IMPORTANT POINT
When the terms of the contract are not adhered to, the builder is liable to refund the amount paid with interest and costs.

V.K. Jain, Presiding Member—The complainant filed rejoinder, affidavit of admission/denial of documents and affidavit by way of evidence more than one year ago on 12.09.2017. The OP filed affidavit of admission/denial of documents on 22.09.2017 but has not filed the affidavit by way of evidence despite more than one year having expired thereafter. Considering that the matter is stated to be covered by the previous decisions of this Commission, I see no justification in granting yet another adjournment for the purpose of filing the affidavit by way of evidence. In view of the order dated 12.04.2018, the right of the OP to file its affidavit by way of evidence therefore, stands closed. I have heard the learned counsel for the parties.

2. The complainant booked a residential flat with the OP in a project namely ‘Uniworld City Cascades’ which the OP was proposing to develop in Kolkata. Vide allotment letter dated 15.01.2008, flat no. 09-04-0401, in the aforesaid project was allotted to him for a consideration of Rs.72,65,525/-. The parties then executed an agreement on 23.01.2008 incorporating therein their respective obligations. In terms of clause 5(a)(i) of the aforesaid agreement, the possession of the apartment was to be delivered by 31.12.2010, subject of course to force majeure circumstances. The case of the complainant is that the possession of the apartment has not even been offered to him despite he having already paid Rs.68,84,453 to the OP. The complainant is therefore, before this Commission seeking refund of the amount paid by him alonwith compensation etc.

3. The OP has filed its written version contesting the complaint, admitting the allotment made to the complainant as well as the amount received from him. It is also not in dispute that the possession of the apartment was not offered to the complainant.

4. The learned counsel for the complainant submits that the grounds on which this complaint has been resisted, have already been rejected by this Commission in CC No.398/2015 Sipra Thomes Vs. Bengal Unitech Universal Infrastructure Pvt. Ltd. & connected matters decided on 19.05.2016.

5. The decision of this Commission in Sipra Thomes (supra), to the extent it is relevant, reads as under:

“4. The complaints have been resisted by the opposite party on identical ground. Though the booking made by the complainants as well as the Buyers Agreement with them has been admitted, it is alleged that there was delay in grant of statutory approvals and permissions related to infrastructural work such as road, electricity, water and sewerage which were beyond the control of the opposite party. It is further stated in the written version filed by the opposite party that in the event of delay, the complainants are entitled only to the compensation agreed in the Buyers Agreement which is Rs. 5/- per sq. feet of the super area per month. Another plea taken by the opposite party is that the complainant is barred by limitation prescribed under section 24A of the Consumer Protection Act.

5. The first question which arises for consideration in these cases is as to whether the opposite party has been able to justify the delay in construction of the flats which it had agreed to sell to the complainants. Though it is alleged that there was delay in obtaining the approvals and permissions required for infrastructural works such as road, electricity, water and sewerage, there is no evidence to prove that the alleged delay occurred on account of reasons not attributable to or beyond the control of the opposite party. In order to justify the delay on the aforesaid ground, the opposite party was required to disclose the dates on which it applied for the requisite permission and the date on which the said permission was granted. It was also required to place on record the entire correspondence between it and the concerned statutory authority in order to demonstrate that the said delay was attributable solely to the concerned statutory autho