JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The respondent Sh. Gautam Bahri booked a residential flat no. G-9-0604, with the petitioner in the township it is developing in Kundli, Sonepat, Haryana, known as TDI City. The respondent paid a sum of Rs. 3 lakhs to the petitioner, followed by a payment of Rs. 2 lakhs on 04.08.2006, which led to the parties entering into a buyer agreement dated 26.02.2007. (2) Vide notice dated 17.02.2011, the complainant/respondent required the petitioner to deliver the possession of the flat which he had booked with the petitioner within 15 days of the receipt of the notice or in the alternative to refund double the amount, he had paid to them, alongwith interest. Having failed in his efforts, the complainant/respondent filed a complaint before the District Consumer Disputes Redressal Forum, Delhi, seeking the following relief:- a) Direct the Respondent to deliver the possession of the Flat No. G9-0604 for which Complainant is ready and willing to pay the balance amount of the entire sale consideration in one go simultaneously at the time of receiving the possession of said flat. (b) In case if, respondent fails in handing over possession of the said flat, than pass an Award for a sum of Rs.6,58,500/- alongwith interest @24% per annum from the date of deposit in favour of the complainant on account of money deposited by the complainant against referred flat. (c) Pass an award of Rs.5,00,000/- by way of compensation for causing mental agony and harassment to the complainant on account of inaction and negligence on the part of the respondent in commencing the construction activities. (3) The complaint was resisted by the petitioner. However, the booking of flat, payment of Rs. 5 lakhs, execution of the Buyer Agreement dated 26.02.2007, stipulating the delivery of the possession of the flat within 3 years from the date of the agreement was admitted. It was pointed out in the written statement /reply that vide letter dated 06.07.2011, the petitioner/opposite party had offered an alternative flat to the complainant in the existing tower S/W in lieu of Flat No. G9-0604, which the complainant had booked in Tower No. G9. It was also stated in the said letter that the construction of Tower of G9 had been delayed due to unavoidable circumstances, whereas the construction of Tower S/W was already on advance stage. (4) The District Forum, noticing that the construction in Tower No. G9, in which the flat had been booked by the complainant had been delayed, felt that the complainant was not bound to accept the alternative flat offered by the petitioner and the developer was under an obligation to give possession of a flat in Tower No. G9 alone. The District Forum accordingly directed the petitioner to refund the amount, which the complainant had deposited with it alongwith interest at the rate of 18% per annum from the date of deposit till payment and cost of litigation amounting to Rs. 10,000/-. (5) Being aggrieved from the order of the District Forum, the petitioner filed an appeal before the State Commission, Delhi. The said appeal having been dismissed by the State Commission vide impugned order dated 15.04.2014, the petitioner is before us, by way of this revision petition. (6) Relying upon the decision of the Honle Supreme Court in Bangalore Development Authority vs. Syndicate Bank (2007) 6 SCC 711, it is contended by the learned counsel for the petitioner that since an alternative flat was offered to the complainant, who without any justification refused to accept the said offer, the complainant was not entitled to any interest on the amount which he had deposited with the petitioner. (7) We have perused the decision relied upon by the learned counsel for the petitioner. The relevant para of the judgment reads as follows:- he principles 10. Where a Development Authority forms layouts and allots plots/flats (or houses) by inviting applications, the following general principles regulate the granting of relief to a consumer (applicant for allotment) who complains of delay in delivery or non-delivery and seeks redressal under the Consumer Protection Act, 1986 (ctfor short) - [vide : Lucknow Development Authority vs. M. K. Gupta - 1994 (1) SCC 243, Ghaziabad Development Authority vs. Balbir Singh - 2004 (5) SCC 65, and Haryana Development Authority vs. Darsh Kumar - 2005 (9) SCC 449, as also Ghaziabad Development Authority vs. Union of India - 2000 (6) SCC 113]: (a) Where the development authority having received the full price, does not deliver possession of the allotted plot/flat/house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case. (b) Where no time is stipulated for performance of the contract (that is for delivery), or where time is not the essence of the contract and the buyer does not issue a notice making time the essence by fixing a reasonable time for performance, if the buyer, instead of rescinding the contract on the ground of non-performance, accepts the belated performance in terms of the contract, there is no question of any breach or payment of damages under the general law governing contracts. However, if some statute steps in and creates any statutory obligations on the part of the development authority in the contractual field, the matter will be governed by the provisions of that statute. (c) Where an alternative site is offered or delivered (at the agreed price) in view of its inability to deliver the earlier allotted plot/flat/house, or where the delay in delivering possession of the allotted plot/flat/house is for justifiable reasons, ordinarily the allottee will not be entitled to any interest or compensation. This is because the