JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER The complainant herein has filed the consumer complaint against opposite party alleging that on being shown the brochure of the forthcoming project of the opposite party by its representative, the complainant entered into an agreement for allotment of residential apartment in ‘Unitech Horizon’, Plot No.6, Sector P1-2, Alistonia Estate, Greater Noida, Uttar Pradesh. It is alleged that the representative of the opposite party assured the complainants that opposite party is in the process of short listing / booking of advance registration of the aforesaid project and that apartment will be allotted on ‘First Come First Serve Basis” and that it was assured by the opposite party that project will be constructed within a short span of time. Relying on the aforesaid assurances, the complainant applied for allotment of an apartment and he was allotted apartment no.0503 on 5th floor in Tower 23 having super area of 1695 sq. ft in the aforesaid Group Housing Complex. The relevant allotment letter and agreements were executed between the parties whereby the opposite party had agreed to deliver possession of the subject apartment to the complainant by November 2008 from the date of agreement. The total consideration amount agreed by the parties was ₹.42,98,235/-. It is the case of the complainant that he paid total sum of ₹41,15,320/- to the opposite party against the agreed consideration amount. Despite that opposite party has failed to complete the construction and deliver possession of the apartment after expiry of stipulated date of delivery of possession. It is alleged that complainant visited the site of construction and on making enquiries from the technical staff of the site, they were informed that construction of Tower No.23 shall take at-least 9-12 months. As a matter of fact, no major construction activity has been undertaken by the opposite party at the project site. Claiming failure of the opposite party to construct and deliver possession of the allotted apartment till date to be deficiency in service, the complainant has raised the consumer dispute seeking following prayer: “a. Direct the opposite party to pay a sum of Rs.1,17,88,110/- (Rupees One Crore Seventeen Lac Eighty Eight Thousand One Hundred and Ten only) out of which Rs.41,15,320/- is towards principal and Rs.76,72,790/- ( Rupees Seventy Six Lac Seventy Two Thousand Seven Hundred and Ninety only) is towards simple interest at the rate of 18% per annum alongwith pendent lite and future interest at the same rate or such higher rate which this Hon’ble Commission may deem fit in the interest of justice. b. Direct the Opposite party to pay a sum of Rs.20,00,000/- (Rupees Twenty Lac only) to the complainant as compensation for harassment, inconvenience and mental agony caused by the opposite party; c. That a sum of Rs.50,000/- ( Rupees Fifty Thousand only) be allowed as litigation costs; d. Any other relief that this Hon’ble Commission deems fit and proper in favour of the complainant in the circumstances of the case.” 2. Opposite party despite service of notice of the complaint has failed to file written statement within the limitation provided under section 13 (2) of the Consumer Protection Act, 1986. No request for condonation of delay or extension of time for filing written statement was made. Therefore, right of the opposite party to file written statement was closed vide proceedings dated 18.09.2017. 3. Complainant has filed evidence by way of affidavit supporting the allegations made in the complaint. 4. Mr. R.K. Pandey, Advocate for the opposite party, however, has appeared today. 5. We have heard learned Shri Jalaj Aggarwal, Advocate for the complainant and Mr. R K Pandey, Advocate of the opposite party and perused the record. 6. Learned counsel for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of allotment letter dated 8.5.2006 issued by the opposite party to the complainant it is clear that vide said allotment letter the complainant was allotted subject apartment No.0503 on 5th Floor of Tower-23 of the development project Unitech Horizon at Greater Noida undertaken by the opposite party. From the above document it is also clear that agreed consideration amount was ₹42,98,235/-. It is also clear from clause 4 (a) of the allotment letter that the opposite party had agreed to deliver possession of the subject flat to the complainant by 15.11.2008. Complainant has categorically alleged in the complaint that against the consideration amount, 95% amount amounting to ₹41,15,320/- has been paid to the opposite party but even more than eight years after the expiry of stipulated date of delivery of possession, the opposite party has failed to deliver the possession. As the opposite party has opted not to file written statement despite of service of notice of complaint, the above said allegations of the complainants are deemed to have been admitted as correct. Otherwise also, the complainant in order to prove said allegation has filed his own affidavit reaffirming the allegations. Thus, it stands proved that despite of having received almost 95% of the consideration amount, the opposite party has failed to deliver possession of the subject apartment to the complainant. In absence of any explanation for failure to comply with the stipulation of delivery of possession, we have no hesitation in concluding that the opposite party has committed deficiency in service as also has indulged in unfair trade practice. 7. Learned counsel for the opposite party has contended that delay in completing the construction and delivering possession of the subject apartment to the complainant was unintentional and the opposite party was prevented from completing the construction and deliver possession because of circumstances beyond the control of the opposite party. The plea of the opposite party is not acceptable as opposite party despite of having option to file written statement has failed to do so and there is no evidence to substantiate the aforesaid plea. 8. Now the question is as to what should be the amount of compensation? In this regard, counsel for the opposite party has drawn our attention to clause 4 c (ii) of the Builder Buyer Agreement and submitted that as per the agreement between the parties, the opposite party company is liable to pay Rs.5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment. Learned counsel for the complainant on the contrary preferred for 18% interest on the amount paid. 9. In order to appreciate the above contention of the counsel for the opposite party , it would be useful to have look on clause 4 c (ii) of the agreement, which is reproduced as under: “That the company would pay charges @ Rs.5/- per s q. ft. per month for the period of delay in offering the delivery of the said apartment beyond the period indicated in clause 4 (a) (i), save and except as for reasons beyond the reasonable control of the Company and Force Majeure events. These charges would be adjusted at the time of Final Notice for possession.” 10. On reading of the above, we find that this clause is applicable only in cases where the opposite party fails to deliver possession of the apartment within the stipulated time and the compensation is to be paid every month for the delay. 11. Clause 4 (e) is the actual clause, which deals with the compensation to be paid by the opposite party if the opposite party is not in a position to offer possession of the apartment to the allottee / complainant. Clause 4 (e ) is reproduced as under: “Default: If for any reason the company is not in a position to offer the Apartment altogether, the company shall offer the allottee (s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.” 12. On reading of the above, it is clear that if for any reason, the opposite party is not in a position to offer possession of the apartment, the opposite party company shall refund the amount with simple interest @ 10% p.a. without any further liability. It cannot be disputed that the opposite party has failed to deliver possession of the apartment even eight years after the expiry of stipulated date. Thus, in our view, this is a case of the opposite party not being in a position to offer possession of the apartment as the allottee cannot be expected to wait for possession of the apartment for indefinite period. Thus, in view of the above clause, opposite party is liable to pay 10% interest p.a. on the deposited amount as compensation for its default. 13. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹41,15,320/- (Rupees Forty One Lakh Fifteen Thousand Three Hundred Twenty Only) to the complainant within six weeks from today alongwith compensation of simple interest @ 10% per annum from the date of each payment till the realisation of the amount. 2. The Opposite party shall pay a sum of ₹10,000/- (Rupees Ten Thousand only) as cost of litigation to the complainant. | 
