MRS REKHA GUPTA, PRESIDING MEMBER Complainants herein have filed the present consumer complaint alleging that opposite party had promised and assured them for getting delivery of possession within thirty six months from the date of agreement. The total amount payable for getting possession, is ₹56,17.076/- and before final notice of possession amount payable is ₹50,14,014/-. The opposite party further stated that time is of the essence in the contract and parties shall be liable to pay compensation @ 18% compounded quarterly in case of delay. 2. It was further alleged that on the said assurances, the complainants deposited a sum of ₹5,02,813/- with the opposite party as booking amount and accordingly opposite party issued letter dated 02.02.2007 allotting apartment no.1502, 14th floor, Tower 01 with car parking space admeasuring 1785 sq ft in a development project ‘Unitech Verve’ to be developed by the opposite party on Plot no. 11, Sector Pi - II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh to the complainants. The relevant allotment letter and agreements were executed between the parties whereby the opposite party had agreed to deliver the possession of the subject apartment with car parking space to the complainants with preferential location within 36 months from the date of agreement. The total consideration amount agreed by the parties was ₹56,17,076/- as mentioned in Annexure ‘A’ of the agreement. It was the case of the complainants that they have paid a total sum of ₹50,14,014 /- to the opposite party. It was alleged by the complainants that the flats/ apartments are not ready at all and only the structure is standing ready since past five years. In June 2012 the opposite party was requested to allot alternate flats in an alternate project. Being aggrieved by the failure of the opposite party to perform their part of contract, the complainants have approached this Commission by filing the present consumer complaint seeking following reliefs: ‘a. Direct the opposite parties to pay a sum of ₹1,36,85,455/- along with interest @ 18% per annum to the complainants for 8 ½ years which works out to ₹ 76,71,441/- totalling to ₹1,26,85,455/- along with ₹10,00,000/- as compensation for mental harassment and cost of the complaint. OR/ ALTERNATIVELY b. The opposite party be directed to complete the booked apartment within three months and thereafter hand over the possession within one month thereafter; c. In case the possession of the booked flat with completion certificate are ready in all respects was not given within three months, then the opposite party be directed to pay interest @ 18% per annum from June 2010 till possession was handed over, i.e., up to August 2015 of ₹49,63,873/- on ₹50,14,014/- paid by the complainants with damages for harassment estimated at ₹ 10 lakh and the litigation cost of ₹ 2 lakh totalling to ₹1,11,17,887/- in the interest of justice after deducting the amount payable at the time of final notice of possession; d. Final instalment becomes payable only after interest and damages for mental agony and harassment amount as deemed proper is fixed by the Commission and is paid to the complainants and cost of this complaint by the opposite party; e. Cost of this complaint be awarded to complainants; and f. Any other and further relief in favour of the complainants as the Commission may deem fit and proper in the facts and circumstances of the case. 3. 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 the complainant. It was also admitted that as per the allotment agreement, the total consideration for the apartment was ₹56,17,076. 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 was that it was prevented from delivering possession of the flat to the complainant because of circumstances beyond its control. It was alleged that opposite party could not perform its part of the contract because of the Force Majeure circumstances, namely: a. 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 Authority and these agitations resulted into slackening of the availability and supply of raw materials and labours that was essential and important ingredients for the construction activities; b. That in and around March 2011, 471 writ petitions were filed before the Allahabad High Court by farmers challenging the acquisition of land by State of U.P. which had later on been allotted to various developers for development of housing complex. These writ petitions were related to almost all the villages of Noida / Greater Noida. Subsequent to pasing of the judgments by Hon’ble Supreme Court in (2011) 5 SCC 533, Radhe Shyam Vs. State of UP on 06.07.2011, Greater Noida Authority vs. Devendra Kumar, whereby notifications dated 12.03.2008 and 30.06.2008 for the acquisition of the land in Greater Noida was quashed. There was unrest amongst the farmers of entire Noida / Greater Noida who started doing “Dharna” in front of the projects of the various builders and halted the construction work. All the above Writ Petitions were later on clubbed together and finally heard and decided by Full Bench of Hon’ble Allahabad High Court on 21.10.2011 in leading case Writ No.37443 of 2011 Gajraj Singh & Ors. Vs. State of UP & Ors. It is submitted that in the entire year 2011, due to protests and agitation of the farmers, the labours had left to their native villages, resulting in acute shortage of the labour in the entire Noida / Greater Noida Region. The above order passed by Hon’ble Allahabad High Court was again challenged by various farmers by filing SLP before Hon’ble Supreme Court of India which were finally heard and decided on 14.05.2015 in leading case titled Civil Appeal No.4506 of 2011 Savitri Devi Vs. State of UP & Others. The Hon’ble Supreme Court has upheld the order dated 21.10.2011 passed by Hon’ble Allahabad High Court in Gajraj Singh and Ors. Vs. State of UP and Ors. 4. The complainants 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. 