These consumer complaints have been filed under section 21 (1) (a) of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the opposite party M/s Nexgen Infracon Pvt. Ltd. alleging deficiency in service and unfair trade practice in respect of the apartment booked by the complainants in a project promoted  and executed by the opposite party.

2.     By this common order, all the above-mentioned complaints are proposed to be disposed since they relate to the same project ‘Mahagun Mezzaria’ of the same opposite party viz., M/s Nexgen Infracon Pvt. Ltd and involve the same set of facts. For the sake of convenience, the facts are taken from Consumer Complaint No.55 of 2019.

3.     The facts, in brief in Consumer Complaint No.55 of 2019, are that the complainant had booked a residential flat with the Opposite Party in “Mahagun Mezzaria” on Plot No.GH-01/A, Sector-78, Noida, U.P. on 30.03.2012 based on wide publicity of its facilities and amenities. A booking amount of Rs.5 lakhs was paid to the Opposite Party. Vide allotment letter dated 24.05.2012, the complainant was allotted Unit No. 718 on 7^th floor in Tower/Block  “Valencia”  with approx. super area of 2350 sq.ft. for a total sale consideration of Rs.90,19,626/- and  a ‘Flexi Payment Plan’ was provided.  As per Clause 10.4 of the Allotment Letter, possession of the unit was to be delivered to the Complainant before expiry of 42 months i.e. by 30.06.2016 from the date of completion of raft, or, on or before December, 2012 whichever is earlier, subject to force majeure circumstances. However, if the Opposite Party  failed to handover possession even upon expiry of a period of 48 months i.e. by 31.12.2016 from the date of completion of raft or on or before 31.12.2012, whichever is earlier, it undertook pay the allottees a sum of Rs.5/- per sq.ft/month (Rupees Five only per sq.ft) for the delay attributable to its inability to hand over the said apartment beyond expiry of a period of 48 months i.e. by 31.12.2016 from the date of completion of raft, or, on before 31.12.2012, whichever is earlier. The Opposite Party had paid a penalty of Rs.12,500/- for delay in possession of the unit to the complainant for the month of January 2017. The complainant submitted that he had made a total payment of Rs.86,01,195.56/- by 02.10.2018 by way of instalments. The Opposite Party vide letter dated 17.04.2017 informed the complainant that the area of the unit booked by him had been increased from 2350 sq.ft. to 2500 sq.ft. and asked the complainant to accept and acknowledge the same by 25.05.2017. The complainant, through their Allottees’ group, vide email dated 06.09.2017, sought various clarifications on penalties due to delay in possession, increased in area and copy of approved plan as on date of booking. The Opposite Party, vide email dated 9.10.2017, accepted delay and revised the date of completion of project to 30.06.2019. It was stated by the Opposite Party that penalty for delay in handing over the possession would be adjusted at the time of possession formalities. Regarding the increase in area, it was stated that actual saleable area would be decided once the construction was completed. The Home Buyers Association of the project held a meeting with 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. On 28.03.2018, the complainant again raised issues such as increase in FAR, saleable area, GST, safety concerns, maintenance charges, etc. Thereafter, at a meeting of the Allottees’ group with Opposite Party on 07.06.2018 it was decided that (i) due to the concern of the apartment owners and in the interest of closure of the issue, Opposite Party would charge @50% of the price mentioned in the agreement of that apartment and (ii) flats for which OC has not been applied by 31.12.2018, penalty @ 10/- per sq.ft. would be offered w.e.f. 01.01.2019 or Rs.2 crore additional expenditure shall be done by OP on the project. 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 number of dwelling units were shown as  570.  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. According to the complainant, by increasing total number of units from 570 to 718, the Opposite Party had illegally created density upon common amenities and facilities. The grievance of the complainant is that even after payment of 95% of the total consideration and despite the Occupancy Certificate (OC) being received, no offer of possession had been issued to him. The complainant is, therefore, before this Commission with the following prayers:-

1. Direct the Opposite Party to handover possession of the booked Unit to the Complainant, complete in all respects and in conformity with the Allotment Letter / Brochure / Agreed Drawings/Specifications and for the consideration mentioned therein, with all additional facilities and as per quality standards promised and execute all necessary and required documents in respect of the said Unit in favor of the Complainant within 8 (eight) months of this Complaint being filed before this Hon'ble Commission or as this Hon'ble Commission deems fit and appropriate;

