This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP as the OP did not take any step to refund the amount as paid by her towards the consideration price of the flat in part for purchasing one flat from the end of the OP till filing of this complaint.

The brief fact of the case of the Complainant is that she was searching of one residential flat for her own use along with the family members and accordingly booked a 2 BHK flat measuring about 600 sq. ft. more or less on 3rd floor, flat no-P-(14), in “Royal Enclave” project at Mouza- Hatisala, New Town, Benttata-II Gram Panchyat, Bangor and the said flat was allotted to her. On 28.01.2017 the Complainant paid for Rs.1,00,000/- towards the booking amount by issuing one cheque no-089281, drawn on Axix Bank, Shyambazar Branch. The total consideration of the said flat was fixed at Rs,14,40,000/- and out of the said consideration the complainant paid Rs.1,00,000/- to the OP and promised to pay the balance consideration money as per the terms and the conditions. The Complainant had also committed to bear the registration cost from her own to get the flat registered in her name. But unfortunately after receipt of the booking money from her the OP did not bother to execute the agreement for sale till filing of this complaint. The complainant visited the site on several times, but she could not find out any construction works therein till 24.02.2018. On 24.02.2018 the OP intimated this Complainant by issuing a letter that due to some difficulties the OP could not start the construction work of the said project and due to such difficulties the progress in the project got hamper. The OP had disclosed that for such difficulties of several intending purchasers there was no fault on their part and to sort out such difficulties the OP thought to shift the project from the abovementioned site to Hudrait Mouza, New Town, Action Area-III, New Town, West Bengal-700135. Through the said intimation the Complainant was requested to visit the new proposed site as well as the Corporate Office for discussion over such shifting and reaching a mutual decision. Accordingly the Complainant visited the proposed site, but the same is not suitable for her. So the Complainant requested the OP by issuing letter along with the prescribed format of the OP on 25.02.2018 to refund the booking amount as paid by her as the shifted site was not at per her choice. Inspite of receipt of the letter as well as the prescribed format the OP did not bother to take any step to refund the amount to her, as paid. Again on 28.01.2019 the Complainant issued another letter requesting to refund the paid amount within 15 days from the date of issuance of the letter, in case of any failure the Complainant will approach before the competent Court of Law/Consumer Forum to get relief. Inspite of receipt of the said letter also the OP did neither take any step nor reply to the said letter till filing of this complaint. Thereafter the Complainant approached before the Assistant Director, CA& FBP, Salt Lake Regional Office, Subhanna on 01.04.2019, and lodged a written complaint stating the entire fact of her grievance and seeking for their interference to settle the dispute amicably. The Assistant Director was pleased to issue a notice to the OP to appear before the concerned office on 26.09.2019 either in person or by the authorized representative for tripartite meeting to resolve the dispute of the Complainant through mediation. On 26.09.2019 the OP did not present and as the dispute of the Complainant could not be resolved by way of mediation, the Complainant was directed to approach before the appropriate Forum/Commission for rederssal of her grievance. In this regard an order was issued by the concerned Department on 26.09.2019.

Thereafter the Complainant being dissatisfied with the action of the OP has filed this complaint before this Ld. Forum (now Commission as amendment) praying for direction upon the OP to refund her the paid amount of Rs.1,00,000/- along with bank interest thereon from the date of payment of the said amount till entire realization without any further delay.

It is stated by the Complainant that due to aforementioned inaction on behalf of the OP i.e. non-refund of the paid amount for a prolonged period inspite of several requests both verbally and in writing can be termed as deficiency in service as well as unfair trade practice of the OP, for which the Complainant is entitled to get adequate compensation. So finding no other alternative the Complainant has filed this complaint before this Ld. Commission praying for direction upon the OP to refund the paid amount of Rs.1,00,000/- along with bank interest from the date of making payment of the said amount till realization of the said amount, compensation to the tune of Rs.50,000/- and litigation cost of Rs.10,000/- to her. 

After admission of this complaint notice was issued upon the OP. From the order dated 22.01.2020 it is evident that the track report submitted by the  on 27.11.2019 the OP had received the notice, but chose not to appear before this Ld. Commission to contest the complaint either orally or by filing written version. For this reason this Ld. Commission was pleased to pass an order that the complaint will run exparte against the OP. Time was given to the Complainant for adducing evidence. On 22.01.2020 the Complainant by filing a petition had prayed for treating the petition of complaint as evidence. Upon perusal of the petition it is seen by us that as the petition of complaint is submitted by the Complainant supported by affidavit, hence there was no bar to treat the petition of complaint as the evidence of the Complainant. Thereafter time was given to the Complainant for filing BNA as well as argument on 27.03.2020. But on 27.03.2020 lockdown was declared by the Government of India due to severe outbreak of Covid-19, this record could not be placed. Accordingly on 26.08.2020 this record was put up by the Bench Clerk of this Ld. Commission, but on the said date none was present on behalf of the Complainant. As the evidence part is completed on behalf of the Complainant and the complaint is running exparte against the OP, hence this Ld. Commission was pleased to fix this complaint for passing the judgment without any further delay.

