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2019 (6) TMI 357 - Commission - Indian LawsRefund of amount already paid - grievance of the complainant is that the possession of the allotted unit has not been` offered to him and even the construction is not complete despite he having paid ₹ 1,08,16,881/- to the opposite party - it was contended by the learned counsel for the OP that since the prayer made in the complaint is for cancellation of the allotment, clause 37 of the agreement between the parties comes into force and therefore, the OP is entitled to forfeit 15% of the cost of the unit as cancellation charges. HELD THAT:- The aforesaid clause would apply to a case where the allottee, for his own reasons, seeks cancellation of the allotment and does not apply to a case where he is forced to seek cancellation of the allotment and refund of the amount paid by him to the developer on account of the failure of the developer to deliver possession of the house within the time period committed by him in this regard. Had the complainant sought cancellation of the allotment before December 2016, by which the possession was to be delivered to him even after giving benefit of the grace period to the OP, there could have been some merit in the contention. But, he having filed the complaint after expiry of the aforesaid timeline, clause 37 of the agreement would have no application. The possession of the house, as per the agreement, ought to have been delivered by December 2016, even after giving benefit of the grace period to the OP. The construction of the house is not complete till date and there is no certainty as to when the construction would be complete and the OP would be in a position to offer possession of the allotted flat after obtaining the requisite Occupancy Certificate. The learned counsel for the OP states that they have already committed July 2021 to RERA Authority for completing the construction and therefore, they will be in a position to deliver possession on or before that time. The opposite party shall refund the entire principal amount of ₹ 1,08,16,881/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund - Complaint disposed off.
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