V.K. JAIN, J. (ORAL) 1. The complainants before this Commission namely, Sandeep Jindal and Vishal Jindal, booked a flat bearing provisional No.G-03 in Tower/Block/Building No.T-23 on the ground floor in Greater Noida on 08-05-2006. At the time of booking, the opposite parties-Unitech Limited allegedly assured the complainants that the apartment would be constructed and its possession would be delivered to them on or before on 15-11-2008. The grievance of the complainants is that though they have made the payment of entire sale consideration but possession of the aforesaid apartment has not been delivered to them. In fact, even the construction of the apartment which was sold to the complainants is far from complete. The complainants, therefore, are seeking refund of the principal amount of Rs.43,01,000/- deposited by them with the opposite parties-Unitech Limited along with interest at the rate of 18% p.a., besides damages amounting to Rs.5,00,000/- for mental agony and physical harassment suffered by them. They are also claiming Rs.50,000/- towards legal expenses. 2. We have heard the learned counsel for the complainants and have perused the record. The payment plan which is Annexure-B to the complainant inter alia reads as under; he Company would pay charges to the Allottee @ Rs.5/- per sq.ft. per month for any delay attributable to the inability of the company subject to Force Majeure on the handing over of the apartment beyond the committed date of 15th November 2008, as per the terms and conditions in the Application Form. Similarly, the customer would also be liable to pay holding charges @Rs.5/- per sq.ft. per month if the customer fails to take the possession within 30 days form the date of issuance of the notice of possession. 3. The aforesaid condition also finds mention in the general terms & conditions for registration of allotment of apartments available on pages 35 to 37 of the paper book and the relevant term reads as under: hat the Company would pay to the Allottee(s) @ Rs.5/- per sq. ft. per month for any delay in offering possession of the apartment beyond the period stipulated in the Allotment Letter subject to Force Majeure events. 4. The agreement executed between the parties also contains a similar term and inter alia reads as under: hat the Company would pay charges @Rs.5/- per sq.ft. per month 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 Company and Force Majeure events. These charges would be adjusted at the time of Final Notice for Possession. 5. It would thus be seen that there is a specific contract between the parties which obligates the opposite party only to pay charges at the rate of Rs.5/- per sq.ft. for the delay in offering the delivery of the apartment beyond the stipulated date of 30-09-2008. In view of the aforesaid express agreement, the complainants cannot claim refund of the amount deposited by them with the opposite party, on account of delay in handing over the possession. Though, about eight years have expired since the apartment was booked by the complainants and more than five years and nine months have expired since the last date for handing over the possession of the apartment to the complainants, it is not possible for us to grant refund of the amount deposited by the complainants with the opposite party and they would be entitled only to charges at the stipulated rate of Rs.5/- per sq.ft. per month for the period of delay in offering the possession of the apartment to them. It is true that the aforesaid clause is open ended in the sense that the opposite parties can prolong handing over the apartment to the complainants for an indefinite period, that cannot be helped in the face of the specific agreement between the parties. 6. Though the term stipulating payment of charges at the rate of Rs.5/- per sq.ft. per month for the period of delay without an option to the complainants to cancel the booking may be unfair and unreasonable, the complainant has not assailed the aforesaid term contained in the payment plan and agreement between the parties. In fact there is no reference at all to the aforesaid term in the complaint. Therefore, we cannot go into the question as to whether the said term amounts to an unfair trade practice or not. For the reasons stated hereinabove, we find no merit in the complaint and the same is hereby dismissed. We, however, grant liberty to complainants to file a fresh complaint, assailing the aforesaid term, on the ground that incorporating such a term in the contract between the parties amounts to an unfair trade practice.