JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER The complainant herein has filed the consumer complaint against opposite party alleging that in the year 2006 complainant was approached by a sales representative of the opposite party to purchase a residential apartment in ‘Unitech Habitat’ to be developed on plot no.9, Sector Pi-II Alistonia Estate, Greater Noida, Uttar Pradesh. The sales representative represented to the complainant that the opposite party would build limited number of quality apartments at a very competitive price. It is alleged that being lured by the representations of the sales representative of the opposite party that possession of the apartment would be delivered within 36 months, the complainant requested the sales representative to send all the details, lay out plan and price details. It is further alleged by the complainant that opposite party showed him a sample of the flat on offer to prospective buyers in the project and that opposite party also handed over the brochure of the project to him. 2. Lured by the promises made by the opposite party that apartment would be ready in 36 months, the complainant applied for allotment of an apartment. The opposite party on receipt of application dated 14.08.2006 issued an allotment letter and allotted apartment no.503, fifth floor having super area 2098 sq. ft. in the said project to the complainant. The complainant entered into a builder-buyer agreement with the opposite party. The total consideration amount agreed by the parties was ₹66,40,938/-. It is the case of the complainant that he paid total sum of ₹59,78,355/- 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. 3. 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: “i. Allow the present complaint in favour of the complainant and against the opposite party; ii. Direct the opposite party to hand over the possession of the apartment no. 503, 5th Floor, Super Area 194.9106 sq. mtr. ( approx. 2098 sq. ft.) in Unitech Habitat, Plot No.9, Sector Pi-II (Alistonia Estate), Greater Noida, District Gautam Budh Nagar, Uttar Pradesh failing which refund the monies paid towards the apartment with interest @ 18% p.a. from the date of receipt of payment; iii. Direct the opposite party to pay the delay charges as per clause 4.c.(ii) of the Allotment letter @ Rs.5 per sq. ft. per month of Super area for the period of delay beyond the period indicated in clause 4.a (i) of the Allotment letter; iv. Direct the opposite party to pay Rs.25,000 per month towards rental / loss of income as rental of her mother from October, 2009 till the possession of the apartment is handed over / refund given. v. Direct the opposite party to refund the entire amount of Rs.59,78,355/- paid to the opposite party with an interest of 18% from the date of receipt till the date of realization to the complainant; vi. Direct the opposite party to pay a sum of Rs.22.26 lacs paid by the complainant to Citibank as interest on housing loan to pay the opposite party; vii Direct the opposite party to pay an amount of Rs.20,00,000/- as compensation for mental trauma and physical trauma suffered by the complainant due to deficiency in service by the opposite party; viii. Direct the opposite party to pay damages of Rs.20,00,000/- to the complainant for indulging in to unfair trade practice by the opposite party; ix. Direct the opposite party to bear the increase in registration and service tax and charge the registration and service tax prevalent at the time, as agreed in the Allotment letter i.e. 36 months from the date of signing the allotment letter; x. Direct the opposite party to pay Rs.1,00,000/- towards the cost of legal and miscellaneous expenses; xi. Pass such order or orders as are deemed fit and proper in the facts and circumstances of the present case and in the interest of justice.” 4. The opposite party despite of service of notice of complaint failed to file written statement within the stipulated period of limitation and also within the extended time of one week to file written statement granted vide proceedings dated 28.04.2017. Right of the opposite party to file written statement was therefore closed. 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 Mr. Sanjay Gupta, Advocate for the complainant and Mr. R K Pandey, Advocate of the opposite party and perused the record. 8. 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 16.9.2006 issued by the opposite party to the complainant it is clear that vide said allotment letter the complainant was allotted subject apartment No.503 on 5th Floor of Tower-3 of the development project Unitech Habitat at Greater Noida undertaken by the opposite party. From the above document it is also clear that agreed consideration amount was ₹66,40,938/-. 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 16.09.2009. Complainant has categorically alleged in the complaint that against the consideration amount, more than 90% amount amounting to ₹59,78,355/- 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 more than 90% 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. 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. 11. Learned counsel for the complainant on the contrary argued for 18% interest on the amount paid. No evidence, however, has been adduced to justify the said claim. 12. 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.” 13. 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. 14. 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.” 15. 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. 16. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹59,78,355/- (Rupees Fifty Nine Lakh Seventy Eight Thousand Three Hundred and Fifty Five 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. | 
