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Smart Summary

Factual and Procedural Background

This consolidated set of consumer complaints (CC/1150/2019, CC/1264/2019, CC/1345/2019, CC/1654/2019 and CC/1655/2019) was filed by several allottees of residential units in the group housing project "Mahagun Mezzaria" developed by M/s Nexgen Infracon Private Limited (a Mahagun Group company). The complainants booked specific apartments between 2012 and 2013, paid substantial sums under various payment plans (construction-link, down-payment, flexi-payment and subvention), and relied on allotment letters setting possession timelines (clause 10.4) — generally providing possession by mid/late 2016 with a contractual grace period.

The complainants alleged delay in possession, deficiency in amenities/facilities, unauthorized increase in FAR and number of units (from initially shown 570 units to as many as 718 units after revisions), reduction/alteration of common amenities, and other unfair trade practices. In one instance (Hitesh Tandon, CC/1150/2019), the opposite party cancelled the allotment and the complainant alleges non-refund.

The opposite party contested the allegations, filed written replies, and relied on force majeure and other causes for delay. Both sides filed affidavits of evidence, affidavits of admission/denial of documents and written synopses. The matter was heard before the National Consumer Disputes Redressal Commission on 10 May 2023, and an order was issued partly allowing the complaints.

Legal Issues Presented

  1. Whether the complainants are entitled to delay compensation (and at what rate) for late offer of possession by the builder.
  2. Whether the opposite party can claim extension of time for completion and offer of possession on the basis of force majeure events (NGT orders, demonetization, COVID-19, contractor delays, GST impact).
  3. Whether a builder may forfeit amounts paid on cancellation of allotment and what refund/interest obligations arise where allotment is cancelled but money is not returned (as in CC/1150/2019).
  4. Whether maintenance charges are payable from the date indicated in the allotment letter even if physical possession has not been taken.
  5. Whether buyers who have given contractual assent to revision of FAR (clause 4.4) can later challenge increase in units/density and alleged effect on common amenities.
  6. Whether a buyer may withhold the last installment payable on offer of possession on account of alleged deficiencies in furnishing/construction, and how such deficiencies affect obligation to take possession.
  7. How payments made under subvention schemes (and any Pre-EMI paid by the builder) should be treated when calculating delay compensation.

Arguments of the Parties

Complainants' Arguments

  • The builder delayed delivery of possession beyond the contractual/computed timeline (clause 10.4) and failed to communicate possession dates adequately.
  • There are deficiencies in the units and promised common amenities and facilities compared to representations and promotional materials for the project.
  • The builder increased FAR and total number of dwelling units (from 570 to up to 718), thereby creating illegal density and burdening common amenities without buyers' consent.
  • Some complainants stopped payments because of unreasonable delay and lack of responsiveness; one complainant (Hitesh Tandon) alleges allotment was cancelled and monies not refunded.
  • They seek delay compensation, refund (where cancellation occurred), compensation for deficiencies, restraint on maintenance increases, and costs.

Opposite Party's (Builder's) Arguments

  • Admitted booking, allotment and receipts of payments but attributed delays to force majeure events and other objective causes, including NGT orders restricting ground water use, NGT order restricting construction near Okhla Bird Sanctuary, demonetization (cash shortage), contractor delays (M/s JMC India Ltd.), and the impact of GST.
  • Asserted entitlement to extension of time under clause 10.2 of the allotment letter for the periods construction was lawfully halted or delayed.
  • Contended that clause 4.4 of the allotment letter permits changes in FAR and that buyers had given their assent to such changes; denied reduction of promised amenities or entry/exit gates and denied unfair trade practices/deficiency in service.
  • Maintained that certain complainants were payment defaulters and that pre-cancellation notices were issued before final cancellation; in respect of cancelled allotment, asserted purchaser ceased to be a consumer after cancellation.
  • Argued maintenance charges are payable as per clause 9.1 and clause 9.5 where the builder continued to maintain common facilities.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285 Explanation of the doctrine of "force majeure" — protects performing party from consequences of events beyond their control. Cited to recognise that where contract refers to force majeure, delays caused by events beyond control (e.g., NGT orders, demonetization, COVID-19) can justify time extensions under the allotment letter; used to justify specific extensions (six months for demonetization and one year for COVID-19) where supported by facts.
Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512 Held that interest @6% p.a. on deposits from due date of possession until offer of possession is an appropriate measure of delay compensation. Applied to award delay compensation at 6% p.a. on deposits for the relevant periods specified in the order for the complainants in these matters.
DLF Homes Developers Ltd. Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537 Supported the principle that 6% p.a. on homebuyer deposits is just delay compensation in appropriate circumstances. Relied upon alongside Wg. Cdr. Arifur Rahman Khan to fix delay compensation at 6% p.a. for the periods found applicable by the Commission.
Utpal Trehan Vs. DLF Home Developers Ltd., Civil Appeal No.4690 of 2022 (decided 11.07.2022) Addressed issues regarding maintenance and related obligations (as referenced by parties). The Court noted that the judgment has no application in the present case (i.e., the Commission declined to apply its ratio to these facts).
Ireo Grace Realteck Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241 Held that when possession is offered after obtaining an occupation certificate, the buyer is contractually obliged to take possession; withholding the last installment on account of alleged deficiencies is generally not permissible though deficiencies can be claimed separately. Applied to hold that purchasers offered possession after occupancy certificate cannot withhold the deposit due at offer of possession on account of deficiencies; the builder may require deposit and then finishing/furnishing usually follows.

