JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER In the year 2006, complainants had applied for booking of an apartment in the residential complex ‘Unitech Horizon’ situated at Plot No.6, Sector P1-2, Alistonia Estate, Greater Noida, Uttar Pradesh undertaken to be developed by the opposite party. The complainants were allotted apartment no. 0503 on 5th floor of Tower 22 having super area of 1695 sq. ft in the said Complex vide allotment letter dated 07.07.2006. The agreed consideration amount payable by the complainants was ₹43,53,008/- and the opposite party was supposed to deliver possession of the subject apartment to the complainants by 15.11.2008.. It is the case of the complainants that they have in all paid sum of ₹41,63,972/- to the opposite party against the agreed consideration amount. Despite that opposite party has failed to complete the construction and deliver possession of the apartment after expiry of stipulated date of delivery of possession. It is alleged that complainants visited the site of construction and on making enquiries from the technical staff of the site, they were informed that construction of Tower No.22 shall take at-least 9-12 months. As a matter of fact, no major construction activity has been undertaken by the opposite party at the project site. Claiming failure of the opposite party to construct and deliver possession of the allotted apartment till date to be deficiency in service, the complainants have raised the consumer dispute seeking following prayer: “a. Direct the opposite party to pay a sum of Rs.1,24,04,530/-, out of which principal amount of Rs.41,63,972/- is towards principal and amount of Rs.82,40,558/- is towards simple interest at the rate of 18% per annum along with pendent lite and future interest at the same rate or such higher rate which this Hon’ble Commission may deemed fit in the interest of justice. b. Direct the opposite party to pay a sum of Rs.10,00,000/- each to the complainants as compensation for harassment, inconvenience and mental agony caused by the opposite party; c. That a sum of Rs.50,000/- each be allowed as litigation costs; d. Any other relief’s that this Hon’ble Commission deems fit and proper in favour of the complainants in the circumstances of the case.” 2. 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. Counsel for the opposite party stated at the bar that opposite party relies upon the terms and conditions of the agreement already placed on record. Right of the opposite party to file written statement was, therefore, closed on 26.03.2018. 3. Mr. Nand Kishore Anand, authorised representative of complainants has filed his affidavit in support of the allegations made in the complaint. 4. I have heard Shri Jalaj Aggarwal, Advocate for the complainants and Mr. Babanjeet Singh, counsel for the opposite party and perused the record. 5. 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 07.07.2006 issued by the opposite party to the complainants it is clear that vide said allotment letter the complainants were allotted subject apartment No.0503 on 5th Floor of Tower-22 of the development project Unitech Horizon at Greater Noida undertaken by the opposite party. From the above document it is also clear that agreed consideration amount was ₹43,53,008/-. 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 complainants by 15.11.2008. Complainants have categorically alleged in the complaint that against the consideration amount, almost 95% amount amounting to ₹41,63,972/- has been paid to the opposite party but even nine 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. Otherwise also, the complainants in order to prove said allegations have filed affidavit of Mr. Nand Kishore, their authorised representative reaffirming the allegations. Thus, it stands proved that despite of having received almost 95% of the consideration amount, the opposite party has failed to deliver possession of the subject apartment to the complainants. In absence of any explanation for failure to deliver possession of apartment within stipulated period, I have no hesitation in concluding that the opposite party has committed deficiency in service as also has indulged in unfair trade practice. 6. 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 opposite party despite of having option to file written statement has failed to do so and there is no evidence to substantiate the aforesaid plea. 7. Now the question is as to what should be the amount of compensation to be granted to the complainants.? In this regard, counsel for the opposite party has drawn my attention to clause 4 c (ii) of the Builder Buyer Agreement and submitted that as per the agreement between the parties, the opposite party company is liable to pay ₹5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment. 8. Learned counsel for the complainants on the contrary have claimed 18% interest on the amount paid. 9. 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 Company would pay charges @ Rs.5/- per s q. ft. per month of 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 as for reasons beyond the reasonable control of the Company and Force Majeure events. These charges would be adjusted at the time of Final Notice for possession. 4 (e) “If for any reason the Company is not in a position to offer the Apartment altogether, the Company 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.” 10. 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. I do not find merit in the contention. 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.. 11. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹41,63,972/- 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. | 
