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Judgment
A. P. Sahi, President Member
These three complaints are in relation to an allegation of deficiency in service and unfair trade practice on the part of the Opposite Party in not delivering the plots booked by the complainants. The plot buyers filed these complaints contending that they are entitled to refund of the total amount deposited by them together with interest, compensation, litigation costs and such other reliefs that may be found to be fit and proper in the facts and circumstances of the case.
This bunch with other cases was taken up on 11.08.2023 when the learned Counsel for the Complainants in these three cases contended that they are squarely covered by the decision of this Commission in the case of Amit Verma Vs IREO Private Ltd. (CC/385/2020) decided on 03.02.2022. Learned Counsel submits that there being no difference in status of the complaints except for the amounts referred to and the exact area of the plots, the complaints are almost identical and concerning the same project namely IREO City.
It was also pointed out by the learned Counsel for the Complainants that the order of this Commission in the case of Amit Verma (Supra) was challenged before the Apex Court by the Opposite Party along with an application seeking condonation of delay. However, the delay of 479 days was not condoned and the same being Civil Appeal Diary No. 25192 of 2023 was dismissed on 24.07.2023.
Learned Counsel for the Complainants thereafter has narrated the submissions which are contained in the written submissions filed on behalf of the complainants dated 16.02.2021.
In CC/1769/2018 the initial amount deposited by the complainants is Rs.3,86,96,580/- on an application in November 2012, an allotment letter was issued on 30.11.2012 for a plot of 358.8 sq. yd. for a basic sale price of Rs.3,86,96,580/-.
On 03.01.2013, the Complainants allege that a unilaterally structured Plot Buyer Agreement was signed which contained one-sided terms and conditions, but at the same time clause 11.1 of the said agreement clearly stated that possession of the plot was to be offered within 36 months from the date of booking with a further grace period of six months in some contingencies.
The Complainants allege that they deposited a total sum of Rs.4,07,29,074/-with the Opposite Party between November 2012 and March 2016. In spite of the said deposits having been made, neither any development was made nor the plot was offered. Being disappointed, the complainants approached the Opposite Party who stated that they have obtained the environment clearance and also offered a rebate on 19.06.2014, yet they failed to deliver the plot and in a response dated 08.08.2017 a vague assurance was made. The Complainants sent another letter on 11.12.2017 and being frustrated on account of no positive response, on 09.05.2018 the complainants made a request to the Opposite Party to refund the entire amount. On a failure of the said refund, the present complaint was instituted on 06.08.2018 praying for the reliefs as referred to hereinabove.
Similarly in the case of the other two complaints following are the facts:-
In CC/2706/2018:
· Date of booking – 16.03.2012.
· Plot bearing No. A4-09 (243.98 sq.yd) in IREO City Project, Sector 60, Gurgaon.
· Committed date of possession by OP – 15.03.2015.
· Offer of conveyance of the plot within a period of 36 months.
· Environmental clearance – 24.12.2013
· Para 24 of Complaint – “Permissive Possession” May 2018.
In CC/264/2019:
· Date of booking – April 2012.
· Date of provisional allotment – 10.05.2012.
· Offer of conveyance – 36 months from the date of booking.
· Plot allotted – A12A-02, IREO City Project, Sector 60, Gurgaon.
· Committed Date of possession – 01.05.2012.
The contention of the learned Counsel for the Complainants is that the Complainants could not have been made to wait endlessly for delivery of their plots and therefore they are entitled to the entire amount as prayed for. It is reiterated that the ratio of the judgment in the case of Amit Verma (Supra) would squarely apply and hence the complaints deserve to be allowed on the same terms.
Opposing the complaints, learned Counsel for the Opposite Party submitted that honest endeavors were made and on 24.12.2013 the environment clearance was given by the competent authority. One of the other permissions by the competent authority was granted on 14.02.2014 and therefore the period of 36 months for delivery of possession together with six months of grace period would have to be considered accordingly. It is further submitted that the agreement defines force majeure and he refers to Clause (f) of the same to advance his arguments. The said clause is extracted hereunder:
“Force Majeure:
…(f) non-grant, refusal, delay, withholding, cancellation of any approval from any governmental authority or imposition of any adverse condition or obligation in any approvals from any governmental authority, including any delay beyond the control of the Company/Confirming Parties in issuance of the Completion Certificate and/or any other approvals/ certificate as may be required;”
He then submits that the Agreement Clause further protects the rights of the builder under Clause 23 which is extracted hereunder:
“Force Majeure:
23.1
The Company/Confirming Parties shallnot be held responsible or liable in any manner for not performing any of its obligations or undertakings provided for in this Agreement if such performance is prevented or delayed due to Force Majeure.
