The complainants booked a residential flat with the appellant in a project which the petitioner was to develop at Kadampur, New Town, Kolkata, by submitting an application to the appellant company pursuant to the brochure issued by it. The complainant made a total payment of Rs.12,38,207/- to the appellant, in three instalments, the first payment having been made in December, 2015. The sale consideration for the flat was agreed at Rs.63,95,182/- and was payable in construction linked instalments. This is also the case of the complainants that the project was to be completed by the appellant by 2018 but there was no likelihood to the project being completed by that time. The ..2/- -2- complainants therefore approached the concerned State Commission by way of a consumer complaint seeking refund of the amount paid by them to the appellant alongwith compensation etc. (2) The appellant did not appear despite service upon it, though despite the appellant having not filed its written version the State Commission allowed the appellant to serve a questionnaire upon the complainant which they duly answered. (3) Vide impugned order dated 16.04.2019, the State Commission directed the appellant to refund the amount of Rs.12,38,207/- to the complainants along with simple interest @ 10% per annum from the date of each payment till its realisation and the cost of litigation quantified at Rs.10,000/-. Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this Appeal. (4) Though initially the learned counsel for the appellant submitted that the appellant was not served with the notice of the consumer complaint and being its retainer he had of his own appeared before the State Commission on 18.09.2018 and filed vakalatnama in his favour, he did not press the said plea when it was pointed out to him that the appellant had not placed on record the affidavit of service which the ..3/- -3- complainant had filed before the State Commission and which is referred in its order dated 11.06.2018. (5) Coming to the merit of the case, the contention of the learned counsel for the appellant is that the possession was to be delivered within four years of execution of the agreement between the parties and the said period was extendable by one more year. In support of his contention he relies upon the draft agreement which the appellant had sent to the complainant by E-mail. (6) Admittedly the draft agreement was never executed by the complainants. Therefore, they are not bound by the terms and conditions contained therein. The application was submitted by the complainant pursuant to the advertisement issued by the appellant. In the terms and conditions form part of the application it was nowhere stated that the possession will be delivered within four years of the execution of the formal agreement between the parties. Had such a stipulation been agreed by the complainants, it would have been stated so in the application submitted by them. Even in the receipts issued by the appellants to the complainants there is no stipulation as regards the date by which the possession was to be delivered to the complainants. (7) Considering that there is no documentary evidence to prove the ..4/- -4- period within which the possession was to be delivered to the complainants, I am of the considered view that the possession ought to have been delivered within a reasonable time. A period of three years in my view would be reasonable for the purpose of delivery of possession of the allotted flats to the complainants. The first payment having been made in December, 2015, the possession ought to have been delivered latest by December, 2018. Admittedly the construction was not complete even when the impugned order came to be passed by the State Commission on 16.04.2019. The construction of the allotted flat is not complete even today. Therefore the order passed by the State Commission is eminently justified in the facts and circumstances of the case and does not call for any interference by this Commission in exercise of its appellate jurisdiction. The appeal is therefore dismissed, with no order as to cost. | 
