FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The short facts giving rise to the present case are that Complainant vide application dated 19.12.2015 had applied for booking of a flat and two covered car parking space in the project GARDENIA of the OP. Allotment letter dated 22.12.2015 was issued to her and subsequently Builder Buyer Agreement dated 15.02.2016 was executed. Complainant was allotted Flat No. 15C on 15th floor and two covered Parking space at KMC Premises No. 591A, Motilal Gupta Road, Kolkata-700008. The total consideration price of the flat and two covered car parking space are Rs. 1,22,60,512/- and Complainant has paid a sum of Rs. 94,69,480/- with the OP towards a major part of the sale consideration. As per Agreement, possession is to be handed over on or before April, 2018. Despite that the OP miserably failed to handed over the possession of the flat and covered car parking space booking by her till the filing of the complaint and construction is also not complete. Alleging deficiency in service and unfair trade practices on the part of the OP Developer. Complainant has prayed for handover possession of the subject flat and two covered parking space alternatively, for refund of deposited money along with interest at the rate of 12 percent per annum, compensation for a sum of Rs. 10,00,000/- and Rs. 2,00,000/- as cost of litigation.
Upon notice OP did not appear and file WV denying the allegations made by the complainant vide order dated 23.12.2021 this commission closed the right of the OP to file WV and case proceeded ex parte against the OP.
In support of her claim, the Complainant tendered evidence and also relied tendered evidence and also filed documents i.e. annexure A.B.C.D. & E. We have heard argument on merit and have also perused the record.
Complainant Munmun Saha made allegation that despite payment of Rs. 94,69,480/- towards a major part of the sale consideration the OP/Developer miserably failed to handover the possession of the flat and two covered car parking spaces booked by her in the project GARDENIA within the schedule period.
On bare perusal of the record, complainant entered into Buyer Agreement within the OP Developer in the year 2016 and paid a major part of the sale consideration but the subject flat and two covered car parking spaces are still not completed. Possession of flat and two covered car parking spaces has not been offered to the complainant within the schedule date. There is no evidence on the part of the OP/Developer that the delay occurred due to force majeure events from any angle. Practically there is no evidence to rebut the evidence of the complainant. It may be noted that Consumer Protection Act, 2019 was enacted by the Parliament “to provide for protection of the interests of consumers and for the said purpose to establish authorities for timely and effectively administration and settlement of the consumer disputes and for matters connected therewith or incidental thereto”. Sections 2 (7), 2 (33), 2 (37) and 2 (42) define expressions “Consumers”, “Product”, “Product Seller” and “Service” respectively.
It emerges that OP allotted Flat No. 15 D on 15th floor and one covered parking space on the ground floor of their project GARDENIA. Agreement dated 15.02.2016 was executed between the parties. In terms of the Builder Buyer Agreement, possession is to be handed over on or before April, 2018. Also it is apparent that consideration price of the flat and covered parking space is Rs. 1,16,15,675/- and complainant has paid Rs. 75,00,000/- out of total consideration to the OP against money receipts. Possession of flat and covered parking space has not been offered to the complainant within the schedule dated. There is no evidence to rebut the evidence of the complainant.
We find it a fit case to place reliance on the judgment of the Hon’ble NCDRC in Emmar MGF Land Ltd. & Ors. Vs. Amit Puri reported in II (2015) CPJ 568 (NC), Wherein it was laid down that after the promised date of delivery it is the discretion of the complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. Complainant cannot be made to wait indefinitely for delivery of possession and the act of the OP/Developer, is not only an act of deficiency of service but also of unfair trade practice.
Now the question which arises for our consideration is how much interest/compensation is to be paid to the complainant on the amount deposited by him with the Developer. Though, it is the complainant’s case that in the event of failure on the part of the Developer to handover the possession of the allotted flat and two covered parking space, they are liable to pay interest on refund at the rate of 12 percent P.A. but having regard to the fact that the Banks have lowered the interest rate and the Hon’ble Supreme Court has been awarding interest keeping in view of the current market situation and the recent decline in the cost of borrowing and return on the investment made with the Banks, we are of the opinion that simple interest at the rate of 9 percent P.A. would be meet the ends of justice.
In view of the above discussion, the present consumer complaint is allowed with following directions:-
- OP/Developer is directed to refund Rs. 94,69,480/- (Rupees ninety four lac sixty nine thousand four hundred eighty) only to the complainant with simple interest at the rate of 9 percent P.A. from the respective dates of deposit till the actual date of payment, within six weeks from the date of passing of this order failing which the amount shall attract the interest at the rate of 12 percent P.A. for the same period.
- OP/Developer is also directed to pay Rs. 1,00,000/- (Rupees one lac) only to the complainant for unfair trade practice within six weeks.
- OP/Developer is further directed to pay Rs. 25,000/- (Rupees twenty five thousand) only to the complainant towards the costs of litigation within six weeks.
With these observations, the consumer complaint stands disposed off.
Copy of judgment be supplied to the parties as per rules. Office Assistant is also requested to upload this order on the website of this commission immediately.
Order No. 10 Dated- 16.02.2022
Record is put up on the prayer of the complainant.
Complainant files an application supported by an affidavit praying for rectification of the final order dated 11.01.2022 passed in this case on the ground that there is a typographical mistake at page No. 2. Certified copy of the final order dated 11.01.2022 passed in this case is also filed. Let the application be registered as MA-74/2022.
The impugned application is taken up for hearing.
Heard the Ld. Advocate for the complainant. Perused the impugned application coupled with final order dated 11.01.2022. Admitted fact that at page No. 2 of the final order there is typographical mistake regarding flat No., total consideration amount and total amount paid by the complainant. This omission is purely a typographical mistake. Now, it is settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or/and error arising out of an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.
Considering the above aspect, the typographical mistake should be rectified as flat No. 15C, Rs. 1,22,07,512/- and Rs. 94,69,480/- in the final order dated 11.01.2022 in the place of 15 D, Rs. 1,16,15,675/- and Rs. 75,00,00/-. Rectify the final order dated 11.01.2022 as well as certified copy. Certified copy be returned to the Ld. Advocate of the complainant. Accordingly, the prayer of the complainant is allowed. Certified copy of the final order be returned to the Advocate for the complainant.
Thus, MA being No. 74/2022 is disposed off.
