JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER Pradeep Gupta & his wife Sheetal Sharma, the complainants herein had booked apartment no.1501 having super area 1693 sq.ft. on the 14th floor of Tower No.22 of Group Housing Development Project “Unitech Horizon” situated at Plot No.6, Sector PI-2, Alistonia Estate, Greater Noida undertaken by the opposite party developer. As per the allotment agreement, the complainants were required to pay ₹48,24,373/- as total consideration for the apartment. The opposite party was to deliver possession of the apartment by November 2008. It is the case of the complainants that they had paid substantial sum of ₹46,75,777/- against the consideration amount but the opposite party has failed to adhere to the timeline for delivery and failed to deliver possession even more than eight years after the stipulated date. Being aggrieved, the complainants have filed consumer complaint seeking refund of ₹46,75,777/- paid against the consideration amount to the opposite party with 18% interest p.a. besides compensation and cost for litigation. 2. The opposite party on receipt of notice has filed written statement resisting the complaint. It may be noted that opposite party in its written statement has admitted booking of subject apartment by the complainants. It is also admitted that as per the allotment agreement, total consideration for the apartment was Rs.48,24,373/- which was payable in instalments as per payment plan. It is also not in dispute that complainants have paid Rs.46,75,777/- against the consideration amount and possession of the apartment has not yet been delivered. It is alleged that construction activity at the site is at full swing. 3. Opposite party in its written statement has tried to justify delay in delivery of possession on the plea of Force Majeure clause in the Builder-Buyer Agreement between the parties. In the nutshell, the explanation of the opposite party for failure to deliver possession of the apartment within the stipulated period or till the date of filing of complaint is as under: ”It is submitted that the Noida Authority had acquired this land from farmers of the villages and allotted it to the opposite party for development of the project as per planning. The farmers went on strike and agitation by farmers for increase of compensation and demanding for developed plots in lieu of acquired land in various villages comprised in various sectors of Noida and Greater Noida including the land in question allotted to the opposite party. Thus, the opposite party faced “major disruption” in doing “construction activity” at site due to strikes by farmers whose lands were acquired by Noida Authority. This sudden outrage of agitation was completely unforeseen. “That vide order dated 11.01.2013, Hon’ble National Green Tribunal, Principal Bench, New Delhi has passed the interim injunction restraining orders against all the builders in Noida and Greater Noida from extracting any quantity of underground water for the purpose of construction.” 4. Complainants as well as opposite party have filed affidavit evidence in support of their case. 5. We have heard Shri Jalaj Agarwal, Advocate, counsel for the complainants as also authorised representative of the opposite party. 6. On perusal of pleadings and the evidence of the parties, we find that allotment of subject apartment no. 1501 on14th floor of Tower No.22 of the development project to the complainants vide letter dated 08.05.2006 is not in dispute. It is also not in dispute that against the agreed sale consideration Rs.48,24,373/-, the complainants have paid almost 95% amount i.e. Rs.46,75,777/- to the opposite party. As per clause 4 (a) of the allotment letter, the opposite party had agreed to deliver possession of the subject apartment to the complainant by 15.11.2008. Even eight years after the expiry of the stipulated date of delivery of possession, opposite party has failed to deliver the possession of the subject apartment to the complainants. 7. Learned counsel for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of allotment letter dated 8.5.2006 issued by the opposite party to the complainants it is clear that vide said allotment letter the complainants were allotted subject apartment No.1501 on 14th Floor of Tower-22 of the development project Unitech Horizon at Greater Noida undertaken by the opposite party. From the above document it is also clear that agreed consideration amount was ₹48,24,373/-. It is also clear from clause 4 (a) of the allotment letter that the opposite party had agreed to deliver possession of the subject flat to the complainants by 15.11.2008. Complainants have categorically alleged in the complaint that against the consideration amount, almost 95% amount amounting to ₹46,75,777/- has been paid to the opposite party but even more than eight years after the expiry of stipulated date of deliver of possession, the opposite party has failed to deliver the possession. Otherwise also, the complainants in order to prove said allegation have filed their own affidavits reaffirming the allegations. 8. As evident from the record as also the submissions made by counsel for the complainants as also authorised representative of the opposite party, only defence set up by the opposite party is Force Majeure clause in the Builder-Buyer Agreement. It is argued by authorised representative for the opposite party that there is no deficiency in service on the part of the opposite party as it was prevented from completing the project because of the above noted circumstances detailed in the written statement. 9. As the opposite party is justifying the delay in completing the construction and delivery of possession on the ground of Force Majeure, the onus of proving the Force Majeure circumstance lies squarely on the opposite party. As regards the plea that opposite party was prevented from undertaking construction activity on the subject plot because of farmers agitation seeking enhanced compensation and develop plot in lieu of their acquired land, no cogent evidence has been led in this regard. Therefore, said plea is liable to rejected. 10. The opposite party in support of Force Majeure plea has relied upon order dated 11.01.2013 passed by National Green Tribunal in application no. 59 of 2011 Vikrant Kumar Tongad 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 complainants. 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.” 11. 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 complainants. 12. In view of the discussion above, it is evident that opposite party has failed to prove the defence of Force Majeure. Undisputedly, the opposite party has failed to deliver possession of subject apartment to the complainants even after expiry of more than eight 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. 13. Now the question is as to what should be the amount of compensation? In this regard, authorised representative of the opposite party has drawn our attention to clause 4 c (ii) of the Builder Buyer Agreement and submitted that as per the agreement between the parties, the opposite party company is liable to pay Rs.5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment. 14.. In order to appreciate the above contention of the Authorised Representative , it would be useful to have look on clause 4 c (ii) of the agreement, which is reproduced as under: “That the company would pay charges @ Rs.5/- per s q. ft. per month for the period of delay in offering the delivery of the said apartment beyond the period indicated in clause 4 (a) (i), save and except as for reasons beyond the reasonable control of the Company and Force Majeure events. These charges would be adjusted at the time of Final Notice for possession.” 15. On reading of the above, we find that this clause is applicable only in cases where the opposite party fails to deliver possession of the apartment within the stipulated time and the compensation is to be paid every month for the delay. 16. Clause 4 (e) is the actual clause, which deals with the compensation to be paid by the opposite party if the opposite party is not in a position to offer possession of the apartment to the allottee / complainants. Clause 4 (e ) is reproduced as under: “Default: If for any reason the company is not in a position to offer the Apartment altogether, the company 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.” 17. On reading of the above, it is clear that if for any reason, the opposite party is not in a position to offer possession of the apartment, the opposite party company shall refund the amount with simple interest @ 10% p.a. without any further liability. It cannot be disputed that that opposite party has failed to deliver possession of the apartment even eight years after the expiry of stipulated date. Thus, in our view, this is a case of the opposite party not being in a position to offer possession of the apartment as the allottee cannot be expected to wait for possession of the apartment for indefinite period. Thus, in view of the above clause, opposite party is liable to pay 10% interest p.a. on the deposited amount as compensation for its default. 18. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹46,75,777/- ( Rupees Forty Six Lakhs Seventy Five Thousand Seven Hundred and Seventy Seven only) to the complainants within six weeks from today alongwith` compensation of 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/- (Rupees Ten Thousand only) as cost of litigation to the complainants. | 
