PER SUBHASH CHANDRA 1. This complaint under Section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is filed alleging unfair trade practice and deficiency of service on part of the opposite party in delay in handing over possession of the flat booked by the complainant in the project, “Madelia”, which was being executed by the opposite party. This order will also dispose of Consumer Complaint No. 3293 of 2017 which pertains to the same project and involves the same issues with some factual differences. For reasons of convenience, the facts are taken from CC 3170 of 2017. 2. The facts of the case, in brief, are that on 18.08.2012 the complainant had booked flat no. I-1003, 10th Floor, Block/Tower 1, “Madelia”, Sector M-1A, Manesar, Gurgaon admeasuring super area of 2175 sq ft for a total sale consideration of Rs 87,47,035/-, excluding service tax and paid the initial amount of Rs 5,15,450/-. As per Apartment Buyer Agreement (‘Agreement’) signed between the parties on 23.04.2013, opposite party promised possession within 36 months from that date with a grace period of 6 months subject to force majeure conditions as per Clause 7.1. While the complainant paid Rs 63,65,322/- in instalments by 07.12.2013, the opposite party failed to hand over possession by 24.04.2016 or 23.10.2016 including grace period as per the Agreement. Opposite party informed the complainant vide letter dated 26.09.2014 of delays in construction due to agitations by local villagers and pendency of the matter in Court and that work would commence when construction was permitted to be resumed. Complainant issued a Legal Notice dated 05.09.2017 seeking refund of Rs 63,65,322/- paid by him with interest @ 18% amounting to Rs 51,59,552.79 till 31.08.2017 along with Rs 5,00,000/- towards litigation expenses. In reply dated 29.09.2017 the opposite party conveyed that the Hon’ble Supreme Court had vide its order dated 21.03.2017 directed status quo as the matter was under litigation. The complainant is before this Commission praying to direct the opposite party to: (a) pay a sum of Rs 1,30,24,874/- along with future and pendente lite interest w.e.f. 01.09.2017 @ 18% per annum from the date of each payment till realization; (b) cost of the present complaint be also allowed in favour of the complainant and against the respondent; (c) such other or further relief which this Hon’ble Commission may deem just, fit and proper be also granted in favour of the complainant and against the respondent. 3. The complaint was resisted by way of a Reply by the opposite party denying the averments made by the complainant. Preliminary objections were taken that (i) the complaint was an abuse of process of law and deserved to be dismissed with exemplary costs as per section 26 of the Act as there was no deficiency of service under sections 2(1)(o) and 2(1)(g) attributable to the opposite party; (ii) the complainant had concealed material facts and made statements without any basis to substantiate the same; (iii) in view of Clause 35 of the Agreement the matter was required to be decided through arbitration. 4. On merits, it was contended that licence of the project in question had been obtained by the opposite party from the original licensees in 2009 and transferred to a subsidiary company in 2010 with due approvals of the DTCP, Haryana. However, several Writ Petitions under the lead WP No. 23769 of 2011 (Om Prakask & Ors. Vs. State of Haryana & Ors.) before the High Court of Punjab and Haryana relating to land acquisition of the lands in question, to which the opposite party was not made a party led to a situation of force majeure under Clause 7.1, 7.6 and 19.1 that delayed the project due to reasons that were not attributable to the opposite party. The opposite party kept the allottees including the complainant apprised of the developments vide letter dated 07.11.2014 and thereafter vide letter dated 30.12.2014 also conveyed that the High Court had dismissed the WP on 15.12.2014. However, in view of restraint order dated 24.04.2015 by the Hon’ble Supreme Court in SLP (Civil) No. 5725 of 2015 (Civil Appeal No. 8788 of 2015 – Rameshwar & Ors. Vs. State of Haryana & Ors.) challenging the High Court’s order, which were extended by orders dated 06.10.2015, opposite party again conveyed the legal impediments on 18.05.2015 to the complainant. The Apex Court extended the restraint vide order dated 21.03.2017. Therefore, opposite party contended that the delay was on account of reasons beyond its control and not attributable to it and hence constituted force majeure. The fact of these developments being communicated to the complainant have been maliciously concealed in the complaint according to the opposite party. 5. Parties led their evidence. Opposite party filed his reply and the complaint his rejoinder. Both the counsels filed their written synopsis of arguments. We have heard the rival contentions of the learned counsel for the parties and carefully considered the material on record. 