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Judgment
Heard Mr. S.K. Chaudhary, Advocate, for the complainants. The opposite party was given time for filing written synopsis, vide order dated 21.12.2022 but written synopsis was not filed. When the case was listed 16.03.2023, the proxy counsel appearing for the opposite party sought for adjournment on the ground that main counsel had gone to his house as he was not feeling well and the case was adjourned for 11.04.2023. On 11.04.2023, Ms. Anukriti Kudeshia, Advocate and Mr. Bhoop Singh, Advocate appeared for the opposite party and after hearing the arguments of the parties, judgment was reserved. Then Mr. Dhananjai Jain, Advocate, moved IA/5101/2023, on behalf of the opposite party, for rehearing the arguments. Then the matter was again listed on 28.04.2023. On 28.04.2023, IA/5101/2023 was allowed and Mr. Dhananjai Jain, Advocate, was asked to argue the matter but he requested for adjournment on that day and the matter was listed on 02.05.2023. On 02.05.2023, no body appeared for opposite party.
Initially 10 sets of home buyers of the project “Blossom County” have filed above complaint, for directing the opposite party to (i) handover possession of the flats allotted to them, complete in all respect as per specifications; (ii) pay delay compensation in the form of interest @24% per annum on their deposit from due date of possession till the date of handing over possession; (iii) pay Rs.250000/- as compensation for mental agony and harassment to each set of the home buyers; (iv) pay Rs.50000/- as litigation costs to each set of home buyers; (v) refund the amount collected from them in the head of service tax with interest @24% per annum from the date of deposit till the date of refund; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainants filed IA/3641/2017 under Section 12(1(c) of the Consumer Protection Act, 1986, for grant of leave to file the complaint, as a class action complaint. After hearing the parties, this Commission allowed IA/3641/2017. After publication of notice, various impleadment applications were filed by the home buyers of the project “Blossom County”, who had same interest as claimed in the complaint, which were allowed time to time. Through IA/11408/2018 (allowed on 15.06.2018) and IA/2531/2021 (allowed on 13.09.2021), some of the home buyers were deleted from the complaint. At present, 19 sets of home buyers are complainants, whose details are given below:-
Complainant No.(s)
Date of allotment/ Agreement
Apartment/Flat No.
Total Value of Apartment (in Rs.)
Total Amount paid till date (in Rs.)
Shri Gaurav Saini
12.11.2010
801-O
Rs.5679597/-
Rs.5184607/-
Manu Malhotra
01.12.2013
M-1908
Rs.5381635/-
Rs.3258637/-
Smt. Rachana Sood
10.05.2010
904-N
Rs.4716848/-
Rs.4369427/-
Smt. Reena Sharma
29.05.2010
901-G
Rs.5127121/-
Rs.4369331/-
Medhavi Sengar
30.05.2010
1001-G
Rs.5103881/-
Rs.4332711/-
Anuj Bhatia
03.08.2011
403-C
Rs.8743736/-
Rs.8018804/-
Ankit Nagpal
07.04.2010
M-1602
Rs.3184230/-
Rs.2967196/-
Jitender Kumar Agarwal
07.04.2010
L-202
Rs.4463625/-
Rs.4155618/-
Nidhish Chandra
12.03.2010
L-106
Rs.3338175/-
Rs.3333660/-
Jagidsh Kumar Patni
15.03.2010
K-102
Rs.3140744/-
Rs.2960190/-
Pawan Kumar Nijhawana
26.04.2013
M-404
Rs.6136153/-
Rs.3662254/-
Vishnu Shankar Gaur
26.04.2013
M-204
Rs.6136153/-
Rs.3662254/-
Subir Kumar Singh
26.03.2012
1903-N
Rs.7588558/-
Rs.7058584/-
Hemant Chaudhri
19.01.2011
001-N
Rs.6654535/-
Rs.5649293/-
Smt. Kamlesh Mehra
19.01.2011
006-O
Rs.6654512/-
Rs.5646045/-
Smt. Rani Mehra
03.02.2011
102-N
Rs.5937476/-
Rs.5368474/-
Pankaj Sharma
03.05.2013
L-1807
Rs.5332998/-
Rs.5332998/-
Smt. Shilpa Monika
04.06.2010
J1-001
Rs.4831297/-
Rs.4601790/-
Avinash Agarwal
28.05.2010
C-1001
Rs.6969768/-
Rs.6504917/-
Amit Gera
19.02.2011
1208-J1
Rs.4437429/-
Rs.4058768
Anita Mehra
08.09.2010
001-O
Rs.6692966.88
Rs.5585528/-
