1.      Heard Mr. Amarjeet Singh, Advocate, for the complainants and Ms. Anubha Pruja, Authorised Representative, for the opposite party.

2.      Jitender Kumar and Mrs. Sumitra, the complainants have filed above complaint for directing the opposite party to (i) refund entire amount of Rs.5416029/- with interest @18% per annum from the dates of respective deposit till the date of refund, (ii) pay Rs.500000/-, as compensation for mental agony and harassment, (iii) pay Rs.100000/-, as litigation cost, (iv) to award compensation for unfair trade practice under Section 14(h)(b) of the Consumer Protection Act, 1986 and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that 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 “Ansal Heights, 86”, Sector-86, Gurgaon, Haryana in the year 2011 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainants booked a flat on 30.11.2011 and deposited the booking amount of Rs.600000. The opposite party allotted Unit No.40103, saleable area 1360 sq.ft. for basic sale price of Rs.4645200/- and executed a Flat Buyer’s Agreement in favour of the complainants on 26.12.2012. Annexure-A of the agreement provides payment plan as “construction link payment plan”. As per demand of opposite party, the complainants deposited total amount of Rs.5416029/- till January, 2016. Clause 31 of the agreement provides 42 months period for offer of possession from the date of execution of agreement with grace period of six months. The agreement was executed on 26.12.2012. Forty two months period expired on 25.06.2016 and grace period of six months period expired on 25.12.2016. The opposite party has neither completed the construction nor offered possession of the flat allotted to the complainants although the complainants have paid more than basic sale price. In December, 2017, the complainants visited the office of opposite party and requested to refund their money as the construction was not proceeding, but the opposite party did not give any heed to the request of the complainants. In February, 2018, the complainants again asked the opposite party to refund their money. But their request was not accepted by the opposite party. Then this complaint was filed on 04.04.2018.

4.      The opposite party filed its written reply on 20.07.2018 in which the booking of the flat by the complainants on 30.11.2011, execution of Flat Buyer’s Agreement in their favour on 26.12.2012 and payments made by them have not been disputed. The opposite party has taken plea that due to force majeure reason the construction was on delayed inasmuch as (i) Sanction of the building plan has been delayed by the statutory authority and due to which letter of commencement was issued on 03.09.2013. (ii) High Court of Punjab & Haryana passed a restraint order restraining the builders from using ground water for construction purposes. (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 rupee 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. The period as given in Clause 31 of the agreement has to be counted from 03.09.2013 and due date of possession expired in September, 2017 while the complaint was filed in April, 2018 and there was no unreasonable delay on the date of filing of the complaint. The construction is going on with full spring and likely to be completed, the claim for refund is not justified.

5.      The complainants filed rejoinder reply on 05.10.2018, affidavit of evidence and affidavit of admission denial of Jitender Kumar and documentary evidence. The opposite party filed affidavit of evidence and affidavit of admission denial of Neha Aggarwal and documentary evidence. Both the parties have filed their short synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. Clause 31 of the Agreement provides 42 months period from the date of agreement or from the date of obtaining required sanctions and approval necessary for commencement of construction, for delivery of possession. The opposite party has stated that necessary approvals for construction was delayed by statutory authority and vide letter of commencement issued on 03.09.2013, 42 months period as well as six months grace period as provided in Clause 31 has to be counted and due date of possession was upto 02.09.2017. The complaint was filed on 04.04.2018. At that time there was no unreasonable delay in offer of possession, therefore, the complaint was not maintainable.

7.      Apart from it, the construction was delayed for force majeure reason i.e. ban imposed by Punjab and High Court for use of ground water by the builders for construction purposes and the ban imposed by National Green Tribunal in 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. The period for which the construction was delayed for force majeure reasons are liable to be executed from counting for the period of 42 months. 

8.      So far as force majeure reason is concerned, there is nothing on record to prove that due to the ban imposed by Punjab and High Court for extracting ground water for construction purposes and the ban imposed on mining operation of sand by National Green Tribunal the construction was stopped. The payment plan was “construction linked payment plan”. The opposite party used to realize the instalment of various levels of construction and upto January, 2016 about the entire basic sale price has 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 on the spot.

9.      So far as demonetization announced by Government of India in November, 2016 is concerned, its certainty affected the construction work, but its effect was at the most for a period of six months.  Even this six months period is added in due date of possession, it expired in March 2018. Till today the opposite party has neither completed the construction nor has obtained “occupancy certificate”. It is well settled law that a home buyer cannot be made to wait for possession of the flat for indefinite period.

ORDER

In the result, the complaint is 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.