IA/17363/2018 (C/delay) The OP is granted time till 25.9.2018 to deposit the cost imposed on it. CC/55/2017 The complainant booked a residential flat with the opposite party in a project, namely, ‘Uniworld City - Harmony’, which the opposite party was to develop in Kolkata. Vide allotment letter dated18.6.2012, flat No.01-18-1901 in the aforesaid project was allotted to the complainant for a consideration of Rs.7388926/-. The parties then executed an Agreement to Sell dated 22.6.2012. In terms of Clause 5.a of the said agreement, the possession was expected to be delivered to the complainant on or before 31.12.2014. The grievance of the complainant is that even the construction of the flat is not complete despite he having already paid Rs.5809248/- to the opposite party. The complainant is, therefore, before this Commission seeking refund of the aforesaid amount along with compensation etc. 2. The complaint has been resisted by the opposite party, which has admitted the allotment made to the complainant as well as the payment received from him. The complaint is stated to have been resisted primarily on the ground which this Commission has already rejected in other consumer complaints including Consumer Complaint No.654 of 2015 – Vikash Arora Vs. M/s Bengal Unitech Universal Infrastructure Pvt. Ltd., decided on 9.1.2017. The order of this Commission in Vikash Arora (supra) to the extent it is relevant, reads as under:- “3. The complaint has been resisted by the OP which has inter-alia alleged that the delay in construction is attributable to the delay in obtaining the statutory approvals pertaining to road, electricity, water, sewerage etc. beyond the control of the OP. It is further alleged that construction is in progress and the OP remains committed to deliver possession of the flats to the complainants. 4. The main question which arises for consideration in this complaint is as to whether the construction of the flat agreed to be sold to the complainants has been delayed on account of reasons beyond the control of the OP. It has been vaguely alleged in the written version that there was delay in obtaining approvals and permissions required for infrastructural work, without disclosing when the approvals and permissions were applied and when they were granted. The written version of the OP does not show what is the time normally taken for grant of such approvals and permissions and what was the time actually taken in this case. The reply does not indicate the objections if any taken by the statutory authorities to the applications of the OP seeking the requisite approvals and permissions. If the delay occurred on account of some defect or deficiency on the part of the OP itself, the statutory authorities cannot be blamed for the said delay. Moreover, the delay in this case was very substantial, more than five years from the committed date of possession having already expired and the completion of the flat allotted to the complainants nowhere being in sight. 5. I also find no merit in the contention that in the event of delay, the complainants are entitled to the agreed compensation @ Rs.5/- per sq. ft. per month for the period of delay, in terms of clause 5.c.(ii) of the Agreement, since the above referred clause in my opinion applies to the cases where the allottee wants possession of the flat alongwith compensation and does not claim refund of the amount paid by him alongwith compensation. In any case, clause 5.e of the Agreement itself provides for refund alongwith interest @ 10% per annum in the cases where the developer is unable to deliver the possession of the flat to the buyer.” 3. The learned counsel for the opposite party states that they had offered an alternative flat to the complainant during the course of negotiations before Delhi High Court Mediation and Conciliation Centre. The alternative offer made by the opposite party, however, was not acceptable to the complainant. The complainant who is present in the Court states that the alternative offer could not be accepted by him for the reasons that he wanted a flat on a floor higher than 10th floor and the quality of the alternative flat was inferior. In my view, the complainant cannot be compelled to accept the alternative offer made by the opposite party which is in default, having not performed its contractual obligation to complete the construction and offering possession of the flat on or before 31.12.2014. 4. The learned counsel for the complainant states on instructions from the complainant that considering the interest rate on FDRs, the complainant is restricting his claim to the refund of the principal amount paid by him along with compensation in the form of simple interest @ 10% per annum in terms of Clause 5.a of the Buyers Agreement. 5. The complaint is, therefore, disposed of with the following directions:- (i) The opposite party shall refund the principal amount of Rs.5809248/- to the complainant along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund with compensation. (ii) The opposite party shall pay Rs.25,000/- as cost of litigation to the complainant. (iii) The payment in terms of this order shall be made within three months from today. | 