buyer has the benefit of appreciation in value. (d) Though the relationship between Development Authority and an applicant for allotment is that of a seller and buyer, and therefore governed by law of contracts, (which does not recognise mental agony and suffering as a head of damages for breach), compensation can be awarded to the consumer under the head of mental agony and suffering, by applying the principle of Administrative Law, where the seller being a statutory authority acts negligently, arbitrarily or capriciously. (e) Where an alternative plot/flat/house is allotted and delivered, not at the original agreed price, but by charging current market rate which is much higher, the allottee will be entitled to interest at a reasonable rate on the amount paid towards the earlier allotment, from the date of deposit to date of delivery of the alternative plot/flat/house. In addition, he may be entitled to compensation also, determined with reference to the facts of the case, if there are no justifiable reasons for non-delivery of the first allotted plot/flat/house. (f) Where the plot/flat/house has been allotted at a tentative or provisional price, subject to final determination of price on completion of the project (that is acquisition proceedings and development activities), the Development Authority will be entitled to revise or increase the price. But where the allotment is at a fixed price, and a higher price or extra payments are illegally or unjustifiably demanded and collected, the allottee will be entitled to refund of such excess with such interest, as may be determined with reference to the facts of the case. (g) Where full payment is made and possession is delivered, but title deed is not executed without any justifiable cause, the allottee may be awarded compensation, for harassment and mental agony, in addition to appropriate direction for execution and delivery of title deed. (h) Where the allotment relates to a flat/house and construction is incomplete or not in accordance with the agreed specifications, when it is delivered, the allottee will be entitled to compensation equivalent to the cost of completing the building or rectifying the defects. (i) The quantum of compensation to be awarded, if it is to be awarded, will depend on the facts of each case, nature of harassment, the period of harassment and the nature of arbitrary or capricious or negligent action of the authority which led to such harassment. (j) While deciding whether the allottee is entitled to any relief and in moulding the relief, the following among other relevant factors should be considered: (i) whether the layout is developed on o profit no lossbasis, or with commercial or profit motive; (ii) whether there is any assurance or commitment in regard to date of delivery of possession; (iii) whether there were any justifiable reasons for the delay or failure to deliver possession; (iv) whether the complainant has alleged and proved that there has been any negligence, shortcoming or inadequacy on the part of the developing authority or its officials in the performance of the functions or obligations in regard to delivery; and (v) whether the allottee has been subjected to avoidable harassment and mental agony. (8) It is evident from a bare perusal of the aforesaid decision that it applies only to a case, where plot or flat is developed/constructed by a development authority such as Bangalore Development Authority or Delhi Development Authority. The aforesaid decision in this case does not ipso-facto apply to a private developer, such as the petitioner before this Commission. The reason for our taking the aforesaid view is quite simple. While applying for allotment of a plot/flat from a development authority, the applicant has no choice as to the location of the plot/flat, the specification of construction and the cost of the flat/plot. He cannot negotiate with the Authority on these aspects. He will have to accept the plot/flat wherever it is allotted to him by the concerned development authority. On the other hand, a private developer operates in a free market where the buyer and the seller sit across the table and considering the number of factors including the requirement, preferences and choice of the buyer, the location of various flats offered by the developer, the specifications and the price of the flats and the schedule date of completion of the construction, the buyer makes an informed choice and decides which, out of the flat offered by the private developer is acceptable to him. If the location, size, specifications, price of the period for completion of development/construction are not acceptable to him, he would go to some other developer, who can offer him a plot/flat of his choice. Therefore, the private developer is under a contractual obligation to make available the flat which he has agreed to sell to the buyer. There are several factors which influence the decision of a buyer in choosing the particular flat. The decision may be influenced by the floor on which the flat is situated, the facing of the flat whether it is vastu compliant or not or the situation of the flat, whether it faces a park or a road/community centre. The location of the tower, in which a particular flat is situated will also be a relevant consideration, which would influence the buyer in this regard. Therefore, ordinarily, a private developer is required to honor his contractual obligation by making available the flat which he has booked for the buyer and he can not insist upon the buyer accepting an alternative flat. The choice would be entirely on the buyer whether to accept the alternative flat offered to him by the private