JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER Kamal Kumar Agarwal and his wife Mrs. Anupriya Agarwal, the complainants herein jointly booked apartment no. no. 1101, 11th Floor in Tower-01 in the housing project ‘Unitech Habitat’ proposed to be developed by the opposite party on plot No. 9, Sector Pi II, Greater Noida, Uttar Pradesh vide application dated 18.03.2008. As per the terms of allotment, the opposite party was supposed to deliver possession of the subject apartment within 26 months from the date of issue of allotment letter. The consideration amount was ₹73,81,524/- to be paid in instalments. It is the case of the complainants that pursuant to the agreement, they have paid a sum of ₹69,75,559/- to the opposite party but the opposite party has failed to complete the construction years after the expiry of stipulated date of delivery of possession. The complainants being aggrieved have filed the consumer complaint seeking following prayer: 1. Direct the respondents to pay to the complainants a sum of Rs.69,75, 559/- and interest @ 18% per annum, interest @ 18% per annum on Rs.21 lakhs paid by the complainants as pre-emi interest to the Bank, and also reimburse any other payments made by the complainants with interest at the rate of 18% per annum; 2. Direct respondents to pay compensation @ 18 per annum for continued delay in delivery of possession of apartment for which the respondents are responsible, instead of the disproportionately low compensation of Rs.5/- per sq. ft. per month; 3. Direct respondents to pay to complainants costs of renting alternative accommodation @ Rs.28,000/- per month commencing 01.04.2015 onwards due to failure of respondents to hand over possession of the flat to the complainants; 4. Direct respondents to pay adjust the increase in the service tax with effect from 01.06.2015 in the balance sale consideration to be paid by the complainants to the respondents; 5. Direct respondents to pay to the complainants a compensation ofRs.10,00,000/- towards mental and physical agonies suffered and undergone by the complainants due to acts of deficiency in service and unfair trade practice of the respondents; 5. Direct respondents to pay to complainants a sum of Rs.5,00,000/- towards cost of litigation; and 6. Pass such other or further orders/reliefs in favour of the complainants and against the respondents, as this Hon’ble Commission may deem fit and proper in the interests of justice. 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. 3. Mr. Pradeep Kumar Agarwal, General Power of Attorney for the Complainants 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 Ms. Shalini Kumar, Advocate for the complainants and Mr. R K Pandey, Advocate for 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 01.04.2008 issued by the opposite party to the complainant it is clear that vide said allotment letter the complainant was allotted subject apartment No.1101 on 11th Floor of Tower-01 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 ₹69,96,972/-. 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 within 26 months from the date of agreement. Complainant has categorically alleged in the complaint that against the consideration amount, substantial amount of ₹69,75,559/- 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 complainants are deemed to have been admitted as correct. Otherwise also, the complainants in order to prove said allegation have filed affidavit of Mr. Pradeep Kumar Agarwal, their General Power of Attorney reaffirming the allegations. Thus, it stands proved that despite of having received substantial 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. Learned counsel for the opposite party has contended that delay in completing the construction and delivering possession of the subject apartment to the complainants 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. Learned counsel for the complainants on the contrary has claimed 18% interest on the amount paid. 9. 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 Developer would pay charges @ Rs.5/- per s q. ft. per month of the Super Area 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 Developer and Force Majeure events. These charges would be adjusted at the time of Final Notice for possession.” 4 (e) “If for any reason the Developer is not in a position to offer the Apartment altogether, the Developer 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 / charges to the Allottee (s) on this account.” 10. 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 complainants with 10% p.a. on the amount w.e.f. dates of respective payments of instalments.. 11. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹69,75,559/- 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. | 