Court's Reasoning and Analysis

The Commission examined pleadings, oral arguments and documentary evidence. Its principal legal analysis proceeded as follows:

  1. Cancellation and refund (Hitesh Tandon, CC/1150/2019) — The Commission observed that although the builder cancelled the allotment, it had not returned the deposits. It held that total money cannot be forfeited merely by cancellation because the consumer-service provider relation does not automatically cease; accordingly the builder may not retain the entire sum but is entitled to realize interest at 9% p.a. on the unpaid balance from date of default until deposit.
  2. Delay and force majeure — Clause 10.4 set possession timelines (generally mid/late 2016 with grace periods). The opposite party pleaded force majeure (NGT orders restricting ground water and construction near Okhla Bird Sanctuary, demonetization, contractor delay, GST, COVID-19). The Commission acknowledged statutory recognition of force majeure (citing Section 60 of the Contract Act and the Dhanrajmal decision) and accepted extensions for specific periods: six months for demonetization and one year for COVID-19. It also noted that the builder continued to realize instalments during certain NGT order periods, so not all delays could be attributed to NGT orders alone.
  3. Delay compensation rate and calculation — Relying on Supreme Court decisions (Wg. Cdr. Arifur Rahman Khan and DLF Homes Developers), the Commission treated interest at 6% p.a. on deposits from the due date of possession until offer of possession as appropriate delay compensation. It directed the builder to prepare fresh statements of account reflecting delay compensation at 6% p.a. for the specific date ranges applicable to the different grouped complaints (specified in the order).
  4. Subvention/pre-EMI adjustments — Where payments were made under subvention arrangements and the builder had paid Pre-EMI, the Commission directed that any Pre-EMI amounts paid by the builder be adjusted against delay compensation.
  5. Maintenance charges — The allotment letter's clause 9.1 made maintenance charges payable 30 days after notice of possession irrespective of physical taking of possession, and clause 9.5 bound the builder to maintain common facilities for 36 months or until formation of residents' association. The Commission found the builder entitled to claim maintenance charges in accordance with these clauses, observing complainants did not show that anyone else was maintaining the common facilities. It rejected applicability of the Utpal Trehan decision to these facts.
  6. Revisions of FAR and buyers' consent — The Commission noted that purchasers had booked flats after the August 2012 revised sanction (and that clause 4.4 provided buyer assent to carry out further construction in case of change in FAR). On the basis of the contractual assent, after construction is raised the buyers were held not to be permitted to challenge the FAR revision after nearly four years.
  7. Obligation to take possession despite alleged deficiencies — Following Ireo Grace, the Commission held that where possession is offered after obtaining the occupation certificate, buyers have a contractual obligation to take possession; alleged deficiencies do not justify withholding the last instalment payable on offer of possession, though deficiencies may give rise to separate claims for compensation/rectification.
  8. Net directions to finalize accounts and handover — On application of the above legal principles to the grouped complaints, the Commission specified discrete periods for which delay compensation at 6% p.a. should be calculated for each set of cases, directed issuance of fresh statements of account, and set timelines for deposits and conveyance/handing over of possession.

Holding and Implications

Holding: The complaints are PARTLY ALLOWED.

