Clause 17 - Justify Force Majeure for delay in contruction

[Ajay764_1]

Sent the email to Shivsai on 26-Aug-11

Dear All,

I booked subject flat in your Ozone Park project, for which commencement was started in the beginning of the year 2007. Project was suppose to finish in 30 months e.g. in the end of year 2009. I had made the 95% of payment till 25-Aug-2009 and Rest 5% payment is due as per attached payment plan I am still wonder 95% work is completed on time and the project was reviewed by HDFC and payment has been released from the Bank on time but to complete the 5% work it takes 20 months (as on date 26-Aug-2011) and still I have not get the possession letter ,Could you Pls chase up and review once again why the project is on further delay?

Note: I am suppose to get Penalty, as per clause of the agreement I am entitled to get Rs 3.0 psf of the super area e.g. Rs. 1795 psf which comes out Rs. 5385 per month with an interests of 18% as per your agreement followed by 24% after three months. The interest can be calculated using software on monthly basis.
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Received the reply from A Sen Gupta on 26.08.11
Kindly refer to your mail dated 26.08.2011.

Construction work in the project is going on in hectic pace. Occupancy would be offered by the end of this year.

The delay in construction was due to 'Force Majeure' condition. Force Majeure means unforeseeable events which excuse from fulfiling contract for various reasons which are beyond control. Construction work was hindered owing to such reasons leading to such delay. As per clause 17 of Builder/Buyer Agreement no claim by way of damages/compensation shall lie against the Developers in case of delay in handing over possession in such cases

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Sent the email to Shivsai on 30-Aug-11
Hi Asen,

It has been verbally agreed in my last meeting that Penalty will be given If any delay of possession. How come this clause 17 comes in picture.
Pls elaborate 'Force Majeure' condition !

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Received the reply from A Sen Gupta on 02.09.11
Respected Sir,

Kindly refer to your return mail dated 01.09.2011.

In this connection, your kind attention is invited to my mail dt 30.08.2011 sent in reply to the point that some body has promised to pay penalty for delay in construction as mooted by you. This is contrary to the provision of clause 17 of the Builder/Buyer Agreement.

Sir, I shall be very grateful to have point specific clarificatory reply to my mail dated 30.08.2011 so as to kindly enable me to examine the matter in the proper perspective.

Sir, very humbly I assure you complete satisfaction in regard to the points raised by you in your mail dated 01.09.2011.



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Sent the email to Shivsai on 1-Sep-11
Thanks for the given the reply!

With regard to the specifics you are seeking , it was a verbal assurance give by the people responsible at your construction site office that Penalty will be given If any delay of possession

So, Pls examine the matter as stated in my attached document that when 95% work was completed on time and the corresponding payment towards this has been released from HDFC bank on time in Aug 2009. Now my concern is how come only 5% of the total work comes under clause 17, which effectively resulted in delaying the possession for 20 months as on date.

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Received the reply from A Sen Gupta on 02.09.11
Respected Sir,

Kindly refer to your return mail dated 01.09.2011.

You must be well aware that 'Force Majeure' element is an internationally accepted condition of contract / agreement. Your kind attention is invited to our mail reply dated 30.08.2011 wherein it was mentioned specifically that delay was due to Force Majeure condition. We also want you to very kindly note that there is no statutory provision for certifying or authenticating of such condition by any authority.

Sir, you are our valued customer and we share your constraints. We are least inclined to enter into any argument with you. It doesn't augur well with so precious a relation. If you could kindly make it convenient to come to our office with prior telephonic appointment we will place before you documented records for your perusal.

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Sent the email to Shivsai on 3-Sep-11

Hi A Sen

As already raised, my concern about asking to refer to clause 17 of ‘Force Majeure’ for nonpayment of penalty against delay in possession of flat:

As correctly mentioned by you Force Majeure means unforeseeable events excluding a person from fulfillment of a contract.

Would like to seek your kind attention to the Force Majeure clause in brief:

Force majeure (French) "superior force", "chance occurrence, unavoidable accident", is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term act of God (such as flooding, earthquake, or volcanic eruption), prevents one or both parties from fulfilling their obligations under the contract.

However, force majeure is not intended to excuse negligence or other malfeasance of a party, as where non-performance is caused by the usual and natural consequences of external forces (for example, predicted rain stops an outdoor event), or where the intervening circumstances are specifically contemplated.

I do not find anything happening (flooding, earthquake, or volcanic eruption) after my last payment on Aug 2009, and HDFC had reviewed the project and cleared my payment on Aug 2009 and also I have not received any such notice from M/s Shiv Sai Infrastructure Pvt. Ltd. stating the Force Majeure condition in the construction area since Aug 2009.

If at all Force Majeure clause is valid you need to provide the sufficient documents against the clause ( Why Clause - 17 Applicable only 5% of the total work effecting between Aug 2009 to Sep 2011) Otherwise the point raised for Force Majeure becomes null and void.

