ORDER
1. According to the Complainants, they booked a Unit in "Araya" Project of the Opposite Party at Village Ghata, Sector 62, Gurgaon, Harayana on 12.09.2012 and paid a booking amount of Rs.40,00,000/-. Unit bearing No.B-1502 on 15thFloor of Tower B, having a super area of 5,514 sq.ft. was allotted to the Complainants, vide Allotment Letter dated 14.09.2012 issued by the Opposite Party. Subsequently, an Apartment Buyer's Agreement was executed on 24.10.2012, wherein possession of the unit was promised within 39 months from the date of excavation, excluding an additional grace period of 6 months to complete the project. As per the Complainant, excavation of the Project started on 04.06.2012 and hence possession of the Unit was to be delivered by 04.03.2016, including grace period of 6 months. The grievance of the Complainants is that the Opposite Party, despite receiving more than 90% of the total consideration, failed to hand over possession of the Unit, within the promised time period and even possession in the near future seemed unlikely. Alleging deficiency on the part of the Opposite Party, the Complainants filed the present Complaint before this Commission under Section 21 read with Section 12 (1) (a) of the Consumer Protection Act, 1986, praying relief as under: -
"a) Direct the Opposite Party for an immediate 100% refund of the total amount of INR. 5,68,07,347/- (Rupees Five Crore Sixty Seven lakh Seven Thousand Three Hundred and Forty Four only) paid by the Complainant along with a penal interest of 18% per annum from the date of receipt of payments made to the Opposite Party for a Unit in the Project
"Araya" at Village Ghata, Sector 62, Gurgaon, Harayana;
1
b) Direct the Opposite Party to pay compensation of Rs.10,00,000/- (Rupees Ten Lakh only) to the Complainants for mental agony, harassment, discomfort and undue hardships caused to the Complainants as a result of the above acts and omissions on part of the Opposite Party;
c) Direct the Opposite Party, jointly or severally, to pay a sum of Rs.1,50,000/- (Rupees One lakh and Fifty Thousand only) to the Complainants in the Project "Araya" towards litigation costs;
d) That any other and further relief in favour of the Complainants as the Hon'ble Commission may deem fit and proper in the fact and circumstances of the case."
2. The Complaint was contested by the Opposite Party by filing Written Statement. Opposite Party took preliminary objection about the maintainability of the Complaint. The Complainant was an investor who booked the unit for resale purpose and making profit. The dispute between the Parties comes to the interpretation of clauses or applicability of statutory charges, which cannot be termed as "deficiency in service." The Complaint is, therefore, not maintainable in the Consumer Forum. Opposite Party also took the ground that the Complainants failed to make timely payments. However, the Opposite Party, while admitting delay in delivering possession of the Unit, stated that the delay was purely beyond their control. Further, it was contended that the time stipulated for delivering possession of the Unit in the Apartment Buyer's Agreement was only tentative.
3. Heard the Learned Counsels for both the Parties and carefully perused the record. The learned Counsel for the Complainants stated that the Opposite Party was casual with the construction of the project and delivery even in the near future seemed impossible. The construction status of the Project, as per the website of the Opposite Party, indicated that only the basic structure of the Project was constructed as on March, 2018. It was also contended that the Complainants had to agree to the Apartment Buyer's Agreement in its entirety, though it contained several one-sided and unreasonable clauses. The Complainants could not negotiate on them due to continuous threat of forfeiture of earnest money, i.e. 10% of the total consideration. It was further stated by the Complainants that the services of the Opposite Party were not availed for any commercial purpose and the Unit was booked for residential purpose only.
