JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

1.         Doctor Vandana Goel has filed the instant complaint alleging that on being approached by the representatives of the opposite party company in August 2006, the complainant booked a flat in the residential project Unitech Habitat undertaken by the opposite parties on plot No.9, Sector Pi-II ( Alistonia Estate), Greater Noida.  The relevant allotment letter and agreements were executed between the parties whereby the opposite party had agreed to deliver possession of the subject apartment to the complainant within 36 months from the date of agreement.  The total consideration amount agreed by the parties was Rs.63,48,374/-.  It is the case of the complainant she has paid total sum of Rs.60,70, 668/- to the opposite party against the agreed consideration amount. Despite that opposite party has failed to complete the construction and deliver possession of the apartment even years after expiry of stipulated date.   It is alleged that complainant has visited the project site number of times and noticed that construction activity is not upto the mark and there is no possibility of delivery of possession of the apartment by the opposite party within a reasonable time.  Being aggrieved by the failure of the opposite party to perform his part of contract, the complaint has approached this Commission by filing the consumer complaint seeking refund of money paid by him from time to time with 18% interest p.a. compounded quarterly, besides the interest paid by the complainant to the bank on the loan taken for making payment besides Rs.15.00 lakhs has been claimed as compensation for harassment, mental pain and agony.

2.         Opposite party no.1 on being served with the notice of the consumer complaint has filed written statement denying the allegations of deficiency in service.  So far as OP No.2 to 4 are concerned, despite of service of notice under section 13 (2) of the Consumer Protection Act, 1986, they have  failed to put in appearance nor they have filed the written statement.  Their right to file written statement was accordingly closed vide proceedings dated 23.01.2017 and they have been proceeded ex parte.  It may be noted that even OP No.1 after filing written statement failed to put in appearance.  As such, OP No.1 was also proceeded ex parte.

3.         OP No.1 in its written statement has taken a preliminary objection that the instant complaint is not within the pecuniary jurisdiction of this Commission because the amount paid by the complainant against the consideration value is much less than Rs.1.00 crore.  On merits, the  plea of the opposite party that it was prevented from delivering possession of the flat to the complainant because of the circumstances beyond its control.  It is alleged that opposite party no.1 could not perform its part of the contract because of the Force Majeure circumstances, namely:

a.         That the opposite party was prevented from construction because of agitation of farmers who were seeking increase in compensation and allotment of developed plots in lieu of their land acquired by the authorities.

b.         That the Hon’ble High Court of Allahabad while dealing with bunch of writ petitions filed by various farmers had restrained Noida Authority as well as the opposite party from carrying out any development work and implementing the Master Plan 2021 till the observations and directions of National Capital Regional Planning Board were incorporated in Master Plan 2021 to the satisfaction of the said Board.

c.         That the National Green Tribunal had passed an order on 17.09.2013 directing stopping of construction activity in and around 10 km distance of Okhla Bird Sanctuary.  The Opposite Parties pleaded that subject project falls within 10 km. of said bird sanctuary.  Therefore, the opposite party was prevented from constructing at the site till the order of National Green Tribunal dated 17.09.2013 came to replaced by a notification issued by Government of India on 19.08.2015 declaring the Eco Sensitive Zone as the area within 100 meters around the Okhla Bird Sanctuary.

d.         That the restrictions were imposed by National Green Tribunal on use of ground water for construction purpose in Noida and Greater Noida.

4.         As regards the compensation claimed by the complainant, the opposite party has referred to clause 4 (c ) of the allotment letter that if at all opposite party is held to be responsible for delay, it is required to pay only the holding charges calculated @ Rs. 5/- per sq. ft. per month of the super area for the period of delay in delivery. 

5.         The complainant has filed affidavit evidence in support of her allegations.  We have heard learned counsel for the complainant and perused the record. 

