JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The complainants booked a residential flat with the OP in a project namely ‘Uniworld City’, ‘Harmony’ which the OP was to develop in Kolkata. Vide letter dated 21.08.2014, flat no. 08-03-0304 in the above referred project was allotted to them for a consideration of Rs.1,06,88,003/-. An agreement was then executed between the parties on 26.08.2014, incorporating their respective obligations in respect of the aforesaid allotment. As per clause 5(a)(i) of the agreement, the possession was to be delivered by 31.08.2018, subject of course to force majeure circumstances. The grievance of the complainants is that the possession has not been offered to them despite they having already paid Rs.60,33,875/- to the OP. The complainants are therefore, before this Commission seeking possession of the allotted flat with compensation or refund of the amount paid by them to the OP with compensation. 2. The OP did not file its written version despite service on 09.11.2018 and therefore, its right to file the written version was closed vide order dated 26.03.2019. 3. I have heard the learned counsel for the complainants and have considered the affidavit filed by the complainants by way of evidence. No one is present for the OP when the matter is called. 4. The documents filed by the complainants alongwith their affidavits prove the allotment made to them as well as the payment made to the OP. Since the possession of the allotted flat has not been offered to them, the complainants are justified in not waiting any further for said possession and seek refund of the amount paid to the OP alongwith appropriate compensation. 5. The learned counsel for the complainants has drawn my attention to the decision of this Commission delivered in CC/2597/2017 - Sanjib Saha Vs. Bengal Unitech Universal Infrastructure Pvt. Ltd. decided on 28.11.2018 as well as CC/621/2015 - Ariji Chatterjee Vs. Bengal Unitech Universal Infrastructure Pvt. Ltd. decided on 22.3.2017 and the decision of this Commission dated 9.1.2017 in CC/654/2015 – Vikash Arora Vs. Bengal Unitech Universal Infrastructure Pvt. Ltd. 6. The decision 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.” 7. The learned counsel for the complainants has also placed reliance on the decision of the Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & other connected matter, decided on 02.04.2019, which to the extent it is relevant, reads as under: 6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.” 8. In view of the above-referred decision of the Hon’ble Supreme Court, it can hardly be disputed that the Clause of the agreement which provides for payment of compensation @ Rs. 5/- per sq.ft. per month for the period of delay is wholly unfair and one-sided and, therefore, will not bind the parties. Moreover, in the present case, Clause 5.e of the Buyers Agreement itself envisages refund with simple interest @ 10% p.a. in case the developer is not in a position to offer apartments or an alternative property. The OP did not offer any alternative property to the complainants at any point of time before this complaint was instituted or even by the time the written version was filed. 9. For the reasons stated hereinabove, the complaint is disposed of with the following directions:- The opposite party shall refund the entire amount received from the complainants to them along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund. The opposite party shall pay Rs.25,000/- as cost of litigation to the complainants. The payment in terms of this order shall be made within three months from today.
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