23.2
On the occurrence of any Force Majeure situation, the Company/Confirming Parties shall be entitled for extension of time corresponding to continuance of the Force Majeure circumstnaces.
23.3
If on account of Force Majeure, the Company decides in its sole discretion to abandon the IREO City Project, then in that event the Allottee hereby authorizes the Company to refund the amounts received from him/them with simple interest at the rate of 7.5% per annum excluding interest paid/payable by the Allottee on any delayed payment and the Allottee hereby confirms that it shall not make any other claim on the Company whatsoever.”
It is urged that the Opposite Party on its part had applied for a Completion Certificate on 12.05.2016 itself.
Learned Counsel then contends that unfortunately the land was part of a larger area of 1,400 acres of land acquired for various builders and projects which came under the scanner of CBI investigation due to the orders of the Apex Court dated 01.11.2017 in Civil Appeal No. 8977 of 2014. It is urged that on account of the said intervention of an investigation no further steps were taken by the officials and authorities so as to clear the project and enable the Opposite Party to proceed to develop the land. He submits that this disability was a force majeure situation as per the relevant clause referred to hereinabove thereby impeding the completion of the project. This continued according to the learned Counsel till the matter was finally resolved by the Apex Court giving clearance for the projects to proceed vide order dated 25.08.2020. The said order is extracted hereunder:
“Prayer has been made in these applications to direct the builder to handover the possession. It is stated by the learned Senior Additional Advocate General appearing on behalf of the State of Haryana that there is no objection in handing over the possession by the builder to the buyers. Accordingly, we direct the builder to handover the possession in accordance with law to the applicants as expeditiously as possible and to execute proper conveyance.
The judgment and order passed by this Court will not come in the way of the applicants. However, as stated by the Additional Advocate General for the State of Haryana the conveyance deed be subject to ultimate outcome of the CBI investigation and appropriate order to be passed thereupon by concerned court. It is further stated by the learned Additional Advocate General for the State of Haryana that occupation certificate is also being issued. Let the occupation certificate be issued as expeditiously as possible.
We have pursued the report filed by the Central Bureau of Investigation (CBI). We are satisfied that the substantial investigation has been done. Let CBI take appropriate steps which may be required, in accordance with law in view of its final conclusion. No further monitoring is required in this case.
The applications for intervention/impleadment stand disposed of accordingly. No further monitoring is called for.
The miscellaneous applications stand disposed of accordingly.”
It is then that the Opposite Party was able to proceed with the project and on 15.03.2021 was able to receive the approval of the zonal plan going one step ahead in the progress of the development.
Subsequent thereto, the Opposite Party offered possession to the complainants on 24.05.2021. The letter of possession has been brought on record by way of an additional affidavit which demands completion of other formalities to enable the complainants to take over possession. Learned Counsel for the Opposite Party then urged that the plot buyer agreement in the present case is neither unjust nor is it unfair in any way unlike other such agreements, and pointing out towards Clause 11.2 and 11.7 of the agreement he submits that the rates in respect of recovery of any amounts from either of the parties is on the same footing. He further pointed out that there is no clause which could be stated to be unfair and even the rates of compensation are not unreasonable.
He then sought to take help from an Office order of the District Town and Country Planner, Haryana, Chandigarh, dated 03.03.2021, to urge that even the development authorities have taken notice of this force majeure condition to extend concessions and allow the project to be completed. This document has, however, not been brought on record though any affidavit or otherwise and has been introduced during the course of submissions to which objections have been taken by the learned Counsel for the Complainants.