6.         The first question which needs consideration in this matter is as to whether this Commission has pecuniary jurisdiction to entertain the complaint.  Section 11 (1), 17 (1) (a) and 21 (a) (i) of the Consumer Protection Act deals with pecuniary jurisdiction of the  various Fora to entertain the original complaints.  As per section 21 (a) (i), National Commission has jurisdiction to entertain the complaint where the value of goods or services and compensation, if any, claimed exceeds rupees one crore.  Perusal of the complaint as also the Builder-Buyer Agreement makes it clear that opposite parties have agreed to sell the subject apartment to the complainant after construction in consideration of Rs.63,40,374/-. From the evidence of the complainant, it is clear that against the aforesaid consideration amount, the complainant has paid substantial sum of Rs.60,70,668/- in instalments from 05.08.2006 to 05.10.2006. The complainant has sought refund of amount paid by him with 18% interest p.a., which interest, if added to the principal amount exceeds rupees one crore.  Therefore, in our considered view, this Commission has pecuniary jurisdiction to entertain the instant complaint.

7.         Coming  to the merits of the case.  Only explanation given by opposite party for its failure to deliver possession of the apartment within the stipulated period is plea of Force Majeure.  The aforesaid issue is no more resintegra.  The issue  has been settled by the Coordinate Bench in CC No. 347 of 2014 Swarn Talwar and 2 Ors Vs. Unitech Ltd. and other consumer complaints.  In the said matter, the Coordinate Bench vide its order dated 14.08.2015 while dealing with complaints of all complainants in aforesaid connected matters, which relate to the same project which is the subject matter of this complaint,  have rejected the plea of Force Majeure taken by the opposite party.  The opposite party being aggrieved of the order in the aforesaid case, preferred an appeal in the Supreme Court being Civil Appeal  Diary No. 35562 of 2015 Unitech Ltd. Vs. Swarn Talwar and Ors.  The said appeal was dismissed vide order dated 11.12.2015. Thus, it is clear that issue of Force Majeure has been finally settled and plea of opposite party has been rejected.  From the above discussion, it is clear that opposite party has failed to complete the project and deliver possession of the apartment to the complainant without any justifiable reason despite of having received more than 90% of the payment i.e. Rs.60,70,668/- against the consideration amount. Thus, in our view, the opposite party is guilty of deficiency in service as also unfair trade practice.

8.         Now the question arises as to what should be the compensation to be awarded to the complainant apart from the refund of amount paid by her to the opposite party.  Counsel for the complainant has contended that complainant is entitled to 18% compounded interest p.a. on the amount paid to the opposite party as compensation because his money has been utilized by the opposite party without utilizing the same for the construction purpose for which it was paid. It is further contended that even in the case of Swarn Talwar and 2 Ors, the Coordinate Bench awarded 18% interest p.a. to the complainants of that case as compensation for the failure on the part of the opposite party.

9.         Plea of OP No.1 in the written statement that in view of the clause 4 (c) of the Builder-Buyer Agreement, as per the agreement between the parties, the opposite party is entitled to compensation @ Rs.5/- per sq. ft. of the super area per month as compensation for the period of delay.  In order to appreciate the contention of learned counsel for the opposite party, it would be useful to have a look on relevant clause 4 (c) (ii) and clause 4 (e ), which are reproduced as under: 

4c(ii) That the Developer would pay charges @Rs.5/- per sq.ft. per month of Super Area for the period of delay in offering the delivery of the said Apartment beyond the period indicated in clause 4a(i) save and except as for reasons beyond the reasonable control of the Developer and Force Majeure events. These charges would be adjusted at the time of Final Notice for Possession.

4e.    Default:

          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.

10.       On bare reading of the above, we find that clause 4. c (ii) of the Builder Buyer Agreement is meant for calculating the compensation for delay in cases where possession of the apartment is ultimately offered / given to the concerned consumer.  This is not a case in which opposite party has offered possession but this is a case of failure of the opposite party to deliver possession of the apartment or offer possession of the apartment even after expiry of inordinate period of almost eight years from the stipulate date of delivery of apartment.  It may be noted that even at present, the completion of project in near future is not in sight.  Therefore, in our considered view, clause 4 (e ) of the Builder Buyer Agreement is squarely applicable to this case, which provides that if for any reason the developer is not in a position to offer the apartment or an alternate property, the developer shall refund the amount in full with simple interest @ 10% p.a.. The aforesaid clause being part of the contract is binding on the parties.  Therefore, we are of the view that besides refund of amount, complainant is entitled to 10% interest thereon from respective dates of payment made to the opposite party.

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

1. The  Opposite    parties     shall    refund   the   entire  amount  of ₹60,70,668/- ( Rupees Sixty Lakh  Seventy Thousand Six Hundred and Sixty Eight 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.