1. The case of the complainant is that during the year 2011 they learnt about OP-1’s advertisement of its residential apartments/flats in “Sikka Karnam Greens”, Sector-143(B), Expressway, Noida (UP). In March, 2011 they made application to OP-1 for allotment of two BHK apartment/flat bearing No.902, in Elegance Tower of the above project. The same was to have super area of 1150 sq.ft. They paid Rs.3,00,000/- by cheque. OP-1 wrote letter dated 26.03.2011 demanding Rs.1,63,397/-. OP-1 orally revised the said demand to Rs.1,61,588/-. The complainants paid same by two cheques for Rs.1,54,083/- and Rs.7,505/-. In September they received letter dated 07.09.2011 demanding Rs.7,71,574/-. On the suggestion of OP-1, complainants approached OP-2 for grant of loan. On 04.12.2011 an agreement was entered into. OP-1 was bound to deliver possession within 42 months from the date of start of excavation. Complainants and both the OPs entered into a tripartite agreement on 27.01.2012 for loan of Rs.24,00,000/-.
2. OP-1 orally revised demand of letter dated 07.09.2011 (supra) to Rs.7,69,404/-. OP-2 paid Rs.7,32,804/- and balance Rs.36,600/- was paid by the complainants by NEFT. In September, 2012 complainants received demand letter dated 29.08.2012 for Rs.3,92,293/-. OP-2 paid Rs.2,73,121/- and remaining Rs.36,172/- was paid by the complainants. In March, 2013 complainants received letter dated 14.03.2013 demanding Rs.3,11,702/-. OP-2 paid Rs.2,73,121/- and rest Rs.38,581/- was paid by the complainants.
3. On 17.07.2013 OP-1 demanded Rs.3,09,293/-. OP-2 paid Rs.2,73,121/- and Rs.36,172/- by way of two cheques. On 15.10.2013 OP-1 demanded Rs.3,09,293/- which was paid by OP-2 by two cheques.
4. On 16.12.2013 OP-1 demanded Rs.3,09,293/- which was paid by OP-2 by two cheques. On 15.04.2014 OP-1 demanded Rs.1,54,647/- which was paid by OP-2. In nutshell complainants paid Rs.29,36,322/- including Rs.22,53,056/- as loan from OP-2. The complainants had been incurring interest @10.05% per annum.
5. Excavation started on 07.09.2011. The expected date of delivery of possession was 07.03.2015. On or around 14.03.2015 complainant visited the office of OP-1 at Preet Vihar, he was told that on account of bad market condition and some legal problems, project was delayed by 7/8 months. The complainants have been putting up in a rented accommodation for which they had to payRs.17,000/- per month as rent. On 21.01.2017 complainants received email from which it appeared that OP-1 was falsely giving further assurance in as much as there is no mention of tentative timing of expected delivery of possession. On 28.01.2017 they visited the site and discovered that flat was at still at least two years away from coming up. Hence this complaint for directing OP-1 to refund Rs.29,34,513/- alongwith interest @24% per annum which was rate leviable on complainant’s delay in payment of instalment, direct OP-1 to pay rent to the tune of Rs.17,000/- per month and compensation of Rs.7,00,000/- for causing frustration, harassment, inconvenience and mental agony. They also prayed for Rs.2,00,000/- as litigation expenses.
6. OP-1 filed WS raising preliminary objections that this commission has no territorial jurisdiction as the project is located at Noida, the statement as to time of delivery of project being 42 months was subject to all other conditions and circumstances remaining the same as at the time of making such statement. Due to unforeseen situation and circumstances such as the farmers’ agitation at Noida, writ petitions filed by the farmers against the project at Allahabad High Court, various orders passed by National Green Tribunal, shortage of labour and construction material, the dispute with the contractors etc. which were beyond the control of OP-1, inadvertently delay was caused. The construction was going on at full swing and OP-1 expected early completion of project. It made preliminary submissions that no cause of action ever arose in favour of the complainants, possession would be soon handed over after the completion of the finishing work. On merits it took the same defence.
7. OP-2 filed separate WS raising preliminary objections that it is not a necessary party and its name may be struck off. It is not either jointly or severally responsible for any damages.
8. Complainants filed affidavit of complainant-1 in evidence. OP-1 filed affidavit of Sh. Arun Kumar, AR in evidence.
9. Both the parties have filed written arguments.
10. I have gone through the record and heard the arguments. Counsel for complainants submitted that booking by the complainants and delay in project have been admitted by OP-1 in WS. The payments made by complainants including loan amount from OP-2 has also been admitted by the OP-1 in para-12 of its affidavit. The only dispute which remains is whether delay was beyond control of the OP-1. The said plea has been repeatedly examined by National Commission and it was held in CC-2426/17 titled as Prem Lata Arora Vs. Today Homes & Infrastructure Pvt. Ltd. decided on 10.05.2019 that after the promised date of delivery, it is the discretion of complainant whether to accept offer of possession, if any, or seek refund of the amount paid with reasonable interest. In doing so, it relied upon the earlier decision in Emaar MGF Land Ltd. Vs. Amit Puri II (2015) CPJ 568 NC. This decision also contains reference of decision of Hon’ble Supreme Court in Kalkata West International City Vs. Devasis Rudra II (2019) CPJ 29 in which it was held that it was manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession.
11. Counsel for complainant also relied upon another decision of National Commission in CC-2524/17 titled as M/s. Amit Soni Vs. Umang Realtech Pvt. Ltd. decided on 06.03.2019. In the said decision the plea of force majeure taken by OP was rejected. Reliance was placed on decision of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) CPJ 34 in which it was held that terms of the agreement were wholly one sided, unfair and unreasonable.
12. However, counsel for complainant fairly conceded that OP-2 is proforma party. No relief has been claimed against it.
13. The booking was done in 2011. Now, we are in 2020. Nine years have passed. The complainants are justified in seeking refund of their money. Since they were to pay interest @10.5% per annum to the bank/OP-2, I deem it proper to award interest at the said rate to the complainants. Anyhow, relief of direction to pay rent does not appear to be justified. The complainants cannot get double benefit once by way of interest and second time by way of rent. Had the complainants got the possession in time and absolved from paying rent, th
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ey would not have got interest on the amount which is being awarded now. 14. Objection of territorial jurisdiction raised by OP is unfounded as the registered office of OP is in Delhi within the jurisdiction of this Commission. That is sufficient to confer jurisdiction on this Commission. 15. To sum up, OP-1 is directed to pay Rs.29,34,513/- with interest @10.5% per annum from the different dates when the complainants paid the amount till date of refund. The complainant would also be entitled to litigation cost of Rs.1,00,000/-. The order be complied with within 45 days from the date of receipt of copy of this order. 16. Copy of the order be sent to the parties free of cost. 17. File of consigned to Record Room.