This complaint is filed by the Complainants u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not hand over the peaceful possession of the bungalow to them till filing of this complaint.

The Complainant-1 is a service holder by profession, the Complainant-2 is a housewife and the Complainant-3 is a service person by profession. The OPs are the service providers who used to carry on business in the field of real estate as developers. The OP- 2 and 3 are the Directors of the OP-1-Company and they are solely responsible for the entire project and the activity, for which the Complainants have hired the service from the OP-1. The OPs have published advertisement in several local newspapers stating that they are developing world class residential Township in Kolkata namely “Dharitri Bliss Villae”. The OPs have also advertised themselves as Leading Real Estate Company. Being impressed with their presentation and the project site the Complainants have intended to hire the service of the OPs by purchasing a bungalow from them for residential purpose. The Complainants met with various officers and after discussion with the OP-2 and 3 the Complainants wanted to purchase a world class bungalow at the said project. The Complainants perused the brochure given by the OPs. The Complainants asked for documents for conducting a title search by their Advocates but the OPs have impressed the Complainants stating that the search report of the concerned project is with them and the same is done by senior Advocates of Calcutta High Court. It was told by the OPs that as the banks are providing house building loan to the intending purchasers, the project is approved in all respect and the Complainants need not be worried about the title of the property. As per prayer of the Complainants the OPs have provided a site plan of the concerned project. Thereafter, on 23.09.2017 MOU was executed by and between the Complainants and the OPs in respect of a bungalow and in the said MOU it was agreed by the Complainants that the total consideration of the said bungalow will be of Rs. 21,00,000/-. The OPs will construct the subject bungalow being no-A-12 (South East facing) over the land measuring about 1.5 Cottahs. It was specifically agreed that the project will be completed in all respect and handed over to the Complainants within 36 months from the date signing of the MOU. A substantial part of the payment was made by the Complainants. At the time of signing of MOU Complainants paid a sum of Rs.5,00,000/- by issuing two cheques, drawn on HDFC Bank. Thereafter, the OPs have started developing the project whereby the bungalow was lying and land was filled with soil and other materials for increasing the height of the bungalow. The Complainants were shown the land and a virtual demarcation was made. The Complainants were under the impression that the project will be completed within a very short span. On 28.07.2019 the Complainants paid further a sum of Rs.1,50,000/- by cheque as instalment payment in spite of the fact that there was no progress in the construction. The OPs were forcing to the Complainants for making payment and also threatened the Complainants saying that entire amount will be forfeited as paid by them if the instalment is not paid. Having no other alternative the Complainants paid a sum of Rs.1,50,000/- to the OPs. It was scheduled that as per the agreement for sale the OPs were under the obligation to construct a bungalow containing 880 Square feet on a land measuring about 1.5 Cottahs consisting of three bed rooms, one dining cum drawing room, one kitchen, three bathrooms, two open terrace and one covered car parking space in the housing complex known as “Bliss Villae”. It is pertinent to mention that the Complainants were never provided with the title documents and as such the Complainants have failed to ascertain the actual rights of the OPs. Therefore it is crystal clear that the service of the OPs is deficient as they have failed to provide service in spite of receipt of a substantial consideration amount partly. The OPs were under the obligation to hand over the possession in the bungalow by 24.09.202, which they have miserably failed. Subsequently as there was no construction work Suparna Pal Deb-Complainant-1met with the Manager of the OP-1 who misled her and forced to enter into a fresh MOU and accordingly a MOU was executed by the OP and Suparna Pal Deb on 30.12.2019, but the earlier MOU dated 23.09.2017 remained intact and the subsequent MOU had not been annexed to the earlier MOU. Due to deficient service of the OPs the Complainants have to suffer irreparable loss and injury as they have invested their hard earned money for purchasing the said bungalow. As the OPs did not bother to redress the grievance of the Complainants, hence finding no other alternative the Complainants have approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to deliver the peaceful possession in the said bungalow after completion of the entire construction work, to provide the possession certificate/occupancy certificate, completion certificate, alternatively to refund the entire paid amount of Rs.6,50,000/- along with interest @15% p.a., to pay compensation to the tune of Rs.7,50,000/-, to pay punitive damage of Rs.2,00,000/- and litigation cost of Rs. 50,000/-.