Direct consequences and orders given by the Commission (as applied to the consolidated matters):

  • The opposite party (builder) is directed to issue a fresh statement of account calculating delay compensation at interest of 6% per annum on complainants' deposits for the specified periods:
    • For CC/1150/2019, CC/1264/2019 and CC/1345/2019: from 01.07.2018 until offer of possession.
    • For CC/1654/2019 and CC/1655/2019: from 01.07.2017 until 30.05.2019 (the date of offer in those matters).
    The fresh statement is to be issued within one month of the judgment.
  • The opposite party is entitled to charge interest at 9% per annum on its dues: in CC/1150/2019 from date of default, and in other cases from the date of offer of possession; maintenance charges are chargeable after expiry of 30 days from offer of possession as per the allotment letter.
  • If the net computation shows amounts payable by the opposite party, the builder shall pay those amounts along with delivery of the statement of account. On issuance of fresh demand/statements, complainants must deposit any amounts payable by them within one month. Thereafter the builder is directed to execute conveyance deeds and hand over possession of the allotted flats complete in all respects without further delay.
  • Specific to CC/1150/2019 (Hitesh Tandon): the builder had cancelled allotment but not returned deposit; the Commission held total money cannot be forfeited and allowed the builder to recover interest at 9% p.a. on the balance due from date of default until deposit — i.e., the builder may claim certain sums but cannot unilaterally forfeit all money without accounting.

Broader implications: The order applies established Supreme Court principles (as cited) to the facts before the Commission. The Commission did not purport to lay down any new legal precedent; it applied existing authorities on force majeure, delay compensation rates, buyer obligations on offer of possession and contractual clauses governing FAR revisions and maintenance.

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    ABHISHEK GOEL v. M/S. NEXGEN INFRACON PRIVATE LIMITED (A MAHAGUN GROUP COMPANY)

    NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

    NEW DELHI

    CONSUMER CASE NO. 1150 OF 2019

    1. HITESH TANDON

    R/o A-2, SECTOR-56, NOIDA - 201301 Uttar Pradesh ...........Complainant(s) Versus

    1. M/S. NEXGEN INFRACON PRIVATE LIMITED (A

    MAHAGUN GROUP COMPANY )

    (A MAHAGUN GROUP COMPANY) THROUGH ITS

    DIRECTORS AT B-66,1ST FLOOR, VIVEK VIHAR, NEW DELHI-110095 ...........Opp.Party(s)

    CONSUMER CASE NO. 1264 OF 2019

    1. ANISH KALUCHA & ANR. R/o C - 87, Sector - 33, Noida Uttar Pradesh

    2. Mamta Kalucha W/o Shri Anish Kalucha R/o C - 87, Sector - 33, Noida Uttar Pradesh ...........Complainant(s) Versus

    1. M/S. NEXGEN INFRACON PRIVATE LIMITED (A

    MAHAGUN GROUP COMPANY)

    (A MAHAGUN GROUP COMPANY THROUGH ITS

    DIRECTORS AT B-66,1ST FLOOR, VIVEK VIHAR, NEW DELHI-110095 ...........Opp.Party(s)

    CONSUMER CASE NO. 1345 OF 2019

    1. SAHIL MAKKER & ANR. ...........Complainant(s) Versus

    1. M/S. NEXGEN INFRACON PRIVATE LIMITED (A

    MAHAGUN GROUP COMPANY)

    THROUGH ITS DIRECTORS AT B-66, 1ST FLOOR,VIVEK VIHAR,NEW DELHI-110095 ...........Opp.Party(s)

    CONSUMER CASE NO. 1654 OF 2019

    1. SUSHMA GUPTA & 2 ORS. R/o 144/B1, Civil Lines, Bareilly - 243001 Uttar Pradesh

    2. A. K. Gupta S/o Shri K. C. Gupta R/o 144/B1, Civil Lines Bareilly - 243001

    Uttar Pradesh

    3. Anshul Gupta S/o Shri A. K. Gupta R/o 144/B1, Civil Lines, Bareilly - ...........Complainant(s)

    1

    243001

    Uttar Pradesh Versus

    1. M/S. NEXGEN INFRACON PRIVATE LIMITED (A MAHAGUN GROUP COMPANY) Through its Director, At B - 66, 1st Floor, Vivek Vihar, New Delhi - 110095 ...........Opp.Party(s)

