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

2.      Pradeep Bhartia, Archana Bhartia and Manu Bhartia have filed CC/229/2019 for directing the opposite party to (i) handover possession of the unit allotted to them, complete in all respect as per specification with promised amenities and facilities within 8 months; (ii) pay delay compensation in the form of interest @12% per annum on their 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 amenities and facilities; (v) refund the money illegally realized in the heads of increase in area and 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.27813384/- 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/229/2019, the complainants stated that the opposite party was 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 2015 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. The opposite party provided payment plan as “subvention plan”. Believing upon the representations of the opposite party, the complainants booked Apartment No. 1214, saleable area 4425 sq.ft., basic sale price of Rs.30941884/- Block Eternia, in the said project on 20.04.2015 and deposited booking amount of Rs.100000/-. The opposite party issued Allotment Letter on 12.06.2015 of the said apartment. The complainants took loan of Rs.245/- lacs from ICICI Bank, for payment, for which a tripartite agreement was executed on 15.01.2015. Under the tripartite agreement, the opposite party undertook to indemnify the complainants from any loss due to delay in handing over possession. The complainants deposited Rs.27813384/- by 31.07.2015. Clause-10.4 of Allotment Letter provides that the opposite party shall endeavour to complete construction up to June, 2017 with grace period up to December, 2017. Due date of possession expired but the opposite party did not give any information for possession. The home buyers association of the project held a meeting with the General Manager of the opposite party on 20.08.2017 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 opposite party, through letter dated 09.10.2017, informed that expected date of possession as 30.06.2019. At the time of booking, the complainants were 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. The opposite party again revised Sanctioned Plan 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. In Layout Plan as sanctioned originally, saleable area was 4150 sq.ft. for a 4BHK. By revising layout plan, numbers of the unit have been increased but at the same time saleable area was also increased to 4425 sq.ft. without any basis. 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 06.02.2019, alleging unfair trade practice and deficiency in service.

4.      Nitin Singhal and Sanketa Sunil Pawar have filed CC/1798/2019, for similar relieves. In CC/1798/2019, the complainants stated that they had booked Unit No.1801, tower Catania, super area 2500 sq.ft. on 05.02.2014 and deposited booking amount of Rs.500000/-. The opposite party issued Allotment Letter on 15.02.2014 of the said apartment, in which total consideration of Rs.13287660/- has been mentioned and “flexi payment plan” was provided. Clause-10.4 of Allotment Letter provides that the opposite party shall endeavour to complete construction up to December, 2016 with grace period up to June, 2017. The complainants deposited Rs.12165418/- by November, 2015. Due date of possession expired but the opposite party did not give any information for possession. The opposite party, vide letter dated 31.05.2019, offered possession with demand of Rs.1800358/-. Although there was long delay in offer of possession but no delay compensation was provided. The complainants visited the site and found that construction was still going on. Rest of the allegations are similar to CC/229/2019.

5.      The opposite party filed written replies in the complaints, in which, booking of the flat, allotment of the flat and deposits made by the complainants, 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 sources, 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 and the contractor were 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 under Clause-10.2 of Allotment Letter for which, the construction was stopped. The delay is not deliberate as it is a known fact that delay 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 will complete it till June, 2019. 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/blocked. The road/paths, entry/exit gates are as per sanctioned plan. The project cannot be compared with any other project. By contributing nominal amount, the complainants have booked a luxury apartment under “subvention scheme” and the opposite party has paid Pre-EMI till February 2019 and paid total Rs.7773003/-. Statutory deposits are being realized on pro-rata basis. The taxes are realized in accordance with law. The opposite party did not give any false representation or committed any unfair trade practice or deficiency in service. The complaints are liable to be dismissed.

6.      The complainants filed Rejoinder Reply, Affidavits of Evidence, Affidavits of Admission/Denial of documents of Pradeep Bhartia, Archana Bhartia, Manu Bhartia, Nitin Singhal, Sanketa Sunil Pawar and documentary evidence. The opposite party filed Affidavits of Evidence, Affidavits of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. During arguments, the counsel for the parties informed that “occupation certificate” of Tower Eternia was issued on 31.05.2019 and possession was offered to the complainants on 17.01.2022. The complainants has filed written synopsis.

7.      We have considered the arguments of the counsel for the parties and examined the record. Clause-10.4 of Allotment Letter provides that the opposite party shall endeavour to complete the construction up to June, 2017 with grace period up to December, 2017 in CC/1798/2019 up to June, 2017. Possession was offered to the complainants in CC/229/2019 on 17.01.2022 and to the complainants in CC/1798/2019 on 31.05.2019 as such there is delay in offer of possession. The complainants in CC/229/2019 had made payment under “subvention plan” while the complainants in CC/1798/2019 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 and consequently lockdown was imposed 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.

8.      “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. In the present case, allotment letters were issued on 12.06.2015 and 15.02.2014 respectively as such the orders of National Green Tribunal was in the knowledge of the opposite party. However, 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 in CC/229/2019 are entitled for delay compensation from 01.01.2018 to 16.01.2022 (excluding 18 months). The complainants in CC/1798/2019 are entitled for delay compensation from 01.01.2017 to 31.05.2019.

9.      The complainants have made payment under “subvention payment plan”. A statement of account of ICICI Bank relating to the loan account of the complainants shows that the opposite party had paid Pre-EMI till February, 2019. As such for the purposes of delay compensation, loan amount shall be considered as deposit of the complainants from March, 2019. Since we are granting delay compensation on the loan amount from March, 2019 as such, the opposite party cannot be burdened to pay pre-EMI till offer of possession. 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/1798/2019, the possession was offered on 31.05.2019, as such, the builder is liable to pay delay compensation upto 30.05.2019.

10.    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.

11.    The complainants booked the flat on 20.04.2015 and 05.02.2014 respectively. 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.

12.    In the booking application and the allotment letter, area of the unit of the complainants has been mentioned 4425 sq.ft. As such it cannot be said that saleable area has been increased/decreased.

ORDER

ln view of aforesaid discussion complaints are 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/229/2019 from 01.07.2018 to 16.01.2022 within one month from the date of this judgment (duly adjusting Pre-EMI paid to the bank) and to the complainants in CC/1798/2019 from 01.07.2017 to 30.05.2019. The opposite party is entitled to charge interest @9% per annum on its dues 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, complete in all respect, without any further delay.