(ii)      Direct the Opposite Party, jointly or severally, to pay interest @ 12% per annum on the amount deposited by the Complainant with the Opposite Party, with effect from the date of delivery promised in the Allotment Letter, till the date of actual possession as per clause (i) above is handed over by the Opposite Party along with all necessary documents and common areas and facilities as promised during the initial booking made by the Complainant;

(iii)     Direct the Opposite Party to pay INR. 6,000/- (Rupees Six Thousand only) per day to the Complainant in case of failure to provide the possession within the stipulated time as directed by this Hon'ble Commission;

(iv)     Direct the Opposite Party to not claim the price for unwarranted /illegal / wrongful increase in area;

(v)      Direct the Opposite Party to confine the use of amenities and commercial shops, etc. in the Project for the use of the Residents of the Project only, as promised to the Complainant at the time of booking the Unit;

(vi)     Direct the Opposite Party to compensate the Complainant for the increase in Registration Charges from 5% to 7% which the Complainant has to pay at the time of Registration;

(vii)    Direct the Opposite Party to not increase the Maintenance Charges by 15% every year and increase the said charges maximum by the inflation rate published by the Government of India;

(viii)    Direct the Opposite Party to refund the amount of INR. 3,863/- (Rupees Three Thousand Eight Hundred and Sixty Three only) wrongly charged as Service Tax against parking charges paid before service tax became applicable on parking with an interest of 12% from the date of receipt of payment made to the Opposite Party.

(ix)     Direct the Opposite Party to compensate the Complainant for downgrade of the Project from a Luxury Project and consequent devaluation of the value of the unit by paying an amount in proportion to the total cost of the unit and increase in FAR along with 12% interest per annum;

(x)      Direct the Opposite Party to compensate the Complainant for the increase in taxes from 3% Service Tax to 12% GST which the Complainant has to pay for future payments;

(xi)     Direct the Opposite Party to pay compensation of INR. 5,00,000/- (Rupees Five Lakh only) to the Complainant for mental agony, harassment, discomfort and undue hardships caused to the Complainant as a result of the above acts and omissions on the part of the Opposite Party;

(xii)    Direct the Opposite Party to pay a sum of INR. 1,00,000/- (Rupees One Lakh only) to the Complainant in the Project towards litigation costs;

(xiii)    That any other and further relief in favour of the Complainant as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.

4.     In Consumer Complaint No.228 of 2019 the complainant has filed similar allegations and sought similar reliefs. She booked a residential flat on 25.02.2012 by paying the booking amount of Rs.10,000/- in the project “Mahagun Mezzaria” at Plot No.GH-01/A, Sector-78, Noida, U.P. and was allotted Unit No.917 on 9^h floor of Tower ‘Valencia’ with super area of 2350 sq.ft. for a total sale consideration of Rs.88,87,603/-with ‘Flexi Payment Plan’.  The Opposite Party issued Allotment Letter on 24.05.2012 of the said apartment. As per Clause 10.4 of the said allotment letter, the Opposite Party committed the date of possession of the unit to the complainant by 30.06.2016 with grace period of 06 months i.e. by 31.12.2016. The Opposite Party vide letter dated 20.04.2017, had paid a penalty of Rs.12,500/- for delay in possession of the unit to the complainant for the month of January 2017. The grievance of the complainant is that despite being Occupancy Certificate received, no offer of possession has been issued.  The Complainant had already made a total payment of Rs.84,81,983/- till 22.10.2018 to the Opposite Party.

