1.            The present Consumer Complaint has been filed under Section 21 read with Section 22 of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants, Shri Nikhil Behl and his wife, Ms. Malvika, through their Power of Attorney Holder, Mr. Prem Behl against Opposite Party, namely, Supertech Limited (hereinafter referred to as ‘the Developer”) seeking refund of the amount paid by them to the Developer towards purchase of the Flat along with interest and compensation as the Developer has failed to hand over the possession of the allotted Flat in terms of Agreement executed between the parties. 

2.            The facts as narrated in the Complaint are that the Complainants had booked a Flat in the Residential Complex, known as “Supertech Czar Suites” proposed to be developed by the Opposite Party Developer at Greater Noida, by paying a booking amount of ₹2 lakh on 10.07.2007. Vide Allotment Letter, dated 17.07.2007, the Complainants were allotted Flat No. Orchid/1304/12th Floor in Supertech Czar Suites, Greater Noida admeasuring approximately 2490 sq. ft for a total Sale Consideration of ₹74,96,350/- (Rupees Seventy Four Lakh Ninety Six Thousand Three Hundred and Fifty only) including Basic Price of ₹67,85,250/-, one time charges for Car Parking, one time Lease, interest free Maintenance Security,  electricity installation charges and Club Membership. The balance Sale Consideration was to be paid in terms of Time Linked Payment Plan. It is averred that at the time of booking of the Flat, the Developer promised to the Complainants to hand over the possession of the allotted Flat within 20 months i.e. by May 2009.  According to the Complainants, they had made a payment of ₹73,90,500/-, including ₹1,00,000/- to Shrishti Welfare Society till March 2009, however, the Opposite Party Developer has miserably failed to keep its words of timely delivery of the possession of the Flat to them despite having received such a hefty amount. On having followed the matter with the Developer, Vide Letter dated 15.09.2009, the Complainants were informed by the Opposite Party Developer that the possession of the Flat would be handed over by December, 2009 but the ultimate result was only an embarrassment to the Complainants. It is further alleged by the Complainants that the Developer without obtaining their written consent unilaterally changed the tower and location of the Flat originally offered to them. Consequently, the Complainants served a legal notice upon the Opposite Party Developer on 02.01.2012 calling upon them to inform the exact status of the Project within a period of two weeks, however, the Opposite Party Developer did not respond to the legal notice. A reminder dated 07.08.2012 was sent through Registered Post to the Developer in response to which vide e-mail dated 25.08.2012, the Complainants were informed that the contents of the legal notice dated 07.08.2012 were vague and unclear and, therefore, did not deserve reply from them. Complainants again sent a legal notice dated 08.10.2012 to the Developer but the same was not replied.

3.            On 04.02.2016, the representative of the Complainants visited to the office of the Developer to enquire about the exact status of construction and date of handing over the possession of Flat. He was informed that the possession would be handed over latest by end of the February, 2016, however, no possession was offered even by the said date.

4.            On a notice issued by the Noida Authority to the Developer that as to why the action should not be taken against them for constructing additional Flats than the permitted under the approved Building Plans, vide email dated 21.04.2016, they informed and requested all the Flat Buyers not to be in panic and assured them that their investments are safe and the issue of unauthorized construction would be resolved with the Authority very soon.

5.            The Complainants stated that from some news reports they came to know that some of the Flat Buyers filed a Writ Petition in Allahabad High Court against the Developer and the Allahabad High Court stayed the allotment of the Flats and further directed the Noida Authority to take action against the Developer for unauthorized construction and not to issue the Completion Certificate to them for the Project in question.  However, subsequently, the Allahabad High Court directed the Noida Authority to consider the revised Building Plans for the unauthorized construction. It is alleged by the Complainants that even elapse of a substantial period of 8 years from the expected date of delivery of possession, the Developer is still not in a position to hand over the possession of the Flat, complete in all respect, in the near future. Hence, alleging deficiency in service on the part of the Opposite Parties, the Complainants filed the present Complaint with the following prayers:-

 “a)         direct the Opposite Party to pay to the complainants a sum of ₹2,49,79,890/- with interest @ 18% per annum from the date of the filing of the present complaint till payment;

b)            award ₹10 lacs by way of compensation for mental agony, harassment and other material inconvenience caused to the complainants;

c)            award cost of the present litigation to the complainants against the opposite party;

d)            pass such other order or orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case;

6.            Upon notice, the Complaint was resisted by the Developer by filing its Written Version and, inter-alia, raising the Preliminary Objections that the Complaint is not maintainable before this Commission for want of pecuniary jurisdiction as the total value of the Flat is only ₹74,96,350/- which is very much less than the pecuniary jurisdiction of 1 crore of this Commission and the Complainants who are Non-Resident Indians, are merely investors and had booked the subject Flat for an investment and earning profit and as such they are not the “Consumers” as defined under Section 2(1) (d) of the Act; 1986. . It is further contended that the present Complaint filed in the year 2017 is hopelessly barred by limitation of two years from the date of cause of action as provided under the Act. The cause of action, if any, has arose in favour of the Complainants in the year 2009 when the possession as promised was not delivered and as such the Complaint was required to be filed within a period of two years i.e. latest by the year 2011.  The Complaint is bad for non-joinder of necessary party as they had booked the Flat in question through Srishti Welfare Society and directly paid ₹1,00,000/- to it on 01.08.2007 but they have not been impleaded as Respondent Party.

7.            On merits, it is pleaded that the delay in handing over the possession of the Flat has occurred due to force majeure reasons which were totally beyond their control such as filing of 471 Writ Petitions before Hon’ble Allahabad High Court by the farmers challenging the acquisition of land by the State of Uttar Pradesh which had later on been allotted to various Developers for the development of Housing Complex; dharna, protests and agitations by the litigant farmers during the period from 2011 to May 2015 which badly affected the construction work; shortage of labour due to agitation by the farmers, non-availability of raw materials, scarcity of water due to ban imposed by the National Green Tribunal (NGT), Delhi on water extraction for construction purposes. It is further contended that the location and Tower of the allotted Flat of the Complainants was shifted to the Tower where construction was expected soon, due to pressure put by the Srishti Welfare Society; the Hon’ble Allahabad High Court vide Order dated 11.01.2017 passed in Writ Petition No. 61516 of 2016 directed the Developer not to allow the allottees/purchasers of the Flats physical occupation without permission of the Court till the disposal of the case; there was no unauthorized construction by the Developer;  the Developer is trying its level best to complete the Project and hand over the possession of the Flats; the Complainants are not entitled for refund of the deposited amount with or without interest;

8.            We have heard the learned Counsel for the Parties at some length and have carefully perused the material available on record as well as the evidence adduced by the parties.

9.            The contention of the Learned Counsel for the Opposite Party Developer that the Complainants are not ‘Consumers’ as defined u/s 2(1)(d) of the Act and that they have booked the subject Flat in the Project for earning profits and monetary gain is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates - I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore, we are of the considered view that the Complainants are Consumers and the said contention is negated.

10.          With regard to the preliminary objection raised by the Opposite Party Developer that this Commission does not have pecuniary Jurisdiction to entertain the present Complaint as the total sale consideration paid by the Complainants is only ₹74,96,350/-, a larger Bench of this Commission in the case of “Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Private Limited – I (2017) CPJ 1 NC“ has held that pecuniary Jurisdiction should be construed considering the total value of the goods and services in addition to the compensation prayed for. In the present case also, undeniably the Complainant has paid an amount of ₹74,96,350/- to the Opposite Party and has sought for damages by way of interest @ 18% p.a., compensation of ₹10,00,000/- and other reliefs which total goes beyond 1 Crore and definitely comes within the pecuniary Jurisdiction of this Commission. As such, the said objection is also rejected.

11.          With regard to the question of complaint being hopelessly barred by limitation, this Commission in catena of judgments has held that in the case of housing, till the possession is delivered, the cause of action continues. Hence, the said contention is also answered in negative.

12.          Now, adverting to the merits of the case, the undisputed facts of the case are that the Complainants had booked a Flat in the Residential Complex, namely, “Supertech Czar Suites” on 10th July, 2007 by paying a booking amount of ₹2,00,000/- to the Opposite Party Developer.  Vide Allotment Letter dated 17.07.2007, the Complainants were allotted Flat No. Orchid/1304, 12th Floor in Czar Suits for a total sales consideration of ₹74,96,350/-. By the end of March, 2009, Complainants paid a sum of ₹73,90,500/- to the Developer. According to the Complainants, the possession of the booked Flat, complete in all respect, was to be delivered to them by May 2009 which fact has also been admitted by the Opposite Party Developer in paragraph 3 of its Written Statement. However, it is stated that the same was subject to various conditionalities and force majeure events. Further, in its letter dated 15.09.2009 addressed to the Complainants, the Opposite Party Developer has assured to the Complainants that the possession of the Flat would be delivered by December, 2009 enclosing the photographs relating to status of the Project. As such, there is no denial to the fact that the possession of the Flat to the Complainants was to be handed over in the year 2009. However, despite having received the huge amount of ₹73,90,500/-, i.e. approx. 98% of the total Sale Consideration, the Opposite Party Developer has miserably failed to complete the Project and to hand over the possession of the allotted Flat to the Complainants. The defence taken by the Opposite Party Developer for delay in completion of the Project is:-

(i)            the acquisition of the land on which the flat was to be constructed was                 challenged by the Farmers/land owners by filing 471 Writ Petitions           before the Hon’ble Allahabad High Court in and around March 2011;

(ii)           agitation, protest and dharna by the litigant farmers;

(iii)          the supply of the raw material and labour etc. was totally disrupted due               to strikes/agitation at the site and nearby vicinity of the Project by the        farmers who land was acquired for the Project;

(iv)         scarcity of the water as the National Green Tribunal has prohibited the use of ground water for construction purpose;

13.          We do not find any substance in any of the aforesaid submissions made by the Learned Counsel appearing for the Opposite Party in support of their contention that delay in completion of the Project was due to force majeure reasons which were beyond their control. The Complainants booked the Flat in question in the year 2007 and as per its own admission, the Opposite Party was under an obligation to complete the Project and hand over the possession of the allotted Flat to the Complainants in any case before December, 2009 as assured in their letter dated 15.09.2009.  However, the Opposite Party did not deliver the possession of the Flat as per their assurance or promise. The Writ Petitions challenging the land acquisition by the State Government were filed by the Farmers/Land Owners before the Allahabad High Court in March 2011 which is almost after two years from the committed date of delivery of possession. The Opposite Party Developer has completely failed to adduce any documentary evidence to show that what were the reasons which prevented it to complete the construction even after two years from the committed date of delivery and in the absence of such evidence it can be safely presumed that the Opposite Party was deficient in service in completing the Project as promised in the year 2009. Moreover, the Opposite Party Developer has failed to discharge its onus by leading any evidence to show that any order was passed by the Allahabad High Court or the Hon’ble Supreme Court at any point of time, restraining the Opposite party from raising the construction on the land till the year 2017. 

14.          As far as the prohibition on use of the ground water for construction purpose is concerned, the Opposite Party Developer has relied upon the Order dated 11.01.2013 passed by the National Green Tribunal.  A perusal of the said Order would reveal that the NGT had restrained the Builders in Noida and Greater Noida from extracting groundwater for the purpose of construction till the next date of hearing before it. The matter was then adjourned by NGT to 24.01.2013 The subsequent Orders passed by the NGT have not been filed by the Opposite Party. Therefore, it cannot be known whether the said interim order dated 11.01.2013 was extended and if so, till which date the injunction against extraction of ground water in Noida and Greater Noida for construction purposes remained in force.  Further, in case, there was an order restraining the Opposite Party from extracting ground water for construction purposes, it was for the Opposite Party to arrange water for construction purposes from alternative sources and the Flat Buyers cannot be made to suffer on account of such an order, if any.

15.          With regard to the shortage of supply of raw material and labour, no direct evidence has been led by the Opposite Party Developer to prove the dates on which and the period during which the Farmers had actually prevented the construction work on the Project in which allotment was made to the Complainants. Hence, we do not hesitate to come to the conclusion that the Opposite Party Developer has miserably failed to complete the construction of the Project as promised despite receiving the 98% of the total Sales Consideration from the Complainants.  The Complainants have also lost their trust in the Opposite Party Developer and do not want to wait indefinitely for the possession of the booked Flat. 

16.          At this juncture, we find it a fit case to place reliance on the judgment of this Commission in Emmar MGF Land Ltd. & Ors.  vs. Amit Puri - II (2015) CPJ 568 (NC), wherein it was laid down that after the promised date of delivery it is the discretion of the Complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. We are of the view that the Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the Developer in relying on Force Majeure clause while retaining the amounts deposited by the Complainants, is not only an act of deficiency of service but also of unfair trade practice.

17.          We also reply on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra,-  II (2019) CPJ 29 (SC), in which the Hon’ble Apex Court has observed as hereunder:

“……….It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016.  This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period.  A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”

18.          In the instant case also, the Complainants cannot be made to wait indefinitely for possession of the Flat as a period of more than 12 years has lapsed from the committed date of delivery.

19.          For the aforesaid discussions, we are of the considered view that the Complainants are entitled for refund of the principal amount with reasonable interest.  Accordingly, we partly allow the Consumer Complaint and direct the Opposite Party Developer to refund the entire principle amount deposited by the Complainants with interest @9% p.a. from the respective date of deposit till actual payment, within a period of six weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @12% p.a for the same period.  Besides, the Complainants shall also be entitled for a sum of  ₹50,000/- towards costs.

20.          The Complaint is disposed of in above terms and the application, if any, pending, shall also stand disposed of.