JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) 1. The complainants booked a penthouse with the OP in a project namely Harmony which the OP was developing in Kolkata. The parties then entered into an agreement dated 14.03.2008 whereby the OP agreed to sell flat bearing no. 2202 on the 21-22nd Floor of Tower-7 admeasuring 3799 sq. ft. to the complainants for a consideration of Rs.1,53,79,055/-. As per clause 5.a of the Buyers Agreement, the developer was to make best endeavours to deliver possession to the complainants by 31.03.2011, subject to force majeure circumstances. Clause 5.e of the agreement provided that if for any reason, the developer was not in a position to offer the apartment, it shall offer an alternative property or a refund amount in full with simple interest @ 10% per annum, without any further liability to pay any damage or compensation. 2. The grievance of the complainants is that though they have already paid a sum of Rs.98,63,140/- to the OP including the loan taken from State Bank of India, the compensation of the flat has not been offered to them and construction is nowhere near completion. The complainants are therefore, before this Commission seeking refund of the amount paid by them to the OP alongwith interest @ 24% per annum. 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. 6. Though in the past, this Commission has also awarded compensation in the form of interest at a rate higher than 10% per annum, considering the recent trend of falling interest rates, erosion in the value of real estate, the anxiety of the complainants to give a quietus to the litigation, they being unwilling to wait for the completion of the work and there being no evidence to prove the actual loss to the complainants in terms of value appreciation of similar flats, grant of compensation in the form of interest @ 10% per annum may be appropriate. Taking into consideration the aforesaid factors and clause 5.e of the Buyers Agreement, referred hereinabove, the complaint is disposed of with the following directions: (i) The OP shall refund the entire amount received from the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount paid by them is refunded to them alongwith compensation, in terms of this order. (ii) The OP shall also pay Rs.10,000/- as the cost of litigation to the complainants. (iii) The payment in terms of this order shall be made within three months from today. | 
