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 complainant 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.0901 on 9th floor in Tower 21 having super area of 1705 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 ₹.49,42,755/-. It is the case of the complainant that she paid total sum of ₹47,44,452/- 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 on the site, complainant was informed that construction of Tower No.21 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 to be deficiency in service, the complainant has raised the consumer dispute seeking the following prayer: “a. Direct the opposite party to pay a sum of Rs.1,32,56,574/- out of which Rs.85,12,122,/- is towards interest @ 18% per annum as calculated from the date of payments upto 20.03.2017 alongwith principal amount of Rs.47,44,452/- is towards simple interest at the rate of 18% per annum along with 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 And / or b. Direct the opposite party to complete the construction and deliver the flats to the complainants within a period of six months alongwith a sum of Rs.85,12,122/- as an interest @ 18% simple interest for delay in handing over the possession of flat. 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. c. Direct the opposite party to pay a sum of Rs.20,00,000/- to the complainant as compensation for harassment, inconvenience and mental agony caused by the opposite party; d. That a sum of Rs.50,000/- be allowed as litigation costs; e. 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 31.10.2017. 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 09.05.2006 issued by the opposite party to the complainant it is clear that vide said allotment letter the complainant was allotted subject apartment No.0901 on 09th Floor of Tower-21 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 ₹49,42,755/-. 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 ₹47,44,452/- has been paid to the opposite party but even 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 complainant are deemed to have been admitted as correct. Otherwise also, the complainant in order to prove said allegation has filed her 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 neither there is any pleading by way of written statement to this effect nor there is any evidence to prove the 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 ₹5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment. 9. Learned counsel for the complainant on the contrary has claimed 18% interest on the amount paid. 10. Clause 4 c (ii ) and 4 (e) of the Builder-Buyer Agreement deals with the compensation to be awarded by the opposite party in the event of their failure to give possession by stipulated period. The relevant clauses are reproduced as under 4 c (ii) “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.” 4 (e) “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. Counsel for the opposite party has referred to clause 4 c (ii) of the Agreement and submitted that this being the case of failure of the opposite party to deliver possession of the subject apartment, clause 4 c ( ii) of the agreement is attracted and the complainant is entitled to compensation @ ₹5/- per sq. ft. per month of the super area. We do not find merit in the contention. On conjoint reading of the above noted clauses 4 c (ii) and 4 (e), it is evident that clause 4 c (ii) of the Builder Buyer Agreement would be attracted only in a case in which the delay is for reasonable period and it has occurred because of cogent unfavourable circumstances. This clause would not apply in cases where builder after receiving substantial amount against the agreed consideration deliberately failed to take any steps for completing the construction. If such an argument is accepted, it would give handle to the developer to utilize the money paid by the consumers at a nominal cost of ₹5/- sq. ft. per month of the super area instead of borrowing money from the financial institutions / banks. In the instant case, opposite party has not shown any cogent circumstances or reason which prevented it to deliver possession within the stipulated period. Therefore, in our view, this case should be dealt with under clause 4 (e) of the subject Builder Buyer Agreement, which provides that if the opposite party is not in a position to offer possession of the apartment to the allottee, opposite party shall refund the consideration amount received with 10% p.a. Thus, in our view, opposite party is liable to refund the money received from the complainants with 10% p.a. on the amount w.e.f. dates of respective payments of instalments.. 12. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹47,44,452/- 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. | 
