Reenu Singh vs Logix Infrastructure Pvt. Ltd

Heard Lt. Col. B.S. Chaudhary, Advocate, for the complainant and the counsel, for the opposite party.

Reenu Singh has filed above complaint, for directing the opposite party to (i) handover possession of Flat No.404, complete in all respect with “occupation certificate”; (ii) pay Rs.1000000/- as compensation for mental agony and harassment; (iii) pay delay compensation in the form of interest @15% per annum on her deposit from due date of possession till the date of handing over possession; (iv) pay Rs.100000/- as costs of litigation; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that Logix Infrastructure 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. The opposite party launched a group housing project in the name of “Blossom County” at Plot No.-GH-02, Sector-137, Expressway, Noida, in the year, 2010 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked a 4BHK flat on 04.02.2010 and deposited booking amount of Rs.621360/-. The opposite party issued Provisional Allotment Letter dated 27.03.2010, allotting Unit No. 404, admeasuring 2375 sq.ft. Tower-C, price Rs.7520833/- and executed Flat Buyer’s Agreement dated 28.06.2010. Clause-6.1 of the agreement provides that the opposite party shall endeavour to complete the construction of the apartment within 18 months from the date of the agreement with grace period of 4 months. Payment plan was “construction link payment plan”. The complainant paid the instalment on time and deposited Rs.6840609 /- till 11.08.2014. The period of 22 months expired in the year 2012 but possession was unreasonably delayed. The complainant, through email dated 18.08.2016, sought for information in respect of possession. The opposite party, through email dated 23.08.2016, informed that possession of Tower-C would be handed over in April, 2017, onward. The opposite party did not give any information thereafter. The husband of the complainant, through email dated 31.07.2018, sought for information in respect of possession. The opposite party, through email dated 08.08.2018, informed that possession of Tower-C would be handed over in April, 2019, onward. The complainant has taken loan from Bank of Baroda for payment of the instalment. Now she is paying EMI of Rs.7638/- per month of the loan and Rs.35000/- per months as rent of the rented accommodation. The complainant gave a legal notice dated 04.09.2018, for possession and delay compensation. In spite of service of the notice, the opposite party did not respond. The complainant then visited the site on 08.12.2018 and found that the construction of Tower-C was far away from completion. The complainant, through email dated 28.12.2018, sought for refund of her money with interest. Then this complaint was filed on 14.01.2019, alleging deficiency in service and unfair trade practice. Originally, the complaint was filed for refund but relief for possession was claimed through amendment, which was allowed on 23.07.2021.

The opposite party has filed its written reply on 09.04.2019, in which, booking of the flat on 04.02.2010, allotment of the flat on 27.03.2010, execution of Flat Buyer’s Agreement on 28.06.2010 and the deposits made by the complainants, have not been disputed. The opposite party stated that construction of the apartment was delayed due to force majeure reasons. National Green Tribunal, vide order dated 11.01.2013, restrained all the builders in Delhi NCR from using ground water for construction purposes. The opposite party had to arrange water from alternate sources, for which, the water was carried in tankers, which increased the cost and also work had become slow. Around July, 2013, the farmers made riotous agitation, against acquisition of the land, due to which the construction was stopped for about three months. National Green Tribunal, vide order dated 14.08.2013, stopped all construction within a radius of 10 KM from Okhla Bird Sanctuary. This order continued till notification of Eco-Sensitive Zone dated 19.08.2015 by State of U.P. National Green Tribunal, vide order dated 08.11.2016, stopped construction in Delhi NCR for a week. Government of India demonetized the currency notes of rupees 500 and 1000 by notification dated 08.11.2016, which created paucity of currency even in banks. The builders/contractor was not in position to make payment of the labourers. Due to which, the labourers migrated to their village and the construction work was totally stopped. Most of the buyers of the project were defaulters in making timely payment of the instalment, which created paucity of the fund and affected construction. The delay had occurred due to force majeure reasons and liable to be condoned under clause-6.2 of the agreement. Under clause-6.6 of the agreement, interest of the buyers have been secured, by providing compensation. The opposite party has not committed wilful default. Preliminary issues that the subject matter of the complaint is below pecuniary jurisdiction of this Commission The complaint has no merit and liable to be dismissed.

The complainant filed Rejoinder Reply and Affidavit of Evidence, Affidavits of Admission/Denial of documents of Reenu Singh and documentary evidence. The opposite party filed Affidavit of Evidence of Davender Mohan Saxena and documentary evidence. The complainant has filed written synopsis.

We have considered the arguments of the parties and examined the record. Preliminary issue has no force. This Commission has jurisdiction to entertain a complaint, where value of the service together with compensation claimed exceed Rs.one crore, under Section 21 of Consumer Protection Act, 1986. In the present case, value of the service together with compensation claimed, exceeds Rs.one crore.

Clause-6.1 of the agreement dated 28.06.2010 provides that the opposite party shall endeavour to complete the construction of the apartment within 18 months from the date of the agreement with grace period of 4 months. The said period expired in April, 2012. But the construction was unreasonably delayed. The opposite party has taken defence of force majeure. Force Majeure has been statutorily recognised under Section 56 of the Contract Act, 1872. Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285, held that an analysis of the rulings on the subject shows that where reference is made to “force majeure” the intension is to save the performing party from the consequences of anything over which he had no control. On account of scarcity of the water, six months delay may be accepted. National Green Tribunal stopped construction from 14.08.2013 till 19.08.2015. Demonetization of currency notes of rupees 500 and 1000 affected the construction work for a period of about six months. Covid-19 and consequent lockdown in country affected construction work for about one year. The opposite party took plea that various home buyers were defaulters/delayed payment of instalment but no evidence has been adduced in this respect. Out of total consideration of Rs.7520833/-, the complainant has paid Rs.6840609 /- till 11.08.2014. For force majeure reasons, the opposite party is entitled for extension of period for 4 years. The opposite party is under contractual obligation to compete the construction as per specification, obtain “occupation certificate” and handover possession of the flat.

From May, 2016, the opposite party is liable to pay delay compensation. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537, held that 6% interest on the deposit of home buyers for the delayed period is appropriate delayed compensation.

ORDER

In view of aforesaid discussions, the complaint is partly allowed with cost of Rs.50000/-. The opposite party is directed to complete construction in all respect as per specification, obtain “occupation certificate” from statutory authority within a period of four months from the date of this judgment and handover possession of Flat No.404 Tower C to the complainant after taking balance amount from the complainant without any further delay. Along with final statement of account, the opposite party shall give delay compensation to the complainant in the form of interest @6% per annum on her deposit from May, 2016 till the offer of possession and shall also pay cost as imposed by this judgment and interim order.