Builder Buyer Agreement between the parties, the possession of the apartment was supposed to be delivered to the complainant latest by May 2013. As there is no explanation on the part of the opposite party as to why possession of apartment was not delivered by the agreed date, opposite party cannot be permitted to take benefit of a restrained order passed by National Green Tribunal after the agreed date of delivery of possession of the apartment to the complainant.

The last excuse given by the complainant is that project could not be completed because of shortage of labour.  No cogent evidence in support of this contention is adduced. Therefore, we are not inclined to accept the above explanation.

In view of the discussion above, it is evident that opposite party has failed to prove its defence of Force Majeure.  Undisputedly, the opposite party has failed to deliver possession of subject apartment to the complainant even after expiry of more than two years from the stipulated date of delivery of possession without any reasonable excuse.  Thus, we are the view that opposite party is guilty of deficiency in service.  In our aforesaid view, we are supported by judgments of Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Ltd. & Ors. and Cc no. 367 of 2015 Richa Aggarwal & Anr.  Vs. Unitech Hi-Tech Developers Limited passed in favour of the complainants in respect of same development project.”

9.         We do not find any reason to disagree with the reasoning and view taken in the above noted case.  Thus, we are of the view that opposite party is guilty of deficiency in service as they have failed to deliver possession of the allotted apartment to the complainant even after expiry of more than four years from the stipulated period of delivery of possession.  

10.       Now, the question arises as to what should be the relief that may be awarded to the complainant.  Counsel for the complainant has contended that since opposite party has failed to deliver possession of the apartment even more than seven years after the expiry of stipulated date of delivery, complainant is entitled to refund of its money as also the compensation in the form of interest @ 36% p.a. 

11.       Counsel for the opposite party has contended that in view of clause 4 (e) of the Builder-Buyer Agreement between the parties, the complainant can claim compensation calculated @ 10/- per sq.ft. per month for the period of delay i.e. till the date for refund of the amount.

12.       We have considered the rival contentions.  We are not convinced with the submission of the complainant claiming 36% interest on the refund amount for the reason that in the matter of Ghaziabad Development Authority v. Balbir Singh - 2004 (5) SCC 65, Hon’ble Supreme Court has observed that compensation to be awarded to the consumer should be reasonable and compensation should commensurate with the actual loss or damage suffered by the consumer.  Complainant has failed to lead cogent evidence to prove actual loss suffered by him.   Therefore, we have to resort to the terms and conditions of the Builder Buyer Agreement.  Clause 4 (e) of the terms and conditions of the agreement between the parties reads as under:

            “Default:

(d)) If for any reason the developer is not in a position to offer the apartment altogether, the developer shall offer the allottee(s) an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.”

13.       Since this is a case in which opposite party developer is not in a position to offer possession of the apartment, we are of the view that in view of the aforesaid clause, interest of justice would be met if opposite party is directed to refund amount received from the complainant with 10% interest thereon as compensation from the respective dates of payments.

14.       In view of the discussion above, the complaint is allowed with following directions:

1. The  Opposite    parties   shall  refund   the   entire  amount  of ₹1,15,19,403/- (rupees one crore fifteen lakh nineteen thousand four hundred and three only) paid to them by the complainant within six weeks from today alongwith compensation  of simple interest @ 10% p.a. from the date of each payment till the realisation of the amount.
2. The Opposite parties shall pay a sum of ₹10,000/- as cost of litigation to the          complainant.