1.      Heard Mr. Rakesh Mittal, Advocate, for the complainant.  Nobody appears for the opposite parties. 

2.      Ms. Huma Mirza has filed above complaint for directing the opposite parties to (i) refund Rs.10544918.47p with interest @18% per annum from the date of deposit till the date of refund; (ii) pay Rs.1000000/- as compensation for mental agony and harassment; (iii) pay penalty for malpractice as well as unfair trade practice; (iv) pay costs of litigation; and (v) any other relief which is deemed fit and proper in the facts of the case.

3.      The complainant stated that the opposite parties were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The opposite parties launched a group housing project in the name of “Lotus Panache”, at GH-05, 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 parties, M/s Jupiter International Import Export India Ltd. (predecessor in interest of the complainant) booked a flat on 27.06.2011 and deposited the booking amount. The opposite parties vide allotment letter dated 18.08.2011, allotted Apartment no.1502, Tower-26, admeasuring 2350 sq.ft., in the above project and executed Apartment Buyers Agreement in favour of M/s Jupiter International Import Export India Ltd. on 18.08.2011. M/s Jupiter International Import Export India Ltd. transferred the aforesaid apartment to the complainant with previous permission of the opposite parties and a tripartite agreement between M/s Jupiter International Import Export India Ltd., Upendra Sehra and the complainant was executed on 19.10.2012. The opposite parties made endorsement on 19.10.2012 in Apartment Buyers Agreement dated 18.08.2011, in favour of the complainant. The payment plan was ‘construction linked payment plan’. The complainant including M/s Jupiter International Import Export India Ltd. duly paid the instalments as per demand of the opposite party and paid a total amount of Rs.10544918.47p upto October 2013. Clause 5.1 of the agreement dated 18.08.2011 provides 39 months’ period from the date of allotment of the apartment for delivery of possession. The aforesaid period was completed on 17.11.2014 but the opposite parties have failed to complete the construction and offer possession in spite of the fact that about 95% of the sale consideration was realized by them upto October 2013. As and when the complainant enquired about the date of possession, then some evasive reply used to be given by the opposite party. The complainant gave e-mails dated 14.01.2016 and 07.08.2016.  Thereafter, this complaint has been filed on 22.10.2016. 

4.      The opposite party no.1 filed its written reply on 01.03.2017 in which allotment of the apartment to M/s Jupiter International Import Export India Ltd. on 18.08.2011, execution of Apartment Buyers Agreement dated 18.08.2011 and execution of tripartite agreement dated 19.10.2012 between M/s Jupiter International Import Export India Ltd., Upendra Sehra and the complainant, endorsement in favour of the complainant on 19.10.2012 in Apartment Buyers Agreement dated 18.08.2011 as well as payments made by the complainant including M/s Jupiter International Import Export India Ltd. have not been disputed. Opposite party-1 however, 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 complainant filed Rejoinder Reply and Affidavit of Evidence of Ms. Huma Mirza. 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 complainant. The material facts relating to the booking of the apartment on 27.06.2011 and execution of Apartment Buyers Agreement on 18.08.2011 as well as tripartite agreement dated 19.10.2012 which was duly endorsed by the opposite party as well as payment made by the complainant including the payments made by M/s Jupiter International Import Export India Ltd. have not been disputed. The opposite parties have also realized about 95% of consideration till October 2013. Therefore, the plea of farmers agitation 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 complainant deposited the instalments on various levels of the construction. Clause 5.1 of the agreement dated 18.08.2011 provides 39 months’ time for delivery of possession. However, the complainant is a subsequent transferee as such 39 months period has to be considered from the date on which transfer in favour of the complainant was endorsed. The period has expired on 18.01.2016. There is nothing on record to show that the opposite parties are in position to handover possession till today. 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 parties are directed to refund the entire amount deposited by the complainant 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.