The OPs have been contested the petition of complaint by filing conjoint written version. The record speaks that after filing written version the OPs did not turn up. The OPs did not challenge the evidence as adduced by the Complainants and the OPs also did not adduce any evidence on affidavit. No BNA/WNA is forthcoming from the end of the OPs and on the date of hearing argument none was present on behalf of the OPs.

It is mentioned in the conjoint written version that due to unforeseen event of the Government interference in the mutation and conversion process, the project namely Universia situated at Hatisala was stuck and the OPs could not move further in construction work and for this reason the OPs could not deliver the possession of the bungalow to the Complainants as per the MOU. It is the settled legal proposition that without mutation and conversion of the land construction work cannot be done and started. The OPs have to face huge monetary loss as the OPs have already invested huge amount for construction of the project. Inspite of this the OPs have invested money in a new land so that the existing customers of the concerned project namely Universia can get transfer to the New Royal Enclave project and their property. The OPs have offered the Complainants to transfer their bungalow at the new project, but the Complainants have rejected the proposal and filed this complaint before the Ld. Commission. All the legal papers of the New Royal Enclave project are under the possession of the OPs. The transfer of the questioned project was discussed elaborately with the Complainants and as the Complainants are not interested in the new project at the new place, the OPs are ready to refund the entire paid amount to the Complainants, but in 12 instalments @ Rs.47,099.73/- per instalment. Therefore the petition of complaint is completely devoid of merit and prayed is made by the OPs for dismissal of the complaint with exemplary cost.

We have carefully perused the entire record and documents as available. It is seen by us that admittedly for purchasing a bungalow from the OPs project the Complainants have entered into a MOU, wherein it was scheduled that the total cost of the said bungalow along with one car parking space will be for Rs.21,00,000/-. The OPs shall deliver the peaceful possession in the bungalow within 36 months from the date of execution of the MOU dated 23.09.2017. Therefore the OPs were under the obligation to hand over the possession in the bungalow on or within 24.09.2020. Out of total consideration amount the Complainants have paid a sum of Rs.6,50,000/- to the OPs and upon receipt of the said amount the OPs have issued money receipts in favour of the Complainants.  But due to some reasons the OPs could not start construction of the said project as the land could not be mutated and converted. In the written version the OPs have contended that at another place the OPs have started construction of another project and accordingly offered the Complainants to take the proposed bungalow at the new place and project. However the complainants have refused to accept the said proposal of the OPs. Therefore in our considered opinion as the OPs have failed to deliver the possession at the bungalow as per the MOU to the Complainants, hence the Complainants are very much entitled to get refund of the entire paid amount of Rs. 6,50,000/- along with interest. It is an admitted fact that since receipt of the said amount till date the amount is lying under the custody of the OPs and the OPs are enjoying interest on the said amount. It is also an admitted fact that as the OPs have miserably failed to refund the said amount to the Complainant prior to filing of this complaint and for the instant proceedings the Complainants have to incur some expenses and for this reason the Complainants are also entitled to get litigation cost from the OPs.

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 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 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 as the Hon’ble NCDRC we are of the opinion that in case of refund of the paid amount by the service provider to the Complainant it will carry interest @12% p.a. from the date of making payment of the amount till its entire realization.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-CC/372/2020 is hereby allowed on contest against the OPs with cost. The OPs are directed either jointly or severally to refund the amount as paid by the Complainants to the tune of Rs.6,50,000/- along with interest in the form of compensation @12% p.a. from the date of making payment lastly i.e. 28.07.2019 till its entire realization within a period of 45 days from the date of passing this judgment, in default the interest component in the form of compensation shall carry @14% p.a. instead of 12%. The OPs shall pay either jointly or severally a sum of Rs.10,000/- to the Complainants as litigation cost within a period of 45 days from the date of passing this judgment, failing which the Complainants 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 the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER