JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)     

          The complainants namely Romesh Sapra and Manishi Sapra booked a residential flat with the opposite party in a project namely ‘Grande’ now known as ‘Amber’, which the opposite party was to develop in Noida and vide letter dated 17.03.2011, Apartment No. 2002, in Tower 0306 of the aforesaid project was allotted to them.  As per the terms and conditions annexed thereto, the total consideration was Rs.1,13,37,289/-.  As per Clause 5(a)(i) of the terms and conditions of allotment, the possession was to be delivered within 24 months thereof, meaning thereby that the possession ought to have been delivered by 17.3.2013.  The grievance of the complainants is that the possession of the flat has not been offered to them despite they having already paid Rs.1,31,87,003/- to the opposite party namely Unitech Hi-Tech Developers Ltd.  The complainants are therefore before this Commission, seeking possession of the aforesaid flat, along with compensation.

2.      The opposite party did not file its written version, despite service and therefore its right to file written version was closed vide order dated 25.08.2017.

3.      I have heard the learned counsel for the complainants and have considered the affidavit filed by the complainants by way of evidence.  No-one is present for the opposite party to make his submissions on its behalf. 

4.      The documents filed by the complainants coupled with their affidavit clearly show the allotment made to them as well as the terms and conditions on which the allotment was made.  The possession of the apartment therefore, ought to have been delivered to the complainants latest by 17.3.2013.  The possession having not been delivered, they are entitled to a direction for completing the construction of the flat and delivery of its possession along with compensation.

5.      The learned counsel for the complainants also submits that since there is no reasonable hope of the flat being constructed even within a reasonable time period of say one year from today, the opposite party may be directed to refund the entire amount paid to them by the complainants, along with compensation, in the event the possession of the flat has not been delivered even within one year from today.

6.      The learned counsel for the complainants also states on instructions that as far as his alternative request for refund of the amount paid by the complainants to the opposite party is concerned, he is restricting the prayer to compensation in the form of simple interest @ 10% per annum in terms of Clause 5(b)(iv) of the terms and conditions of allotment which reads as under:

          “5 (b)(iv)     If for any reason the Developer is not in a position to offer the Apartment altogether, the developer 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.”

7.      The learned counsel for the complainants also places reliance upon the decision of this Commission dated 22.11.2017 in CC No. 179 of 2017 Asha Gupta & Anr. Vs. Uniech Hi-Tech Developers Ltd. & connected matters,  pertaining to allotment of residential flat in this very project.  The aforesaid Judgment to the extent it is relevant reads as under:

          “8.      Learned counsel for the OP has drawn our attention to the force majeure clause in Builder Buyer Agreement which is reproduced as under:-

“9 (b) Force Majeure

    “The Allotee(s) agrees that in case the completion of the Apartment is delayed due to non-availability of construction material or supplies, or non-availability of adequate water supply or electric power back-up, or on account of any disputes with or disruption/discontinuance of service by any agent, contractor, consultant or workers engaged by the Developer in relation to the construction development of the Complex and/or the Apartment , or on account of civil commotion or war or criminal action or earthquake, flood or any act of God, or on account of delay in taking certain decisions or providing any approvals by any Government Authority, or as a result of any notice, order, rule or notification of any Government Authority, or on account of any change in the policy of any Government Authority, or for any other reason beyond the control of the Developer (hereinafter collectively referred to as (“Force Majeure”), the Developer shall be entitled to a reasonable extension of time in the agreed date for delivery of possession in the Apartment as stipulated herein.  Further the Developers decision with regard to existence of any Force Majeure event and any consequent extension of time in delivering the possession shall be final and binding and shall not be disputed by the Allottee(s).”

           It is submitted by the learned counsel for the OP that the delay in construction of the subject apartments took place because of certain circumstances beyond the control of the OP Builder.  The opposite party in support of Force Majeure plea has drawn attention to the order of N.G.T. dated 11.01.2013 which prohibits extraction of ground water for the purpose of construction activities till the next date of hearing before the said Tribunal.  The stay order by the National Green Tribunal in our view can be no justification for non-completion of project and delivery of possession of the apartment to the complainants.  Similar plea was considered and rejected by the Coordinate Bench of this Commission in the matter of Cap. Gurtaj Singh Sahni & Anr. Vs. The Manager, Unitech Ltd. & Anr. in CC No. 603 of 2014 decided on 02.05.2016.  Relevant observations of the Coordinate Bench are reproduced as under:

“As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section 5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.”

            Learned counsel for the OP has further contended that OP was prevented from completing the construction because of stay order issued by the Hon’ble High Court of Allahabad. We do not find merit in the argument.  The plea of the stay order issued by Hon’ble High Court of Allahabad dated 21.10.2011 was considered and rejected by the Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Pvt. Ltd. and Ors.  decided on 20.06.2016. Relevant observations of the Coordinate Bench are as under:

“As far as the judgment of Allahabad High Court dated 21.10.2011 is concerned, learned counsel for the complainant submits that the said judgment did not pertain to the land in question.  He has produced on record a copy of the said judgment and submits that it relates only to the land allotted in Sector 91, 135 and 136.  The learned counsel for the opposite party is unable to show to us how the aforesaid order dated 21.10.2011 pertains to the land on which the project, ‘The Burgundy’ was to be developed by it.  Moreover, our attention has not been drawn to any direction of the High Court restraining the opposite party from carrying out development on the land in question.  Hence, reliance upon the aforesaid order dated 21.10.2011 in Writ Petition No. 37443 of 2011 is wholly misplaced.”

                 We do not find any reason to disagree with the aforesaid reasoning of the Coordinate Bench. It may be noted that issue raised by the opposite party is no more resintegra.  Accordingly, taking note that the facts of the complaints under consideration are similar to the facts of the above noted cases decided by the Coordinate Bench, we do not find force in the plea of Force Majeure taken by the opposite party.   As the opposite party has failed to complete the construction and deliver the possession of the respective apartments to the complainants despite of expiry of agreed date of delivery of possession by almost seven years, we find the opposite party guilty of deficiency in service.”

8.      The complaint is disposed of with the following directions:

(i)      The opposite party shall complete the construction of the flat allotted to the complainants in all respects, obtain the requisite Occupancy Certificate and deliver its possession to them within one year from today.  While giving possession of the flat to the complainant in terms of this order, the opposite party shall also pay compensation in the form of simple interest @ 8% per annum with effect from the committed date of possession i.e. with effect from 17.3.2013 till the date of offer of possession in terms of this order, at the rate of 8% per annum.

(ii)      If the opposite party fails to deliver possession of the flat to the complainants in terms of this order, within one year from today, it shall refund within three months of such failure, the entire principal amount of Rs.1,31,87,003/-, to the complainants along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of full refund, in terms of this order.

(iii)     The opposite party shall pay a sum of Rs.25,000/- as the cost of litigation to the complainants.