JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER The opposite party developer was allotted a parcel of land on lease hold basis for 90 years by Greater Noida Industrial Development Authority for developing a Group Housing Complex, namely, Unitech Habitat. The complainant no.1 was allotted apartment no.503 on 5th Floor, Tower-4 of the aforesaid project vide allotment letter dated 13.06.2016. The total consideration agreed between the parties was ₹64,10,158/- and in pursuant to the agreement, complainant no.1 had paid ₹57,63,730/- in instalments. As per the allotment letter, the possession of the apartment was to be delivered within 36 months from the date of issue of allotment letter i.e. latest by 29.09.2009. 2. It may be noted that that vide letter dated 14.03.2015, complainant no. 1 had requested the inclusion of the name of his daughter Ms. Sabrina Dhawan as co-applicant in the said apartment, which request was acceded to by the opposite party vide letter dated 29.10.2015. 3. It is the case of the complainants that despite of paying ₹57,63,730/- to the opposite party, opposite party failed to complete the construction and deliver possession of the apartment even eight years after the expiry of stipulated date of possession. Being aggrieved of the failure of the opposite party to perform their part of contract, the complainants have filed the consumer complaint seeking following prayer: “a. Allow the present complaint directing the opposite party to refund the payment of Rs.57,63,730/- along with interest @ 18% p.a. calculated till 15th April 2017 amounting to Rs.1,12,77,624/-.63 alongwith future interest @ 18% p.a. till the date of actual payment; or in the alternative; b. Direct the opposite party to hand over possession of the said flat and to get the said flat registered with the concerned department alongwith directing the opposite party to pay the registration fee differential between 2009 and 2017 and pay penalty @ Rs.5/- per sq. ft. from 20.09.2009 till the date of actual physical possession is handed over to the complainants; c. Direct the opposite party to pay the complainants a sum of Rs.15,00,000/- as compensation / damages on account of the deficient service, unfair trade practices, gross misconduct of the opposite party and immense mental pain and agony and harassment suffered by the complainants as well as cost of litigation in favour of the complainants against the opposite party ; and d. Pass such other or further order (s) which this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present case .” 4. Opposite party despite service of notice of the complaint has failed to file written statement within the limitation provided under section 13 (2) of the Consumer Protection Act, 1986. No request for condonation of delay or extension of time for filing written statement was made. Therefore, right of the opposite party to file written statement was closed vide proceedings dated 03.11.2017. 5. Complainant no.1 and Mr. Deepak Sarin ( attorney of complainant no.2) have filed their evidence by way of affidavit supporting the allegations made in the complaint. 6. Learned counsel for the complainants has taken me through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of allotment letter dated 20.09.2006 issued by the opposite party to the complainant no.1 it is clear that vide said allotment letter the complainant no.1 was allotted subject apartment No.503 on 05th Floor of Tower-4 of the development project Unitech Habitat at Greater Noida undertaken by the opposite party. From the above document it is also clear that agreed consideration amount was ₹60,25,282/-. It is also clear from clause 4 (a) of the allotment letter that the opposite party had agreed to deliver possession of the subject apartment to the complainant no.1 within 36 months from the date of allotment letter i.e. latest by 20.09.2009. Complainants have categorically alleged in the complaint that they have paid ₹57,63,730/- against the consideration amount to the opposite party but even more than eight years after the expiry of stipulated date of delivery of possession, the opposite party has failed to deliver the possession. As the opposite party has opted not to file written statement despite of service of notice of complaint, the above said allegations of the complainants are deemed to have been admitted as correct. In order to prove said allegations, complainant no.1 and Mr.Deepak Sarin (attorney of complainant no.2) have filed their respective affidavits reaffirming the allegations. Thus, it stands proved that despite of having received ₹57,63,730/-, the opposite party has failed to deliver possession of the subject apartment to the complainants. In absence of any explanation for failure to comply with the stipulation of delivery of possession, I have no hesitation in concluding that the opposite party has committed deficiency in service as also has indulged in unfair trade practice. 6. Now the question is as to what should be the amount of compensation to be granted to the complainants.? Learned counsel for the complainants, however, have pressed for 18% interest on the amount paid. 7. Clause 4 c (ii ) and 4 (e) of the Builder-Buyer Agreement deals with the compensation to be awarded by the opposite party in the event of their failure to give possession by stipulated period. The relevant clauses are reproduced as under 4 c (ii) “That the Developer would pay charges @ Rs.5/- per s q. ft. per month of the Super Area 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 Developer and Force Majeure events. These charges would be adjusted at the time of Final Notice for possession.” 4 (e) “If for any reason the Developer is not in a position to offer the Apartment altogether, the Developer shall offer the allottee (s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.” 8. On conjoint reading of the above noted clauses 4 c (ii) and 4 (e), it is evident that clause 4 c (ii) of the Builder Buyer Agreement would be attracted only in a case in which the delay is for reasonable period and it has occurred because of cogent unfavourable circumstances. This clause would not apply in cases where builder after receiving substantial amount against the agreed consideration deliberately failed to take any steps for completing the construction. In the instant case, opposite party has not shown any cogent circumstances or reason which prevented it to deliver possession within the stipulated period. Therefore, in my view, this case should be dealt with under clause 4 (e) of the subject Builder Buyer Agreement, which provides that if the opposite party is not in a position to offer possession of the apartment to the allottee, opposite party shall refund the consideration amount received with 10% p.a. Thus, in my view, opposite party is liable to refund the money received from the complainant with 10% p.a. on the amount w.e.f. dates of respective payments of instalments.. 9. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹57,63,730/- to the complainants within six weeks from today alongwith compensation of simple interest @ 10% per annum from the date of each payment till the realisation of the amount. 2. The Opposite party shall pay a sum of ₹10,000/- (Rupees Ten Thousand only) as cost of litigation to the complainants. | 
