Manish Sharma and his wife Shalini Sharma have filed the instant complaint alleging that they booked a flat in the housing project “Uni World City-Capella” proposed to be developed by the opposite party builder on plot No.GH-01, Sector MU, Greater  Noida, U.P. on 29.6.2007. As per the terms of allotment, the opposite party was supposed to deliver possession of the flat within 40 months and the agreed consideration amount was Rs.50,94,975/-. Pursuant to the said agreement, the complainants paid a sum of Rs.38,96,002/- in installments.

2.       As the aforesaid project was non-starter, the complainants were allotted alternative flat No.2103 in tower-6, Unitech Verv, Greater Noida vide allotment letter dated 16.11.2010. As per the allotment letter, consideration amount payable for the alternative flat was Rs.56,62,123/- and the opposite party was to deliver possession of the flat to the complainants within 36 months from the date of allotment. According to the complainants, they have paid sum of Rs.50,96,002/- against the consideration amount till 27.11.2014 but the opposite party has failed to deliver possession of the flat to the complainants which amounts to deficiency in service. The complainants have, thus, filed the instant complaint seeking possession of the subject flat with 18% interest on the payment made for the delayed period or in alternative the refund of the amount paid to the opposite party with 18% interest thereon.

3.       The opposite party in its written statement has admitted that the subject flat was allotted to the complainants vide allotment letter dated 16.11.2010. The agreed consideration was Rs.56,62,123/- and the possession was to be delivered within 36 months from the date of allotment letter. It was also admitted that the complainants have paid a sum of Rs.50,96,002/- against the consideration amount but the opposite party has not been able to deliver possession of the subject flat to the complainants. Opposite party, however, has denied any deficiency in service on its part and pleaded that the delay in completing the construction of project and deliver of possession to the complainants is due to circumstances beyond the control of the opposite party. It is pleaded that there is a force majeure clause in the agreement between the parties and the project could not be completed because of following reasons: -

a.       Major disruption caused in construction activity by the opposite party due to massive agitation by the farmers whose land was acquired by the Greater Noida Authority;

b.       Acute shortage of labour, underground water and raw material for construction i.e. bricks and sand;

c.       The NGT vide order dated 11.01.2013 restrained the builders in Noida and Greater Noida from utilizing underground water for purpose of construction;

d.       Various notifications issued by Ministry of Environment and Forest, Central Government imposing restriction and prohibition on new projects or construction activities;

e.       That somewhere around March 2011, 471 Writ Petitions were filed by the farmers in Allahabad High Court challenging the acquisition of the land by the State of Uttar Pradesh, which included the land on which the subject complex was to be developed, which resulted in halting of the construction work.  It is alleged that said Writ Petitions were decided by Hon’ble High Court on 21.10.2011.  Thereafter, said order was challenged in Hon’ble Supreme Court and the matter was finally decided by the Supreme Court on 14.05.2015.

4.       The opposite party has also raised preliminary objection as to the pecuniary jurisdiction of the National Commission to entertain the complaint.  It is pleaded that the apartment booked by the complainants is almost ready but for minor finishing work and possession letters have been issued to the complainant.

5.       Both the parties have filed their respective evidence on affidavit.

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

7.       The first question which needs consideration relates to the pecuniary jurisdiction of this Commission.   Section 21 of the Consumer Protection Act, 1986 deals with pecuniary jurisdiction of the National Commission and provides that National Commission shall have jurisdiction to entertain the complaints where the value of the goods or services hired or availed plus compensation is more than rupees one crore.  Admittedly, in this case, the subject apartment was allotted to the complainants in consideration of Rs.56,62,123/- to be paid as per agreed payment schedule.  The possession of the subject apartment was to be delivered within 36 months from the date of allotment letter dated 16.11.2010 i.e. by end of November, 2013.  Undisputedly, the opposite party has failed to deliver possession of the apartment as yet.  The complainants have sought compensation @ 18% p.a. from the dates of respective payments made against the consideration amount.  The aforesaid interest if added to the agreed consideration amount, being the value of the services promised, obviously is more than rupees one crore.  Therefore, I have no hesitation in holding that this Commission has pecuniary jurisdiction to entertain the complaint.  The preliminary objection of the opposite party is, therefore, rejected.