5.     Consumer Complaint No.1235 of 2019, has been filed on similar allegations and for similar reliefs. On 05.04.2017, complainants booked Unit No.1615 on 16^th floor in ‘Eternia’ Tower with an approximate saleable area of 4425 sq.ft. by paying the booking amount of Rs.25,00,000/- for a total consideration of Rs.2,31,07,041/- in the project “Mahagun Mezzaria” with ‘Down Payment Plan’.  The opposite party issued Allotment Letter on 27.05.2017 of the said apartment. Clause 10.4 of the allotment letter provides that construction will be completed and possession be offered by  31.12.2018. The complainants have taken a home loan from HDFC Bank for Rs.1,90,00,000/-.The offer of possession was issued on 31.05.2019 along with final statement of account to pay the balance amount of Rs.28,07,661/- and to complete the formalities. The Complainant had already made a payment of Rs.2,09,85,632/- till 28.06.2017 to the Opposite Party.

6.     Complainants in Consumer Complaint No.1292 of 2019 have filed the complaint on similar allegations and for similar reliefs. They booked a residential flat on 25.03.2013 by paying the booking amount of Rs.23,11,433/- in the project “Mahagun Mezzaria” at Plot No.GH-01/A, Sector-78, Noida, U.P. and were allotted Unit No.117 on 1^st floor of Tower ‘Valencia’ with super area of 2350 sq.ft. for a total sale consideration of Rs.1,54,90,850/-with ‘Flexi Payment Plan’.  The opposite party issued Allotment Letter on 09.04.2013 of the said apartment. As per Clause 10.4 of the said allotment letter, the Opposite Party committed the date of possession of the unit to the complainant by 31.12.2016 including grace period of 06 months. The Complainant had already made a payment of Rs.1,47,38,846/- till 17.03.2017 to the Opposite Party. The complainants have taken a home loan from Punjab National Bank of India in 2013 which was subsequently transferred to Industrial Development Bank which was finally transferred to ICICI Home Finance for Rs.66,65,000/-.The Opposite Party vide letter dated 21.04.2017, had paid a penalty of Rs.14,000/- for delay in possession of the unit to the complainant for the month of January 2017. The offer of possession was issued vide letter dated 31.05.2019 along with final statement of account to pay the balance amount of Rs.50,13,681/- and to complete the formalities.

7.     Complainants in Consumer Complaint No.1315 of 2019 filed the complaint on similar allegations and for similar reliefs. They booked a residential flat on 21.12.2014 in the project “Mahagun Mezzaria” at Plot No.GH-01/A, Sector-78, Noida, U.P. They were allotted Unit No.703 on 7^th floor in Tower ‘Catania’ with super area of 2500 sq.ft. for a total sale consideration of Rs.1,71,11,965/-with ‘Special Payment Plan’.  The opposite party issued Allotment Letter on 09.01.2015 of the said apartment. As per Clause 10.4 of the said allotment letter, the Opposite Party committed the date of possession of the unit to the complainant by  31.12.2017 including grace period of 06 months. The complainants have taken a home loan from ICICI Bank for Rs.95,00,000/-. The offer of possession was issued on 31.05.2019 along with final statement of account to pay the balance amount of Rs.59,83,358/- and to complete the formalities. The Complainant had already made a total payment of  Rs.1,19,59,187/- till 09.03.2016 to the Opposite Party.

8.     Complainants filed Consumer Complaint No.1346 of 2019 on similar allegations and for similar reliefs. They booked a residential flat on 27.12.2012 by paying the booking amount of Rs.15,78,750/- in the project “Mahagun Mezzaria” at Plot No.GH-01/A, Sector-78, Noida, U.P. and were allotted Unit No.818 on 8^h floor of Tower ‘Valencia’ with super area of 2350 sq.ft. for a total sale consideration of Rs.1,57,87,501/-with ‘Flexi Payment Plan’.  The opposite party issued Allotment Letter on 15.01.2013 of the said apartment. As per Clause 10.4 of the said allotment letter, the Opposite Party committed the date of possession of the unit to the complainant by 30.06.2016 with grace period of 06 months i.e. by 31.12.2016. The offer of possession was issued on 31.05.2019 along with final statement of account to pay the balance amount of Rs.19,11,301/- and to complete the formalities.  The complainants have taken a home loan from HDFC Bank for Rs.1,25,00,000/-.The Complainant had already made a total payment of  Rs.1,58,60,621/- till 31.05.2019 to the Opposite Party.

9.     Complainant filed Consumer Complaint No.1467 of 2019 on similar allegations and for similar reliefs. He booked a residential flat on 19.10.2013 in the project “Mahagun Mezzaria” at Plot No.GH-01/A, Sector-78, Noida, U.P. He was allotted Unit No.1720 on 17^th floor in Tower ‘Ferrera’ with super area of 2500 sq.ft. for a total sale consideration of Rs.1,43,34,222/- with ‘Down Payment Plan’.  The opposite party issued Allotment Letter on 22.11.2013 of the said apartment. As per Clause 10.4 of the said allotment letter, the Opposite Party committed the date of possession of the unit to the complainant by  30.06.2016 with grace period of 06 months i.e. by 31.12.2016. The Opposite Party, vide letter dated 20.04.2017, had paid a penalty of Rs.12,500/- for delay in possession of the unit to the complainant for the month of January 2017. The complainants have taken a home loan from HDFC Bank for Rs.1,25,00,000/-. The Complainant had already made a total payment of  Rs.1,43,40,143/- till 25.01.2017 to the Opposite Party.

10.   Consumer Complaint No.1557 of 2019 was filed by complainants on similar allegations and seeking similar reliefs. On 11.12.2013, they booked Unit No.915 on 9^th floor in ‘Eternia’ Tower with super area of 4425 sq.ft. for total cost of Rs.2,65,99,976/-in the project “Mahagun Mezzaria” with ‘Flexi Payment Plan’. The opposite party issued Allotment Letter on 25.06.2014 of the said apartment. Clause 10.4 of the allotment letter provides that construction will be completed and possession be offered by 31.12.2016 with grace period upto 30.06.2017. Vide application dated 09.09.2016, the complainants sought to change the unit from 915 to 914 in the same tower and on the same floor. The Opposite Party executed the new allotment letter dated 09.09.2016 and the complainant opted ‘Flexi Payment Plan’. As per clause 10.4 of the new allotment letter, the Opposite Party was obligated to handover possession of the unit to the complainants by 31.12.2017 instead of 31.12.2016, (the date mentioned in the earlier Allotment Letter) with a grace period of 06 months i.e. by 30.06.2018. The total consideration of the unit as per the payment plan was Rs.2,66,32,966/-. The complainant have taken a home loan from HDFC Bank for Rs.1,50,00,000/-. On 31.05.2019, the Opposite Party after delay of almost three years sent offer of possession along with final statement of account to pay the balance amount of Rs.26,62,519/- and to complete the formalities. The Complainants had already made a payment of  Rs.2,52,91,265/- by 09.09.2016 to the Opposite Party. The complaint was filed alleging deficiency in service.

11.    The details of the allotments made to the complainants in the above cases are summarised in table below:

12.   The complainant filed his rejoinder. Parties led their evidence and filed written submissions except in Consumer Complaint No. 1235 of 2019. Heard Mr. Aneesh Mittal for complainants in CC Nos.55, 228, 1292, 1315, 1346 and 1467 of 2019 and Ms. Priya, Proxy Counsel having authority letter in CC No.1557 of 2019 as well as Mr. Atul Nigam, representing Chamber of Nigam and Nigam on behalf of the Opposite Party. His Vakalatnama is not on record. However, the learned counsel for the complainant has no objections to this. None appears for the complainants in CC No.1235 of 2019. It was submitted on behalf of the Opposite Party in CC No.1235 of 2019 that permission has been granted for the transfer of the flat to Mr. Arnim Agarwal, complainant. I also considered the material on record carefully.

13.   It is the case of the complainant that as per allotment letter, the Opposite Party committed to develop the project in accordance with the  sanctioned plan issued by NOIDA. The number of units were increased from 570 dwelling units with FAR 2.75 unilaterally to 718 flats with FAR of 3.54. Thus, the Opposite Party had decreased the facilities and common area available for each flat. Further, the Opposite Party had failed to deliver possession of the unit within the promised time and had also failed to complete the construction of the project till date. It is also contended that in view of the delay, the complainants are not required to pay holding charges to the opposite party. Learned Counsel for the Complainants relied on the judgement of the Hon’ble Apex Court in Wg. Cdr.Arifur Rahman Khan & Aleya Sultana Vs. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512 as well as on this Commission’s order in Gaurav Jain & Anr. Vs. Emaar MGF Land Ltd. Consumer Complaint  No.393 of 2020, M.M. Goyal & Anr. Vs. Omaxe Forest Spa and Hills Developers Ltd. Consumer Complaint  No.297 of 2018, Hitesh Tandon Vs.  M/s Nexgen Infracon Private Limited. Consumer Complaint  No.1150 of 2019;  Anish Kalucha & Anr. Vs. M/s Nexgen Infracon Private Limited Consumer Complaint No. 1264 of 2019; Sahil Makker & Anr. Vs.  M/s Nexgen Infracon Private Limited. Consumer Complaint No.1345 of 2019 and Sushma Gupta & Ors. Vs.  M/s Nexgen Infracon Private Limited., Consumer Complaint No.1654 of 2019 and Abhishek Goel Vs.  M/s Nexgen Infracon Private Limited., Consumer Complaint No.1655 of 2019 decided on 10.05.2023 to contend that in case of delayed possession, the Opposite Party is liable to pay simple interest @ 6% p.a.

14.   Reliance was also placed by the Learned Counsel for the Complainants on judgement of Hon’ble Supreme Court in of M/s Nexgen Infracon Pvt. Ltd.  Vs. Manish Kumar Sinha & Anr., in Civil Appeal No.62 of 2021, M/s Nexgen Infracon Pvt. Ltd.  Vs. Neetu Pahuja & Anr.in Civil Appeal No.64 of 2021, M/s Nexgen Infracon Pvt. Ltd.  Vs. Shishir Kumar Agarwal & Anr., in Civil Appeal No.65 of 2021 decided on 11.01.2021 and this Commission’s orders in Manish Kumar Sinha & Anr. Vs. M/s Nexgen Infracon Pvt. Ltd., in CC No.1606 of 2018 decided on 23.12.2019 and Anil Kumar Jain & Anr. Vs. M/s Nexgen Infracon Private Limited in CC No. 1605 of 2018 dated 23.12.2019 wherein Opposite Party was directed to issue fresh statement of account giving delay compensation in the form of interest @ 6% per annum on the deposit of the complainants from the due date of possession till offer of possession.

15.   Upon service of notice, the Opposite Party filed written replies in the complaints, in which booking and allotment of the flat and deposits made by the complainants have not been denied. However, it is contended that there has been no deficiency in service as alleged. There was no intentional delay on the part of the Opposite Party to deliver possession. The offer of possession itself explains the version of the Opposite Party that there has never been any intent to delay since immediately on completion of the flat, offer of possession was made to the complainants. On the contrary, the complainants despite being aware of all the facts and circumstances, had ignored to take possession of the flats. The reasons for delay the construction are stated to be  force majeure reasons i.e. (i) National Green Tribunal (NGT)’s, order dated 11.01.2013 which restricted 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 tankers and the construction became slow and cost increased; (ii) NGT’s order dated 17.09.2013 banned construction of the buildings within a radius of 10 KM from Okhla Bird Sanctuary which 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 Rs.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 resulting in migration of labourers to their village and construction was stopped for about six months; (iv) the opposite party engaged M/s. JMC (India) Ltd. for construction of the building, who delayed construction; (v) Government of India imposed GST from July, 2017, which had a direct impact on the cost of the construction. It is contested that the opposite party is entitled for extension of period for the duration of stoppage, under clause 10.2 of Allotment Letter. The delay is not deliberate. Delays in civil construction increased the cost of materials and labour. The Opposite Party is proceeding with the construction at full speed and is nearing completion of the project. Under clause 4.4 of the Allotment Letter, buyers have given consent to carry out further construction, in case of any change in FAR. The revised layout plan has been sanctioned by the Statutory Authority and FAR has been increased. Due to revision of drawings on 13.04.2016, 18 additional units have been added but  the nature of the project is still a Luxury Project. It is 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 stated to be as per sanctioned plan. Statutory deposits were realized on pro-rata basis and taxes are realized in accordance with law. The Opposite Party denies giving any false representation or having committed any unfair trade practice or deficiency in service. Due to force majeure factors, there was delay for which the Opposite Party cannot be saddled with interest @ 12% p.a. on the principal amount paid by the complainants towards the cost of the flat. It is submitted that the Opposite Party had paid  penalty for delay in possession of the units to the complainants for the month of January 2017. The subject flat has otherwise appreciated in value which by itself is compensatory.