Coming to the judgment in the case of Amit Verma (Supra) learned Counsel for the Opposite Party vehemently urged that the ratio of the said judgment does not apply on the facts of the present case, inasmuch as that decision had gone ex-parte where the Opposite Party remained unrepresented. The complaint was allowed uncontested without considering any such arguments which have now been advanced and therefore the said judgment will have no binding effect. Learned Counsel submitted that the SLP moved against the same was dismissed as it was belated and accordingly the dismissal was on account of the non-condonation of delay which therefore does not amount to a binding judgment. Learned Counsel submits that the Apex Court order dated 24.07.2023 does not lay down any law as the appeal had been dismissed on the ground of delay. It is then submitted that the complainants have failed to give any plausible explanation for the force majeure condition suffered by the answering Opposite Party and in that view of the matter, no case is made out for granting any relief to the complainants.
At the outset, it may be clarified that even though one of the permissions were granted on 14.02.2014 to the Opposite Party, yet the environment clearance had already been granted on 24.12.2013. In either of the events the date of reckoning for the purpose of computing the period of the completion of the project, which is three years (36 Months) has to be construed accordingly. This date of 24.12.2013 has been reckoned as the date from which the period of 36 months has to be counted. Even otherwise if 14.02.2014 is to be taken as the date for counting of the period of 36 months, the same will come to an end in July or August 2017. Admittedly, no possession was offered or for that matter delivered within the said period. Thus, the Opposite Party was under an obligation to hand over possession of the plots latest by the aforesaid period. Even giving the benefit of the grace period of 180 days, the lapse continued and admittedly the offer of possession was made on 24.05.2021 which is 8 years after the date of the allotment and almost four years after the expiry of the period of the 36 months as well as the additional grace period of 6 months.
The defence taken by the Opposite Party is the Force Majeure Clause referred to hereinabove. It is worth noting that the order that was passed by the Supreme Court on 01.11.2017 was in a Civil Appeal of the year 2014. Thus the afore-stated uncertainty was existing when the complainants were invited to invest and purchase the plots by the Opposite Party who very well knew of the aforesaid proceedings pending before the Apex Court in which orders were passed on 01.11.2017 for a CBI investigation. It is admitted on record that the Opposite Party continued to receive payments from 2012 to March 2016 during the pendency of the matter before the Supreme Court. It is not understandable as to why the Opposite Party continued to receive the payments and did not inform the complainants about any such force majeure having intervened. The argument of the learned counsel for the Opposite Party therefore is totally unacceptable on this count inasmuch as the Opposite Party continued to receive payments and there is nothing on record to indicate that they were restrained from carrying out the development for offering of possession to the complainants. The Office order dated 03.03.2021 issued by the District Town and Country Planner, Haryana, Chandigarh, on which reliance has been placed is not on record and is not evidence to be read as rightly objected to by the learned Counsel for the Complainants. Nonetheless the recital contained therein that the Opposite Party was restrained from carrying out development is not under any order prohibiting the Opposite Party from undertaking development. There is no such order demonstrated and hence the Opposite Party cannot take any advantage of the said Office Order which has presumed the existence of any order of restrain. If the Opposite Party was inconvenienced on account of any investigation being carried out that does not amount to any restrain in the development of the project which was not for any constructions but mere development of plots and sale thereof.
Even otherwise, the matter was clarified by the Supreme Court in the order dated 25.08.2020 and thus the ground taken for force majeure is absolutely unacceptable. The contention of the Opposite Party that this particular contingency had delayed the development and offer of possession therefore cannot be countenanced and they cannot be made to wait endlessly and to that extent the order in the case of Amit Verma (Supra) as well also comes to the aid of the complainants.
The argument on behalf of the Opposite Party that they had applied for completion certificate on 12.05.2016 and a completion certificate was also obtained together with the approval of zonal plan does not in any way improve the situation so as to expand any such grace period for completion of the project and offering of possession. This was a clear deficiency in services on the part of the opposite party and therefore even on the facts of this case after contest, there cannot be any second opinion so as to differ from the ratio of the order in the case of Amit Verma(Supra).
The Opposite Party/developer is therefore accordingly directed to refund the entire deposited amount to the complainants along with interest at the rate of 9% per annum from the respective dates of deposits till payment within a period of 3 months from today failing which the amount shall attract an interest of 12% per annum for the same period.
All the three complaints are allowed with an additional costs of litigation at the rate of Rs.50,000 for each of the complaints. Pending applications also stand disposed of.