The opposite party developer was allotted a parcel of land on lease hold basis for 90 years by Greater Noida Industrial Development Authority for developing a Group Housing Complex, namely, Unitech Horizon. Mr. Vineet Gupta, predecessor-in-interest of the complainants applied for allotment of an apartment in the said complex. Mr. Vineet Gupta was allotted apartment no.1102 in Tower 20 of the aforesaid project vide allotment letter dated 08.05.2006. The total consideration agreed between the parties was Rs.49,42,755/-. As per the terms and conditions of the allotment letter, Vineet Gupta paid a sum of Rs. 13,71,635/- as part payment towards the consideration amount. 2. On 28.02.2007 Vineet Gupta sold his interest in the said apartment to the complainants for total consideration of Rs.49,42,755/-. As per the agreement to sell, the complainants were supposed to pay the balance amount to the opposite party as per the terms and conditions in the allotment letter. The allotment was thus transferred by the opposite party in favour of the complainants. 3. The allotment letter executed in favour of Vineet Gupta which was subsequently endorsed in favour of the complainants provided that opposite party shall deliver possession of the subject apartment by 15.11.2008. The complainants duly paid all the instalments towards the subject apartment but the opposite party failed to deliver possession within the stipulated period. On 10.06.2013, opposite party sent letter to the complainants informing that apartment was ready for delivery of possession, however, the unit was not complete. The opposite party sent another letter informing the complainants that the area of the unit was increased from 1705 sq. ft. to 1767 sq. ft. and claiming additional consideration of Rs.1,74,282/-. The complainants paid the remaining consideration and maintenance charges in terms of letter dated 10.06.2013. On 29.05.2014 the opposite party issued a possession letter to the complainants, which was issued 10 months after the final payment The physical possession, however, was not given despite of several reminders sent to the opposite party. On 09.03.2017 the complainants visited the project and found that unit was not complete and it was in unliveable condition. Feeling aggrieved, the complainants filed a consumer complaint seeking following prayer: a. Direct the opposite party to pay the complainants a sum of Rs.1,43,86,156/- towards refund of the consideration amount and the interest thereon as on 28.02.2017; b. Direct the opposite party to pay a pendent lite and future interest @ 18% per annum calculated from 01.03.2017 up till the date of realization; c. Direct the opposite party to pay damages to the extent of Rs.20,000,00/- for mental agony and mental harassment; d. Direct the opposite party to pay Rs.2,00,000/- as the present litigation cost; e. Pass such and further order (s) as this Hon’ble Commission may deem fit and appropriate in the interest of justice” 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 27.10.2017. 5. Mr. Sudarshan Gambhir, Power of Attorney on behalf of complainant no.1 has filed his 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 Mr. Gaurav Gupta, Advocate for the complainants and Mr. R K Pandey, Advocate of the opposite party and perused the record. 8. Learned counsel for the complainants has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of allotment letter issued by the opposite party to the complainant it is clear that vide said allotment letter the complainants were allotted subject apartment No.1102 on 11th Floor of Tower-20 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. Complainants have categorically alleged in the complaint that against the consideration amount, they have paid ₹51,69,047/- 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 complainants in order to prove said allegation has filed affidavit of Sudarshan Gambhir, Power of Attorney, on behalf of complainant no.1 reaffirming the allegations. Thus, it stands proved that despite of having received more than 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 ₹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 has claimed 18% interest on the amount paid. 11. 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.” 12. 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 complainants are 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 complainant with 10% p.a. on the amount w.e.f. dates of respective payments of instalments.. 13. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹51,69,047/- to the complainants within six weeks from today alongwith compensation of simple interest @ 10% per annum calculated from the dates on which the instalments regarding payments were received. It is clarified that interest on the sum of Rs.13,71,635/- paid by the complainants to the original allottee as consideration for purchasing his interest in the subject apartment shall be calculated w.e.f. the date of agreement to sell i.e. 28.02.2007. 2. The Opposite party shall pay a sum of ₹10,000/- (Rupees Ten Thousand only) as cost of litigation to the complainants. | 
