‘Unforeseeable circumstances are no excuse for delayed possession’
In a recent case, decided by the National Consumer Disputes Redressal Commission (NCDRC) the defence of force majeure clause or Unforesswas used by the builder to try and escape from any penalty that may be imposed on it due to delay caused in the handover of the possession of the apartment or the unit.
In the present case, being aggrieved by an order of Haryana State Consumer Disputes Redressal Commission held the builder guilty of deficiency in service. It directed it to refund the money paid by the complainants with 12% interest besides payment of compensation and litigation expenses. Later, an appeal was made by the builder (appellant) to NCDRC.
The brief facts of the case are that the prospective buyers (complainants) booked residential plots in a development project undertaken by the builder in Sector 3, 4, 4-A of Islam Nagar, Pinjore Kalka Urban Complex District, Panchkula. A plot-buyer’s agreement was executed between the builder and the buyers in 2011. As per the terms and conditions of the agreement, the builder had to deliver the plots within a period of 24 months, with a grace period of six months. Despite the fact the buyers had made substantial payment against the consideration amount, the builder failed to deliver possession of the respective plots within the stipulated time. This forced the complainants to raise a consumer dispute before the state commission for which they received a favourable verdict.
The builder pleaded before NCDRC that it had obtained necessary wild life clearance, forest clearance, letter of intent issued by department of town and country planning department Haryana (DTCP) for setting up of residential plotted colony on the additional land before seeking application of allotment of plots from the public at large. It was pleaded by the builder that in response to their letter dated March 16, 2011, it was instructed by the DTCP not to carry out any work unless he received clearance from the irrigation department, Haryana. This condition was imposed for the first time although there was no mention of such condition either in the letter of intent or the licence for development issued in favour of the appellant.
The requisite clearances and permissions from the competent authorities took nearly three to four years from the date of issuance of the letter dated March 16 the development on the subject.it is also argued that the state commission has ignored the aforesaid aspects which caused delay in the development of the project and delivery of plots to the respondents and the obstructions were not within the control of the appellant.
Thus, in view of the force majeure clause, the complaint ought to have been dismissed but it wasn’t.
On the other hand, it was contended on behalf of the respon majeure clause is not available to the appellant because they entered into the plot buyer’s agreement with the respondents by concealing material facts.
NCDRC did not find any merit in the contention of the appellant and held that the protection of force majeure clause in the agreement between the parties was not available to the appellant for the reason that it was the stand of the appellant that vide letter dated March 16, 2011, DTCP Haryana had directed the earth work or construction work at the subject site withou obtaining no objection certifi cate from the irrigation depart ment, Haryana. Despite the restraint, the appellant executed the plot buyer’s agreement with the complainants during the period June 23, 2011 and June 24 2011.
NCDRC also observed tha while entering into the agree ment, the appellant did not men tion the restraint letter dated March 16, 2011 issued by DTCP Haryana. NCDRC opined that by concealing material facts, the appellant defrauded the com plainants to execute the agree ment that contained the force majeure clause, which is an unfair practice and amounts to deficiency in service.