Sudip Ahluwalia, Member

This Complaint has been filed under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service and unfair trade practice on the part of the Opposite Party in delaying the delivery of possession of Apartment No. 1404, Tower-B, in the project known as 'The Forest Spa', situated at Sector 93-B, Noida, Uttar Pradesh. The Complainants have prayed, inter alia, for grant of compensation for delayed possession, interest thereon, compensation towards loss suffered due to delay and other ancillary reliefs.

2. The case of the Complainants, as set out in the Complaint, is that the Opposite Party launched a group housing project known as 'The Forest Spa' at Sector 93-B, Noida. The Complainants booked Apartment No. 1404 in Tower-B, having a super area of approximately 4,150 sq. ft., pursuant to an Apartment Buyer's Agreement dated 28.04.2010. As per Clause 30(a) of the Agreement, the Opposite Party undertook to complete construction and hand over possession within fifteen months from the date of execution of the Agreement, subject to a grace period of six months. Accordingly, possession was contractually due latest by 28.01.2012. The Complainants paid an aggregate amount of Rs.1,67,61,342/- towards the sale consideration in three instalments, i.e., Rs.19,21,865/- on 22.12.2009, Rs.1,05,00,000/- on 15.03.2010 and Rs.43,39,477/- on 14.05.2010 (as per the payment schedule mentioned in Pg. 06 of the Complaint). The Complainants obtained housing finance from ING Vysya Bank and executed a tripartite agreement with the Bank and the Opposite Party on 29.04.2010.

3. According to the Complainants, despite payment of approximately 95% of the sale consideration, the construction progress remained slow and the Apartment was not ready for possession within the stipulated period. On 28.10.2014, the Opposite Party issued a fit-out option letter requiring the Complainants to pay the balance amount of Rs.33,30,560/- and take temporary possession for carrying out interior works. The Complainants objected to the additional demands on account of increased area, meter charges and delayed payment interest, and further sought compensation for the delay in handing over possession. The Opposite Party initially offered a rebate of Rs.6,84,921/- towards delay compensation and subsequently enhanced the same to Rs.7,28,581/-. The Complainants contended that the compensation was incorrectly calculated from January, 2012 instead of July, 2011 and that they were compelled to make the final payment of Rs.26,01,979/- (balance consideration) under protest on 26.05.2015. Actual possession was handed over only on 29.09.2015. Alleging a delay of more than four years in delivery of possession, the Complainants approached this Commission.

4. The Opposite Party filed its Written Version contesting the Complaint. It was admitted that the Complainants had booked the Apartment and that its possession was ultimately delivered on 29.09.2015. The Opposite Party has however, also contended that the Complainants were investors and not Consumers; That there had been delays on the part of the Complainants in making certain payments; That the delay in completion of the project occurred due to force majeure circumstances, including Orders passed by the National Green Tribunal, restrictions on use of groundwater, shortage of labour and other legal impediments beyond the control of the Opposite Party; That delay compensation had already been paid to the Complainants in terms of Clause 30(e) of the Agreement by way of rebate amounting to Rs.7,28,581/-; That the Complainants had voluntarily accepted the said compensation as a full and final settlement and thereafter paid the balance dues and accepted possession; and in view of the declaration contained in the possession documents that no further dispute survived, the Complainants were estopped from claiming any further compensation.

5. The Complainants filed a Rejoinder denying the averments made in the Written Version and reiterated the contents of the Complaint. The Complainants specifically asserted that the delay in construction was attributable solely to the Opposite Party; That the alleged force majeure events had no application to the apartment purchased by them; That the amount of Rs.7,28,581/- was accepted under protest and could not be treated as a full and final settlement; That possession was accepted without prejudice to their right to claim compensation for delay; and the cause of action survived notwithstanding execution of the possession documents.

6. Mr. Veneet Vasudeva filed Evidence by way of Affidavit on behalf of the Complainants and relied upon certain documents such as the Apartment Buyer's Agreement dated 28.04.2010, Payment receipts evidencing payment of Rs.1,67,61,342/-, Tripartite Agreement with ING Vysya Bank, Fit-out letter dated 28.10.2014, E-mail correspondence dated 26.11.2014, 04.12.2014, 07.02.2015 and 10.03.2015, E-mails of the Opposite Party dated 02.02.2015, 21.03.2015 and 31.03.2015, the Final demand letter;, and the Possession documents dated 29.09.2015.

