FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

The short  facts giving rise to the present case are that the complainant vide application No. 201430 had applied for booking of a apartment in the project Hiland Greens, Phase II of the OP Allotment letter dated  08.12.2014 was issued to him. Complainant was allotted Apartment No. 11B5 on the Floor II, Tower 16 at Hiland Greens, Phase II. The total consideration price of the apartment is Rs. 3,61,50,000/-  and the complainant has paid a sum of Rs. 36,04,561/- with the OP towards a major part of the sale consideration. As per General Terms & conditions, possession of the apartment is to be handed over within  42 months from the date of allotment i.e. 08.12.2014 but the OP miserably failed to comply such condition. There is a specific clause in the General Terms & Conditions that the OP shall pay compensation to be calculated  at the rate of Rs.  12.50 per sq. ft. of the chargeable area of the apartment per month effective from the schedule date of possession till the date of possession to such of the allottee who have not committed any default or delay. The OP accepted and received instalments amount without any objection. Thus, the complainant is entitled to get compensation  at the rate of  12.50 per sq. ft. of the chargeable area. The OP vide letter dated 23.09.2020 informed the complainant that construction of the project is suspended on account of Covid-19 and he is not entitled for compensation on account of delay payment of instalments. Complainant replied said letter dated 23.09.2020 and intimating the OP that they cannot impose penalty twice. Alleging deficiency in service and unfair trade practices on the part of the OP, complainant has prayed for compensation charges  at the rate of  Rs. 12.50 per sq. ft. of the chargeable area, compensation to the tune of Rs. 1,00,000/- for mental agony and harassment and Rs.  50,000/- as litigation costs.

Upon notice of the complaint, OP did not appear and file WV denying the allegations made in the complaint. Vide order dated 16.12.2021 this commission closed the right of the OP to file WV and the case has proceeded ex parte against the OP.

In support of his claim, the complainant Sri Ajitesh Banerjee  tendered evidence and also relied documents i.e. Annexure –A,B,C,D,E,F and G of the complaint petition. Complainant has also filed BNA. We have heard argument on merit and have also perused the record.

The Ld. Advocate for the complainant vehemently argued and reiterated the facts.

The Point that falls for our consideration is whether there is any deficiency of service from the OP/Builder and if so, how much the complainant is entitled for compensation.

We note, admittedly the complainant has paid Rs.  36,04,561/- out of total sale consideration for his apartment being No. 11B5 on the floor II, Tower-16 at Hiland Greens, Phase II in pursuant to General Terms & Conditions. The promise time for delivery of possession of the apartment was  42 months from the date of allotment i.e.  08.12.2014 but the OP did not offer possession of the apartment. On the contrary, the OP vide letter dated 26.11.2020 intimating that on account of Covid-19 construction work of the project is suspended and the complainant is not entitled to eligible for compensation on the ground of delay payment of instalments.

We will like to refer to the Clause 11 of the General Terms & Conditions which is reproduced below for ready reference.

POSSESSION:-

1. Subject to force majeure RDPL will endeavour to give possession of the Apartment to the allottee(s) within 42 months from the date of allotment of the Apartment.
2. Force majeure, inter alia, include that will not be limited to non-availability or irregular availability of building materials, water supply, electricity other supplies or utilities, strike, slow down by/disputes within the contractor/ construction agencies employed/to be employed, war, lockout or civil commotion, terrorist action, litigations, acts of God, any act, any notice, order, rule or notification of the government and/or any other public or competent  authority or any change  in the policy of the government/statutory, bodies action or inaction or omission of any person or authority delay in certain decisions/grant of clearances by the statutory bodies and such other reasons beyond the control of RDPL.
3.  RDPL  as a result of such a contingency arising reserves the right to alter or vary these General Terms & conditions or if the circumstances so warrant, RDPL may suspend the fulfillment of its obligations for such period as it may consider expedient and the allottee agrees not to claim compensation of any nature whatsoever for the period of such suspension.
4. In the event, RDPL does not endeavour to give possession of the apartment to the allottee within the stipulated time [subject to force majeure as started in paragraph Ii (a)  and (b)], then RDPL will pay compensation to be calculated  at the rate of Rs. 12.50 per sq. ft. of the chargeable  area of the Apartment per month, effective  from the schedule date of possession till the “date of possession” (as defined hereinunder) to such of the allottees who have not committed any default or delay.

It is apparent as per the terms of clause II (a) of the General Terms & Conditions, the possession of the apartment is to be delivered within  42 month from the date of allotment. Allotment  Letter was issued on 08.12.2014 to the complainant. The OP never offer possession of the apartment within  42 months.

We find that force majeure clause mentioned in the General Terms & Conditions is totally untenable. The OP has failed to place any evidence on record to prove that the reasons of delay was beyond their control. Complainant  cannot be made to wait indefinitely for delivery of possession. Complainant has not committed any default or delay in making payment. The OP accepted and received instalments amount within any objection. Act of the OP in relying on Force Majeure clause  while retaining amounts deposited by complainant is not only act of deficiency in service but also of unfair trade practice.

In the light of the above discussion, we find both deficiency in service within the meaning of Section  2(11) and unfair trade practice within the meaning of section  2(47) of the Consumer Protection Act,  2019 to be well and truly evident on the part of the OP.

In remedy, it would be just and equitable to direct the OP/Builder to pay compensation charges to be calculated  at the rate of 12.50  percent per square feet of the chargeable area of the apartment per month with effect from the schedule date of possession till the date of possession to the complainant as per General Terms & Conditions. OP is also directed to pay compensation to the tune of Rs.  50,000/- for mental agony and harassment to the complainant together with litigation costs of Rs.  20,000/-. The aforesaid direction shall be complied with within a period of six weeks from today, failing which the amount shall carry interest  at the rate of  9  percent per annum till its realization.  

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