    CONSUMER CASE NO. 1655 OF 2019

    1. ABHISHEK GOEL ...........Complainant(s) Versus

    1. M/S. NEXGEN INFRACON PRIVATE LIMITED (A MAHAGUN GROUP COMPANY) ...........Opp.Party(s)

    BEFORE:

    HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BINOY KUMAR,MEMBER

    For the Complainant : Mr. Anees Mittal, Advocate : Ms. Sonia Abrol, Advocate

    : Ms. Komal, Advocate

    For the Opp.Party : Mr. Atul Nigam, Advocate : Mr. Manoj Teotia, Advocate

    Dated : 10 May 2023

    ORDER

    1. Heard Mr. Anees Mittal, Advocate, for the complainants and Mr. Atul Nigam, Advocate, for the opposite party.

    2. Hitesh Tandon has filed CC/1150/2019 for directing the opposite party to (i) handover possession of the unit allotted to him, complete in all respect as per specification with promised amenities and facilities within 6 months; (ii) pay delay compensation in the form of interest @12% per annum on his deposit from due date of possession till delivery of possession; (iii) pay Rs.6000/- per day, in case the opposite party fails to deliver possession within the time stipulated by this Commission; (iv) pay compensation, if there is any deficiency in the unit, amenities and facilities; (v) refund the money illegally realized in the head of increase in area, in the head of taxes or otherwise; (vi) restrain the opposite party from increasing maintenance charges to the extent of 15% in every year; or in alternative (vii) refund Rs.8754140/- with interest @18% per annum from the date of respective deposit till its realization; (viii) pay Rs.500000/-, as compensation for mental agony and harassment; (ix) pay Rs.100000/- as litigation cost; and (vi) any other relief which is deemed fit and proper in the facts of the case.

    3. In CC/1150/2019, the complainant stated that 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 group housing project, in the name of "Mahagun Mezzaria", at Plot No.GH-01/A, Sector-78, Noida, in the year 2011 and made wide publicity of its facilities and

    amenities. The opposite party advertised that the project would have lush green surroundings with more than 80% open area, high level security inside the gated community including CCTV cameras, sensor boards etc., ample green space including themed landscaped gardens, aromatic garden, healing garden, earthquake resistant structure, project design based on vastu norms and build on an eco-friendly concept with spacious apartments, wooden furnishing, yoga/meditation, palm garden, swimming pool, kid play area, pool, party lawn, youth corner, multi-purpose gardens with water body, basketball court, jogging & cycling tracks, reflexology path, tennis court, etc. Believing upon the representations of the opposite party, the complainant booked Apartment No. 1217, saleable area 2350 sq.ft., basic sale price of Rs.11816545/- Block Valencia, in the said project on 29.03.2012 and deposited booking amount of Rs.1198557/-. The opposite party issued Allotment Letter on 28.05.2012 of the said apartment. The complainant opted for "construction link payment plan". As per demand, the complainant deposited Rs.8754140/- by 14.12.2015. Clause-10.4 of Allotment Letter provides that the opposite party shall endeavour to complete construction up to 30.06.2016 with grace period up to December, 2016. Due date of possession expired but the opposite party did not give any information for possession. The complainant, through email dated 06.09.2017, sought for various clarifications. The opposite party, through letter dated 09.10.2017, informed that expected date of possession as 30.06.2019. The home buyers association of the project held a meeting with the General Manager of the opposite party on 03.11.2017 and discussed the issues of delay in possession, increase in FAR by revising layout plan without consent of the buyers, payment of GST, construction of commercial complex, non-payment of delay compensation etc. The association also gave a detail representation dated 28.03.2018, on the above issues. Then a meeting was held on 07.06.2018, in which, the various demands were accepted and payment was assured. Minutes of meeting were also recorded but nothing was done. As the opposite party was not responding the various issues and the construction was also delayed unreasonably, the complainant stopped payment. The opposite party, through letter dated 08.04.2019, cancelled the allotment of the complainants. The complainant sent an email dated 01.05.2019 for revoking the cancellation of allotment but it was not responded. At the time of booking, the complainant was shown Layout Plan as sanctioned vide Letter No.Noida/MVN/III-272/504 dated 02.03.2012, in which FAR was 2.75 and total dwelling units were 570 were shown. The opposite party revised Sanctioned Plan vide Letter No.Noida/MVN/III-272/553 dated 31.08.2012, in which FAR was increased to 2.89 and total dwelling units were increased to 700 and again vide Letter No.Noida/MVN/2016/III-272/888 dated 13.04.2016, in which FAR was increased to 3.54 and total dwelling units were increased to 718. By increasing total number of units from 570 to 718, the opposite party has illegally created density upon common amenities and facilities. The opposite party has constructed commercial complex for outsiders due to which, few roads were blocked and numbers of entry and exit gates have been reduced and thereby made the project as non-luxury project. The complaint was filed on 01.07.2019, alleging deficiency in service.

