1. Heard Mr. Sajeve Deora, Advocate, for the complainants.
2. Mr. S.C. Kapur and Ms. Kiran Kapur have filed above complaint, for directing the opposite party to (i) deliver possession of Flat No.204, Tower-37 of “Lotus Boulevard Espacia”, Sector-100, Noida, U.P., complete in all respect as per specifications within one month; (ii) pay compensation for delay in possession from 04.06.2015 till the delivery of possession; or in alternative (iii) refund Rs.12570157/- with interest @18% per annum from the date of respective deposit till the date of payment; (iv) pay Rs.1000000/-, as compensation for mental agony and harassment; (v) to pay Rs.100000/- as costs of the litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainants stated that M/s. Cloud 9 Projects Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a project of group housing, in the name of “Lotus Boulevard Espacia”, at GH-002, Sector-100, Noida, U.P., in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, the complainants booked a flat on 17.07.2012 and deposited booking amount. The opposite party allotted Flat No.204, super area 1970 sq.ft., Tower-37, sale price of Rs.12479150/- on 04.09.2012 and executed Apartment Buyer Agreement on 12.09.2012 in favour of the complainants. Payment Plan was “construction link payment plan”. Clause-5.1 of the agreement provides 33 months period, from the date of allotment, for completing the construction. Clause-5.5 provides for delayed compensation @Rs.5/- per sq.ft. per month on super area, for a period of 3 months, thereafter @Rs.7.50 per sq.ft. per month on super area, up to 6 months and @Rs.10/- per sq.ft. per month on super area, from 7th month of delay. The complainants diligently followed payment plan and as per demand, deposited Rs.10759959/- till the year, 2014. The opposite party raised demand of Rs.331693/- on 21.11.2014, for conducting electrical wiring, which was deposited by the complainants. The period of 33 months expired on 03.06.2015. The opposite party vide letter dated 17.08.2016, raised demand of Rs.1793496/-, which was deposited by the complainants on 07.09.2016. The complainants, through email dated 19.09.2016, asked the opposite party to deliver possession of the flat keeping the issue relating to delayed compensation pending. The opposite party did not respond. The complainants wrote another letter dated 30.12.2016, for possession. The opposite party, vide letter dated 14.09.2017, informed that the complainants had been allotted two car parking spaces. The opposite party issued letter dated 31.10.2017, offering fit-out possession with demand of Rs.1535853.04/- as balance amount and Rs.15059/- as advance maintenance charges. Out of total sale price of Rs.12479150/- the complainants had already deposited Rs.12570157/- till 08.09.2017 but the opposite party failed to handover possession after obtaining completion/occupation certificate and raised extra demand of Rs.1535853.04/- as such, the complainants gave legal notice dated 31.08.2017 to the opposite party for refund of their money along with interest. The opposite party through reply dated 11.11.2017, advised to take possession after depositing balance amount and withdraw the notice. The complainants then gave legal notice dated 31.01.2018, for handing over possession, without charging extra consideration. This complaint was filed on 09.02.2018, alleging unfair trade practice.
4. The opposite party has filed its written reply on 10.09.2018, in which, booking of the flat on 17.07.2012, allotment of flat on 04.09.2012, execution of Apartment Buyer’s Agreement on 12.09.2012 and deposits made by the complainants, have not been disputed. The opposite party stated that for force majeure reasons the construction was delayed i.e. (i) National Green Tribunal vide order dated 11.01.2013, restrained the builders in NCR region from using ground water for raising construction. New Okhla Industrial Development Authority challenged the order before Supreme Court but the appeal was dismissed on 18.10.2013. The opposite party had to procure STP water, which required carrying water in tanker from distant place. Due to which, the construction work had gone slowdown from January, 2013. (ii) From July, 2013, the farmers started riotous agitations in protest of land acquisition in Noida. Due to which construction was stopped during July, 2013 to September, 2013. (iii) Govt. authorities imposed ban on mining operation of sand from river Yamuna, in June, 2013, which created shortage of sand in Noida. (iv) National Green Tribunal, vide order dated 14.08.2013, stopped building construction activities, in a radius of 10 KM from Okhla Bird Sanctuary. This order was challenged in Supreme Court but the appeal was dismissed. Ultimately, National Green Tribunal directed U.P. Government to notify eco-sensitive zone, which was notified on 19.08.2015. Till then construction of the project was stopped. (v) Several home buyers have committed default in payment of instalments, due to which 50% to 60% money of the instalments was withheld, which created financial problem for the opposite party. In spite of above difficulties, the opposite party completed the construction and offered fit-out possession vide letter dated 31.10.2017. The complainants instead of paying balance amount and taking possession raised issue of delayed compensation, although delay had occurred for force majeure reasons and liable to be condoned; in spite of it an amount of Rs.375867/- was credited in the account of the complainants as delay compensation. As per statement of account, the complainants had to pay Rs.1535853/- as super area has been finally increased to 2127 sq.ft. in place of 1970 sq.ft. Under clause-5.8 of the agreement, it has been mentioned that ‘super area’ was tentative and subject to variation up to 8%. If it is increased, the buyer agreed to pay for it. It has been denied that any unjust or unfair demand was made. The opposite party has not committed any deficiency in service or unfair trade practice. The complainants are investors and complaint is not maintainable.
5. The complainants have filed Affidavit of Evidence of S.C. Kapur and Affidavit of Evidence of Ms. Kiran Kapur and documentary evidence. The opposite party has filed Affidavit of Evidence of Anand Ram and documentary evidence. The complainants filed their written synopsis.
6. We have considered the arguments of the complainants and examined the record. Clause-5.1 of the agreement provides 33 months period, from the date of allotment, for completing the construction. Date of allotment is 04.09.2012 as such 33 months expired on 03.06.2015. The opposite party took plea of force majeure for delay in construction, which was during 11.01.2013 to 19.08.2015. Statement of Account filed by the opposite party shows that the opposite party raised demand of instalments in February 2013, May 2013, July 2013, August 2013, and November 2014, from which, it is proved that the opposite party had realized instalments of various level of constructions. If the construction was stopped for force majeure then no demand based on construction could have been raised. As such, it is not proved that the construction was actually stopped by the opposite party, for the alleged force majeure reason. The opposite party filed Affidavit of Evidence of Anand Ram on 25.04.2019, in which, nowhere it has been stated that the opposite party had applied for issue of completion/occupation certificate after completing the construction. No home buyer can be forced to take fit-out possession. As such there is unreasonable delay in offer of possession.
7. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Vs. Govind Raghavan, (2019) 5 SCC 725 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.
8. In Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318, held when interest is awarded as compensation then awarding additional compensation was not justified. In Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that 9% interest, in case of refund, is just compensation, which is restitutory and compensatory both.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment.