8.       As regards, deficiency in service, it is undisputed case of the parties that despite of having received huge amount of Rs.50,96,002/-, the opposite party has failed to deliver possession of the apartment to the complainants even after four years of the agreed date of delivery of possession. This obviously amounts to deficiency in service unless the opposite party is able to show that opposite party was prevented from completing the project and deliver possession of the apartment to the complainants due to Force Majeure circumstances which are detailed above.

9.       The onus of proving force majeure circumstances which prevented the opposite party to deliver the possession of the subject apartment to the complainants within the stipulated period lies squarely on the opposite party.

10.     As regards the plea of the opposite party that it was prevented from undertaking construction activity on subject plot because of farmers’ agitation whose land was acquired by Greater Noida Authority, it would suffice to say that opposite party has failed to adduce cogent evidence to prove said circumstances. Therefore, the plea is liable to be rejected.

11.     Regarding shortage of labour, I find that no material has been placed on record by the opposite party to show that despite of best efforts it could not get the labour to complete the construction of the project within the time period stipulated in the agreement between the parties. There is no evidence on record to show as to what efforts were made by the opposite party to engage labour for the construction of the project nor there is any evidence to show that the opposite party had invited tenders for appointment of contractor/sub-contractor for executing the construction work at site and that no contractor/sub-contractor came forward to execute the project because of non-availability of adequate labour in the market. Thus, the plea of the opposite party regarding non-availability of sufficient labour cannot be accepted.

12.     As regards the alleged shortage of bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure sand and brick in adequate quantity.  There is no evidence of the opposite party having invited tenders for supply of bricks and sand and there being no response to such tenders.  In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand will be arranged by the contractor/sub-contractor and not by the opposite party.  As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders.  Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of sand and bricks in adequate quantity.

13.     The opposite party in support of Force Majeure plea has relied upon order dated 11.01.2013 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.”

14.     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.”

15.     In view of the discussion above, it is evident that opposite party has failed to prove the defence of Force Majeure.  It is pertinent to note that in Consumer Case no. 282 of 2012 Dewan Ashwani and Ors Vs. unitech Reliable Projects Pvt. Ltd pertaining to same project, the Coordinate Bench decided the complaint in favour of the complainants.

16.     Learned counsel for the petitioner has contended that although the complainant has sought possession of the subject apartment as one option, the complainant because of such inordinate delay is not interested in possession of the apartment and presses for refund of his money with interest.

17.     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.7/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment.

18.     I am not convinced with the above argument. It is evident from the allotment letter dated 16.11.2010 that the opposite party, as per contract was required to deliver possession of the subject flat within 36 months from the date of said letter i.e. by  the end of November, 2013. Undisputedly, the opposite party has failed to fulfill its promise till the filing of its written statement in the year 2016, although the complainants had paid almost 90% of the consideration amount till 27.11.2014. From this it is obvious that the opposite party has utilized said money till almost four years after the expiry of due date without fulfilling its promise. Had the opposite party borrowed said amount from a financial institute/bank, obviously it would have to pay the bank rates on the sum. Therefore, in my view the opposite party cannot take advantage of its own wrong and take shelter of clause 4 (c) (ii) of the builder-buyer agreement to utilize the money received by them by unfair trade practice for inordinate period. Thus, in my view opposite party cannot take advantage of clause 4 (c) (ii) of the builder-buyer agreement which is patently unfair.   

19.     Clause 4 (e) of the builder-buyer agreement 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.”

20.     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 the opposite party has failed to deliver possession of the apartment even nine 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. 

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

1.       The   Opposite   party   shall   refund   the   entire    amount   of ₹50,96,002/-  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.