1.      Heard Mr. Anees Mittal, Advocate, for the complainants and Mr. Atul Nigam, Advocate, for the opposite party.

2.      Hitesh Tandon has filed CC/1150/2019 for directing the opposite party to (i) handover possession of the unit allotted to him, complete in all respect as per specification with promised amenities and facilities within 6 months; (ii) pay delay compensation in the form of interest @12% per annum on his deposit from due date of possession till delivery of possession; (iii) pay Rs.6000/- per day, in case the opposite party fails to deliver possession within the time stipulated by this Commission; (iv) pay compensation, if there is any deficiency in the unit, amenities and facilities; (v) refund the money illegally realized in the head of increase in area, in the head of taxes or otherwise; (vi) restrain the opposite party from increasing maintenance charges to the extent of 15% in every year; or in alternative (vii) refund Rs.8754140/- with interest @18% per annum from the date of respective deposit till its realization; (viii) pay Rs.500000/-, as compensation for mental agony and harassment; (ix) pay Rs.100000/- as litigation cost; and (vi) any other relief which is deemed fit and proper in the facts of the case.

3.      In CC/1150/2019, the complainant 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 project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Mahagun Mezzaria”, at Plot No.GH-01/A, Sector-78, Noida, in the year 2011 and made wide publicity of its facilities and amenities. The opposite party advertised that the project would have lush green surroundings with more than 80% open area, high level security inside the gated community including CCTV cameras, sensor boards etc., ample green space including themed landscaped gardens, aromatic garden, healing garden, earthquake resistant structure, project design based on vastu norms and build on an eco-friendly concept with spacious apartments, wooden furnishing, yoga/meditation, palm garden, swimming pool, kid play area, pool, party lawn, youth corner, multi-purpose gardens with water body, basketball court, jogging & cycling tracks, reflexology path, tennis court, etc. Believing upon the representations of the opposite party, the complainant booked Apartment No. 1217, saleable area 2350 sq.ft., basic sale price of Rs.11816545/- Block Valencia, in the said project on 29.03.2012 and deposited booking amount of Rs.1198557/-. The opposite party issued Allotment Letter on 28.05.2012 of the said apartment. The complainant opted for “construction link payment plan”. As per demand, the complainant deposited Rs.8754140/- by 14.12.2015. Clause-10.4 of Allotment Letter provides that the opposite party shall endeavour to complete construction up to 30.06.2016 with grace period up to December, 2016. Due date of possession expired but the opposite party did not give any information for possession. The complainant, through email dated 06.09.2017, sought for various clarifications. The opposite party, through letter dated 09.10.2017, informed that expected date of possession as 30.06.2019. The home buyers association of the project held a meeting with the General Manager of the opposite party on 03.11.2017 and discussed the issues of delay in possession, increase in FAR by revising layout plan without consent of the buyers, payment of GST, construction of commercial complex, non-payment of delay compensation etc. The association also gave a detail representation dated 28.03.2018, on the above issues. Then a meeting was held on 07.06.2018, in which, the various demands were accepted and payment was assured. Minutes of meeting were also recorded but nothing was done. As the opposite party was not responding the various issues and the construction was also delayed unreasonably, the complainant stopped payment. The opposite party, through letter dated 08.04.2019, cancelled the allotment of the complainants. The complainant sent an email dated 01.05.2019 for revoking the cancellation of allotment but it was not responded. At the time of booking, the complainant was shown Layout Plan as sanctioned vide Letter No.Noida/MVN/III-272/504 dated 02.03.2012, in which FAR was 2.75 and total dwelling units were 570 were shown. The opposite party revised Sanctioned Plan vide Letter No.Noida/MVN/III-272/553 dated 31.08.2012, in which FAR was increased to 2.89 and total dwelling units were increased to 700 and again vide Letter No.Noida/MVN/2016/III-272/888 dated 13.04.2016, in which FAR was increased to 3.54 and total dwelling units were increased to 718. By increasing total number of units from 570 to 718, the opposite party has illegally created density upon common amenities and facilities. The opposite party has constructed commercial complex for outsiders due to which, few roads were blocked and numbers of entry and exit gates have been reduced and thereby made the project as non-luxury project. The complaint was filed on 01.07.2019, alleging deficiency in service.

