The binding nature of agreed clauses, entitlement to compensation for delay, and the need for solid evidence to support claims of force majeure.

ORDER

Mr. Justice J.M. Malik, Presiding Member - Sh. Anil Batta and his wife Mrs. Ritu Batta booked a flat with Unitech High-Tech Developers Ltd. known as Burgundi Project. The OP allotted an apartment No. 602, Floor 06, Burgundi Tower-2 situated in Sectors 96, 97 and 98, Noida measuring 414.81 sq. metre in favour of the complainants. The total price of the flat was Rs. 02,53,45,246. The payment schedule was:

Payment Description Due Date Amount (in Rs.)

On Booking/Registration 16.8.2010 25,41,974

Within 45 days of Registration/Allotment 30.9.2010 2,15,32,282

On final notice of possession 12,70,990

Total Payable 2,53,45,246

The copy of the allotment letter has been annexed with this complaint as Annexure Cl.

2. The complainants paid a sum of Rs. 77,50,531 towards the part payment for the flat. The complainants also obtained housing loan from ICICI Bank under subvention scheme wherein the complainants had the benefit of paying interest on the loan amount only after the period of 24 months from the date of disbursement. The bank paid the loan amount to the OPs directly. It was agreed that complainants would be handed over the possession within period of 30 months from the handing over of duly signed terms and conditions. The complainants were supposed to pay 6 months interest to the ICICI after deduction of 24 months. The complainants duly delivered signed terms and conditions for allotment on 30.9.2010 itself. The balance consideration of Rs. 1,64,90,000 was also paid by the bank directly to the OP1 on 1.10.2010 as per the payment schedule. 95% of the total price was already paid.

3. In the meantime, the complainants sold their the then existing flat under the reasonable expectation that the OPs would deliver the flat booked by the complainant in Unitech Burgundi Project within a period of 30 months. Consequently, they shifted to the rented house. The copy of the rent deed has been placed on the record which goes to show that they are paying Rs. 38,000 per month since 25.2.2013.

4. However, the OPs did not make the headway towards the above said project. Letters and e-mails, etc. have been produced in this Commission as Annexure C4 (coly). The complainants have already paid the total rent of Rs. 5,76,500 with effect from 16.2.2013 till May, 2014. Under the terms and conditions attached to the allotment letter dated 16.8.2010, it is specifically mentioned that the complainants would be entitled to compensation of Rs. 10 per sq. ft. per month on Super Area for any delay in providing the flat beyond the stipulated period of 30 months. The compensation for delayed period which comes to Rs. 6,69,750 is due and payable as on May, 2014. The complainants had to pay heavy interest on the loan which started after the expiry of 24 months. Legal Notices were issued, the copies of which are: produced as Annexure C5 (coly). Those legal notices evoked no reply from the OPs. Ultimately this complaint was filed with the following prayers:

(i) pass an order directing the Opposite Parties to deliver possession of the Flat to the Complainants at the earliest;

(ii) pass an order directing the Opposite Parties to forthwith make payment of amount of Rs. 6,69,750 (Rupees six lakh sixty nine thousand seven hundred and fifty only) towards compensation payable at the rate of Rs. 10 per square feet for delay in handing over possession of the Flat;

(iii) pass an order for making payment of Rs. 61,16,920 (Rupees sixty-one lakh sixteen thousand nine hundred and twenty only) towards interest calculated @ 18% per annum compounded quarterly on the amount already paid by the Complainants with effect from 16.2.2013 till May, 2014 and pass further order to make further payments on account of interest till handing over of actual possession of flat;

(iv) pass an order directing the Opposite Parties to forthwith make payment of amount of Rs. 5,76,000 (Rupees five lakh seventy-six thousand only) towards additional rent paid by the Complainants w.e.f. 16.2.2013 till