CC/1582/2016 1. The opposite party has not paid the cost imposed on 7.11.2017. The said cost shall be paid to the complainants within four weeks from today. 2. The complainants, namely, Rahul Banerjee and his wife Shaon S. Sengupta booked a residential flat with the opposite party in a project, namely, ‘Uniworld City - Harmony’, which the opposite party was to develop in Kolkata. Apartment No.0303 on 3rd floor in Tower-2 was allotted to the complainants. The parties then executed a Buyers Agreement dated 25.2.2008, incorporating their respective obligations in respect of the aforesaid transaction. The sale price of the flat was agreed at Rs.6348135/- as per clause 2.a of the agreement. As per clause 5.a(i) of the said agreement, the possession of the flat ought to have been delivered by 31.3.2011 subject of course, force majure circumstances. The case of the complainants is that the possession of the flat has not even been offered to them despite they having already paid Rs.3687040/- to the opposite party. The complainants are, therefore, before this Commission seeking possession of the aforesaid flat along with compensation. 2. The complaint has been resisted by the opposite party which has admitted the allotment made to the complainants as well as the execution of the agreement with them. It is also alleged that there was delay in the complex due to delay in grant of statutory approvals and permissions relating to infrastructural provisions pertaining to road, electricity, water, sewerage and sanctions etc. and that for any delay in delivery of the flat, the opposite party is liable to pay compensation @ Rs.5/- per sq.ft. per month. The payment made by the complainants has also been admitted in the written version filed by the opposite party. CC/1583/2016 3. The complainants, namely, Hemant Gadodia and Sumitra Devi Gadodia booked a residential flat with the opposite party in the above-referred project. Apartment No.0304 on 3rd floor in Tower-4 was allotted to them for a consideration of Rs.6338670/-. They executed an agreement with the opposite party on 19.9.2007 incorporating their respective obligations and in their case, the possession was to be delivered on 31.12.2010 in terms of clause 5.a(i) of the said agreement. Their grievance is identical to the grievance of the complainants in Consumer Complaint No.1582 of 2016 and they claim to have already paid Rs.3001843/- to the opposite party. They are also before this Commission, seeking possession of the flat allotted to them along with compensation. 4. The opposite party has contested the complaint on the same ground on which Consumer Complaint No.1582 of 2016 has been contested. The allotment made to the complainants as well as the payment received from them, however, has been admitted. 5. The learned counsel for the complainants submits that the grounds on which the complaint has been resisted have already been rejected by this Commission vide its order dated 9.1.2017 in Consumer Complaint No.654 of 2015 - Vikash Arora & Anr. Vs. M/s Bengal Unitech Universal Infrastructure Pvt. Ltd. and Consumer Complaint No. 621 of 2015 – Ariji Chatterjee Vs. Bengal Unitech Universal Infrastructure Pvt. Ltd. decided on 22.03.2017. 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.” 6. As regards, the quantum of compensation for the period, the possession has been delayed, the terms for payment of compensation @ Rs.5/10 per sq.ft. per month, have already been rejected and held to be unfair trade practice by this Commission in several decisions including Consumer Complaint No.427 of 2014 – Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters decided on 8.6.2015. 7. During the course of arguments, the learned counsel for the opposite party pointed out that at one point of time, the complainants themselves were willing to accept an alternative flat from the opposite party and, therefore, the opposite party may be given an opportunity to explore such a possibility in this case as well. 8. A perusal of the email dated 2.8.2011 sent by the complainant to the opposite party in Consumer Complaint No.1582 of 2016 would show that the alternative property offered by the opposite party was not acceptable to the complainants who at that point of time wanted swap by a flat in a project, namely, ‘Cascade’. The offer made by the complainant to swap the allotted property with a property in ‘Cascade’, however, was not accepted by the opposite party. During pendency of this complaint also, no specific flat has been offered by the opposite party to the complainant by way of an alternative allotment. The complainants, therefore, are entitled to possession of the flat which the opposite party had allotted to them. 9. The learned counsel for the complainants states on instructions that the complainants are restricting their claim for compensation for the delayed period to simple interest @ 8% per annum from the committed date of possession till the date on which the possession of the flat, complete in all respects and after obtaining the requisite ‘Occupancy Certificate’ is actually offered to them. 10. Both the complaints are, therefore, disposed of with the following directions:- (1) The opposite party shall complete the construction of the flats allotted to the complainants in all respects, obtain the requisite ‘Occupancy Certificate’ at its own costs and responsibilities and offer possession of the said flats to the complainants on or before 31.12.2018. (2) In Consumer Complaint No.1582 of 2016, the opposite party shall pay compensation in the form of simple interest @ 8% p.a. from the committed date of possession, i.e., 31.3.2011 till the date on which the possession in terms of this order is actually offered to them. (3) In Consumer Complaint No.1583 of 2016, the opposite party shall also pay compensation in the form of simple interest @ 8% p.a. from the committed date of possession, i.e., 31.12.2010 till the date on which the possession in terms of this order is actually offered to them. (4) The compensation payable to the complainants in terms of this order shall be adjusted while offering possession in terms of this order to the complainants and the balance amount, if any, shall be paid by the complainants on receipt of offer of possession from the opposite party. (5) The opposite party shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainants in each complaint. 11. It is made clear that this order will not come in the way of the parties reaching a written settlement outside the Court. | 