16.   Learned Counsel for the Opposite Party also submitted that immediately on completion of the flat, it had issued an offer of possession with final statement of accounts. The complainants are liable to pay up-to-date charges for not taking possession of the flat despite the offer made by the Opposite Party. As per clause 10.4 of the allotment letter, the complainant is bound to pay holding charges and all dues as claimed in the letter for offer of possession. The claims of the complainant are contrary to the terms of contract and are liable to be rejected. Learned Counsel for the Opposite Party has relied on the judgement of the Hon’ble Supreme Court in DLF Home Developers Ltd. & Anr. Vs. Capital Greens Flat Buyers Association & Ors. (2021) 5 SCC 537 and on this Commission’s order in Pradeep Bhartia & Ors. Vs.  M/s Nexgen Infracon Private Limited. Consumer Complaint  No.229 of 2019 and Nitin Singhal & Anr. Vs. M/s Nexgen Infracon Private Limited Consumer Complaint No. 1798 of 2019 decided on 10.05.2023 in support of his case.

17.   It is averred that Clause 10.4 of Allotment Letter only provides that the Opposite Party shall ‘endeavour’ to complete the construction as per the committed date of possession. Possession was offered to the complainants in CC Nos. 1235, 1292, 1346, and 1557 of 2019 on 31.05.2019 and therefore there is no delay in offer of possession.

18.   The complainants had made payment under “Flexi Payment Plan/Down Payment Plan/Special Payment Plan”. The Opposite Party took the plea that delay was due to force majeure reasons ascribable to the restraint order of NGT against using ground water in construction work which affected the pace of construction since during 14.08.2013 to 19.08.2015, NGT stopped construction. Demonetization of currency notes of 500 and 1000 demonetization in the country created a lot of shortage of cash in banks due to which work stopped for six months as labour migrated to their villages. After obtaining “Occupancy Certificate”, finishing works were on when Covid-19 spread in the country due to which again work was stopped from March, 2020. As such, the 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.

19. The Opposite Party argued that force majeure has been statutorily recognised under Section 60 of the Contract Act, 1872 and the  Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285, held that where reference is made to force majeure, the intention is to save the performing party from the consequences of anything over which he has no control. 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  (supra) and Capital Green Flat Buyers Association, (supra) (2021), held that delay compensation in the form of interest @6% per annum on the deposit of home buyer from due date of possession till the date of offer of possession was just compensation.

20. Clause 9.1 of Allotment Letter provides that 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 the maintenance is handed over to the Allottee(s). Since the Opposite Party was maintaining common facilities and amenities it was entitled to realize maintenance charges as per clause 9.1. The complainants have not stated that anyone else was maintaining common facilities and amenities. It was argued that the judgment of the Supreme Court in Civil Appeal No.4690 of 2022 Utpal Trehan Vs. DLF Home Developers Ltd. decided on 11.07.2022 had no application in the present case.

21. It was also argued that the Layout Plan 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 was eligible to revision based on FAR and hence revisions dated 31.08.2012 when FAR was increased to 2.89 and dated 13.04.2016 when  FAR was increased to 3.54 and total dwelling units were increased to 718 was justified. The Opposite Party  denies having illegally increased density upon common amenities and facilities without consent of the buyers since under clause 4.4 of the Allotment Letter, the buyers gave 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 after nearly four years of the consent.

22.   From the material on record and the submissions of the Learned Counsel for the parties, it is evident that the flat booked was to be constructed within 42 months with 06 months as grace period i.e. by 31.12.2016 in terms of allotment letter. Learned Counsel for the complainant contends that possession should have been offered to him on or before 31.12.2016; instead, an offer of possession was made by the Opposite Party on 31.05.2019. Therefore, based on a delay of 02 years and 05 months, the complainant contends that he is entitled to delay compensation alongwith other reliefs as per his prayer. On his part, the Opposite Party avers that the delay was ascribable to force majeure events and, therefore, the delay is not due to circumstances within his control. Hence, liability to pay damage is denied. Compensation for delay is stated to be provided for in the Allotment Letter as per which compensation has been paid for January, 2017 and the balance is due for adjustment against the final payment as per accounts statement.

