The opposite party was allotted land by Greater Noida Industrial Development Authority for developing Group Housing Complex, namely, Unitech Horizon’ in Plot No.6, Sector Pi-2, Greater Noida, Uttar Pradesh. 2. The complainant who was in search of house, came to know about the above project of the opposite party. However, the booking and allotment in the said project was already over. As the complainant was desirous to purchase the house in the said project, he approached the desk office of the opposite party. The opposite party introduced him to different brokers and brokers showed the complainant, the houses for sale by the original allottees. The complainant chose apartment no. 0403 Tower 22 on 4th floor and was introduced to the original allottees, namely, Ranjiv Jaggi & Ms. Geetika Jaggi of subject apartment. 3. It is further the case of the complainant that opposite party assured that the construction is in full swing and the houses will be ready within the stipulated time i.e. 15.11.2008. After being satisfied with the promises of the opposite party, the complainant decided to purchase the subject apartment from the original allottee. The sale consideration was duly paid to the original allottee and the opposite party was informed about the transfer, who acknowledged the same and transferred the subject apartment in the name of the complainant. The opposite party endorsed the name of the complainant as allottee of the subject apartment in their record on 14.02.2008 The total sale consideration of the apartment was Rs.47,82,207/-. As per the Builder-Buyer Agreement,the possession of the subject apartment was to be handed over to the complainant by 15.11.2008. The complainant paid Rs.45,72,761/- out of the total sale consideration to the opposite party. Despite that opposite party failed to deliver possession of the apartment even after the expiry of stipulated date of delivery. Being aggrieved, the complainant through his attorney Mr. Sandeep Dewan has filed the consumer complaint seeking following relief: - 1. Direct the O.P. to refund the entire amount of Rs.45,72,761/- to the complainant alongwith interest @ 18% p.a; 2. Direct the opposite party to pay a sum of Rs.50,000/- to the complainant towards the cost of litigation; 3. Any other order (s) as may be deemed fit and appropriate may also kindly be passed” 4. The opposite party in its written statement admitted the agreement of sale of subject apartment with the complainant. It is alleged by the opposite party that Civil Structure of Tower 21 to 23 of the said project has been completed and the internal and external finish work is in progress. According to the opposite party, the construction could not be completed and the possession of the apartment could not be delivered to the complainant despite of expiry of scheduled date of delivery on account of the reasons not within the control of the opposite parties. The opposite party has tried to justify the delay on account of Force Majeure clause in the agreement. It is pleaded that delay in completing of construction has occurred because of following circumstances beyond the control of the opposite party as detailed in para 9, 10 & 11 of the written statement reproduced below: a. It is submitted that the Noida Authority had acquired this land from farmers of the villages and allotted it to the opposite party for development of the project as per planning. The farmers went on strikes and agitation for increase of compensation and demanding developed plots in lieu of acquired land in various villages comprised in sectors of Noida and Greater Noida including the land in question allotted to the opposite party. b. Thus, the opposite party faced ‘major disruption’ in doing construction activity at the site due to strikes by farmers whose lands were acquired by Noida Authority. This sudden outrage of agitation was completely unforeseen. c. Vide order dated 11.01.2013, Hon’ble National Green Tribunal, Principal Bench, New Delhi has passed the interim injunction restraining orders against all the builders in Noida and Greater Noida from extracting any quantity of underground water for the purpose of construction. 5. In the rejoinder, complainant has denied averments in the written statement. 6. Attorney of the Complainant Mr. Sandeep Dwan has filed evidence by way of his affidavit on behalf of the complainant. Opposite party despite of opportunity given has failed to file affidavit evidence. Evidence of opposite party was, therefore, closed. I have heard learned counsel for the parties and perused the record. 7. Learned counsel for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of allotment letter dated 20.05.2006 issued by the opposite party to the complainant it is clear that vide said allotment letter the complainant was allotted subject apartment From the above document it is also clear that agreed consideration amount was Rs.47,82,207/-. It is also clear from clause 4 (a) of the allotment letter that the opposite party had agreed to deliver possession of the subject apartment to the complainant by 15.11.2008. Complainant had categorically alleged in the complaint that he has paid substantial amount of Rs.45,72,761/- against the consideration amount to the opposite party but even more than seven years after the expiry of stipulated date of delivery of possession, the opposite party has failed to deliver the possession. Otherwise also, the Attorney of complainant in order to prove said allegation has filed his affidavit on behalf of the complainant reaffirming the allegations. 