1.      Heard Mr. Aditya Parolia, Advocate, for the complainant and Mr. Vidit Agarwal, Advocate, for the opposite party.

2.      Amit Goel has filed above complaint for directing Ansal Housing & Construction Limited, (the opposite party) to (i) refund entire amount deposited by the complainant with interest @24% per annum from the date of respective deposits till the date of refund; (ii) pay penalty @Rs.5/- per square foot, per month on super area from 19.03.2017 till the date of refund; (iii) pay interest @10.5% per annum, as paid by the complainant to HDFC Bank on the loan of Rs.7000000/-; (iv) pay Rs.1000000/-, as compensation for mental agony and harassment; (v) pay litigation costs; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that M/s. Ansal Housing and Construction Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “Ansals Highland Park”, at Sector-103, Gurgaon, Haryana, in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainant booked a flat on 17.01.2013 and deposited the booking amount of Rs.700000/-. The opposite party allotted Unit No.1503, saleable area 1940 sq.ft. basic sale price of Rs.9618000/- and executed a Flat Buyer’s Agreement in his favour on 19.03.2013. Annexure-A of the agreement provides payment plan as “construction link payment plan”. As per demand of opposite party, the complainant deposited total Rs.8417330.62/- till 21.03.2017. Clause 31 of the agreement provides 48 months period from the date of execution of agreement, for offer of possession with grace period of six months. The agreement was executed on 19.03.2013 and 48 months period expired on 18.03.2017 and six months grace period expired on 18.09.2017. The opposite party has neither completed the construction nor offered possession of the flat allotted to him although about 90% of basic sale price has been paid. Clause-37 of the agreement provides for penalty @Rs.5/- per sq.ft., per month on super area, for the delayed period, but penalty has also not been paid. The complaint took loan of Rs.70/- lacs from HDFC Bank on the interest @10.5% per annum and paying huge amount toward instalment and interest. As the construction was not proceeding, the complainant gave a legal notice dated 14.12.2017, for refund of his money along with interest but the opposite party did not give any heed to the request of the complainant. Then this complaint was filed on 22.03.2018, alleging deficiency in service.

4.      The opposite party filed written reply on 26.11.2018, in which, booking of the flat by the complainant, allotment of the flat, execution of Flat Buyer’s Agreement in his favour and payments made by him, have not been disputed. The opposite party has taken plea that due to force majeure reasons the construction was delayed; inasmuch as (i) Statutory Authority delayed sanction of layout plan and issued letter for commencement on 16.04.2013 and Environmental Clearance on 15.10.2013. (ii) High Court of Punjab & Haryana passed a restraint order, restraining the builders from using ground water for construction purposes. Due to which, the opposite party had to arrange water from alternate sources, which required carriage of water in tanker. (iii) National Green Tribunal imposed ban on mining operation of sand in State of Haryana and Rajasthan, which created shortage of building material. (iv) In April, 2015, National Green Tribunal stopped construction due to environmental reason. (v) In November, 2016, Government of India demonetized the currency notes of rupees 1000, which created shortage of currency and the contractors as well as labourers were forced to go their village, as due to shortage of currency, the builder was not able to make payment to them. Now the opposite party is proceeding with construction with full swing and trying to complete the project at the earliest. The period as given in Clause 31 of the agreement has to be counted from October, 2013 i.e. the date when Environmental Clearance was received and due date of possession was in April, 2018, while the complaint was filed in March, 2018. The opposite party is entitled for extension of period for above force majeure reasons, which were beyond their control under clauses-31 and 32 of the agreement. The Interest of the buyer has been protected under clause-37 of the agreement and the complainant would be entitled for penalty at the time of final accounting. At this stage when the construction is near completion, the claim for refund is not justified. Preliminary issues that the complainant is not a consumer, the complaint is below the pecuniary jurisdiction of this commission, complaint has been filed under Section-11 and 12 of the Consumer Protection Act, 1986, which is not applicable and agreement contained an arbitration clause, have also been raised.

5.      The complainant has filed Replication, Affidavit of Evidence and Affidavit of Admission/Denial of document of Vijay Kumar Goel and documentary evidence. The opposite party has filed Affidavit of Evidence Vaibhav Choudhary and documentary evidence. Both the parties have filed their short synopsis of arguments.

6.      The counsel for the opposite party submitted that necessary approvals for construction was delayed by statutory authority and letter of commencement was issued on 16.04.2013 and Environmental Clearance was issued on 15.10.2013. 48 months period and six months grace period as provided in Clause 31 have to be counted from November, 2013 and due date of possession as upto April, 2018. Clause-31 is further subject to force majeure reasons. The construction was delayed for force majeure reasons i.e. ban imposed by Punjab and Haryana High Court in use of ground water by the builders for construction purposes, ban imposed by National Green Tribunal on mining operation of sand in State of Haryana and Rajasthan as well as demonetarization of currency notes announced by Government of India in November, 2016. Therefore, period for which, the construction was delayed for force majeure reasons are liable to be excluded from counting for the period of 48 months. In such circumstances, the buyer is not justified to claim refund before due date of possession. 

7.      We have considered the arguments of the counsel for the parties and examined the record. Clause 31 of the agreement provides 48 months period from the date of agreement or from the date of obtaining required sanction & approval necessary for commencement of construction, for delivery of possession. According to the opposite party all the necessary approvals were obtained till 15.10.2013 as such 48 months was completed in October, 2017. Further, the opposite party was entitled for extension of period of force majeure. So far as force majeure reason is concerned, ban imposed by Punjab and Haryana High Court from extracting ground water for construction purposes and ban imposed on mining of sand by National Green Tribunal are concerned, these bans were prior to the date of agreement. Payment plan was “construction linked payment plan”. The opposite party realized the instalments of various levels of construction and up to March, 2017 and about 90% of basic sale price had been realised. Therefore, it is not proved that due to ban imposed by Punjab and Haryana High Court and National Green Tribunal, the construction of the opposite party had been affected or stopped on the spot.

8.      So far as demonetization announced by Government of India in November, 2016 is concerned, it certainty affected the construction work, but its effect was at the most for a period of six months.  Even if this six months is added in the due date of possession, it expired in October, 2018. Till today the opposite party has neither completed the construction nor has obtained occupancy certificate. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Vs. Govind Raghavan, (2019) 5 SCC 725 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.

ORDER

In the result, the complaints are partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment.