1.      Heard Ms. Ankita and Mr. Parmanand Yadav, Advocates, for the complainants.    

2.      Rakesh Zutshi and Mrs. Parvinder Syal Zutsi have filed above complaint for directing the opposite party to (i) deliver the apartment booked by the complainant complete in all respects, in terms of the brochure and the buyers agreement, (ii) pay delayed compensation @18% per annum, from the date of payment till the date of its realisation, (iii) pay Rs.1000000/- as compensation for harassment, mental agony and unfair trade practice carried out by the opposite party, (iv) pay Rs.200000/-, as cost of litigation and (v) any other relief which is deemed fit and proper in the facts of the case. As till today possession has not been offered by the opposite party, the counsel for the complainants argued for refund of money.

3.      The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The opposite party launched a group housing project in the name of “Lotus Panache”, at Sector-110, Noida, District Gautam Budh Nagar, in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainants booked a flat on 23.05.2011 and deposited the booking amount. The opposite party vide provisional allotment letter dated 18.07.2011, allotted apartment no.601, Tower-26, admeasuring 2587 sq. ft., total consideration of Rs.12458030/-, in above project and executed Apartment Buyer’s Agreement on 29.07.2011. The payment plan was ‘construction linked payment plan’. As per demand of the opposite party, the complainant deposited Rs.10620208/- till 09.10.2013. Clause 5.1 of the agreement dated 29.07.2011 provides 39 months’ period from the date of allotment of the apartment for delivery of possession. The aforesaid period was completed on August, 2014 but the opposite party has failed to complete the construction and offer possession in spite of the fact that about 90% of the sale consideration was realized by them upto October, 2013. The complainants have taken loan from Axis Bank, for paying instalment, in the year 2011. The complainants are paying EMI. Whenever the complainants used to inquire about delivery of possession, the opposite party used to give some vague reply. This complaint has been filed on 28.04.2017.

 4.     The opposite party filed its written reply on 08.08.2017 in which allotment of the complainants on 18.07.2011, execution of Apartment Buyers Agreement dated 29.07.2011 and payments made by the complainants, have not been disputed. The opposite party took the plea of force majeure in completion of the project. The opposite party stated that the sanction of the building plan was delayed by the statutory authority, which was sanctioned in May, 2010 and revised on 25.01.2012. Mining of sand was banned in June, 2013, which created shortage of sand. National Green Tribunal, vide order dated 11.01.2013, imposed restrictions from using ground water for construction purpose. The opposite party had to arrange water from alternate sources, which required carriage of water in tanker, due to which, the construction had become slow on the spot. Thereafter, the construction was stopped due to farmers’ agitation, from July 2013 till September, 2013. National Green Tribunal, vide order dated 14.08.2013 stopped construction works within a radius of 10 KM from Okhla Bird Sanctuary, which restriction continued till notification of Eco Sensitive Zone by State of U.P. on 19.08.2015. National Green Tribunal, vide order dated 08.11.2016 stopped construction for a period of one week. Government of India withdrew currency notes of rupees 500/- and 1000/-, on 08.11.2016 which stopped entire construction work as the builder/contractor had no money to pay wages of the labourers, who had migrated to their villages. The construction has been resumed with full spring and likely to be completed in January, 2018. The opposite party is entitled for extension of period for force majeure reasons.

5.      The complainants filed rejoinder reply and affidavit of evidence of Rakesh Zutshi.  The opposite party no.1 filed affidavit of evidence of Mohit Rastogi. Both the parties have filed their short synopsis. 

6.      I have considered the arguments of the counsel for the complainants. The facts relating to the booing of the apartment on 23.05.2011, allotment on 18.07.2011, execution of Apartment Buyers Agreement on 29.07.2011 and payment made by the complainants, have not been disputed. The opposite party has also realized about 90% of consideration till October 2013. Therefore, the plea of force majeure taken by the opposite party is not liable to be accepted inasmuch as it was a construction linked payment plan and as per demand, the complainants deposited the instalments on various levels of the construction. Clause 5.1 of the agreement dated 29.07.2011 provides 39 months’ time from date of allotment for delivery of possession. The period has expired on October, 2014. Till today, the opposite party has not completed the construction nor offered possession. It is well settled that a home buyer cannot be made to wait for indefinite period for possession. 

ORDER

In view of the aforesaid discussion, the complaint is allowed with cost of Rs.50000/-.  The opposite party is directed to refund the entire amount deposited by the complainants along with interest @9% per annum, from the date of respective deposit till the date of refund, within a period of two months from today.