JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER The complainants are subsequent purchaser of apartment no.1602, 15th Floor in Tower-23 in the development project ‘Unitech Horizon’ undertaken by the opposite party. 2. Briefly stated, the allegations of the complainants are that originally the aforesaid apartment was allotted by the opposite party to Shishir Deo on 08.05.2006. As per the agreement, total consideration was Rs.49,42,755/- and the opposite party was supposed to deliver possession of the flat latest by 15.11.2008. Although, substantial amount of Rs.47,29,701/- was paid by the original allottee, the opposite party failed to fulfil its promise for delivering the possession of the flat by 15.11.2008. 3. It is further alleged that original allottee sold his interest in the subject flat to the complainants on payment of consideration and the complainants stepped into the shoes of the original allottee. The opposite party endorsed the name of the complainants as joint allottees of the subject apartment in their record on 12.12.2008. An allotment letter dated 12.12.2008 was issued in favour of the complainants. The opposite party had assured that they would deliver possession of the flat to the complainants within 12 months i.e. latest by 12.12.2009. Despite of having received substantial amount against the agreed consideration, the opposite party has failed to deliver possession of the subject flat to the complainants. Claiming this to be deficiency in service, the complainants filed consumer complaint seeking refund of Rs.47,29,701/- paid by them against the consideration amount with interest to the tune of Rs.72,79,593/-. The complainants have also sought compensation to the tune of Rs.20,00,000/- for harassment, inconvenience, mental agony besides the litigation cost. 4. 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 20.09.2017. 5. Complainant has filed evidence by way of affidavit supporting the allegations made in the complaint. 6. Mr. R.K. Pandey, Advocate for the opposite party, however, has appeared today. 7. 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. 8. We have considered the rival contentions and perused the record. The opposite party despite of service of notice of complaint failed to file written statement to controvert the allegations of the complainants. Thus, in our view, the allegations in the complaint are deemed to have been admitted as correct. The complainant no.2 Sharmila Mukherjee has filed her own affidavit in support of the claim. In the affidavit, complainant no.2 has fully reiterated the allegations made in the complaint. Therefore, in our view, it is established on record that complainants were accepted and substituted as subsequent allottees of subject flat and they have paid substantial amount of Rs.47,29,701/- against the agreed consideration amount of Rs.49,42,755/-. It is also established on record that opposite party had agreed to deliver possession of the subject flat to the complainants latest by 12.12.2009 and till date the possession has not been delivered. Thus, it is established on record that opposite party despite of having received substantial amount has failed to deliver possession of the flat to the complainant even eight years after the expiry of the agreed date of delivery of possession. Thus, in our view, amounts to deficiency in service as also unfair trade practice. 9. 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. 10. 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 14% interest on the amount paid. 11. 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.” 12. 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. 13. 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 / complainants. 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.” 14. 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. 15. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹47,29,701/- (Rupees Forty Seven Lakhs Twenty Nine Thousand Seven Hundred and One only) to the complainants within six weeks from today alongwith compensation of simple interest @ 10% per annum from the date of issue of allotment letter to the complainants i.e. 12.12.2008 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 complainants. | 
