JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

Briefly stated, the facts relevant for the disposal of the above noted complaints are that opposite party developer undertook the development of a residential complex Unitech Habitat at Plot No.9, Sector Pi-II, Alistonia Estate, Greater Noida, Uttar Pradesh.  

2.         The above noted complainants applied for allotment to the apartments in the above noted project in the year 2006 to 2008.  It is the case of the complainants that they were allotted specific apartments in the above noted project and pursuant to the allotment, they made payments in instalments to the opposite party against the respectively agreed consideration amount.  As per the terms and conditions of allotment, opposite party was required to deliver possession of the respective apartments to the respective complainants within 26 to 40 months of the signing of respective builder-buyer agreement. It is the case of the complainants that respective date of possession have long expired but the opposite party has failed to complete the construction and deliver possession of the respective apartments to the complainants.  Claiming failure of the opposite party to deliver possession of the apartments within the requisite period, complainants approached this Commission by filing consumer complaints.

3.         The details of apartments booked, agreed consideration amount, dates of respective builder buyer agreements between the parties, tentative dates of delivery of possession as per the agreement and the amount paid against the consideration amount by the respective complainants are provided in the chart below:

4.         The opposite party on being served with the notice of the complaint has filed written statement wherein opposite party has admitted the allotment of the subject apartments to the complainants and the payments made by the respective complainants against the consideration amount. However, Opposite  Party in its written statement has taken a preliminary objection that the complaints are not within the pecuniary jurisdiction of this Commission because the amount paid by the complainant against the consideration value is much less than rupees one crore.

5.         On merits, the plea of the opposite party is that it was prevented from delivering possession of the apartment to the complainants because of circumstances beyond its control.  It is alleged that opposite party could not perform its part of the contract because of the Force Majeure circumstances, namely:

 (i).       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.

(ii).       That the Hon’ble High Court of Allahabad while deciding the bunch of writ petitions (471 writ petitions) filed by various farmers challenging the notification and acquisition of land by State of UP (leading case being writ  No.37443 of 2011, Gajraj Singh Vs. State of UP and others) on 21.10.2011, restrained the Noida/Greater Noida Authority and allottees (Developers) from carrying development and implementing the Master Plan 2021 till the observations and directions of the National Capital Regional Planning Board are incorporated in Master Plan 2021 to the satisfaction of the National Capital Regional Planning Board. The notification for the acquisition of the land allotted to the OP was also subject matter of some writ petitions. As such, the entire development of the project was blocked by pending litigation and agitation of farmers of the village in which the project is situated.

(iii).      The opposite party faced major disruption in doing construction activity at site due to strikes by farmers whose lands were acquired by Noida Authority.  This sudden outrage of agitation was completely unforeseen.

6.         In the rejoinder, respective complainants have denied averments in the written statement. 

7.         Complainants have filed affidavit evidence in support of their respective submissions.  I have heard learned counsel for the parties and perused the record.

8.         Learned counsel for the complainants has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of allotment letters issued by the opposite party to the complainants it is clear that vide said allotment letter the complainants were allotted subject apartments in the development project Unitech Habitat at Greater Noida undertaken by the opposite party. From the above documents it is also clear that agreed consideration amount in CC No. 1310 of 2015 was ₹ 53,18,641/- , in CC No. 1131 of 2015 was ₹72,21,202/- and in CC No. 1312 of 2015 was ₹70,79,689/-. It is also clear from clause 4 (a) of the allotment letter that the opposite party had agreed to deliver possession of the subject apartments to the complainants within 26 to 40 months from the date of agreement. Complainants have categorically alleged in the complaints that against the consideration amount, substantial amount have been paid to the opposite party but even years after the expiry of stipulated date of delivery of possession, the opposite party has failed to deliver the possession.

9.         The first question which needs determination is as to whether this Commission has pecuniary jurisdiction to entertain the above noted complaints?