4.      The opposite party filed written reply on 30.08.2019, in which, booking of the flat, allotment of the flat and deposits made by the complainant, have not been denied. The opposite party stated that the construction was delayed due to force majeure reasons i.e. (i) National Green Tribunal, vide order dated 11.01.2013, restricted the builders in Delhi NCR from using ground water for construction purpose. Due to which, the opposite party had to arrange water from alternate source, which required carriage of the water in tanker and the construction has become slow and cost has been increased. (ii) National Green Tribunal, vide order dated 17.09.2013, stopped construction of the buildings within a radius of 10 KM from Okhla Bird Sanctuary. This ban continued till the notification of Eco Sensitive Zone by State of U.P. on 19.08.2015. (iii) Government of India demonetized currency notes of 500 and 1000 vide notification dated 08.11.2016, which created paucity of cash, even in the banks also. The opposite party/contractor was not in position to make payment to the labourer. Due to which, the labourers migrated to their village and the construction was stopped for about six months. (iv) The opposite party engaged M/s. JMC (India) Ltd. for construction of the building, who has delayed construction. (v) Government of India has imposed GST since July, 2017, which has direct impact on the cost of the construction. The opposite party is entitled for extension of period, for which, the construction was stopped, under cause-10.2 of Allotment Letter. The delay is not deliberate as it is a known fact that delays in civil construction work used to increase the cost of materials and labours. After constitution of UPRERA, the project was registered with it and the opposite party has given tentative date for completion of the project as June, 2019. The opposite party is proceeding with the construction with full spring and is near completion of the project. Under clause 4.4 of the Allotment Letter, the buyers have given their assent to carry out further construction, in case of any change in FAR. The revised layout plan has been sanctioned by Statutory Authority and FAR has been increased. Due to revision of map on 13.04.2016, 18 units have been increased and the nature of the project is still a luxury project. It has been denied that promised amenities and facilities and sizes of internal roads/paths have been reduced or entry/exit gates have been reduced. The road/paths, entry/exit gates are as per sanctioned plan. The project cannot be compared with any other project. Statutory deposits were realized on pro-rata basis and taxes are realized in accordance with law. The opposite party has not given any false representation or committed any unfair trade practice or deficiency in service. The complainant was defaulter in payment of instalments from very beginning and used to deposit instalment after issuing reminders. Demand was raised of the instalment “on laying of 12^th floor roof” through letter dated 20.01.2015. After several reminders, it was deposited on 30.11.2015. Thereafter, demands “on completion of 18^th floor casting” was raised on 16.04.2015, “on completion of 28^th floor casting” was raised on 03.10.2015 and “on flooring/internal plaster” was raised on 14.11.2016. But the complainant did not deposit these instalments, inspite of various reminders. The opposite party issued pre-cancellation notices dated 11.05.2017, 12.06.2017, 12.07.2017, 17.08.2017 and final notice dated 04.03.2019 but the complainant did not turn up. Then the allotment was cancelled through letter dated 09.04.2019. The complainant is no more consumer of the opposite party. The complaint is liable to be dismissed.

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Hitesh Tandon and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

6.      Anish Kalucha and Mamta Kalucha have filed CC/1264/2019 on similar allegations and for similar reliefs. They booked Unit No.1803, super area 2500 sq.ft., total price of Rs.12820974/- in the project “Mahagun Mezzaria”, on 09.12.2013. The opposite party issued Allotment Letter dated 08.03.2014, in which payment plan was given as “construction link payment plan”. Clause-10.4 of allotment letter provides that construction will be completed and possession be offered till 31.12.2016 with grace period upto 30.06.2017. As per demand, the complainant deposited total Rs.12636387 till 22.06.2017.

          The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Anish Kalucha and Mamta Kalucha and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis. 

7.      Sahil Makkar and Yash Makkar have filed CC/1345/2019 on similar allegations and for similar reliefs. They booked Unit No.2403, super area 2350 sq.ft., total price of Rs.13388363/- in the project “Mahagun Mezzaria”, on 15.09.2012. The opposite party issued Allotment Letter dated 22.10.2012, in which payment plan was given as “down payment plan”. Clause-10.4 of allotment letter provides that construction will be completed and possession be offered till 30.06.2016 with grace period upto 31.12.2016. The complainants took loan from Housing Development Finance Corporation Limited and deposited total Rs.11970187 till 30.11.2012 and balance amount was payable on offer of possession.

          The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Sahil Makkar and Yash Makkar and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

8.      Sushma Gupta, A.K. Gupta and Anshul Gupta have filed CC/1654/2019 on similar allegations and for similar reliefs. They booked Unit No.1203, super area 2350 sq.ft., total price of Rs.14197459/- in the project “Mahagun Mezzaria”, on 17.10.2012. The opposite party issued Allotment Letter dated 03.11.2012, in which payment plan was given as “flexi payment plan”. Clause-10.4 of allotment letter provides that construction will be completed and possession be offered till 30.06.2016 with grace period upto 31.12.2016. The complainants deposited total Rs.14267666/- till 29.12.2016. The opposite party paid Rs.12500/- on 21.04.2017, as delay compensation. The opposite party issued letter of offer of possession on 31.05.2019 with various demands. The complainants visited the site and found that the construction was incomplete. The complainants through email dated 13.08.2019, pointed out deficiencies in  construction to the opposite party.

          The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Sushma Gupta, A.K. Gupta and Anshul Gupta and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

9.      Abhishek Goel has filed CC/1655/2019 on similar allegations and for similar reliefs. He booked Unit No.2916, super area 2350 sq.ft., total price of Rs.13334957/- in the project “Mahagun Mezzaria”, on 13.08.2012. The opposite party issued Allotment Letter dated 06.09.2012, in which payment plan was given as “down payment plan”. Clause-10.4 of allotment letter provides that construction will be completed and possession be offered till 30.06.2016 with grace period upto 31.12.2016. The complainant took loan from Housing Development Finance Corporation Limited deposited total Rs.12228412/- till 03.10.2012. Balance amount was on offer of possession. The opposite party issued letter of offer of possession on 31.05.2019 with various demands. The complainant visited the site and found that the construction was incomplete. The complainant through email dated 25.07.2019, pointed out deficiencies in  construction to the opposite party.

          The complainant filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Abhishek Goel and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

10.    We have considered the arguments of the counsel for the parties and examined the record. So far as cancellation of allotment of Hitesh Tandon is concerned, the opposite party has not returned his money after cancellation. Hitesh Tandon has already deposited Rs.8754140/- out of total price of Rs.11816545/-. Total money cannot be forfeited on cancellation of the allotment as such relation of the consumer and service provider between them has not come to an end. However, the opposite party is entitled to realize interest @9% per annum on the balance amount from the date of default till the date of deposit.

11.    Clause-10.4 of Allotment Letter provides that the opposite party shall endeavour to complete the construction up to June, 2016 with grace period up to December, 2016. Possession was offered to the complainants in CC/1654/2019 and in CC/1655/2019 on 31.05.2019 as such there is delay in offer of possession. Some of the complainants had made payment under “subvention plan” while some of the complainants had made payment under “construction link payment plan”. The opposite party took plea that delay has occurred due to “force majeure” reasons. According to the opposite party, the restraint order of National Green Tribunal from using ground water in construction work has affected the speed of the construction. During 14.08.2013 to 19.08.2015, National Green Tribunal stopped the construction. Demonetization of currency notes of 500 and 1000 in the country created a lot of shortage of cash in the bank due to which, the work was stopped for a period of six months as the labourers were migrated to their village. After, obtaining “occupancy certificate”, finishing works were going on but Covid-19 spread in the country due to which again work was stopped from March, 2020. As such offer of possession was delayed and the period for which, the opposite party had to stop construction, is liable to be extended under clause-10.2 of the Allotment letter.

