At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. JUSTICE AJIT BHARIHOKE
By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE ANUP K THAKUR
For the Complainants: Mohinder Singh, Advocate. For the Opposite Parties: Somesh Tiwari, proxy counsel for R.K. Pandey, Advocate.
Ajit Bharihoke, Presiding Member
Complainants herein have filed the consumer complaint alleging that opposite parties promised and assured them that on deposit of a sum of Rs.7,50,000/- and further depositing of instalments for three years, the opposite parties would transfer, hand over vacant and peaceful possession of Apartment no.702, 7th Floor, Tower-4 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, Uttar Pradesh.
2. It is further alleged that on the said assurances, the complainants deposited a sum of Rs.7,50,000/- with the opposite parties and accordingly opposite parties issued letter dated 09.02.2007 allotting subject apartment to the complainants. The relevant allotment letter and agreements were executed between the parties whereby the opposite party had agreed to deliver 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 Rs.63,08,250/-. It is the case of the complainants that they have paid total sum of Rs.54,57, 335/- to the opposite party. It is alleged that complainants went to the site and found that constru
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tion of the flat in question has not even started. Being aggrieved by the failure of the opposite party to perform their part of contract, the complainants have approached this Commission by filing the consumer complaint seeking following reliefs:‘a. Direct the opposite parties to deliver the Flat No.702, Floor 7 aprox.1785 sq.ft. Tower-4, “Unitech Verve” Plot No.11, Sector Pi-II, Greater Noida, District Gautam Budh Nagar ( U.P. alongwith compensation i.e. interest @ 18% per annum and Rs.5 per sq. ft. w.e.f. 27.02.2010 till flat is delivered to the complainants; orb. Direct the opposite parties to refund a sum of Rs.54,57,335/- alongwith interest @ 18% per annum to the complainants w.e.f 27.10.2007 to 27.09.2015 which works out to Rs.54,84,335/- and Rs.5/- per month for the above period, thus totalling to Rs.1,15,39,931/-;c. Direct the opposite parties to pay compensation ofRs.5,00,000/- to the complainants towards harassment and mental torture caused to the complainants due to the acts of the opposite parties;d. Direct the opposite parties to pay cost of litigation of Rs.5,00,000/-e. And such other or further order (s) as may be deemed just and proper be passed.”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 complainant. It is also admitted that as per the allotment agreement, the total consideration for the apartment was Rs.63,08,250. 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: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 the 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 Rs.63,08,250/-. From the evidence of the complainant, it is clear that against the aforesaid consideration amount, the complainant has paid substantial sum of Rs.54,57,335/- in instalments. The complainant has sought refund of amount paid by him with 18% interest p.a. and Rs.5/- per month from 27.10.2007 to 27.09.2015, 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.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 Rs.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 under4 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 @ Rs.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 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 Rs.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 to deliver 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 w.e.f. 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 Rs.54,57,335/- 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 Rs.10,000/- (Rupees Ten Thousand only) as cost of litigation to the complainants.