ORDER

1.       The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-

2.       Notice was issued to the OP(s).  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.

3.It is averred/stated in the Complaint that: -

4.       The OP in their written statement/reply stated that: -

5.       Complainant in his rejoinder stated that OP had offered a delayed penalty of Rs.15 lakhs (approx.) which is mere pittance for delay of 5 years. That OP is taking contrary stands, as on one hand it has said that delay was due to force majeure conditions and on the other OP has offered delay rebate.

6.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

 7.      The main issues for consideration in the case are:-

a)       Delay in delivery of possession of the apartment and consequently liability of the OP for delay compensation.

b)      Increase in the super area of the apartment and consequently the liability of complainants to pay for enhanced area and,

c)       Whether the car parking slots are included in the common areas or the complainants are liable to pay for it separately. 

These issues are briefly discussed as follows:-

7.1     Committed date of possession as per allotment letter, with a grace period, was 23.06.2011. The possession was offered on 21.12.2015 subject to payment of certain dues. OP has contended that the delay is on account of force majeure reasons, including inter alia, on account of certain orders passed by NGT, which would entitle the OP to extension of time without incurring any liability for delay.  The complainants argued that the NGT’s order came after the promised date of possession, the order passed by NGT did not restrain construction activity, but only directed Noida Authority not to issue OCs. OP had not completed construction by October 2013, therefore, the occurrence of issuance of OC did not arise.  OP in its written submissions admits that due to NGT orders they were forced to slow down the construction of the Project, owing to the aforesaid uncertainties and the order passed by the NGT.  It means that NGT did not per se stop the construction activities.  Further, OP admits having offered rebates to the complainants on account of delay in possession.  OP has not been able to produce any satisfactory evidence in support of their contention that the reasons pleaded by them can be construed as ‘force majeure’.  Hence, we are of the view that complainants are entitled to delay compensation and OP is liable to pay the same.  During the pendency of the complaint,  in compliance of the directions of the Commission dated 10.08.2017, the complainants have already taken possession of the apartment in question without prejudice to their rights and contentions in the present complaint.  Hence, they are entitled to claim delay compensation. The complainants have contended that the claim of the OP that apartment was ready for possession on the date of offer of possession viz 21.12.2015, is false.  In pursuance to the said offer of possession, complainants made payments of Rs.19,82,663/- on 29.01.2016 and Rs.1200/- on 17.03.2016.  Prior to making these payments, the complainants registered protest regarding paltry sum of Rs.15 lakhs on account of inordinate delay of 5 years.  The complainants further contended that upon inspecting the apartment they learnt that the apartment was not completed as claimed by the OP. I