Jalaj Anand, the complainant herein had booked apartment no.1102 having super area of 2098 sq.ft. on the 11^th floor of Tower No.3 of Group Housing Development Project “Unitech Habitat”  situated  at  plot No.9, Sector Pi-II ( Alistonia Estate), Greater Noida to be developed by the opposite party. 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 ₹72,03,476/-.  It is the case of the complainant that he has paid total sum of ₹68,85,176/- 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 seven years after expiry of stipulated date of delivery of possession i.e.12.10.2009.   Claiming failure of the opposite party to deliver possession within the requisite period, the complainant has filed the above noted consumer complaint seeking following prayer:

“a.        Direct the opposite party  to refund the amount of a sum of ₹68,85,176/- paid  by the complainant towards the purchase of the flat being no.1102, Tower T-3 on a plot of land admeasuring about 23.57 acres bearing no.9, Sector Pi-Ii (Alistonia Estate), Greater Noida, District Gautam Budh Nagar, Uttar Pradesh;

b.         Direct the opposite party / respondent to pay a sum of Rs.1,07,13,548/- towards an interest at the rate of 18% per annum on the amount of Rs.68,85,176/- paid by complainant towards the cost of the flat with effect from the date of each payment till its realization;

c.         Direct the opposite party to pay a sum of Rs.25,00,000/ to the complainant as compensation for harassment, inconvenience, mental agony and trauma caused by the opposite party;

d.         Direct the opposite party to pay a sum of Rs.2,00,000/- towards the cost of litigation;

e.         Other exemplary damages that this Hon’ble Commission deems fit in the facts and circumstances where opposite party has committed breach of trust and cheating the complainant and many other innocent people like the complainant in the interest of justice;

f.          Any other reliefs that this Hon’ble Commission deems fit and proper in favour of the complainant in the circumstances of the case;

g.         Pass such other order or further order in favour of the complainant and against the opposite parties as this Hon’ble  Commission may deem fit and proper in the facts and circumstances of the case.”

2.         The opposite party on being served with the notice of the complaint has filed written statement wherein opposite party has admitted the allotment of the subject apartment to complainant.  It is also admitted that as per the allotment agreement, the total consideration for the apartment was ₹72,03,476/- which was payable in instalments as per payment plan.  It is also not in dispute that complainant has paid ₹68,85,176/- against the consideration amount.  However, opposite  Party 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 rupees one crore.  On merits, the plea of the opposite party is that it was prevented from delivering possession of the flat to the complainant because of circumstances beyond its control.  It is alleged that opposite party could not perform its part of the contract because of the Force Majeure circumstances, namely:

(i)         The delay is attributable to a recession in the economy, affecting the availability of the resources such as labour and raw materials;

 (ii)       There was major disruption in the construction activity of the opposite party due to massive agitation and strikes by farmers whose lands were acquired by NOIDA, which resulted in slackening and availability of supply of raw material;

(iii))     There was acute shortage of labour, underground water and raw material besides delayed approval from Greater Noida Authority.

(iv)       Vide notification dated 14.09.2006 issued by Ministry of Environment and Forest (MOEF), Central Government imposed restriction and prohibition on new projects or activities or on the expansion or modernization of existing projects or activities being undertaken in any part of India unless prior environmental clearances are obtained;

(v)        Order dated 11.01.2013 passed by National Green Tribunal restraining all the builders in Noida and Greater Noida from extracting any quantity of underground water for the purpose of construction ;

(vi)       That the Hon’ble High Court of Allahabad while deciding the bunch of writ petitions (471 writ petitions) filed by various farmers challenging the notification and acquisition of land by State of UP (leading case being writ  No.37443 of 2011, Gajraj Singh Vs. State of UP and others) on 21.10.2011, restrained the Noida/Greater Noida Authority and allottees (Developers) from carrying development and implementing the Master Plan 2021 till the observations and directions of the National Capital Regional Planning Board are incorporated in Master Plan 2021 to the satisfaction of the National Capital Regional Planning Board. The notification for the acquisition of the land allotted to the OP was also subject matter of some writ petitions. As such, the entire development of the project was blocked by pending litigation and agitation of farmers of the village in which the project is situated. That some of the farmers, aggrieved by the said order dated 21.10.2011 passed by Hon’ble Allahabad High court, filed appeals before the Supreme  Court which were finally heard and decided on 14.5.2015 in leading case titled Civil Appeal No.4506 of 2011, Savitri Devi Vs. State of UP & Ors by Hon’ble CJI Mr.Justice H.L. Dattu, Hon’ble Mr.Justice A.K.Sikari & Hon’ble Mr.Justice Arun Mishra, in which the order dated 21.10.2011 passed by Allahabad High Court in Gajraj Singh & Ors Vs. State of UP & Ors, was upheld.

(vii)      Chronic defaults in payments of instalments on the part of other buyers in the project due to melt down in real estate sector.

3.         The complainant and the opposite party have filed affidavit evidence in support of their case.  We have heard learned counsel for the parties and perused the record. 

4.         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 ₹72,03,476/-. From the evidence of the complainant, it is clear that against the aforesaid consideration amount, the complainant has paid substantial sum of ₹68,85,176/- in instalments. 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.

5.         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. ₹.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.

7.         As regards the explanation that delay has occurred because of chronic default of payment of instalment by other buyers in the project due to melt down in the real estate sector is concerned, the opposite party has failed to lead cogent evidence to substantiate the plea.

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 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 opposite party 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. 

10.       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.

11.       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 nine 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.

1. The   Opposite   party    shall   refund   the   entire    amount   of ₹68,85,176/- ( Rupees Sixty Eight Lakh Eighty Five Thousand One Hundred and Seventy Six only ) paid to it by the complainant within six weeks from today alongwith compensation with simple interest  @ 10% per annum from the date of each payment till the realisation of the amount.
2. The Opposite party shall pay a sum of ₹10,000/- as cost of litigation to the complainant.