The present First Appeal has been filed by the appellants/complainants against the order dated 26.11.2018 in CC No. 295 of 2016 of the State Commission, partly allowing the complaint.2. The admitted facts of the case are that complainants had booked a 2 BHK flat No. H-1908 measuring super area 1075 sq. ft. at 19 th floor in Block-H in the residential project, namely, ‘Blossom County’ situated at Sector-137, Expressway, Noida on 10.10.2011 for sale consideration of Rs. 46,58,695. They had deposited total sum of Rs. 16,82,658 on various dates by way of cheques. An agreement dated 7.12.2011 was executed between the parties whereby the date of delivery was 22 months from the date of agreement. Even after the expiry of 22 months, which also included the four months grace period, the possession of the flat was not handed over to the appellants. Being aggrieved, they had filed the complaint.3. The defence taken by the respondents before the State Commission was that project could not be completed due to restrain order of NGT dated 28.10.2013, a reason beyond its control. It is argued that in terms of Clause 6.2 of the agreement, the respondents are entitled to extend the completion period. It was also contended that Force Majeure conditions like shortage of labour, scarcity of water, restriction on excavation, villagers agitation as well as legal impediments etc. also played its role in delay in completion. It is submitted that under the agreement, the complainants were entitled for damages @ Rs. 5 sq. ft. for delay and they have been suitably compensated. It is submitted that there is no merit in the appeal.4. Parties led their evidences before the State Commission. The State Commission after hearing the arguments of learned Counsel for the parties and perusing the record, rejected the contentions of the respondents and has held as under:“The arguments of the opposite parties regarding cause of delay in handing over the possession are not tenable as the mandatory clearance of the project from National Board of Wild Life or Ministry of Environment and Forest ought to have been obtained before launching the project as the sanctuary was in pre-existence of the launch of project. Hence, the provisions of Clause 6.2 in the buyer’s agreement does not apply in the instant case. The defects and shortcomings mentioned by the complainant should have been removed/resolved as to their satisfaction. But the same could not done to the satisfaction of the complainant. The complainants have paid the initial amount of Rs. 16,82,658 for purchase of flat while the balance amount of Rs. 32,17,838 was to be paid at the time of handing over of the possession. Hence, they are consumers under Section 2(1)(d) of the Consumer Protection Act, 1986. The opposite parties have not stated about the status of the occupancy certificate and the completion certificate of the competent authority. Thus before getting the completion certificate, the develop was neither in a position to hand over possession to the allottee nor could execute sale deed of the allotted flat in favour of the allottees-complainants. Thus the opposite parties have caused deficiency in service. Hence the developer cannot charge interest on the balance amount for the period after the due date of possession till the date of actual possession.5. Thereafter, following directions were issued:“The complaint is partially allowed. The opposite parties are directed to complete the flat in all respects as per terms of agreement and to the satisfaction of the complainants and hand over its possession within a period of 90 days from the date of this order. The complainants shall pay the balance amount of the sale consideration after adjustment of the damages @ Rs. 5 per sq. ft. per month at the time of handing over of the possession. If the opposite parties fail to hand over the possession of the flat in question by the time mentioned herein above, then they will refund the entire deposited amount of Rs. 16,82,658 to the complainants along with interest @ 18% per annum within 60 days after the said period of 90 days. The interest will be payable from the dates of respective deposits to the date of actual payment.”6. The complainants have filed the present appeal stating therein that order whereby the respondents were directed to hand over possession of the subject flat after completing its construction within 90 days has been passed without any jurisdiction since in the complaint, the appellants had asked only for the refund of their deposited amount and had not sought any direction for possession of the subject property. It is submitted that since Fora below had exceeded its jurisdiction by granting a relief which was not asked for, the impugned directions needs to be modified. The appellants have argued that even otherwise the 90 days period within which the possession was to be given by the respondents had already been expired and till date respondents have not made any offer of possession. It is argued that appellants cannot be forced to wait for the possession for indefinite period. It is prayed that the impugned order be modified and respondents be directed to refund the deposited amount.7. Counsel for the respondents has submitted that after the impugned order, letter dated 5.4.2019 was issued to the appellants whereby it was asked to clear the balance and offer of possession was made.8. I have given my thoughtful consideration to the rival contentions and perused the record. From the perusal of the complaint, it is apparent that appellants had only asked for refund of their deposited amount. It is also apparent from the evidence that possession was to be delivered by 7.10.2013 and till the date of impugned order, the construction was not complete and there was no offer of possession by the respondents. It is because of this reason that State Commission in the impugned order had issued directions to the respondents to complete the construction and hand over the possession within 90 days. Although respondents have argued that they had offered possession after impugned order and have filed an affidavit dated 24.2.2020 but no document offering possession has been filed along with the affidavit. The appellants have produced before me a copy of the email dated 27.3.2019 which is taken on record. The veracity of this document is not disputed by the respondents. The contents of the said email are as under:“This has reference to your booking of above mentioned flat booked at project Logix Blossom County. After the scrutiny of your account we have found that there is an outstanding amount against your said flat. We had sent you the demand notices for making payment as per payment plan agreed by you but it appears that demand notices has escaped your attention. Kindly note that the delay in making payments accrue interest @ 18% per annum and holding charges as per the terms and conditions of the Builder Buyer Agreement. You are kindly requested to remit the outstanding amount immediately.”9. From perusal of this email, it is apparent that there was no offer of possession and no date is given in the email asking the complainants to take the possession of the subject flat. Vide this email, respondents had only asked for the outstanding dues. The State Commission in the impugned order has clearly observed that complainants shall make the payment of the sale consideration “after adjustment of the damages @ 5% per sq. ft. per month at the time of handing over of the possession (Emphasis supplied).Therefore, respondents had not till now completed
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the construction and had not made any effort of giving possession to the appellants/complainants. It has been held by Hon’ble Supreme Court in Fortune Infrastructure & Anr. v. Trevor D’ Lima & Others, II (2018) CPJ 1 (SC)=III (2018) SLT 556=(2018) 5 SCC 442, that an allottee cannot be made to wait indefinitely for possession of the flat.10. Therefore, I modify the impugned order dated 26.11.2018 and issue following directions:ORDERThe respondents are directed to refund the entire deposited amount of Rs. 16,82,658/ (Rupees sixteen lakh eighty two thousand six hundred and fifty eight only) to the appellants along with interest @ 18% p.a. to be calculated from the date of respective deposits till the date of actual payment as compensation within 60 days from today.The appeal stands disposed of in these terms.Appeal disposed of.