7. Evidence by way of Affidavit on behalf of the Opposite Party was filed by Mr. Pavan Agrawal, Chief Manager-Legal and Authorised Representative of the Opposite Party Company. The Opposite Party has also filed certain additional documents including certain Orders to establish that delay in getting the Occupancy Certificate was in consequence to certain Judicial Orders.

8. Heard Ld. Counsel for both the parties and perused the material available on record.

9. There is no dispute that the Apartment Buyer's Agreement was executed on 28.04.2010 and that the Opposite Party was required to hand over possession latest by 28.01.2012. It is equally undisputed that actual possession was handed over only on 29.09.2015. Thus, there was a delay of more than three and a half years in handing over possession. The defence of the Opposite Party is that the delay was occasioned by Orders of statutory authorities and other force majeure events. However, on perusal of the material placed on record, it is evident that two of the Orders relied upon by the Opposite Party, i.e., the Order dated 12.12.2012 passed by the Hon'ble Allahabad High Court in W.P. (Civil) bearing No. 55956 of 2012 and the Order dated 24.09.2013 passed by this Commission in NC/CC/269/2013 were both passed after the agreed date of possession, including the additional grace period of six months. Consequently, such Orders cannot explain or justify the delay that had already occurred prior thereto.

10. As regards the Order dated 30.08.2011 passed by the Hon'ble Allahabad High Court in W.P. (Civil) bearing No. 47832 of 2011 and preceding the stipulated date of possession, the same admittedly relates to construction of villas. The subject matter of the present Complaint concerns an apartment in a group housing project. The Opposite Party has failed to demonstrate how the said Order had any direct bearing on the construction or delivery of the Complainants' Apartment.

11. It is settled law that a Developer invoking force majeure must establish a proximate nexus between the alleged event and the delay in handing over the particular unit. A general reference to regulatory restrictions, labour shortage or groundwater issues, without producing cogent evidence to establish their impact on the subject Apartment, cannot absolve the Opposite Party of its contractual obligations. Accordingly, the plea of force majeure is rejected. The delay in handing over possession constitutes deficiency in service.

12. The Opposite Party has argued that the Complainants executed possession documents acknowledging that no dispute remained pending. We are unable to accept this contention. A perusal of the possession documents indicates that the declaration pertains to the physical condition of the Apartment, including fixtures, fittings, quality and specifications. Such a declaration cannot be construed as an unconditional waiver of the Complainants' accrued right to seek compensation for delayed possession. The record further demonstrates that the Complainants had consistently raised their grievance regarding delayed possession even before taking possession and had specifically sought compensation. The final payment was made under protest. Therefore, acceptance of possession does not extinguish the claim for delayed possession compensation.

13. The next issue is whether the Complainants are entitled to compensation for delayed possession and, if so, to what extent. The issue is no longer res integra. In 'Wing Commander Arifur Rahman Khan & Anr. v. DLF Southern Homes Pvt. Ltd. & Ors., (2020) 16 SCC 512', the Hon'ble Supreme Court held that acceptance of possession by an Allottee does not disentitle him from claiming compensation for delay and that Consumer Fora are empowered to award just and reasonable compensation notwithstanding contractual clauses providing for nominal compensation.

14. In the present case, although the Opposite Party granted a rebate of Rs.7,28,581/- under the Agreement, such contractual compensation does not bar this Commission from awarding additional compensation commensurate with the delay suffered by the Complainants.

15. Considering the facts and circumstances of the case, the prolonged delay of more than four years and the law laid down by the Hon'ble Supreme Court, we are of the view that the Complainants are entitled to compensation for delayed possession in the form of simple interest at the rate of 6% per annum over and above the compensation already paid under the Agreement in the form of rebate.

16. In view of the foregoing discussion, the Complaint is partly allowed. The Opposite Party shall pay simple interest at the rate of 6% per annum for the period from 28.01.2012 (the last date on which possession was supposed to be handed over as per the Agreement, including the extended six months grace period) till 29.09.2015 (the date on which possession was actually handed over) on the amounts deposited by the Complainants from the date of each respective deposit. The amount shall be paid within six weeks from the date of this order. In the event of failure to comply within the stipulated period, amount payable shall carry interest at the rate of 9% per annum for outstanding amounts, if any, till final realisation. The Opposite Party shall also pay Rs. 40,000/- to the Complainant as litigation costs.

17. Ordered accordingly.

18. Pending application(s), if any, also stand disposed off as having been rendered infructuous.