JUSTICE DEEPA SHARMA, PRESIDING MEMBER 1. The admitted facts of the case are that the opposite party announced a residential project called ‘Capetown’ situated at GH-01/A, Sector-74, Gautam Budh Nagar, Noida-201301. The complainant booked a unit bearing no. R026CC11202A on 13th (thirteenth) floor of Tower CCI with approximately super area of 2385 sq. ft on 14.11.2011 by paying the booking amount of Rs.8,81,190/- paid on 14.11.2011 and 23.11.2011. The opposite party issued an Allotment Letter-cum-Buyer’s Agreement dated 03.12.2011. The total consideration of the unit was Rs.90,35,772/- and the project was to be completed by February 2014 with six months of grace period. The complainant took a home loan from ICICI Bank on 17.01.2012 and a total sum of Rs.83,57,353/- till 28.12.2013 was paid by the complainant to the opposite party. 2. Case of the complainant is that despite its commitment to give possession of the subject property by 2014, no offer of possession had been received by the complainant till the date of filing of the present complaint. The complainant also wrote several letters to the opposite party regarding delay in handing over of the unit. No offer of possession was also made despite service of legal notice dated 01.03.2018. The complainant has prayed that opposite party be directed to refund his deposited amount of Rs.83,57,353/- alongwith penal interest of 18% interest per annum and also pay compensation of Rs.10,00,000/- towards mental agony, harassment, discomfort and Rs.1,00,000/- towards litigation cost. 3. The claim is contested by the opposite party on several grounds. It is submitted that complainant is not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 and no cause of action has accrued in this case and there is no deficiency in service on the part of the opposite party. It is submitted that complainant is only entitled for an amount calculated @ Rs.5 /- per sq. yds of super area of unit per month on account of delay of possession and that complainant is not entitled to any other relief. It is submitted that possession could not be handed over due to pendency of as many as 471 Writ Petitions before Allahabad High Court whereby the farmers have challenged the acquisition of land; due to protest and agitation of litigating farmers; due to severe resource crunch; due to various restraint orders of National Green Tribunal relating to ground water extraction for construction etc. and also due to issue before the National Green Tribunal in the matter titled as Amit Kumar & Ors. Vs. Union of India & Ors whereby interim directions were issued to stop the construction within 10 km radius of Okhla Bird Sanctuary. It is submitted that despite these hurdles, the opposite party had been able to complete the project and obtained occupancy certificate dated 23.11.2017 for several towers of the project including the tower of the complainant. It is submitted that opposite party was carrying out final finishing work and was in the process of offering possession of the subject property to the complainant. On these contentions, it is submitted that since the delay is not attributable to the opposite party and since it is ready to hand over the possession of the subject property, the complaint is liable to be dismissed. 4. The parties have led their evidences. 5. I have heard the arguments and perused the relevant record. It is submitted by the complainant that it is a covered case covered under the orders of this Commission dated 13.07.2017 in the case of Ankur Goswami Vs. Supertech Limited & Anr. passed in Consumer Case No. 936 of 2016 which relates to the same project, namely, ‘Capetown’ in Sector 74, Noida and relates to same tower i.e. CCI wherein subject flat of the complainant is also located. It is prayed the similar order be passed in this complaint as well. 6. Learned counsel for the opposite party argues that complaint in Ankur Goswami ( supra) was filed in the year 2016. However, the present complaint was filed in the year 2018 and by that time, opposite party had obtained the completion certificate and is in a position to hand over the possession to the complainant and, therefore, complainant cannot ask for the refund and the case cannot be termed as a covered matter. It is argued that complaint is misconceived and is liable to be dismissed. 7. It is admitted that possession was to be handed over to the complainant in the year 2014 with a grace period of six months and no offer of possession had been made at that time. It is also an admitted fact that till the filing of the complaint, no offer of possession had been made to the complainant. It has also not come on record whether the complainant was informed about the receipt of completion certificate at any time before the complaint was filed. It is settled proposition of law as held by Hon’ble Supreme Court in Fortune Infrastructure & Anr. Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442 that a person cannot be made to wait indefinitely for possession of flat allotted to him and he can seek refund alongwith compensation. In the case of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan in Civil Appeal No. 12238 of 2018, the Hon’ble Supreme Court has also held that this Commission can strike out the unfair clauses in the agreement on the ground that it amounts to unfair trade practice and can see if the Builder-Buyer agreement is wholly one sided. 8. In the present case, the argument of learned counsel for the opposite party that complaint is liable to receive only Rs.5/- per sq. yds. of the super area of unit per month, is certainly a condition which is one sided and is contrary to the interest of the consumers especially when the opposite party is claiming higher rate of interest on the delayed /default payment by the allottees. 9. Such terms and conditions in the agreement amounts to unfair trade practice and is liable to be ignored. There is not even an iota of evidence to suggest that complainant is not a consumer. From the above, it is apparent that entire case of the complainant is a covered case under the order of Ankur Goswami ( supra). Similar directions are therefore, issued by me. 10. The complaint is disposed of with the following directions: 1. The opposite party shall refund the entire principal amount of Rs.83,57,353/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid payment alongwith interest is made. 2. In case the loan amount taken by the complaint remains unpaid, the opposite party shall discharge the liability of the bank to which the loan amount is payable and after discharging the said liability, the balance amount, if any, be paid to the complainant. It is the duty of the complainant to inform the opposite party within two weeks about the balance amount payable to the bank towards the loan. After receiving such information from the complainant, the bank loan amount shall be cleared by the opposite party within three months and, thereafter immediately within two weeks make the payment to the complainant of the balance decretal amount. The complaint stands disposed of with no order as to costs. | 
