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Judgment
Heard counsels for the parties.
Sh. Roumell Singh Dhankher and Smt. Savina Dhankher have filed the above complaint for directing the opposite party (i) to refund Rs.9029720/- with interest @24% per annum from 15.03.2013 till the date of refund, (ii) to pay Rs.1247939/- as the amount of EMI paid by the complainants on the home loan from 01.04.2016 with interest @ 24% per annum, (iii) to pay all the EMIs with interest @ 24% per annum till the pendency of the complaint, (iv) to pay Rs.1233000/- with interest @24% per annum towards the rent paid by the complainants due to delay in handing over possession, (v) to reimburse the amount equivalent to rent of all rented premises of complainants, (vi) to pay Rs.2 lacs as compensation for mental agony and harassment, (vii) to pay Rs.2 lacs as litigation costs and (viii) any other relief which is deemed fit and proper in the facts of the case.
The complainants stated that M/s ALM Infotech City Pvt. Ltd., the opposite party was a company registered under the Companies Act and engaged in the business and development of Group Housing Project. The opposite party launched a group housing project in the name of ILD Grand at Sector 37-C, Gurgaon in the year 2010 and made vide publicity of its facilities and amenities. Believing upon the representation of the opposite party, the complainants booked a flat and deposited the booking amount. The opposite party allotted flat no. 7-A in Tower - Vision B2, super area 1819 sq. ft. for a total consideration of Rs.1912965/- inclusive of all the taxes. The payment plan was subvention scheme under which the buyer had to pay the booking amount of Rs.6,00,000/- and within 60 days, to complete 20% of BSP. Balance 75% of BSP + EDC +IDC+PLC+Utility Charges + 50% club membership arranging through bank loan and 5% of the BSP + IFM + IFMS+ 50% club membership + registration charges were payable at the time of offer of possession. The complainants made payment of 20% at the time of execution of the Apartment Buyers Association dated 14.02.2013 and Rs.62 lacs were advanced as a bank loan under a tripartite agreement executed between the parties on 15.03.2013. Thus, as per subvention scheme, 95% consideration of BSP + EDC + IDC + PLC + Utility Charges + 50% of club membership has been paid in March 2013. Even an amount of Rs.251564/- was paid through the cheque dated 06.06.2016 and Rs.1 lac was paid through cheque dated 08.07.2016. Clause 9 of the agreement provides 36 months period from the date of agreement for completion of the project with grace period of 180 days. The due date of possession as per agreement was September 2016. Inspite of full payment being made, the opposite party neither could complete the construction nor offered possession to the complainants. The complainants therefore, gave a legal notice to the opposite party on 20.06.2017 for handing over possession. Inspite of service of the notice, the opposite party did not respond and then this complaint was filed on 08.11.2017.
The opposite party filed their written reply in which the allotment made to the complainant as well as the payments made by the complainants and execution of the Apartment Buyers Agreement dated 14.02.2013 have not been disputed. The opposite party stated that in the year 2012, the State Government had ordered a complete ban on extraction of ground water for the purposes of construction work in District Gurgaon. Thereafter, in the year 2013, the State Government had imposed a ban on brick kiln but it has nowhere given the stage of the construction as well as the step taken by the opposite party for completing the construction. The complainants filed rejoinder reply and affidavit of evidence of both the complainants. The opposite party filed affidavit of evidence of Mr. Sambit Mohapatra. Both the parties have filed their written synopsis of arguments.
We have considered the arguments of the counsel for the parties. Execution of the Apartment Buyers Agreement dated 14.02.2013 as well as payment made by the complainants has not been disputed. Clause 9 of the Apartment Buyers Agreement provides 36 months period with grace period of 180 days for completion of the construction. The due date of possession as per clause 9 of the agreement expired in September 2016 but it is admitted that neither the construction was completed nor possession was offered to the complainants. Under clause 9 (v) of the agreement, if the construction is delayed by more than 12 months, then the complainants were entitled for termination of the contract and claiming refund of their amount. In this case, on expiry of more than 12 months, the complainants gave a legal notice dated 20.06.2017 which has not been replied by the opposite party.
The opposite party has taken plea of force majeure inasmuch as in the year 2012, the ban was imposed by the State Government in using ground water in District Gurgaon for construction purposes and secondly in the year 2013, some restrictions had been imposed upon the brick kilns. So far as ban on using ground water is concerned, the builders used to utilize the STP water for the purpose of construction which is being provided by the development authority, therefore, in case of any ban on extracting ground water, construction work could have been carried out with STP water and so far as ban on brick kiln is concerned, nothing has been filed along with the written reply to show for what period this ban continued. In these circumstances, the plea of force majeure circumstances as taken by the opposite party is not liable to accepted. In any case, if due to force majeure circumstances, the opposite party was not able to complete the construction on time, the complainants are legally entitled to claim the refund of their amount.
ORDER
In view of the aforesaid discussion, the complaint is allowed. The opposite party is directed to refund the entire money deposited by the complainants along with interest @ 9% per annum from the date of respective deposit till the date of refund within a period of three months from today.