The developer's liability for delay in possession and the applicability of force majeure clause in real estate agreements.

ORDER

Mr. Justice J.M. Malik, Presiding Member—This is yet another case of 'allotees/consumers' dispute with the famous developer/builder. Sh. Parabhat Verma and Smt. Rachna Verma, the complainants, were jointly allotted a flat admeasuring, 1983 sq.ft by the Unitech Limited-Opposite Party No. 1, in their project named as 'The Escape' in Gurgaon. As a matter of fact, the complainants got this flat in resale. The original allottee had entered into an agreement with the Opposite Party No. 1 on 30.8.2006 and the time for delivering the possession of the same was 36 months from the date of entering into the agreement. On 27.9.2010, the allotment was transferred in favour of the complainants. The complainants were transferred flat No. 201, in Tower No. 7, Unitech Escape, for a total consideration of Rs. 1,02,62,382 only. The complainants paid a sum of Rs. 95,00,000 towards part payment of consideration of the flat. A true copy of the transfer of ownership/allotment letter dated 27.9.2010, is placed on record as Annexure A-1.

2. It is noteworthy that no fresh agreement was executed with the complainants. It was represented that HDFC Bank is the partner bank of OP-1 for this project and that project was an approved project of Opposite Party No. 2, and there would not be any delay in completion of consideration. Both the Opposite Parties represented to the complainants that project was approved by Opposite Party No. 2 Bank for financing. The complainants had planned that since the Opposite Party No. 1 had promised to deliver the possession by March 2011 they would sell the house, they were residing in and re-pay the entire loan amount from the sale proceeds. They had obtained the loan from the bank. The complainants did not have enough financial resources to pay the EMI of about Rs. 90,000 per month. The Opposite Party Bank had sanctioned the loan on 27.9.2010, in the sum of Rs. 95,00,000. Copy of the Loan Agreement has been placed on record as Annexure A-2. The complainants started paying monthly instalments of Rs. 81,690 to the Opposite Party No. 2 Bank w.e.f. 1.10.2010. The interest rate was increased and the EMI amount came to Rs. 99,695 per month w.e.f. 1.4.2012. Copy of the letter dated 15.3.2011, has been placed on the record.

3. The transfer letter was tagged with the original Buyer's Agreement. Although, 36 months elapsed on 27.9.2010, yet, the complainants were assured that they would get the house, within maximum period of six months. The Opposite Party, however, failed to give the possession by 3.2.2011. Correspondence went on between the parties. Personal visits, and e-mails were also exchanged. On 16.1.2012, the complainants were informed that they would hand-over the possession by 3rd quarter of year 2012 for unforeseen reasons. The complainants showed their inability to pay the EMIs. Opposite Party No. 2 also threatened to get the allotment cancelled, if EMIs were not paid. Copies of e-mails have been annexed as Annexures A-5 to Annexure A-11. The complainants did not get the possession of the house. Consequently, the present Consumer Complaint was filed before this Commission on 4.2.2014, with the following prayers:

"(a) Direct the Respondent No. 1 to handover possession of Flat No. 201. The Escape, Golf Course Extension Road, Sector 50, Gurgaon to the Complainant, on the same terms and conditions as the same terms and conditions as the Buyers Agreement dated 18th September 2010, within a period of six months from the order;

Or in the alternative if possession cannot be handed over in the time fixed by the Hon'ble Court then;

(b) Direct the Respondent No. 1 to provide suitable equivalent or better accommodation in a good neighbourhood until possession of the Flat is handed over to the Complainant in habitable condition.

(c) Direct the Respondent No. 1 to pay interest to the Complainant @ 24% per annum on the part sale consideration paid to the Respondent No. 1 with effect from April, 2011, when the six months period for handi