8. Learned counsel for the opposite party has contended that delay in completing the construction and delivering possession of the subject apartment to the complainant was unintentional and the opposite party was prevented from completing the construction and deliver possession because of circumstances beyond the control of the opposite party. The plea of the opposite party is not acceptable as there is no cogent evidence to prove the plea. Otherwise also, the plea of the force majeure taken by the opposite party has been rejected in similar complaints by the Coordinate Bench in Consumer Complaint No. 308 of 2014 tilted Pankaj Kothari & Anr. Vs. Unitech Limited decided on 13.04.2016 & Consumer Complaint No.1064 of 2017 titled Nitin Khanna Vs. M/s Unitech Ltd. decided on 28.03.2018. Thus, deficiency in service on the part of the opposite party is established. 9. Counsel for the opposite party has raised a plea of limitation. It is contended that it is admitted case of the complainant that possession of subject apartment was to be delivered by November 2008. As the complainant has filed the above noted consumer complaint more than seven after the date on which the possession was agreed to be delivered, in view of Section 24-A of the Consumer Protection Act, the complaint is time barred and liable to be dismissed. 10. I do not find merit in the above noted plea. As per the builder buyer agreement the opposite party had promised to construct and deliver possession of the subject apartment to the complainant in consideration of he paying the agreed consideration amount. The opposite party till date has not offered possession of the subject apartment to the complainant and as also not refused to deliver possession. Thus, this is a clear case of continuing cause of action. Therefore, I am of the view that the complaint filed by the complainant is within limitation. Reliance in this regard may be placed upon the decision of Hon’ble Supreme Court in the matter of Meerut Development Authority Vs. M K Gupta IV (2012) CPJ 12, wherein Hon’ble Supreme Court held that in such a case buyer has a recurrent cause for filing a complaint for non delivery of possession of the plot. 11. Now the question is as to what should be the amount of compensation? In this regard, counsel for the opposite party has drawn my attention to clause 4 c (ii) of the Builder Buyer Agreement and submitted that as per the agreement between the parties, the opposite party company is liable to pay Rs.5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment. 12. Learned counsel for the complainant on the contrary has claimed 18% interest on the amount paid. No evidence, however, has been adduced to justify the said claim. 13. Clause 4 c (ii ) and 4 (e) of the Builder-Buyer Agreement deals with the compensation to be awarded by the opposite party in the event of their failure to give possession by stipulated period. The relevant clauses are reproduced as under 4 c (ii) “That the Company would pay charges @ Rs.5/- per s q. ft. per month for the period of delay in offering the delivery of the said apartment beyond the period indicated in clause 4 (a) (i), save and except as for reasons beyond the reasonable control of the Company and Force Majeure events. These charges would be adjusted at the time of Final Notice for possession.” 4 (e) “If for any reason the Company is not in a position to offer the Apartment altogether, the Company shall offer the allottee (s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.” 14. Counsel for the opposite party has referred to clause 4 c (ii) of the Agreement and submitted that this being the case of failure of the opposite party to deliver possession of the subject apartment, clause 4 c ( ii) of the agreement is attracted and the complainant is entitled to compensation @ Rs.5/- per sq. ft. per month of the super area. We do not find merit in the contention. On conjoint reading of the above noted clauses 4 c (ii) and 4 (e), it is evident that clause 4 c (ii) of the Builder Buyer Agreement would be attracted only in a case in which the delay is for reasonable period and it has occurred because of cogent unfavourable circumstances. This clause would not apply in cases where builder after receiving substantial amount against the agreed consideration deliberately failed to take any steps for completing the construction. If such an argument is accepted, it would give handle to the developer to utilize the money paid by the consumers at a nominal cost of ₹5/- sq. ft. per month of the super area instead of borrowing money from the financial institutions / banks. In the instant case, opposite party has not shown any cogent circumstances or reason which prevented it to deliver possession within the stipulated period. Therefore, in my view, this case should be dealt with under clause 4 (e) of the subject Builder Buyer Agreement, which provides that if the opposite party is not in a position to offer possession of the apartment to the allottee, opposite party shall refund the consideration amount received with 10% p.a. Thus, in my view, opposite party is liable to refund the money received from the complainant with 10% p.a. on the amount w.e.f. dates of respective payments of instalments.. 15. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of Rs.45,72,761/- to the complainant within six weeks from today alongwith compensation of simple interest @ 10% per annum from the date of each payment till the realisation of the amount. 2. The Opposite party shall pay a sum of Rs.10,000/- (Rupees Ten Thousand only) as cost of litigation to the complainant. | 