    4. The opposite party filed written reply on 30.08.2019, in which, booking of the flat, allotment of the flat and deposits made by the complainant, have not been denied. The opposite party stated that the construction was delayed due to force majeure reasons i.e. (i) National Green Tribunal, vide order dated 11.01.2013, restricted the builders in Delhi NCR from using ground water for construction purpose. Due to which, the opposite party had to arrange water from alternate source, which required carriage of the water in tanker and the construction has become slow and cost has been increased. (ii) National Green Tribunal, vide order dated

    3

    17.09.2013, stopped construction of the buildings within a radius of 10 KM from Okhla Bird Sanctuary. This ban continued till the notification of Eco Sensitive Zone by State of U.P. on 19.08.2015. (iii) Government of India demonetized currency notes of 500 and 1000 vide notification dated 08.11.2016, which created paucity of cash, even in the banks also. The opposite party/contractor was not in position to make payment to the labourer. Due to which, the labourers migrated to their village and the construction was stopped for about six months.

    (iv) The opposite party engaged M/s. JMC (India) Ltd. for construction of the building, who has delayed construction. (v) Government of India has imposed GST since July, 2017, which has direct impact on the cost of the construction. The opposite party is entitled for extension of period, for which, the construction was stopped, under cause-10.2 of Allotment Letter. The delay is not deliberate as it is a known fact that delays in civil construction work used to increase the cost of materials and labours. After constitution of UPRERA, the project was registered with it and the opposite party has given tentative date for completion of the project as June, 2019. The opposite party is proceeding with the construction with full spring and is near completion of the project. Under clause 4.4 of the Allotment Letter, the buyers have given their assent to carry out further construction, in case of any change in FAR. The revised layout plan has been sanctioned by Statutory Authority and FAR has been increased. Due to revision of map on 13.04.2016, 18 units have been increased and the nature of the project is still a luxury project. It has been denied that promised amenities and facilities and sizes of internal roads/paths have been reduced or entry/exit gates have been reduced. The road/paths, entry/exit gates are as per sanctioned plan. The project cannot be compared with any other project. Statutory deposits were realized on pro-rata basis and taxes are realized in accordance with law. The opposite party has not given any false representation or committed any unfair trade practice or deficiency in service. The complainant was defaulter in payment of instalments from very beginning and used to deposit instalment after issuing reminders. Demand was raised of the instalment "on laying of 12thfloor roof" through letter dated 20.01.2015. After several reminders, it was deposited on 30.11.2015. Thereafter, demands "on completion of 18th floor casting" was raised on 16.04.2015, "on completion of 28thfloor casting" was raised on 03.10.2015 and "on flooring/internal plaster" was raised on 14.11.2016. But the complainant did not deposit these instalments, inspite of various reminders. The opposite party issued pre- cancellation notices dated 11.05.2017, 12.06.2017, 12.07.2017, 17.08.2017 and final notice dated 04.03.2019 but the complainant did not turn up. Then the allotment was cancelled through letter dated 09.04.2019. The complainant is no more consumer of the opposite party. The complaint is liable to be dismissed.

    5. The complainant filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Hitesh Tandon and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

    6. Anish Kalucha and Mamta Kalucha have filed CC/1264/2019 on similar allegations and for similar reliefs. They booked Unit No.1803, super area 2500 sq.ft., total price of Rs.12820974/- in the project "Mahagun Mezzaria", on 09.12.2013. The opposite party issued Allotment Letter dated 08.03.2014, in which payment plan was given as "construction link payment plan". Clause-10.4 of allotment letter provides that construction will be completed and possession be offered till 31.12.2016 with grace period upto 30.06.2017. As per demand, the complainant deposited total Rs.12636387 till 22.06.2017.

