NCDRC: Non-Compliance of Orders of NGT Cannot be Invoked as Force- Majeure to Delay Inordinately in Handing over Possession of Flats
NCDRC: Non-Compliance of Orders of NGT Cannot be Invoked as Force- Majeure to Delay Inordinately in Handing over Possession of Flats
The National Consumer Dispute Redressal Commission (NCDRC), by its division member bench of Justice Ram Surat Ram Maurya (Presiding Member) and Inder Jit Singh (Member) observed that the plea of Developers that delay was due to Force Majeure circumstance was not valid for having not complied with the orders passed by the National Green Tribunal (NGT) as well as Ministry of Environment, Forest and Climate Change (MOEF) Guidelines 2010, causing inordinate delay in handing over possession of flats.
In the present case, the complainant- Mr. Naresh Garg, had applied to the opposite party (OP)- CHD Developers Ltd. for re-allotment of unit. The OP permitted the re-allotment after all necessary formalities and payment of charges to the complainant. The Apartment Buyer’s Agreement was entered into between the parties on 10 June, 2013. As per the agreement the possession was to be delivered by the OP within 42 months from the date of agreement with a grace period of six months.
However, the OP failed to deliver the possession within the stipulated period. Hence, the complainant prayed for refund of the amount Rs. 79,37,091 with an interest and damages to the extent of Rs. 5 Lakhs.
The OP contended that the complainant would not fall under the definition of ‘consumer’ as Section 2(1)(d)(i) of the Consumer Protection Act of 1986. This is because the property was purchased for investment and re-sale. Further, it was contended that the Complainant inflated the claim to bring the complaint within the pecuniary jurisdiction of NCDRC.
The delay was caused after a notification released by the National Green Tribunal, Delhi due to which the Opposite Party had to stop all construction activities for a few months. Further delay was also caused due to compliance issues.
The NCDRC noted that the OP had failed to place on-record the updated status of construction as well as the likely date of its completion.
The bench referred the decision passed by Supreme Court in Wg. Cdr. Arifur Rahman Kgan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020), wherein it was held that failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amounts to deficiency.
Further, in Kolkata West international City Pvt. Ltd. vs Devasis (2020), the Supreme Court held that a buyer can be expected to wait for possession for a reasonable period but not an indefinite period.
The bench rejected contention of the Opposite Party that Mr. Naresh is not a consumer was rejected as no evidence was produced to corroborate the same.
The Commission on Perusal of the evidence noted that there was no blanket order of the NGT to stop construction activities. The direction to stop construction activities was only where the construction was being carried out in violation of the MOEF Guidelines 2010.
The NCDRC vehemently remarked that, “OP cannot recap the benefit of his own wrongdoings by now claiming such direction to stop construction activity by Haryana State Pollution Control Board (HSPCB) as force majeure event.”
The OP had failed to present any material to know the exact nature of ban on construction activity under the NGT’s order and the period for which such ban was in force, noted the Commission.
In view of the forgoing observation, the NCDRC held that in this case, there was an inordinate delay in handling over the possession of the flat by the Opposite Party. The complaint cannot be made to wait for an indefinite time and suffer financially.
Hence, the Opposite Party was ordered to refund the amount given by the Complainant along with compensation in the form of simple interest at 9% per annum from the date of each payment till the date of refund.