We have carefully perused the petition of complaint along with the documents as submitted by the Complainant at the time of filing this complaint. From the pleading it is evident that  the Complainant booked one 2 BHK flat measuring about 600 sq. ft. more or less on 3rd floor, flat no-P-(14), in “Royal Enclave” project of the OP and the said flat was allotted to her. On 28.01.2017 the Complainant paid for Rs.1,00,000/- towards the booking amount by issuing one cheque no-089281, drawn on Axix Bank, Shyambazar Branch. The total consideration of the said flat was fixed at Rs,14,40,000/- and out of the said consideration the complainant paid Rs.1,00,000/- to the OP and promised to pay the balance consideration money as per the terms and the conditions. The Complainant had also committed to bear the registration cost from her own to get the flat registered in her name. But unfortunately after receipt of the booking money from her the OP did not bother to execute the agreement for sale till filing of this complaint. The complainant visited the site on several times, but she could not find out any construction works therein till 24.02.2018. On 24.02.2018 the OP intimated this Complainant by issuing a letter that due to some difficulties the OP could not start the construction work of the said project. The OP had disclosed that for such difficulties of several intending purchasers there was no fault on their part and to sort out such difficulties the OP thought to shift the project from the abovementioned site to Hudrait Mouza, New Town, Action Area-III, New Town, West Bengal-700135. The Complainant was requested to visit the new proposed site as well as the Corporate Office of the OP for discussion over such shifting and reaching a mutual decision. Accordingly the Complainant visited the proposed site, as the said site did not suit her, the Complainant requested the OP by issuing a letter along with the prescribed format of the OP on 25.02.2018 to refund the booking amount as paid by her. Inspite of receipt of the letter as well as the prescribed format the OP did not bother to take any step to refund the amount to her, as paid. Again on 28.01.2019 the Complainant issued another letter requesting to refund the paid amount within 15 days from the date of issuance of the letter, in case of any failure the Complainant will approach before the competent Court of Law/Consumer Forum to get relief. Inspite of receipt of the said letter also the OP did neither take any step nor reply to the said letter till filing of this complaint. Thereafter the Complainant approached before the Assistant Director, CA& FBP, Salt Lake Regional Office, Subhanna on 01.04.2019, and lodged a written complaint stating the entire fact of her grievance and seeking for their interference to settle the dispute amicably. One notice was issued notice to the OP directing to appear before the concerned office on 26.09.2019 either in person or by the authorized representative for tripartite meeting to resolve the dispute of the Complainant through mediation from the office of the said Authority. On 26.09.2019 the OP did not present and as the dispute of the Complainant could not be resolved by way of mediation, the Complainant was directed to approach before the appropriate Forum/Commission for rederssal of her grievance. In this regard an order was issued by the concerned Department on 26.09.2019.

It is mentioned earlier that the OP inspite of receipt of the notice did not appear before this Ld. Commission to contest the complaint, no written version was forthcoming from the end of the OP, for this reason an order was passed to the effect that this complaint will run exparte against the OP. In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vs Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of notice the OP chose not to contest the complaint by filing written version. Therefore in view of the said judgment the allegation as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegation.

As the Complainant paid the booking money to the tune of Rs.1,00,000/- for purchasing one flat in the project of the OP and admittedly the OP has miserably failed either to construct the proposed project or refund the paid amount to the Complainant, such action clearly proves the deficiency in service as well as unfair trade practice on behalf of the OP. It is evident from the pleading of the Complainant that due to some complications the OP had to shift the project from the proposed site to another place and being requested the Complainant visited the said site, but the Complainant did not choice or prefer the said site, so being compelled she requested the OP to refund the paid amount by issuing letter as well as the prescribed format of the OP.  Since then the OP did not take any initiative to refund the paid amount to the Complainant and keeping him silent over the matter possession the said amount under his custody/control for a prolonged period in an unauthorized manner and with mal-intension. From such action of the OP it is crystal clear to us that with a view to harass the Complainant the OP has adopted such unfair trade practice keeping the hard earned money of the Complainant under his control for a prolonged period. In our considered view the Complainant is very much entitled to get refund of the paid amount of Rs.1,00,000/- along with interest on the ground that the OP is earning interest on the said amount from the date of receipt of the same till date.

Now we are to adjudicate what will be the interest component in case of refund of the paid amount, if the service provider will fail to deliver the physical possession in the schedule flat or refund the paid amount immediately after making prayer for refund by the Complainant-purchaser.

In this respect we are to rely on the judgment passed by the Hon’ble NCDRC in the case of Vishesh Sood & Another vs. M/s. Raheja Developers Limited, in the Consumer case No-2923/2017, decided on 15.11.2019, wherein Their Lordships have held that the developer shall refund the principal amount with compensation @12% p.a. from the date/s of deposit till the date of entire realization together with cost, in default the amount shall attract compensation @14% p.a. for the same period. In another case passed by the Hon’ble Supreme Court in the case of Pioneer Urban Land & Infrastructure Limited Vs. Govindan Raghvan (2019) 5 SCC 725 and Kolkata West International City (P) Limited vs. Devasis Rudra, (2019) CPJ 29 (SC) wherein it has been held by Their Lordships that the Complainant cannot be made to wait indefinitely for possession of the unit. In the case of Kolkata West International (P) Limited the Hon’ble NCDRC was pleased to hold that the refund shall be made along with interest @12% p.a.

Therefore having regard to the abovementioned judgments passed by the Hon’ble Supreme Court as well the Hon’ble NCDRC we are of the opinion that in case of refund of the paid amount by the OP-Service Provider to the Complainant it will carry interest @12% p.a. from the date of making payment of the amount till its realization.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-121/2019 is hereby allowed exparte against the OP with cost. The OP is directed to refund the amount as paid by the Complainant to the tune of Rs.1,00,000/- along with interest in the form of compensation @12% p.a. from the date of making payment of the amount i.e. 28.01.2017 till its entire realization within a period of 45 days from the date of passing this judgment , in default the interest in the form of compensation shall carry interest @14% p.a. instead of 12%. The OP shall pay a sum of Rs.5,000/- to the Complainant as litigation cost within a period of 45 days from the date of passing this judgment, failing which the Complainant will be at liberty to put the entire order in execution as per provision of law.

Let a plain copy of this judgment be given to the parties free of cost as per CPR 2005.

Dictated and corrected by

Hon’ble Mrs. Silpi Majumder