1. Heard Mr. Aditya Parolia, Advocate, for the complainants and Ms. Pallavi Sengupta, for the opposite party-1.

2. Opposite Party-1 has filed IA/3475/2020, on 09.03.2020, for leave to file additional documentary evidence, which is allowed. The documents attached with the application are taken on record.

3. The complainants have filed the aforementioned complaint for directing the opposite parties (hereinafter referred to as the builder) (i) to refund their principal amount of Rs.11900000/- along with interest @18% per annum, from the date of respective deposits till the day of its payment, (ii) to pay Rs.20/- lacs as the compensation, for mental agony and harassment, (iii) Rs.2/- lacs as the cost of the litigation and (iv) any other relief, which is deemed fit and proper in the facts and circumstances of the case.

4. The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company and engaged in business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. In the year 2012, the builder launched a project of group housing in the name of “RMZ Latitude” at village Hebbal, Kasaba Hobli, Bangalore North Taluka, Karnataka. On coming to know about this project, the complainants booked a 4BHK flat on 30.04.2014 and gave a cheque of Rs.25/- lacs. The builder allotted Unit No. A-702, [tentative super area 3895 sq.ft. + 3 car parking spaces, basic sale price Rs.3.97/- crores, (total sale price of Rs.40931815/-)], Tower No.-A, in the project “RMZ Latitude”. Along with Booking Form, “Payment Plan” was supplied, under which Rs.25/- lacs had to be given at the time of booking, Rs.94.10 lacs at the time of the agreement and remaining amount on completion of construction. The complainants were asked to deposit Rs.94.10 lacs, which was deposited by them on 27.05.2014. However, Agreement to Sell was executed on 09.01.2015. As per clause-9 of the agreement, expected date of possession was 31.12.2014, subject to force majeure clause. Time to time, the complainants inquired about the possession of the flat and the builder gave some assurance for delivery of possession as early as possible. The complainants received a letter of the builder dated 08.06.2015, extending date of delivery of possession till 31.12.2015. The complainants made query about the status of construction. The builder, vide email dated 30.11.2015, informed the position of the construction and that fit out possession would be given from September, 2016. The builder, vide letter dated 31.03.2016, informed that due to restraint order of Assistant Executive Engineer, the construction was stopped for 253 days and now that order had been set aside by High Court and they had resumed the work and it would likely be completed till the end of December, 2016 to March, 2017. The builder again vide emails dated 19.04.2016 and 02.05.2016, informed that they would be able to give fit out possession till the end of December, 2016 to March, 2017. The complainants, vide emails dated 31.08.2016 and 07.09.2016, requested for return of their money. The builder did not respond. The complainants then gave legal notice dated 01.10.2016, terminating the agreement and demanding refund along with interest, damages etc. Then a meeting was held between the complainants and the officers of the builder. In that meeting, the complainants were informed that the construction had been completed and the builder had applied for “Occupation Certificate” and they were assured that after receiving “Occupation Certificate”, the builder would arrange a new buyer of the flat and the money would be returned to the complainants. The builder obtained “Occupation Certificate” on 17.03.2017 and vide letter dated 22.03.2017, offered possession to the complainants. The complainants, vide application dated 11.06.2017, referred the dispute to District Legal Services Authority, Bangalore, Urban, who in turn placed the matter before Lok Adalat but mediation failed. The complaint was filed on 26.10.2017, complaining deficiency in service.

5. The builder filed its written reply on 30.01.2018, in which, material facts have not been denied. It has been stated that clause-9 of the agreement was subject to ‘force majeure’. Through IA/3475/2020, various papers have been brought on record to show that the notices dated 04.12.2014, 02.01.2015 and 26.09.2015 were issued by Assistant Executive Engineer, Kodigehalli Sub-Division, Bruhath Bangalore Mahanagara Palike, stopping the construction. The builder submitted its reply dated 05.12.2014, 07.01.2015, 01.10.2015 before the authority concerned and a representation dated 01.10.2015 to the Commissioner. But the authorities did not permit the construction. Then these notices were challenged in Writ Petition Nos.10561- 63 of 2016, in the High Court which was allowed by the order dated 10.03.2016. During this period the construction was stopped. Thereafter, the construction works were resumed and completed in November, 2016. The builder applied for issue of “Occupation Certificate’ on 16.11.2016 before the competent authority, which was issued on 17.03.2017. The complainants were offered possession, vide letter dated 22.03.2017. Due to force majeure, the construction could not be completed within promised period. The builder is entitled for extension of time, for the period during which, the construction was illegally stopped by Bruhath Bangalore Mahanagara Palike, under clause-9 and 10 of the agreement. The complaint was filed after offer of possession and is liable to be dismissed.