In case of not providing satisfactory documents, Shiv Sai Infrastructure Pvt. Ltd. is bound to pay the penalty and expenses occurred (rent paid) due to delay in possession for 20 months so far

In case of nonpayment of penalty towards delay in possession, we will be compelled to take necessary action (moving Court of Law and disclosing the facts with Media) against Shiv Sai Infrastructure Pvt. Ltd.

[rky0111]

Great,
I also have the same correspondence with shivsai Infrastructure P LTD. I Also requested for any reasonable documents which can justify the delay of the project. However, Mr Sengupta turned hostle.

That shows they do not have any "Force Mejeure" and just to save their skin they are replying and misusing this word. This is a very strong case of consumer court. I would also like to join the group if moving to court.

Ravi
9968246307

[Manish10574]

I too had same converstation with them over email. Now there is only one way to sort this out by going to court. I am ready to chip in for this process and contribute funds to achieve the resolution on this. We should ask to compensate delay in possession and mental agony caused by builder. We all ozone park members should do it together.

We all should unite for this cause.

[rajesh3107]

Dear All Ozone Park Buyers
Now the time has come, Lets we register Ozone Park Residents Welfare Association immediately so that we can fight together for injustice. We welcome for any suggestions.

[Manish10574]

OPRWA---sounds good--I am in....

[bmidha]

Hello All,

I can see in every other message that everyone is talking about filling legal case in consumer court (Delhi, Faridabad, Chandigarh High court etc) or filling a complaint in other government agency. I recently joined this group and don't know whether we have legal advisor/lawyer on GFWA panel that can advise the members about the correct legal steps to be taken on the problems that we are facing. If we don't have anyone yet then we should appoint someone on our panel with whom different group society members can consultant on legal matters.
What's others view on this?

Regards
Ajay Midha

[UMESHSOOD6]

Dear Mr Ajay Sharma,

Penalty is surely payable and the builder should honour his committment. He has already delayed the project for 2 yrs and most of us have remained invested and supported the venture with confidence.We have already suffered because of increased EDC loss of tax benefits and notional rent. I can only appeal to the promoters including BAidyanath Chyawanprash to honour its commercial committment in this first project of theirs.

Umesh Sood
9810732970

[webmaster]

Hello All,

I can see in every other message that everyone is talking about filling legal case in consumer court (Delhi, Faridabad, Chandigarh High court etc) or filling a complaint in other government agency. I recently joined this group and don't know whether we have legal advisor/lawyer on GFWA panel that can advise the members about the correct legal steps to be taken on the problems that we are facing. If we don't have anyone yet then we should appoint someone on our panel with whom different group society members can consultant on legal matters.
What's others view on this?

Regards
Ajay Midha

Hi Ajay,

We have a legal team of GFWA who are basically members from different residential projects and who have volunteered to support us in legal matters. However that should not be interpreted that the team is dedicated to GFWA for legal advice/counseling. Each member is supporting us in his or her own capacity and bandwidth. Till now they have been providing us enormous support in the writ petition for the EDC case.

We cannot expect them to provide support to every society in legal matters due to the nature and complexity of issues involved. For that matter we encourage the members from one society to get together, come to a consensus and consult or engage a lawyer depending on their requirements for builder specific issues. For matters related to entire Greater Faridabad area, we can ask the GFWA legal team for support. Appointing a dedicated legal team for GFWA is beyond our scope due to the cost factor.

[deepakarora]

We should file case against Shiv Sai, to get penality against delay in possession.

[divya mittal]

Dear f riends,

1. I have been following the thread for a little while now. I agree that some action must be taken to compensate the buyers for the delay which seems purely at builders end. Clause 17 needs to be argued in court, but my suggestion would be to do so only at the time of possession of flats. I shall be pleased to disclosed the strategy in the meeting (as and when it is held) of all investors of Ozone Park as to how to fight and win the cases like this?

2. Here I would like to suggest that we, all investors in Ozone Park of Shiv Sai, should form an association and get united. First of all, we all should mention our contact details (as given below)in every reply/new post, so that we may come close to form an association to fight for rights unitedly.

Thanks & Regards
RK Gupta
c/o Divya Mittal
+91.98918.44655
rkgupta1099@gmail.com

[pankajhans]

I do agree with you. Lets have our own Ozone association.


Regards,
Pankaj
T12-4A
9999990175

[mukesha]

Dear Ozon Flat holders

I also agree for formatioin of our own Ozone association. Let us meet on coming Sunday at Ozon Site at 11.30. Others (ozon stake holders) are also requested to come up with their views.

Warm Regards
Mukesh Aggarwal
9818612146

[piyushr]

Piyush Rathi
T9-6B
+91 98101 85088
Piyushrat@gmail.com