23.   Admittedly, there has been a delay in the execution of the project as is evident from the compensation paid and promised by the Opposite Party. The date of completion of the construction, as per the period indicated by the Opposite Party in the Allotment Letter, was 31.12.2016. Possession was not offered in the instant case (CC 55 of 2019). The issue of applicability of force majeure has been considered by this Commission in Anil Kumar Jain and Anr. vs M/s. Nexgen Infracon Private Limited, CC No.1605 of 2018 decided on 23.12.2019 wherein it was held that opposite party’s reliance on force majeure events to justify delay in completing the construction of the project, as per Manoj Kawatra and Others Vs Pioneer Urban Land and Infrastructure Ltd., in CC no.1442 of 2018 decided on 01.11.2021, a developer cannot take shelter under the force majeure clause unless it is able to show that the event was unforeseen and unexpected. Opposite party’s contention that during 2015 to 2018 the NGT’s order prevented the contractor to undertake construction work for 3-4 months and labour shortage between April – May 2015, November – December 2016 and November – December 2017 is not supported by any evidence to substantiate how these events impacted the construction of the flat in question.  

24.   This Commission in Anil Kumar Jain and Anr. vs M/s. Nexgen Infracon Private Limited, CC no.1605 of 2018 and connected matters decided on 23.12.2019 held that if the NGT had restrained builders from extracting underground water in Noida/Greater Noida, they were expected to arrange water from alternative sources so as to fulfil their contractual obligation to the flat Buyers. It is not as if no construction took place in Noida and Greater Noida during the period that the interim order passed by the NGT remained in force. Therefore, if the Opposite Party so wanted, it could have arranged water for construction purpose from the alternative sources. There is no evidence of the aforesaid interim order dated 11-01-2013 having been continued after 24-01-2013. In any case, it cannot be said that the delay in completion of the project was justified on account of this interim order of the NGT. The default of the Contractor, to cause delay on account of shortage of labour and material, no documents have been placed on record by the Opposite Party to show that it could not get adequate work force or sufficient building material to complete the construction of the project within the time stipulated in the Allotment Letter. There is no evidence brought on record that building material or manpower was not available in the market.  Therefore, it cannot be accepted that due to default on the part of the Contractor, the Opposite Party could not arrange adequate labour or building material required for timely completion of the project, hence, these constitute a force majeure event.

25. The Hon’ble Supreme Court in Ireo Grace Realtech 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. In the present batch of cases, offer of possession was made on 31.05.2019 in CC Nos. 1235, 1292, 1315, 1346, and 1557 of 2019. In CC Nos. 55, 228 and 1467 of 2019 possession was not offered. As such, the builder is liable to pay delay compensation from the committed date of possession till 30.05.2019. Other complainants are entitled for delay compensation from the committed date of possession till offer of possession.

26.   ln view of the aforesaid discussion, in the facts and circumstances of the case, the complaints are partly allowed with the following directions:

(i)     The opposite party is directed to issue fresh statement of account and pay delay compensation to the complainants within one month from the date of this order in the form of interest @ 6% per annum on the deposits made by the complainants as below:

(a)    CC no.55, 228 and 1467 of 2019: from the due date of possession till the date of the offer of possession;

(b)    CC nos. 125, 1292, 1315, 136 and 1557 of 2019: from the due date of possession till 30.05.2019;

(ii)    The complainant shall then pay the Opposite Party the amount due. In case of default in payment by the complainant, the opposite party is at liberty to charge interest @ 9% per annum on its dues from the date of default;

(iii)    The Opposite Party is at liberty to charge maintenance charges from the expiry of 30 days from the date of offer of possession;

(iv)   On issue of fresh statement of account/demand, the complainants will deposit within one month, the amount payable by them; and

(v)    The opposite party then execute conveyance deed and handover possession of the flats allotted to the complainants, complete in all respects, without any further delay.

27.   All pending IAs also stand disposed of with this order in all complaints.