    4

    The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Anish Kalucha and Mamta Kalucha and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

    7. Sahil Makkar and Yash Makkar have filed CC/1345/2019 on similar allegations and for similar reliefs. They booked Unit No.2403, super area 2350 sq.ft., total price of Rs.13388363/- in the project "Mahagun Mezzaria", on 15.09.2012. The opposite party issued Allotment Letter dated 22.10.2012, in which payment plan was given as "down payment plan". Clause-10.4 of allotment letter provides that construction will be completed and possession be offered till 30.06.2016 with grace period upto 31.12.2016. The complainants took loan from Housing Development Finance Corporation Limited and deposited total Rs.11970187 till 30.11.2012 and balance amount was payable on offer of possession.

    The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Sahil Makkar and Yash Makkar and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

    8. Sushma Gupta, A.K. Gupta and Anshul Gupta have filed CC/1654/2019 on similar allegations and for similar reliefs. They booked Unit No.1203, super area 2350 sq.ft., total price of Rs.14197459/- in the project "Mahagun Mezzaria", on 17.10.2012. The opposite party issued Allotment Letter dated 03.11.2012, in which payment plan was given as "flexi payment plan". Clause-10.4 of allotment letter provides that construction will be completed and possession be offered till 30.06.2016 with grace period upto 31.12.2016. The complainants deposited total Rs.14267666/- till 29.12.2016. The opposite party paid Rs.12500/- on 21.04.2017, as delay compensation. The opposite party issued letter of offer of possession on 31.05.2019 with various demands. The complainants visited the site and found that the construction was incomplete. The complainants through email dated 13.08.2019, pointed out deficiencies in construction to the opposite party.

    The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Sushma Gupta, A.K. Gupta and Anshul Gupta and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

    9. Abhishek Goel has filed CC/1655/2019 on similar allegations and for similar reliefs. He booked Unit No.2916, super area 2350 sq.ft., total price of Rs.13334957/- in the project

    "Mahagun Mezzaria", on 13.08.2012. The opposite party issued Allotment Letter dated 06.09.2012, in which payment plan was given as "down payment plan". Clause-10.4 of allotment letter provides that construction will be completed and possession be offered till 30.06.2016 with grace period upto 31.12.2016. The complainant took loan from Housing Development Finance Corporation Limited deposited total Rs.12228412/- till 03.10.2012. Balance amount was on offer of possession. The opposite party issued letter of offer of possession on 31.05.2019 with various demands. The complainant visited the site and found

    5

    that the construction was incomplete. The complainant through email dated 25.07.2019, pointed out deficiencies in construction to the opposite party. The complainant filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Abhishek Goel and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Puneet Kumar Jain and documentary evidence. Both the parties have filed written synopsis.

    10. We have considered the arguments of the counsel for the parties and examined the record. So far as cancellation of allotment of Hitesh Tandon is concerned, the opposite party has not returned his money after cancellation. Hitesh Tandon has already deposited Rs.8754140/- out of total price of Rs.11816545/-. Total money cannot be forfeited on cancellation of the allotment as such relation of the consumer and service provider between them has not come to an end. However, the opposite party is entitled to realize interest @9% per annum on the balance amount from the date of default till the date of deposit.

    11. Clause-10.4 of Allotment Letter provides that the opposite party shall endeavour to complete the construction up to June, 2016 with grace period up to December, 2016. Possession was offered to the complainants in CC/1654/2019 and in CC/1655/2019 on 31.05.2019 as such there is delay in offer of possession. Some of the complainants had made payment under "subvention plan" while some of the complainants had made payment under

    "construction link payment plan". The opposite party took plea that delay has occurred due to

    "force majeure" reasons. According to the opposite party, the restraint order of National Green Tribunal from using ground water in construction work has affected the speed of the construction. During 14.08.2013 to 19.08.2015, National Green Tribunal stopped the construction. Demonetization of currency notes of 500 and 1000 in the country created a lot of shortage of cash in the bank due to which, the work was stopped for a period of six months as the labourers were migrated to their village. After, obtaining "occupancy certificate", finishing works were going on but Covid-19 spread in the country due to which again work was stopped from March, 2020. As such offer of possession was delayed and the period for which, the opposite party had to stop construction, is liable to be extended under clause-10.2 of the Allotment letter.

    12. "Force majeure" has been statutorily recognised under Section 60 of the Contract Act, 1872. Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285, held that where reference is made to "force majeure", the intension is to save the performing party from the consequences of anything over which he has no control. The opposite has been realizing the instalments during the period of the orders of National Green Tribunal, as such it is not liable to be accepted that they had stopped construction due to order of Nation Green Tribunal. The opposite party is entitled for extension of six months period due to demonetization and one year period due to Covid-19. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512 and DLF Homes Developers Ltd. Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537, held that interest @6% per annum on the deposit of home buyer from due date of possession till the date of offer of possession, was just delay compensation. The complainants, who have made payment under "subvention payment plan" and the opposite party had paid Pre-EMI, then amount of Pre-EMI paid by the opposite party is liable to be adjusted in delay compensation.

    6

    13. Clause-9.1 of Allotment Letter provides that the maintenance charges shall become applicable/payable after 30 days from the date of issue of notice of possession, irrespective of whether physical possession had been taken or not. Under clause-9.5 of the allotment letter, the opposite party has liability to maintain all common facilities and amenities for a period of 36 months from the date of completion or till formation of resident's welfare association. Since the opposite party was maintaining common facilities and amenities as such it is entitled to realize maintenance charges as per clause-9.1. The complainants have not stated that anyone else was maintaining common facilities and amenities. Judgment of Supreme Court in Civil Appeal No.4690 of 2022 Utpal Trehan Vs. DLF Home Developers Ltd. (decided on 11.07.2022) has no application in the present case.

    14. The complainants booked the flat after 31.08.2012. Layout Plan was sanctioned vide Letter No.Noida/MVN/III-272/504 dated 02.03.2012, in which FAR was 2.75 and total dwelling units were 570 were shown, revised vide Letter No.Noida/MVN/III-272/553 dated 31.08.2012, in which FAR was increased to 2.89 and total dwelling units were increased to 700 and again revised vide Letter No.Noida/MVN/2016/III-272/888 dated 13.04.2016, in which FAR was increased to 3.54 and total dwelling units were increased to 718. The complainants stated that by increasing total number of units from 570 to 718, the opposite party has illegally created density upon common amenities and facilities without consent of the buyers. After booking by the complainants total 18 units were increased. Under clause 4.4 of the Allotment Letter, the buyers have given their assent to carry out further construction, in case of any change in FAR. On the basis of this consent, the opposite party revised the layout plan. After raising construction, the buyers cannot be permitted to raise a plea against their consent, after nearly four years of the consent.

    15. Supreme Court in Ireo Grace Realteck Private Limited Vs. Abhishek Khanna, (2021)

    3 SCC 241, held that if possession is offered after obtaining "occupation certificate" then the buyer is under contractual obligation to take possession. So far as deficiency in furnishing/construction is concerned, this may be a deficiency in service, but for this reason the amount required to be deposited at the time of offer of possession cannot be withheld. As usually the builder used to furnish the flat after deposit of last instalment payable on offer of possession. In CC/1654/2019 & CC/1655/2019, the possession was offered on 31.05.2019, as such, the builder is liable to pay delay compensation from 01.07.2017 till 30.05.2019. Other complainants are entitled for delay compensation from 01.07.2018 till offer of possession.

    ORDER

    ln view of aforesaid discussion complaint is partly allowed. The opposite party is directed to issue fresh statement of account giving delay compensation in the form of interest @6% per annum on the deposit of the complainants in CC/1150/2019, CC/1264/2019 and CC/1345/2019 from 01.07.2018 till offer of possession and in CC/1654/2019 and CC/1655/2019 from 01.07.2017 till 30.05.2019, within one month from the date of this judgment. The opposite party is entitled to charge interest @9% per annum on its dues, in CC/1150/2019 from the date of default and in other case from the date of offer of possession and maintenance charges from the date after expiry of 30 days from offer of possession. If the amount is payable by the opposite party, then the opposite party shall pay it along with statement of account. On issue of fresh statement of account/demand, the complainants will deposit it within one month, if any amount is payable by them. The opposite party then execute conveyance deed and handover

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    possession of the flats allotted to the complainants, complete in all respect, without any further delay.

    ......................J

    RAM SURAT RAM MAURYA

    PRESIDING MEMBER

    ......................

    BINOY KUMAR

    MEMBER

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    Comments

    ABHISHEK GOEL v. M/S. NEXGEN INFRACON PRIVATE LIMITED (A MAHAGUN GROUP COMPANY)
    (May 10, 2023)