JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            Amit Tyagi, the complainant herein has filed the consumer complaint against opposite party no.1 company and its two directors alleging that relying on the assurances of the respondents opposite parties, the complainant entered into an agreement for allotment of residential apartment / penthouse no. 1901 Tower No.07 measuring 3367 sq. ft. in the upcoming project of the opposite party “Unitech Grande” in Sector 96, 97 and 98 of Noida, U.P.  Total consideration payable was ₹3,17,19,444/-.  However, the payment plan as also the name of the project was changed and total cost of the apartment was modified at Rs.2,13,42,194/-  The consideration amount was agreed to be paid in instalments and opposite parties as per the terms and conditions of the agreement were supposed to deliver possession of the apartment , 30 months from July 2009 i.e. December 2012.

2.         It is the case of the complainant that although he has paid substantial sum of ₹2,06,08,990/- against the consideration amount, the opposite parties have failed to deliver the possession of the apartment even after stipulated date of delivery i.e. December 2012  Claiming this to be deficiency in service, the complainant has filed the instant complaint seeking the following prayer:

“For refund of total of Rs.2,06,08,990/- ( Rs. Two crores six lacs eight thousand nine hundred ninety only) paid alongwith compensation / interest @ 18% upto July 2016.  Interest / compensation calculated for each trench from the date payment was made for each trench comes to Rs.45,36,000 + 40,5000 + Rs.3,60,450/- + Rs.68,04,000/- + Rs.49,49,973/- + Rs.45,15,615, + Rs.33,54,298/- + Rs.32,95,887 + Rs.31,01,083/- + Rs.87,399/- total of compensation / interest coming to Rs.3,10,45,205/- ( Rs. Three crore ten lacs forty five thousand two hundred and five only) Total amount comes to Rs.2,06,08,990/- + Rs. 3,10,45,205/- = 5,16,54,195/- ( Rs. Five crores sixteen lacs fifty four thousand one hundred ninety five only ) alongwith the damages and cost of this Complaint as may be quantified by the Hon’ble Commission in the facts and circumstances of the case.

Prayed accordingly for any other and further orders as the Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

3.         The opposite parties after admission of the complaint was served with the notice.  However, the opposite party failed to file written statement within the stipulated period of limitation i.e. 30 days from the date of service of notice of complaint.  The opposite party, therefore, submitted its written statement alongwith application for condonation of delay.  The said application, however, in view of the judgment of Hon’ble Supreme Court in the matter of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. decided on 04.12.2015 was dismissed and written statement of the opposite party was not taken on record.

4.         It is pertinent to note that even in the written statement which was sought to be filed after the expiry of period of limitation, the opposite party has admitted the allotment of apartment to the complainant.  It is also not disputed that complainant has paid ₹2,06,08,990/- against the consideration amount but he has not been delivered possession of the apartment despite of expiry of stipulated date of delivery of possession.  In the said written statement, the opposite party has taken the plea of Force Majeure.  According to the opposite party, it was prevented from completing the project and delivering the possession of the apartment to the complainant because of the reasons beyond its control which are reproduced as under:

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.

e.         Thus, the respondent faced “major disruption” in doing and continuing “construction activity” at site due to protest and agitations by farmers whose lands were acquired by Noida Authority. This sudden outrage of agitation was completely unforeseen.

f.          That the problem got compounded by the acute shortage of labour and restrictions on the use of underground water, short supply of raw material, approval/sanction required from the Authority, restriction and prohibition imposed on the ongoing projects by MOEF (Central Government) Environmental Clearances/National Green Tribunal.”

5.         From the record as well as the submissions made by respective counsel for the parties, only defence of opposite parties is the Force Majeure clause in the Builder-Buyer Agreement.  It is argued by learned counsel for the opposite parties that that there is no deficiency on their part as they were prevented from completing the project within the stipulated period because of the circumstances detailed in the written statement.

6.         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. 

7.         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.

8.         The issue regarding plea of Force Majeure is no more resintegra.  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 to 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 four 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 @ 18% p.a.  Expanding on the argument, learned counsel for the complainant has drawn our attention to terms and condition of Builder-Buyer Agreement, particularly, the condition which stipulates that if the buyer fails to pay any instalment against the consideration amount, he shall be liable to pay 18% interest for the period of delay.  It is argued that as the opposite party had claimed 18% interest on the delayed payment, in all fairness, he should be asked to pay 18% interest on the amount received by him.  In support of this, complainant has referred to the judgment of the Coordinate Bench in the matter of Ravinder Zutshi Vs. Unitech Hi-Tech Developers and Ors. decided on 15.10.2015.

11.       Counsel for the opposite party has contended that in view of clause 5 (c) (ii) 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 18% 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 to 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 (d) 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.”

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 ₹2,06,08,990/- ( Rupees Two Crore Six Lakh Eight Thousand Nine Hundred and Ninety 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.