JUDGMENT :

UDAY UMESH LALIT, J.

1. These appeals [Arising out of Civil Appeal Diary No. 9796 of 2019] under Section 23 of the Consumer Protection Act, 1986 (hereinafter referred to as “the CP Act”) are directed against the common judgment and order dated 12.09.2018 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as “the Commission”) in Consumer Case Nos. 3011, 3012, 3013, 3014, 3015, 3016, 3017, 3018, 3019 and 3020 of 2017. The relevant facts leading to the filing of the aforesaid Consumer Cases are almost identical and for the present purposes the facts leading to the filing of Consumer Case No. 3011 of 2017 are set out in detail and the appeal arising therefrom is taken as the lead appeal. The connected appeal [Arising out of Civil Appeal Diary No. 9793 of 2019] seeks to challenge the judgment and order dated 09.08.2018 passed by the Commission in Consumer Case No. 1605 of 2017 and raises same issues of fact and law. Delay in filing these appeals is condoned.

2. A Housing Scheme called “The ESFERA” in Sector 13C, Gurgaon, Haryana (hereinafter referred to as ‘the Project’) was launched by the Appellant sometime in 2011 and all the original Complainants booked their respective apartments by paying the booking amounts and thereafter each of them executed Builder Buyer Agreement (hereinafter referred to as “the Agreement”) with the Appellant.

3. The Respondents in the leading appeal (hereinafter referred to as “the Respondents”) booked Apartment No. 1803 on the 18th Floor of Tower No. “C” having super built up area 153.34 Sq. meters (1650 Sq. feet approx.) @ Rs. 36530.2 per Sq. meter (Rs. 3395/- per Sq. foot). The basic price was thus Rs. 56,01,750/- to which additional charges such as preferential location charges for “corner” “park facing” and for “higher floor” as well as charges for reserve parking, club membership and development were added; the aggregate price being Rs. 76,43,000/-.

4. Clauses 11.1 and 11.2 of the Agreement dated 30.11.2013 entered into by the Respondents dealt with “delay due to reasons beyond the control of the Developer/ Company” and “failure to deliver possession due to Government Rules, Orders, Notifications, etc.” respectively. Clause 11.4 of the Agreement was:-

“11.4 FAILURE TO DELIVER POSSESSION: REMEDY TO THE COMPANY

The intending Allottees agrees that in consequence of the Developer/Company abandoning the Scheme or becoming unable to give possession within three years from the date of execution of this Agreement to such extended periods as permitted under this Agreement, the Developer/Company shall be entitled to terminate this Agreement whereupon the Developer/Company’s liability shall be limited to the refund of the amounts paid by the Intending Allottees with simple interest @ 9% per annum for the period such amounts we relying with the Developer/Company and to pay no other compensation whatsoever. However, the Developer/Company may, at its sole option and discretion, decide not to terminate this Agreement in which event the Developer/Company agrees to pay only to the original Intending Allottees and not to anyone else and only in cases other than those provided in Clauses 11.1, 11.2, 11.3 and Clause 41 and subject to the Intending Allottees not being in default under any term of this Agreement, compensation @ Rs. 5/- per sq. ft. equal to Rs. 53.8/- Per Sq. Meter of the super area of the said Apartment per month for the period of such delay beyond three & half years or such extended periods as permitted under this Agreement. The adjustment of such compensation shall be done only at the time of settling the final accounts for handing over/conveyancing the said Apartment to the intending Allottees first named in this Agreement and not earlier.”

Clause 41 of the Agreement was as under:-

“41. FORCE MAJURE

“The Developer/Company shall not be held respon