1.      Heard Mr. Manoj Kumar Garg, Advocate, for the complainants.   

2.      Mr. Keshav Mittal and Mrs. Shalini Mittal have filed the above complaint for directing both the opposite parties to (i) handover the completion certificate of the project “Lotus Panache” as well as occupancy certificate of Tower 28 and consequently register flat no.304, in favour of the complainants, (ii) pay interest @18% per annum, as penalty, from the promised date till the date of handing over the approvals and certificates as given in point (i) above, (iii) pay Rs.1000000/- as compensation, along with charges for decrease in pro-rata area of the respective unit, (iv) pay delayed compensation and hand over club-house and other amenities as promised, (v) pay Rs.500000/- for mental agony and harassment, (vi) to pay Rs.200000/-as cost of litigation and (vi) any other relief which is deemed fit and proper in the facts of the case. As on today also “occupation/completion certificate could not be obtained as such, the counsel for the complainants prayed for refund of money with interest.

3.      The complainants 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 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, the complainants booked a flat on 17.08.2010 and deposited the booking amount. The opposite parties vide provisional allotment letter dated 08.10.2010, allotted Apartment no.304, Tower-28, admeasuring 2350 sq. ft., total consideration of Rs.8810850/- in the above project and executed Apartment Buyer’s Agreement on 21.10.2010. The payment plan was ‘construction linked payment plan’. As per demand of the opposite parties, the complainants deposited Rs.9530671/- till 12.06.2017. Clause 5.1 of the agreement dated 21.10.2010 provides 39 months’ period from the date of allotment of the apartment for delivery of possession. The aforesaid period was completed on 20.01.2014 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 June 2017. The opposite parties through email dated 02.06.2017, unilaterally changed due date for possession as December, 2016. The complainant gave legal notice dated 08.06.2017, for handing over possession and delay compensation. In spite of service of the notice, the opposite party did not respond. Thereafter, this complaint has been filed on 13.07.2017.

4.      The opposite party no.1 filed its written reply on 29.09.2017 in which allotment of the apartment to the complainants on 08.10.2010, execution of Apartment Buyers Agreement dated 21.10.2010, as well as payments made by the complainants, have not been disputed. Opposite party-1 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.

Opposite party-2 filed its separate written reply on 29.09.2017 and denied its liability for the complainants.

5.      The complainants filed rejoinder reply and affidavits of evidence of Keshav Mittal and Mrs. Shalini Mittal.  The opposite party no.1 filed affidavit of evidence of Mohit Rastogi. The opposite party no.2 filed affidavit of evidence of Mohit Rastogi.  Both the parties have filed their short synopsis of arguments. 

6.      I have considered the arguments of the counsel for the complainants. The facts relating to the booing of the apartment on 17.08.2010, allotment of apartment on 08.10.2010, execution of Apartment Buyers Agreement on 21.10.2010 and payment made by the complainants, have not been disputed. The opposite party-1 has also realized about 95% of consideration till June, 2016. 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 demands, the complainants deposited the instalments on various levels of the construction. Clause 5.1 of the agreement dated 18.08.2011 provides 39 months’ time from the date of allotment for delivery of possession. The period has expired in January, 2014.  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 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.