The complainants 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, each of the complainants booked one flat on different dates in the year, 2010 and deposited booking amount. The opposite party issued Allotment Letters after booking, allotting one Unit to each set of the complainants and executed Flat Buyer’s Agreements in their favour. 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 six months. Payment plan was “construction link payment plan”. The complainants paid the instalments on time as per demand of the opposite party. The period of 24 months expired in the year 2012 but possession was unreasonably delayed. Most of the complainants were living in rented accommodation and paying rent. For timely payment of instalments, they had taken loan from bank/financial institutions and their EMIs were also started as such due to delay in handing over possession, they were facing financial difficulties. The complainants used to inquire from the opposite party in respect of progress of the project and tentative date for delivery of possession. The opposite party used to give some tentative date time to time but even after expiry of that dates, possession was not handed over. The opposite party, vide email dated 08.08.2016, informed that possession of towers nos. I, J, O, P & Q was likely to be delivered from August, 2016 and towers under third phase from April, 2017. Same reply was given vide emails dated 09.11.2016 and 01.12.2016. Some of the complainants visited the site in November, 2016 and found that no construction work was going on. The opposite party has collected huge amount from the complainants, in the head of service tax although service tax was not payable. This complaint was filed on 16.03.2017, alleging deficiency in service on the part of the opposite party.
The opposite party has filed its written reply on 31.08.2017, in which, booking of the flats, allotment of the flats, execution of Flat Buyer’s Agreements 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. Statutory authorities delayed issuance of necessary approval/NOC. 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 complainants filed Affidavits of Evidence of Mrs. Anita Mehra, Aman Mehra, Mrs. Kamlesh Mehra, Vikas Mehra, Mrs. Rani Mehra, Amit Gera, Jagdish Kumar, Sonal Patni, Shilpa Monika, Avinash Agrawal, Ankit Nagpal, Darshana Nagpal, Manu Malhotra, Hemant Chaudhri, Mrs. Sangita Chaudhri and documentary evidence. The complainants have filed written synopsis. The opposite party neither filed Affidavit of Evidence and nor 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 class action complaint value of the service of all the complainants have to be joined, for the purposes of pecuniary jurisdiction, which exceeds Rs.one crore, in present case.
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 6 months. The said period expired in June, 2012. But the construction was unreasonably delayed. The opposite party has taken defence of force majeure and that various home buyers were defaulters/delayed payment of instalment but no evidence has been adduced in this respect. However, we are taking judicial notice of demonetization of currency notes of rupees 500 and 1000 in December, 2016, which affected commercial activities in the country for six months and pandemic Covid-19 from March, 2020, which affected commercial activities in the country for about 18 months. If possession was offered before March, 2020, then the opposite party would be entitled for a period of six months extension for force majeure. If possession is offered after December, 2022, the opposite party would be entitled for a period of two years extension for force majeure. The opposite party has collected about 90% of consideration and is under contractual obligation to complete the construction as per specification, obtain “occupation certificate” and handover possession of the flats as allotted to the complainants.
The complainants relied upon the judgments of this Commission in CC/1248/2016, Logix Blossom County Consumer Grievance and Welfare Association Vs. Logix Infrastructure Private Limited (decided on 25.10.2017) and CC/1005/2016 Logix Blossom County Consumer Grievance and Welfare Association Vs. Logix Infrastructure Private Limited (decided on 16.03.2018) in which delay compensation was paid in the form of interest @8% per annum from the due date possession till the offer of possession. But 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. 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 the flats allotted to the complainants after taking balance amount from them without any further delay and execute conveyance deeds in their favour. Along with final statement of account, the opposite party shall give delay compensation to the complainants in the form of interest @6% per annum on their deposit from due date of possession till the offer of possession, adjusting the period of six months or two years for force majeure as mentioned in paragraph-8 of this judgment.