JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER The complainants on 09.12.2012 jointly booked apartment no. 802, 8th Floor in Block D-I of the development project ‘South Park’, Sector 70, Gurgaon undertaken by the opposite party on payment of Rs.10,48,423/-. The complainants were issued allotment letter on 10.12.2012. As per the allotment letter, total consideration amount was Rs.1,21,24,631/- and the opposite party had agreed to deliver possession of the allotted apartment within 36 months. The consideration amount was agreed to be paid in instalments. The first three instalments were time bound and the balance instalments were construction linked. 2. It is the case of the complainants that as per the agreement, they paid sum of Rs.40,83,478/- against the consideration amount but the opposite party did not even commence the construction of the project. The complainants visited the office of the opposite party on several occasions and met their representatives / officials but in vain. The complainants visited the site of the project in May 2016 and found that the construction has not yet commenced. Claiming failure of the opposite party to commence construction and deliver possession of subject apartment within the stipulated time, the complainant has raised the consumer dispute seeking following reliefs: a. Direct the opposite party to complete the project and hand over possession of the flat no.0802, 8th Floor, Block D-1, Unitech South Park, Sector-70, Gurgaon, Haryana to the complainant immediately; b. In the first alternative, direct the opposite party to refund the entire amount paid by the complainant along with additional increase in the price of flats as per current market rate of Rs.11000 per sq. ft.; or c. In the second alternative, direct the opposite party to return the total amount paid so far with compensation of 18% interest per annum compounded quarterly from the date of first payment made; d. Direct the opposite party to pay adequate compensation, not less than Rs.5,00,000/- to the complainant towards damages for physical and mental torture, agony, discomfort and undue hardships caused to the complainants as a result of the above acts of omission on the part of the opposite party, as this Hon’ble Commission may determine; e. Direct the opposite party to pay the complainant Rs.5,00,000/- towards punitive damages for gross negligence, gross deficiency in services and unfair trade practices; f. Direct the opposite party to pay the complainant such expenses as this Hon’ble Commission may deem fit and proper towards travel expenses incurred by the complainants in his visits to the site, courier / postage charges etc. incurred in corresponding with opposite party, telephone calls to her counsel, along with such interest till the date of realization as this Hon’ble Commission may deem fit and proper; g. Direct the opposite party to pay a sum of Rs.1,50,000/- to the complainants towards the cost of litigation; h. Any other order or orders as may deem fit and proper may also be passed. 3. The opposite party despite of service of notice of complaint issued under section 13 (2) of the Consumer Protection Act, 1986 failed to file written statement within the stipulated period of limitation including 15 days extendable period. The right of the opposite party to file written statement, therefore, was closed vide order dated 03.10.2017 in view of the judgment of the Hon’ble Supreme Court in Civil Appeal Nos. 10941-10942 of 2013 New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. decided on 04.12.2015. 4. I have heard learned counsel for the parties and perused the record. 5. As the opposite party has opted not to file written statement in response to the complaint, the allegations made in the complaint are deemed to have been admitted as correct. Otherwise also, the complainant has filed his evidence by way of affidavit reiterating the allegations in the complaint and there is nothing on the record to disbelieve the version of the complainants. 6. Annexure C-2 is the allotment letter dated 10.12.2012, which clearly indicate that that the subject apartment was allotted by the opposite party to the complainants for total consideration of Rs.1,21,24,631/- to be paid in instalments as per the agreement between the parties. Terms and conditions are contained in Buyer’s agreement dated 08.05.2013, copy of which is placed on record. Annexure-B to the Buyer’s agreement deals with payment plan agreed by the parties. As per the payment plan, first three instalments were time bound and balance instalments were paid on construction linked basis. Complainants in their evidence have categorically submitted that pursuant to the agreement, they had paid Rs.40,83,478/- to the opposite party but opposite party despite of several visits by the complainants have failed to commence construction. 7. Clause 4.a. (i) & (ii) of the Builder Buyer Agreement provides for time schedule for delivery of possession. Relevant clauses are reproduced as under: Subject to the Apartment Allottee (s) complying with various terms and conditions of this Agreement and other requirements as indicated by the Developer, the Developer proposes to offer possession of the Apartment within a period of 36 months from the date of signing of this Agreement and upon execution and registration of Conveyance Deed in favour of the Apartment Allottee (s).It is understood by the Allottee that the possession of various Towers/Blocks comprised in the Complex shall be ready and completed by the Developer in phases and handed over to the Allottee (s) of that Tower / Block accordingly. It is agreed that the Developer shall also be entitled to reasonable extension in time stipulated for delivery of possession of the Apartment because of any default or negligence attributable to the Apartment Allottee (s) in fulfilment of obligations under this Agreement.
