This complaint has been filed by the complainants Ram Awtar Ramsisaria & Anr. against the opposite party.

2.      The complainants have alleged that they had paid a sum of Rs.1,57,75,450/- to the opposite party in the year 2007.  However, possession has not been given by the opposite party.  As the project has been inordinately delayed and there is no hope of completion of this project, the complaint was filed for giving possession and if it was not possible to hand over the possession then asking for refund.  As per the builder-buyers agreement, the possession was to be given after 36 months of the date of agreement subject to extension by six months.  The agreement was signed on 05.02.2007 and the possession was due on 31.12.2010.

3.      The opposite party contested the complaint by filing the written statement.  It has been stated by the opposite party that as per Clause 5(f) of the agreement, it has been provided that if the builder is not able to offer allotted flat to the complainant, the builder shall offer alternate property to the consumer or refund along with 10% p.a. interest.  The complainants filed evidence by way of affidavit on 01.08.2016 and the opposite party filed their evidence by way of affidavit on 05.10.2016.

4.      Heard the learned counsel for both the parties and perused the record.

5.      Learned counsel for the complainants argued that the project has been inordinately delayed.  There is no hope for completion of the project.  The possession was due on 31.12.2010 as per the agreement. However, the same has not been delivered by the opposite party.  He further stated that the complainants are not interested in accepting any other property as provided under Clause 5(f) of the agreement and they want only refund of their money paid to the opposite party.  Learned counsel referred to the following judgments to emphasise that if there is delay in handing over the possession, the refund can be ordered along with interest.

“1.   Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC).

2.     Shri Satish Kumar Pandey & Anr. Vs. M/s. Unitech Ltd.,CC No.427 of 2014, decided on 08.06.2015 (NC).

3.     Dewan Ashwani & 7 Ors. Vs. Unitech Reliable Projects Pvt. Ltd., CC No.282 of 2012, decided on 07.05.2015 (NC)

4.     Sipra Thomes Vs. Bengal Unitech Universal, CC No.398 of 2015, decided on 19.05.2016 (NC)

5.     Vikash Arora & Anr. Vs. M/s. Bengal Unitech Universal Infrastructure Private Limited, CC No.654 of 2015, decided on 09.01.2017 (NC)”

 6.     It was further stated that as the builder is charging 18% p.a. interest on default amount, the same interest may be awarded to the complainants. 

7.      On the other hand, the learned counsel for the opposite party argued that there is a clear provision in Clause 5(f) of the builder-buyers agreement that if, on account of any reasons, the builder is not able to allot the flat, the builder can offer alternate property to the allottee or refund may be made with 10% interest p.a.  Learned counsel stated that the opposite party is ready to offer alternate property and therefore, there should be no question of refund of the amount paid by the complainants.  It was argued that both parties are bound by the agreement and in this regard no other relief can be granted by the consumer fora.  Learned counsel relied upon the judgment in the case of Secretary, Bhubaneshwar Development Authority Vs. Susanta Kumar Mishra, (2009) 4 SCC 684 and pointed to the following observations of the Apex Court:-

“21.     When a lessee signs without protest an agreement agreeing to pay interest at a given rate from a given date in given circumstances, and does not contend that the term relating to instalments or interest is invalid or inequitable, it is not open to the consumer forum to grant any relief.  A demand for any amount due in terms of the unchallenged terms of an agreement, does not furnish a cause of action to the lessee/allottee to approach the consumer forum.”

8.      It was further argued by the learned counsel that there is a further provision for compensation @ Rs.5/- per sq.ft. per month to be given to the allottee if the possession is delayed. The opposite party is ready to offer alternate property and to give this compensation also.

9.      I have given a thoughtful consideration to the arguments advanced by both the learned counsel and have examined the material on record.   The amount of Rs.1,57,75,450/- has been paid by the complainants to the opposite party and the possession was due before 31.12.2010.  Clearly the opposite party has admitted that the project in which the allotment was made to the complainants is not coming up.  There has been a delay of about 7 years and the opposite party has neither delivered the possession nor offered alternate property nor has refunded the amount paid by the complainants.  Once the possession is inordinately delayed or the project is not being completed in the near future, the allottee has a right to ask for the refund of amount as the allottee cannot keep his money blocked with the opposite party for a long time.  Though the learned counsel for opposite party has argued that the opposite party is ready to give alternate property, but no details of such property have been given nor any such offer was made to the complainants before filing complaint.  Now, the question is whether the option to give alternate flat or refund is to be exercised by the opposite party or this option is for the complainants.  When the main allotted flat is not being offered by the opposite party for which the original builder-buyers agreement was executed, the choice has to be of the consumer whether he wants to accept the alternate property or wants refund.  In the present case, even the details of the alternate property has not been disclosed.  However, even when they are disclosed and if the consumer does not want to take alternate property, in my view, the same cannot be thrust upon the consumer.  In the present case, the complainants now want refund for which they are fully entitled to.

10.    Based on the above examination, the prayer of the complainants for refund is accepted.   Accordingly, the opposite party is liable to pay 10% p.a. interest on the amount of refund as per the builder-buyers agreement.  As the opposite party has not acted in compliance of Section 5(f) of the agreement on its own, the complainants are entitled to compensation for mental agony and cost of litigation. 

11.    Based on the above examination, the opposite party is  directed to refund Rs.1,57,75,450/- to the complainants along with interest @ 10% p.a. from the date of respective deposits till actual payment.  The opposite party is also directed to pay a compensation of Rs.3,00,000/- (rupees three lakhs only) and cost of Rs.50,000/- (rupees fifty thousand only) to the complainants.  The order be complied within a period of 60 days from the date of this order.