6. The complainants filed rejoinder reply on 04.07.2018, in which, the facts stated in the complaints were reiterated. The complainants filed various documentary evidence and Affidavit of Evidence of Subrato Bandhu. The builder filed various documentary evidence and Affidavit of Evidence of G. Madhusudana. Both the parties filed their written synopsis.

7. I have considered the arguments of the counsel for the parties and examined the record. Clauses-9 (a) and 10 (a) of the agreements, which are relevant for deciding the controversy, are quoted below:-

DELIVERY OF POSSESSION

9 (a) Subject to the provisions of Clause 10 hereunder and also subject to the PURCHASER complying with all the terms and conditions of this Agreement, possession of the Fourth Schedule Property is expected to be delivered by the VENDOR NO.2 to the PURCHASER by the end of December 31st 2014, or within a period of 30 (Thirty) days from the date of receipt all necessary statutory permissions required for the purpose, whichever is later;

FORCE MAJEURE:

10 (a) If the performance by the VENDOR NO.2, of any of its obligations under this Agreement to Sell is prevented, restricted or interfered with by reason of fire, flood, incessant rain, accident, riots, strike, war, civil commotion, political disturbance or other violence, any other act of God or natural calamity, or on account of any law or regulation of any government, or due to non-availability of steel, cement or other building materials, or non availability of water, sewage or electric connections, or because of undue delay in getting necessary Statutory/Government Clearances, or due to any other act or condition whatsoever, which is beyond the control of the VENDOR NO.2, (each such event shall be called a “Force majeure” event), then the time available to the VENDOR NO.2, for performance of such obligation shall stand extended for a period corresponding to the period of time during which such prevention, restriction or interference and its effects shall continue.

8. A combined reading of clauses-9 (a) and 10 (b) of the agreement, it is clear that subject to force majeure, possession had to be delivered till December, 2014 with a grace period of six months. The builder has filed various papers showing that Assistant Executive Engineer, Kodigehalli Sub-Division, Bruhath Bangalore Mahanagara Palike, had illegally stopped the constructions vide notice dated 04.12.2014 and the construction could be resumed only after the order of High Court dated 10.03.2016. Including grace period of six months, the construction was completed in November, 2016 and the builder applied for issue of “Occupation Certificate’ on 16.11.2016 before the competent authority, which was issued on 17.03.2017. The complainants were offered possession, vide letter dated 22.03.2017. In the statement of account supplied along with letter dated 22.03.2017, the builder had adjusted ‘delayed compensation’, according to the agreement. As such there was no deficiency in service on the part of the builder. Whatever delay was caused, it was due to the reasons beyond the control of the builder and covered under force majeure clause. The builder is entitled for extension of that period under the agreement. As such the relieves as claimed in the complaint cannot be granted.

9. Supreme Court in Ireo Grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241, in which, including grace period, possession had to be offered in July, 2017 but it was offered on 28.06.2019. It has been held that if possession has been offered after obtaining “Occupation Certificate” the buyers were obligated to take possession. The counsel for the complainants relied upon Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711 and Pioneer Urban Land and Infrastructure Limited Vs. Govindan Raghavan, (2019) 5 SCC 725, which are not applicable in the facts of this case.

ORDER

In view of aforesaid discussions the complaint is disposed of with direction to the builder to supply fresh statement of account to the complainants within one month from the judgment, after adjusting ‘delayed compensation’ giving six weeks further time to the complainants, for taking possession, in accordance with the terms of the agreement.