developer or not. (9) In our view, if the buyer does not accept the alternative flat offered to him by the private developer and the said developer does not make available the flat which he has booked for the buyer within the stipulated period, the buyer would be entitled to take refund of the money which he had paid to the developer with appropriate interest. (10) The next question which comes up for consideration is as to what would be the rate at which the interest would be payable by the private developer in case the alternative flat offered to him is not accepted by the buyer. The learned counsel for the petitioner also submits that in view of the decision of the Honle Apex Court in Bangalore Development Authority (supra), even if the interest has to be awarded by the petitioner, it should be at the modest rate and should not be at the penal rate. The decision on this aspect, in our view would depend primarily upon the reason which led to the developer offering an alternative flat to the buyer. In a given case, if the developer/builder satisfies the consumer forum that the construction could not be undertaken/completed on account of the reasons beyond its control, the said forum may either decline the awarded interest or may award interest at a modest rate in a case where the buyer refuses to accept an alternative flat offered to him by the developer. On the other hand, if the developer does not satisfy the concern forum that it was prevented on account of reasons beyond its control, from starting/completing the construction of the flat which it had booked for the buyer, there would be no justification for refusing to award the prevalent market rate of interest to the buyer and in such a case, the consumer forum besides interest may also award proper compensation to the buyer. Another material aspect which the consumer fora will have to take into consideration in such a situation would be to whether there has been any appreciation in the market price of the flat which he had booked with the developer, in the meanwhile and if he has to purchase another flat with matching location and specifications, whether any excess payment will have to be made by him or not. In fact, in Bangalore Development Authority (supra), the Honle Apex Court expressly held that the relevant factors in deciding the quantum of compensation would include as to whether there was any commitment with respect to the date of delivery and whether there was any justifiable reason for the delay or failure to deliver the possession. (11) Coming to the facts of this case, we find from a perusal of the letter dated 06.07.2011 that it does not disclose as to what were the unavoidable circumstances due to which the construction of Tower No. G9 was delayed. Even before the District Forum, no attempt was made by the petitioner to disclose the consideration which led to the delay in construction of the flat of the said buyer. Had the petitioner chosen to disclose the said circumstances, it would have been possible for the District Forum to go into those circumstances and take a view as to whether they were justified enough for delaying the construction of the buyer in which the flat had been booked by the complainant or not. In the absence of such circumstances having been disclosed before the District Forum, we have not option but to hold that the failure of the petitioner to complete construction of the flat, which it had booked for the complainant was unjustified. We would also like to note here that they as per the buyer agreement between the parties, the possession of flat no. G9-0604 was to be handed over to the complainant by February, 2010, and even at the time of sending the letter dated 06.07.2011, the construction of Tower No. S/W in which an alternative flat was offered to the complainant by the petitioner was not completed, though it was stated to be at an advanced stage. This was yet another justification for the complainant refusing to accept the alternative flat allotted by the petitioner. (12) Considering the facts and circumstances, as stated hereinabove, we are of the considered view that the petitioner before us is not entitled to any concession in the matter of interest, it has to pay to the complainant alongwith principal amount deposited by him. Admittedly, the agreement between the petitioner and the buyer envisaged charging of interest by the petitioner at the rate of 24% per annum in a case of delay beyond 90 days, though in practice the petitioner had been charging said interest at the rate of 18% per annum. The State Commission has awarded interest to the complainant at the rate of 18% per annum. Considering that the interest awarded to the complainant is not higher than the interest the petitioner is recovering from the buyer, we see no reason to interfere with the view taken by the State Commission and the District Forum in this regard. (13) Towards the end, the learned counsel for the petitioner states, on instructions, that the petitioner is ready and willing to allot another flat of the same size and specification, in the vicinity of the Tower No. G9, to the complainant at the rates, which were prevalent at the time allotment was first made. As noted earlier by us, we cannot compel the petitioner to accept allotment in another Tower and no justification was given to the District Forum for the delay in construction of the flat, which was allotted to the complainant in Tower No. G9. Therefore, we are not inclined to take note of the offer made by the learned counsel for the petitioner. (14) For the reasons stated hereinabove, we find no merit in the revision petition and the same is hereby dismissed.