A developer cannot invoke force majeure clauses to excuse construction delays arising from predictable or unproven administrative and neighborhood management issues; such failures constitute a deficiency in service, entitling the consumer to compensation, typically calculated as reasonable interest on the invested capital.

COMPLAINANTS :

1. Dr. Sharmil Kurian, S/o T.C Kurian, 11-B/2, Model Town, Balrajeswar Road, Mulund West, Mumbai, presently residing at Mulund West, Mumbai, presently residing at 5330, Pershing Ave#307, St.Loucis.M.O 63112, USA.

2. Mrs.Valsa Kurian, W/o T.C.Kurian, 11-B/2, Model Town, Bairajeswar Road, Mulund West, Mumbai

(by Adv. Balagopalan.A, Adv. Kala.G.Nambiar, Adv. M.N Manmadhan & Adv. R.Narayan)

Vs.

OPPOSITE PARTIES :

1. M/s Desai Homes, A Partnership firm having registration No.2078/92, 40/7669 C 40, DD Vasthra Mahal, Market Road, Kochi-11, represented by its Patner, V.R.Desai

2. V.R.Desai, Partner, Desai Homes, House No.31/1772, DD Village, May Village, May Ist Road, Thammanam, Kochi - 682032

(by Adv. Joson Manavalan, Adv. Mohan Kumar & Adv. Bhuvanandran Nair)

ORDER

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR : PRESIDENT

This is a complaint filed under Section 17 of the Consumer Protection Act, 1986.

2. The second complainant is the mother of the first complainant. Both the complainants were residing in Mumbai. The 1st complainant is a doctor, presently working in a hospital in the USA. The first opposite party is engaged in developing properties and construction of residential apartments. The first opposite party launched a project, namely, ‘DD Samudra Darsan’ in Ernakulam, which is a multi-storeyed residential apartment complex. The complainants entered into an agreement for sale and construction with the first opposite party on 15.12.2005. The second opposite party is the partner of the first opposite party. As per the agreement, the first opposite party agreed to assign 2299/2,40,000 undivided shares over 59.285 cents of property comprised in Survey No.843 of Ernakulam Village and Apartment No.9B on the 9th floor having a super-build up area of 1839 square feet including 20% of 1839 sq.ft as undivided share in the common areas and common facilities in ‘DD Samudra Darsan’, to the complainant. It was agreed that the construction would be completed on or before 31.12.2007.

3. As per the agreement, the complainants were required to pay Rs.46,38,051/- for the value of apartment No. 9B, together with one car parking area and Rs. 11,49,500/- for the value of 2299/2,40,000 undivided shares in 59.285 cents of property. Thus, the complainants had to pay a total consideration of Rs.57,87,551 as per the agreement. Out of the aforesaid amount, the complainants paid Rs.7,87,551/- on the date of executing the agreement. The balance amount of Rs.50,00,000/- was paid by the complainants by way of two cheques drawn on the ICICI Bank. Both the cheques were dated 23.06.2006. Thus, the complainants paid the entire sale consideration towards the undivided share and the value of apartment No.9B on 23.06.2006 itself. The complainants had thus performed their part of obligation as per the agreement. Even though the first opposite party assured that the construction of Samudra Darshan would be completed on or before 31.12.2007, the same was not yet completed. The complainants contended that nearly two years elapsed from the date of completion mentioned in the agreement. The complainants sustained heavy loss due to the delay in completing the construction. The complainants had to pay EMI to the Bank towards repayment of the loan availed by the complainants for purchasing the apartment. The complainants also proposed to come back and settle in Kerala for the purpose of looking after the old aged parents.

4. The complainants contended that the complainants had a choice to give the apartment on rent. On that ground, the complainants susta