8. On reading of the above, it is clear that opposite party had agreed to deliver possession of the subject apartment and execute conveyance deed in favour of the complainants within 36 months of the signing of the agreement. From the affidavit evidence of the complainants, it is established that despite of having received Rs.40,83,478/- against the consideration amount, the opposite party has not even commenced the construction. No doubt, clause (ii) of the aforesaid provides for reasonable extension in time stipulated for delivery of apartment because of default or negligence attributable to the allottees of the project but no cogent evidence in this regard has been led by the opposite party. Therefore, this is clear case of default in maintaining the time line agreed for delivery of possession of the apartment. As there is no reasonable explanation for delay, I have no hesitation in holding that the opposite party guilty of deficiency in service. 9. Learned counsel for the opposite party has contended that delay in completing the construction and delivering possession of the subject apartment to the complainants was unintentional and the opposite party was prevented from completing the construction and deliver possession because of circumstances beyond the control of the opposite party. The plea of the opposite party is not acceptable as neither there is any pleading by way of written statement to this effect nor there is any evidence to prove the plea. 10. Now the question is as to what should be the amount of compensation?. In this regard, learned counsel for the complainant has contended that Coordinate Bench of this Commission vide common order dated 25.05.2016 in CC No. 362 of 2014, CC No. 500 of 2015 and CC No. 327 of 2015 pertaining to same project had awarded 18% interest p.a. on the refund amount. Therefore, on the principle of equity, the complainants are also entitled to 18% interest on the refund amount as compensation. 11. Hon’ble Supreme Court in the matter of Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, while dealing with the issue of awarding compensation has observed as under: “However, the power and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above, what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.” 12.. On reading of the above, it is clear that compensation to be awarded in case of deficiency in service on the part of the builder must commensurate with the damages suffered by the consumer. 13. The judgment of the Coordinate Bench relied upon by the complainants are based upon unique facts of those cases which are different from the facts of this case. In the said case, as per the observation in para 19 of the judgments, the complainants had claimed that they taken loan from the bank which is normally at a much higher rate and perhaps this was the reason that 18% interest was awarded. Complainants have not adduced cogent evidence to show the extent of damage suffered by them because of failure of the opposite party to deliver possession of the apartment within the stipulated period. 14. Counsel for the opposite party has referred to clause 4 c (ii) of the Agreement and submitted that this being the case of failure of the opposite party to deliver possession of the subject apartment, clause 4 c ( ii) of the agreement is attracted and the complainants are entitled to compensation @ ₹5/- per sq. ft. per month of the super area. 15. In order to appreciate the contention of learned counsel for the opposite party, it would be appropriate to have a look on relevant clause no. 4 c (ii) and 4 ( e) of the Builder Buyer Agreement which deals with compensation to be awarded by the opposite party in the event of its failure to give possession to the complainants within the stipulated period. The relevant clauses are reproduced as under: 4 c (ii) “The Developer shall be liable to pay compensation calculated @ Rs..5/- per s q. ft. per month of the Super Area for the period of delay in offering the possession of the said apartment beyond the period indicated in clause 4 (a) (i), save and except for reasons beyond the reasonable control of the Developer. These charges shall be adjusted at the time of issuance of notice of possession by the developer under clause 4.b. above subject to the Apartment Allottee (s) having complied with the provisions and terms and conditions of this Agreement. 4 (e) “If for any reason the Developer is not in a position to offer the allotted Apartment as agreed herein, the Developer will offer the allottee (s) an alternative property in any complex developed, underdevelopment or proposed to be develop in surrounding area / projects and if no alternate property is available will refund the amount paid by the apartment allottee (s) in full with Interest @ 10% per annum from the date of payment (s) by the Apartment Allottee (s) without any further liability to pay damages or compensation.” 16. 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. If such an argument is accepted, it would give handle to the developer to utilize the money paid by the consumers at a nominal cost of ₹5/- sq. ft. per month of the super area instead of borrowing money from the financial institutions / banks. 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 complainants with 10% p.a. on the amount w.e.f. dates of respective payments of instalments.. 17. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of Rs.40,83,478/- 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. | 
