JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER Sachin Dev Sharma & his wife Sheetal Sharma, the complainants herein had booked apartment no.0101 having super area 1693 sq.ft. on the first floor of Tower No.22 of Group Housing Development Project “Unitech Horizon” situated at Plot No.6, Sector PI-2, Alistonia Estate, Greater Noida undertaken by the opposite party developer. As per the allotment agreement, the complainants were required to pay ₹43,30,268/- as total consideration for the apartment. The opposite party was to deliver possession of the apartment by November 2008. It is the case of the complainants that they had paid substantial sum of ₹41,63,972/- against the consideration amount but the opposite party has failed to adhere to the timeline for delivery and failed to deliver possession even more than eight years after the stipulated date. Being aggrieved, the complainants have filed consumer complaint seeking refund of ₹41,63,972/- paid against the consideration amount to the opposite party with 18% interest p.a. besides compensation and cost for litigation. 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 and also failed to put in appearance on hearing dated 20.12.2016. Consequently, right of the opposite party to file written statement was closed and the opposite party was proceeded ex parte. 3. Complainants have filed evidence by way of their own affidavits supporting the allegations made in the complaint. 4. Ms. Shrutimala Das, Auth. Representative for the opposite party, however, has appeared today. No application has been moved for setting aside ex-parte order dated 20.12.2016 or the recall of the said order. 5. We have heard learned Shri Jalaj Aggarwal, Advocate for the complainants and Ms. Shrutimala Das, Auth. Representative 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 complainants it is clear that vide said allotment letter the complainants were allotted subject apartment No.0101 on 1st Floor of Tower-22 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 ₹43,30,268/-. 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 complainants by 15.11.2008. Complainants have categorically alleged in the complaint that against the consideration amount, almost 95% amount amounting to ₹41,63,972/- has been paid to the opposite party but even more than eight years after the expiry of stipulated date of deliver 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 complainants in order to prove said allegation have filed their own affidavits 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 complainants. In absence of any explanation for failure to comply with the stipulation of deliver 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. Now the question is as to what should be the amount of compensation? In this regard, authorised representative of 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. 8. In order to appreciate the above contention of the Authorised Representative , 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.” 9. 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. 10. 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.” 11. 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 that 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. 12. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹41,63,972/- (Rupees Forty One Lakh Sixty Three Thousand Nine Hundred and Seventy Two only) to the complainants 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 complainants. | 
