IMPORTANT POINT
“Since the possession of subject flats were not delivered within the stipulated time, allottee held entitled for refund of amount deposited with interest.”

ORDER

Deepa Sharma, Presiding Member.—This order shall dispose of the Consumer Complaints No.2089, 2090, 2091, 2092 and 2093 of 2016 since all the Complaints are against the same Opposite Parties and relate to the same project and the facts in all the cases are similar. Facts are being taken from Consumer Complaint No.2089 of 2016.

2. In brief, the facts of the case are that the Complainants had booked a flat in the project “RISE” of the Opposite Parties in RP City, Sector 37 D, Gurgaon, Haryana. The details are as under:

3. The case of the Complainants is that the Opposite Parties had promised to hand over the possession of the subject flats within 36 months from the date of execution of the Builder Buyer Agreement but they have miserably failed to do so. At the time of signing the Builder Buyer Agreement, the same was not shown to the Complainants. It is submitted that the Builder Buyer Agreement is one sided and is in favour of the Opposite Parties, violating the rights and interest of the Complainants. It is submitted that since the Opposite Parties have failed to hand over the possession of the flats within the stipulated period, the Opposite Parties be directed to refund their deposited amount along with service tax, compound interest @ 18% p.a. from the date of deposit and also to pay a sum of Rs.5 lakhs towards the mental agony and harassment and the cost of litigation.

4. In the written statement filed by the Opposite Party No.1, it is submitted that there is no deficiency in service and no unfair trade practice has been adopted by them. It is submitted that the delay in handing over the possession has been caused due to the reasons which were beyond the control of the Opposite Party. It is submitted that as per the terms and conditions of the Builder Buyer Agreement, the parties had agreed for extension of time for handing over of the possession in such contingencies. It is further contended that the time was not the essence as per the clause 13(a) of the Builder Buyer Agreement and the time was the essence only in relation to the allottees obligation to pay. It is further contended that the compound interest which has been sought by the Complainants is on the higher side and is in violation of the order of the Hon’ble Supreme Court in “Bharathi Knitting Company vs. DHL Worldwide Express Courier division of Airfreight Ltd. AIR 1996 SC 2508”. It is submitted that in the said order, the Hon’ble Supreme Court has clearly observed that the stipulations in the contract have to be adhered by and cannot be neglected. He has also relied on “Secretary, Bhubaneswar Development Authority vs. Susanta Kumar Mishra, V (2009) SLT 242” and has submitted that the parties are bound by the unchallenged terms of the contract. Reliance is also placed on “PUDA (Chief Administrator) and Another vs. Mrs. Shabnam Virk, II (2006) CPJ 1 (SC)”. It is submitted that in the said case, the Hon’ble Supreme Court has held that the allottee would be bound by the terms and conditions contained in the allotment letter agreed by him. It is submitted that in view of these judgments, the Complainants cannot claim the compensation or interest beyond the amount of compensation provided in the agreement. It is submitted that the Builder Buyer Agreement clearly specifies the amount of compensation the Complainants are entitled to in the case of delay. Reliance is also placed