JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER The complainants are the subsequent purchasers of apartment no. 1101 on 11th Floor in Tower No.6 in the development project ‘Unitech Grande’ undertaken by the opposite party. 2. Briefly stated, the allegations of the complainants are that originally the aforesaid apartment was allotted by the opposite party to Mr. Rakesh Malik on 25.05.2010. As per the agreement the opposite party was supposed to deliver possession of the apartment within 30 months from the date of issue of allotment letter. 3. That on 14.02.2011, the complainant purchased the rights of the original allottee Rakesh Malik for consideration and undertook to pay the balance sale consideration and other charges to the opposite party as per the payment plan. Intimation of the transaction was given to the opposite party. It is alleged that thereafter the complainants regularly paid instalments against the consideration amount to the opposite party against the receipts and till date the complainants have paid sum of ₹1,18,49,776/- against the consideration amount. 4. Although the complainants paid ₹1,18,49,776/- to the opposite party, the opposite party failed to fulfil its promise for delivering the possession within 30 months. Claiming this to be deficiency in service, the complainants filed consumer complaint seeking refund of ₹1,18,49,776/- paid by them against the consideration amount with 18% interest. The complainants have also sought compensation to the tune of ₹10,00,000/- for mental harassment, torture, ₹6,00,000/- compensation for the rental accommodation besides the litigation cost. 5. 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 08.11.2017. 6. Complainant no.1 has filed her evidence by way of affidavit supporting the allegations made in the complaint. 6. I have heard counsel for the complainants and perused the record. No one appeared on behalf of opposite party at the time of arguments. 7. The opposite party despite of service of notice has failed to file written statement to controvert the allegations made by the complainants. Thus, in my view, the allegations in the complaint are deemed to have been admitted as correct. The complainant no.1 Shweta Gupta in order to prove her case has filed her own affidavit reiterating the allegations in the complaint. 8. Perusal of copy of terms and conditions of the provisional allotment would show that opposite party had agreed to sell the subject apartment to the complainants for ₹1,27,98,455/- against which as per the evidence adduced by the complainants, sum of ₹1,18,49,776/- has been paid. As per the terms and conditions of allotment, the opposite party was supposed to deliver possession of subject apartment to the complainant within 30 months from the date of allotment letter i.e .latest by 23.11.2012. The stipulated date of delivery of possession has gone by but the opposite party has failed to deliver possession of the subject apartment to the complainants even almost 5 ½ years from the promised date. Thus, it is evident that opposite party is 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 to be granted to the complainants.? In this regard, counsel for the opposite party has drawn my attention to clause 5 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 ₹10/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment. 11. Learned counsel for the complainants on the contrary have claimed 18% interest on the amount paid. 12. Clause 5 c (ii ) and 5 (d) 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 5 c (ii) “That the Developer would pay charges @ Rs.10/- 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 5 (a), 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 of possession of the Apartment. 5 (d) “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.” 13. Counsel for the opposite party has referred to clause 5 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 5 c ( ii) of the agreement is attracted and the complainants are entitled to compensation @ ₹10/- 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 5 c (ii) and 5 (d), it is evident that clause 5 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 ₹10/- 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 5 (d) 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.. 14. In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite party shall refund the entire amount of ₹1,18,49,776/- 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. | 