4. Learned Counsel for the Opposite Party submitted that the Complaints were not maintainable as the Complainant booked the unit for commercial purpose. He admitted that possession of the Unit could not be delivered to the Complainants in time. He further argued that the main reason for delay in handing over possession of the apartment was that some customers had defaulted on payments, in spite of repeated demands and notices issued by them. It was also submitted that obtaining various licenses, approvals, sanctions, and permits contributed to the delay. Dispute with the constructing agencies employed by the Opposite Party was also responsible for the delay. Learned Counsel also submitted that the construction of big projects such as the Commonwealth Games Village, led to shortage of labour in the NCR region. He also submitted that implementation of schemes like National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru National Urban
2
Renewal Mission, led to sudden shortage of labour/workforce in the real estate market, as the available labour preferred to return to their respective States due to guaranteed employment provided by the above schemes. Learned Counsel for the Opposite Party further contended that there was shortage of water in NCR region. The aforementioned reasons came within the ambit of the "Force Majeure" Clause of the Agreement and the Opposite Party could not be held liable for delay in construction of the project and delivery of possession. It was also mentioned that the construction of the Tower was already complete and part Occupation Certificate for Tower "A" had already been received.
5. Facts of the case are that the Complainants booked a Unit in "Araya" Project by the Opposite Party at Village Ghata, Sector 62, Gurgaon, Harayana on 12.09.2012 and paid a booking amount of Rs.40,00,000/-. As per the terms of the Agreement, delivery of the possession of the Unit was promised within 39 months from the date of excavation, excluding an additional grace period of 6 months. Excavation of the Project started on 04.06.2012 and hence the possession of the Unit was to be delivered by 04.03.2016, including grace period of 6 months.
6. The Opposite Party stated that "Complainants appeared to be speculative investors, who have invested for higher returns and were waiting for the real estate industry to pick up so that they could sell the Unit at an appropriate stage." Opposite Party did not file any evidence in support of the allegation that the Complainants were investors. The Complainants on the other hand stated that the Unit was booked for residential not commercial purpose. In absence of any documentary/oral evidence, the allegation of the Opposite Party that the Complainants were not Consumers is rejected.
7. Learned Counsel for the Opposite Party also took the ground that the possession could not be delivered in time because some of the customers did not make timely payments. The Complainants on the other hand had made substantial payment towards their flat and cannot be penalised if the Opposite Party could not collect payments from other flat buyers. Moreover, if only some customers failed to make payments in time, the Opposite Party is not expected to delay the entire project.
8. The Learned Counsel for the Opposite Party cited, inter alia, shortage of labour due to construction of Commonwealth Games village, shortage of water, dispute with construction agencies, delays in obtaining licenses, approvals etc., as some of the other reasons for the delay. He contended that as per the Agreement, in case of delay caused due to "Force Majeure" events, the Opposite Party would be entitled to extension of time, without incurring any liability. Neither any new legislation was enacted nor an existing rule, regulation or order was issued stopping/suspending or delaying construction. There was no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the construction of the project. The Opposite Party merely narrated a set of events and obstacles which are routinely faced by project developers. The Opposite Party failed to prove that there was any unforeseen and unexpected event which prevented the completion of the Project within the stipulated time period.
9. In view of the above, the Opposite Party cannot take shelter of the "Force Majeure"
Clause. The reasons cited by the Opposite Party for the delay of the project, appear to be
3
delaying tactics veiled as "Force Majeure" conditions and seem to be an attempt to wriggle out of its contractual obligations.
10. Even after receiving substantial amount, Opposite Party failed to hand over possession of the Unit within the promised time period. It is clear that the Opposite Party failed to fulfil its contractual obligation of delivering possession of the Unit to the Complainant within the time stipulated in the Agreement, or even within a reasonable time thereafter. Possession of the flat has not yet been delivered to the Complainant. The Opposite Party has not provided any evidence in support of the reasons adduced by the Opposite Party. A person cannot be made to wait indefinitely for the possession of the flats allotted to him/her. The Complainants are, therefore, entitled to seek the refund of the amount paid along with compensation.
11. In view of the foregoing discussion, the Complaint is partly allowed with direction to the Opposite Party to refund the amount deposited by the Complainants alongwith compensation in the form of simple interest @ 9% p.a. from date of each payment till the date of payment by the Opposite Party. Opposite Party shall comply the order within two months from the date of this order. There shall be no order as to costs.
......................
C. VISWANATH
PRESIDING MEMBER
......................J
RAM SURAT RAM MAURYA
MEMBER
4