10.       Section 11 (1), 17 (1) (a) (i) and 21 (a) (i) of the Consumer Protection Act, 1986 (in short, “the Act”) provides for the pecuniary jurisdiction of the respective Foras and hierarchy to deal with the original consumer complaints.  Section 21 (a) (i) of the Act provides that National Commission shall have jurisdiction to entertain the complaints where the value of goods or services and compensation, if any, exceeds Rs.1.00 crore. 

11.       Contention of learned counsel for the opposite party is that for the purpose of pecuniary jurisdiction, only the value of services plus compensation is to be taken into account and the interest claimed not being the compensation cannot be added to the consideration amount for the respective apartments to inflate the pecuniary value of the relief.

12.       I do not find merit in the above contention.  In my  considered view, the interest claimed by the apartment buyers is in the nature of compensation because had the complainants kept the amount paid to the opposite party in their bank, they obviously would have earned interest.  Hon’ble Supreme Court in the matter of Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 State Commission 65 has interalia observed and held as under:

   “However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure...

…Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.”

13.       From the above, it would be seen that Hon’ble Supreme Court has also recognized that the interest on the consideration amount or the part thereof paid by the apartment buyer is in the nature of compensation.  If we add the amount paid  by the respective complainants against the consideration of the booked apartment and the interest claimed thereon in each and every case, the value of the relief sought is more than a crore.  Therefore, I hold that the complaints are within the pecuniary jurisdiction of this Commission.

14.       As the opposite party has taken the defence of Force Majeure for failure to deliver the possession to respective complainants,  the onus of proving the Force Majeure circumstance lies squarely on the opposite party.

15.       As regards the  plea that opposite party was prevented from undertaking construction activity on the subject plot because of farmers agitation whose lands were acquired by the Greater Noida Authority  no cogent evidence has been led by the opposite party.  Therefore, said plea is liable to rejected.

16.       So far as plea of the stay order issued by Hon’ble High Court of Allahabad dated 21.10.2011 is concerned, it may be noted that this plea 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.

17.       I find no reason to disagree with the judgment of the Coordinate Bench.  Hence, the reliance placed by the opposite party on order of Hon’ble High Court dated 21.10.2011 in writ petition no. 37443 of 2011 is wholly misplaced.

18.       In view of the discussion above, it is evident that opposite party has failed to prove the defence of Force Majeure.  Undisputedly, the opposite party has failed to deliver possession of subject apartment to the respective complainants even years after expiry of stipulated date of delivery of possession without any reasonable excuse.  Thus, I am of the  view that opposite party is guilty of deficiency in service.

19.       Counsel for the opposite party has raised a plea of limitation.  It is contended that it is admitted case of the complainants that possession of subject apartments were to be delivered in year 2009 in CC No. 1310 of 2015, year 2011 in CC No. 1131 of 2015 and year 2010 in CC No. 1312 of 2015.  As the complainants have filed the above noted consumer complaints more than four-six  years 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.

20.       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 apartments to the complainants in consideration of they paying the agreed consideration amount. The opposite party till date has not offered possession of the subject apartments to the complainants 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 complaints filed by the complainants 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.

21.       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 ₹5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartments.

22.       Learned counsel for the complainants on the contrary have claimed 18% interest on the amount paid.

23.       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.”

24.       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 apartments, clause 4 c ( ii) of the agreements are attracted and the complainants are entitled to compensation @ ₹5/- per sq. ft. per month of the super area.  I 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 complainants with 10% p.a. on the amount w.e.f. dates of respective payments of instalments..

25.       In view of the discussion above, the complaint is allowed with following directions:

1.         The   Opposite   party    shall     refund   the   entire    amount   of  ₹48,18,649/- ( in CC No. 1310 of 2015), ₹66,52,816/- ( in CC No. 1131 of 2015) and ₹64,00,041/- ( in CC No. 1312 of 2015) to the respective complainants 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 ₹10,000/- (Rupees Ten Thousand only) as cost of litigation to the complainants in each case.

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     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER