JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The complainant, who is a very senior citizen being 80 years old, booked a residential flat in a project namely Harmony which the opposite party is developing in Sector-50 of Gurgaon. The total consideration for the said flat was agreed at Rs.1,26,65,335/- and the complainant claims to have already paid a sum of Rs.1,20,13,388/- to the opposite party. The parties entered into a buyer’s agreement dated 28.10.2006 and as per Clause 4(a) of the said agreement, the possession as to be delivered to him by 30.9.2009, subject of course to force majeure circumstances. Since the opposite party has failed to deliver possession of the flat by the date stipulated in the buyer’s agreement, the complainant is before this Commission by way of the present consumer complaint and the prayer made in the complaint is for refund of the entire amount of Rs.1,20,13,388/-, along with interest @ 18% per annum and cost of litigation. 2. The complaint has been resisted by the opposite party on the same grounds which this Commission rejected vide its order dated 21.6.2016, passed in a number of consumer complaints, including Consumer Complaint No. 143 of 2015, Amit Garg Vs. Unitech Limited, relating to allotment of flats in this very project. The present complaint is therefore, squarely covered by the aforesaid decision of this Commission. 3. In Amit Garg (supra), rejecting all the contentions advanced by the opposite party, this Commission inter-alia observed and held as under: “4. The opposite party has not been able to establish that the completion of the construction was delayed on account of the reasons beyond its control. Therefore, for the reasons stated in the above referred decisions of this Commission, we hold that the opposite party is required to pay appropriate compensation to the complainants for the delay in delivering possession of the flat allotted to them. 5. If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction”. 4. The complaints in Amit Garg and connected matters were disposed of with the following directions: (1) In CC No. 143 of 2015, CC No. 196 of 2015, CC No. 696 of 2015, CC No. 972 of 2015, CC No. 1223 of 2015 and CC No. 940 of 2015, the opposite party shall obtain all the approvals and clearances including occupancy certificate, at its own cost and responsibility on or before 30.11.2016 and offer possession to the complainants on or before 31.12.2016. (2) The opposite party shall pay to the original allottees, compensation in the form of simple interest @ 12% per annum with effect from the committed date of possession as per the Buyer’s Agreement, till the date possession is actually offered to them. The compensation payable till 31.07.2016 shall be paid by 10.08.2016, whereas the compensation for the subsequent period shall be paid by the 10th of each succeeding month. (3) The complainants in CC No. 196 of 2015 and CC No. 1223 of 2015 who are the subsequent purchasers shall be paid compensation by way of simple interest @ 12% per annum with effect from 01.07.2013 and 30.07.2014 respectively till possession is delivered to them. They will also be paid compensation @ Rs. 5 per sq. feet of the super area of their respective flats for the period between the committed date of possession as per the Buyer’s Agreement of their respective flats and the aforesaid commencement dates. (4) The complainant in CC No. 194 of 2015 who also is a subsequent purchaser shall be paid compensation by way of simple interest @ 12% per annum with effect from 06.05.2013 till the date on which the possession was actually offered to him. He will also be paid compensation @ Rs. 5 per sq. ft. of the super area of his flat for the period from 01.07.2011 to 05.05.2013. (5) If the opposite party fails to deliver possession and pay compensation in terms of this order, the complainants shall be entitled to seek execution in terms of Section 25 & 27 of the Consumer Protection Act. (6) The opposite party shall pay Rs. 10,000/- each as the cost of litigation in each complaint. 5. When this complaint came up for hearing on 02.11.2016, the learned counsel for the opposite party pointed out that instead of seeking possession of the flat, the complainant has sought refund of the amount paid by him and therefore, the possession of the flat should not be directed. The contention is acceptable, provided of course, that the opposite party is ready and willing to refund the entire amount received from the complainant, along with adequate compensation in the form of interest. When this contention was advanced, the learned counsel for the opposite party was directed to take instructions as to whether the opposite party is ready and willing to refund the entire amount paid to it by the complainant along with interest. The learned counsel for the opposite party states on instructions that the opposite party is not in a position to refund the said amount. Since the opposite party is not ready and willing to refund the principal amount received from the complainant, he is entitled to seek possession of the flat as against the original prayer, seeking refund of the entire amount paid by him, along with interest. 6. In the light of the decision of this Commission in Amit Garg (supra) and connected matters, the complaint is disposed of with the following directions: (i) The opposite party shall obtain all the approvals and clearances, including the occupancy certificate in respect of flat in question at its own cost and responsibility on or before 31.12.2016 and offer possession to the complainant on or before 31.3.2017; (ii) The opposite party shall pay to the complainant compensation in the form of simple interest @ 9% per annum with effect from the committed date of possession as per the Buyers’ Agreement till the date on which the possession is actually offered to him. The aforesaid compensation is acceptable to the complainant. The compensation shall be paid at the time of offering possession of the flat to the complainant in terms of this order. (iii) If any amount remains payable by the complainant to the opposite party, the compensation calculated in terms of this order shall be adjusted while demanding the said amount from him. (iv) If the opposite party fails to deliver possession and pay compensation in terms of this order, the complainants shall be entitled to seek execution in terms of Section 25 and 27 of the Consumer Protection Act. (v) The opposite party shall pay Rs.10,000/- as the cost of litigation in the complaint. | 