5. 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 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 ₹56,17,076/-. From the evidence of the complainant, it is clear that against the aforesaid consideration amount, the complainant has paid substantial sum of ₹50,14,014/- in instalments. The complainant has sought refund of the amount paid by him with 18% interest p.a. which 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. 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. As regards the plea that opposite party was prevented from undertaking construction activity on the subject plot because of farmers agitation whose lands were acquired by the Greater Noida Authority no cogent evidence has been led in this regard. Therefore, said plea is liable to rejected. 7. So far as plea of the stay order issued by Hon’ble High Court of Allahabad dated 21.10.2011 is concerned, 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. 8. 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. 9. The last reason given by the complainant is that project could not be completed because of shortage of labour and non-availability of raw materials. No cogent evidence in support of this contention, however, had been adduced. Therefore, we are not inclined to accept the above explanation. 10. 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 complainants even after expiry of seven years from the stipulated date of delivery of possession without any justifications. Thus, we are of the view that opposite party is guilty of deficiency in service. 11. Now the question is as to what should be the amount of compensation? In this regard, counsel for 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 ₹5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment. Learned counsel for the complainants on the contrary has claimed 18% interest on the amount paid. 12. Clause 4 c (ii ) and 4 (e) of the Builder-Buyer Agreement deals with the compensation to be awarded by the opposite party in the event of their failure to give possession by stipulated period. The relevant clauses are reproduced as under: 4 c (ii) “That the Developer would pay charges @ Rs.5/- per s q. ft. per month of the Super Area 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 Developer and Force Majeure events. These charges would be adjusted at the time of Final Notice for possession.” 4 (e) “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 / charges to the Allottee (s) on this account.” 13. Counsel for the opposite party has referred to clause 4 c (ii) of the Agreement and submitted that this being the case of failure of the opposite party to deliver possession of the subject apartment, clause 4 c (ii) of the agreement is attracted and the complainants are entitled to compensation @ ₹5/- per sq. ft. per month of the super area. We do not find merit in the contention. On conjoint reading of the above noted clauses 4 c (ii) and 4 (e), it is evident that clause 4 c (ii) of the Builder Buyer Agreement would be attracted only in a case in which the delay is for a reasonable period and it has occurred because of cogent unfavourable circumstances. This clause would not apply in cases where builder after receiving substantial amount against the agreed consideration deliberately failed to take any steps for completing the construction. If such an argument is accepted, it would give handle to the developer to utilize the money paid by the consumers at a nominal cost of ₹5/- sq. ft. per month of the super area instead of borrowing money from the financial institutions / banks. In the instant case, opposite party has not shown any cogent circumstances or reason which prevented it from delivering the possession within the stipulated period. Therefore, in our view, this case should be dealt with under clause 4 (e) of the subject Builder Buyer Agreement, which provides that if the opposite party is not in a position to offer possession of the apartment to the allottee, opposite party shall refund the consideration amount received with 10% p.a. Thus, in our view, opposite party is liable to refund the money received from the complainants with 10% p.a. on the amount with effect from the dates of respective payments of instalments. 14. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹50,14,014/- to the complainants within six weeks from today along with 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. | 