6. Learned counsel for the appellant argued as per the complaint and admitted that the opposite party had informed vide letter dated 26.09.2014 of obstruction in construction by local villagers and in reply to the legal notice about the orders directing status quo dated 21.03.2017 of the Hon’ble Supreme Court in CA No. 8788/2015. However, it was averred that despite being aware of the litigation issues, the opposite party did not convey the same to the complainant or give him the choice to opt out of the project, thereby unjustly leading to the opposite party clandestinely enriching itself. The complainant has therefore alleged unfair trade practice by the opposite party in not undertaking proper due diligence prior to commencement of the project and in raising demands and indulging in unfair trade practices. The receipt of letters claimed to have been dispatched by the opposite party are denied and the right to compensation by way of interest asserted. Complainant admitted that vide judgment dated 12.03.2018, the Hon’ble Supreme Court had categorically held that the HSIDC shall refund the principal amounts to allottees who were given liberty to seek other remedies available under law. As the principal amount stood refunded by the HSIDC on 22.09.2020, the prayer in this complaint was being limited to interest @ 18% p.a. from the date of the deposits till the date of refund by the HSIDC. 7. Per contra, learned counsel for the opposite party argued that the matter stood settled as per the judgment of the Hon’ble Supreme Court in CA No. 8788/2017 as per which the land dispute had been decided and the title in the name of the opposite party had been cancelled and the land vested in State Government i.e. HUDA/HSIIDC who were directed to refund the amounts collected by the opposite party or to take possession of the units as per prevailing rates. Accordingly, reliance was placed on this Commission’s judgments in (i) Madelia Manesar Owners Association Vs Anant Raj Industries Ltd. in CC 2713 of 2017 and (ii) Utkarsh Mishra & Anr. Vs Anant Raj Limited in CC 2677 of 2017 wherein this Commission had dismissed the complaints of allottees similar to that of the complainants herein with liberty to approach the HUDA/HSIIDC for their claims before this Commission. It was argued that claim of refund of the complainant lay against HUDA/HSIIDC as per directions of the Apex Court and not the opposite party. Hence it was contended that the complainant was liable to be dismissed for maintainability. 8. The Hon’ble Supreme Court in CA No. 8788 of 2017 in Rameshwar & Ors. (supra) has held as under: “a. xxxxxxx b. xxxxxxx c. xxxxxxx d. xxxxxxx e. xxxxxxx f. xxxxxxx g. xxxxxxx h. The third parties from whom money had been collected by the builder/private entities will either be entitled to refund of the amount from and out of and to the extent of the amount payable to the builder/private entities in terms of above direction available with the State, on their claims being verified or will be allotted the plots or apartments at the agreed price or present price, whichever is higher. Every such claim shall be verified by HUDA or HSIDC. In cases where constructions have been erected and the entire project is complete or is nearing completion, upon acceptance of the claim, the plots or apartments shall be made over to the respective claimants on the same terms and conditions. Except for such verified and accepted claims the remaining area or apartments will be completely at the disposal of HUDA or HSIDC, as the case may be, which shall be free and competent to dispose of the same in accordance with the prevalent policy and procedure. In order to facilitate such exercise all third parties who had purchased or had been allotted the plots or apartments shall prefer claims within one month from today, which claim shall be verified within two months from today.” 9. In the light of this judgment, it is evident that the remedy of the third parties from whom money had been collected by the builder/opposite party herein in respect of the project in question lies before HUDA/HSIIDC and they were directed to refund on verification of their claims or for allotment of plots/apartments, in case opted for. Admittedly, the principal amount has been received by the complainant pursuant to this order on 22.09.2020. The complainant’s contention is that the claim be considered separately for refund of the principal amount deposited and the claim of interest thereon. As the direction of the Apex Court pertains to the claims of third parties and no distinction has been made in this regard, the same cannot be considered. 10. In view of the above, the complaint is hereby dismissed with liberty to the complainant to file his claim before HUDA/HSIIDC in terms of the directions of the Hon’ble Supreme Court in CC 8788 of 2018. There shall be no order as to costs. Pending IAs, if any, also stand disposed of with this order. 11. CC 3293 of 2017 is also disposed in the same terms as above. | 