12.    “Force majeure” has been statutorily recognised under Section 60 of the Contract Act, 1872. Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285, held that where reference is made to “force majeure”, the intension is to save the performing party from the consequences of anything over which he has no control. The opposite has been realizing the instalments during the period of the orders of National Green Tribunal, as such it is not liable to be accepted that they had stopped construction due to order of Nation Green Tribunal. The opposite party is entitled for extension of six months period due to demonetization and one year period due to Covid-19. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512 and DLF Homes Developers Ltd. Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537, held that interest @6% per annum on the deposit of home buyer from due date of possession till the date of offer of possession, was just delay compensation. The complainants, who have made payment under “subvention payment plan” and the opposite party had paid Pre-EMI, then amount of Pre-EMI paid by the opposite party is liable to be adjusted in delay compensation.

13.    Clause-9.1 of Allotment Letter provides that the maintenance charges shall become applicable/payable after 30 days from the date of issue of notice of possession, irrespective of whether physical possession had been taken or not. Under clause-9.5 of the allotment letter, the opposite party has liability to maintain all common facilities and amenities for a period of 36 months from the date of completion or till formation of resident’s welfare association. Since the opposite party was maintaining common facilities and amenities as such it is entitled to realize maintenance charges as per clause-9.1. The complainants have not stated that anyone else was maintaining common facilities and amenities. Judgment of Supreme Court in Civil Appeal No.4690 of 2022 Utpal Trehan Vs. DLF Home Developers Ltd. (decided on 11.07.2022) has no application in the present case.

14.    The complainants booked the flat after 31.08.2012. Layout Plan was sanctioned vide Letter No.Noida/MVN/III-272/504 dated 02.03.2012, in which FAR was 2.75 and total dwelling units were 570 were shown, revised vide Letter No.Noida/MVN/III-272/553 dated 31.08.2012, in which FAR was increased to 2.89 and total dwelling units were increased to 700 and again revised vide Letter No.Noida/MVN/2016/III-272/888 dated 13.04.2016, in which FAR was increased to 3.54 and total dwelling units were increased to 718. The complainants stated that by increasing total number of units from 570 to 718, the opposite party has illegally created density upon common amenities and facilities without consent of the buyers. After booking by the complainants total 18 units were increased. Under clause 4.4 of the Allotment Letter, the buyers have given their assent to carry out further construction, in case of any change in FAR. On the basis of this consent, the opposite party revised the layout plan. After raising construction, the buyers cannot be permitted to raise a plea against their consent, after nearly four years of the consent.

15.    Supreme Court in Ireo Grace Realteck Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held that if possession is offered after obtaining “occupation certificate” then the buyer is under contractual obligation to take possession. So far as deficiency in furnishing/construction is concerned, this may be a deficiency in service, but for this reason the amount required to be deposited at the time of offer of possession cannot be withheld.  As usually the builder used to furnish the flat after deposit of last instalment payable on offer of possession. In CC/1654/2019 & CC/1655/2019, the possession was offered on 31.05.2019, as such, the builder is liable to pay delay compensation from 01.07.2017 till 30.05.2019. Other complainants are entitled for delay compensation from 01.07.2018 till offer of possession.

ORDER

ln view of aforesaid discussion complaint is partly allowed. The opposite party is directed to issue fresh statement of account giving delay compensation in the form of interest @6% per annum on the deposit of the complainants in CC/1150/2019, CC/1264/2019 and CC/1345/2019 from 01.07.2018 till offer of possession and in CC/1654/2019 and CC/1655/2019 from 01.07.2017 till 30.05.2019, within one month from the date of this judgment. The opposite party is entitled to charge interest @9% per annum on its dues, in CC/1150/2019 from the date of default and in other case from the date of offer of possession and maintenance charges from the date after expiry of 30 days from offer of possession. If the amount is payable by the opposite party, then the opposite party shall pay it along with statement of account. On issue of fresh statement of account/demand, the complainants will deposit it within one month, if any amount is payable by them. The opposite party then execute conveyance deed and handover possession of the flats allotted to the complainants, complete in all respect, without any further delay.