FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

The brief facts of the case are that Complainant vide application dated 19.12.2015 had applied for booking of a flat and covered car parking space in the project GARDENIA of the OP. Allotment letter dated  22.12.2015 was issued to him and subsequently Builder Buyer Agreement dated  15.02.2016 was executed. Complainant was allotted Flat No.  15D on 15^th floor and one covered Parking space at KMC  Premises No. 591A, Motilal Gupta Road, Kolkata-700008. As per Builder Buyer Agreement Possession is to be handed over on or before April,  2018. The total consideration price of the flat and covered parking space are Rs.  1,16,15,675/- and Complainant has paid sum of Rs.  75,00,000/- out of total consideration. Despite expiry of April, 2018 no possession has been offered to him till the filing of the complaint and construction is also not complete. Complainant has prayed for handover possession of the subject flat and 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.

Notice of the complaint was issued to the OP. Despite service of notice OP did not file WV  vide order dated 23.12.2021 this commission closed the right of the OP to file WV.

Complainant Subhendu Saha has filed his evidence supported by an affidavit. We have heard argument on merit and have also perused the record including the documents annexed with the complaint petition.

The Complainant made allegation that despite receiving Rs. 75,00,000/- the OP did not handover physical possession of the flat being numbered 15D on the 15^th floor and one covered parking space in the project GARENI A on or  before April, 2018.

On  perusal of the evidence and documents on record, it emerges that OP allotted Flat No. 15 D on 15^th 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 date. 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 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:-

1. OP/Developer is directed to refund Rs.75,00,000/- (Rupees seventy five lac) 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.
2. 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.
3. OP/Developer is further directed to pay Rs. 20,000/- (Rupees twenty 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 on the ground that there is a typographical mistake. Certified copy of the final order dated 11.01.2022 passed in this case is also filed. Let the application be registered as MA-75/2022.

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 in the cause title of the final order the name of the complainant has been written correctly but it has been erroneously written as wife of Lakshmi Naryan Saha instead of son of. 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 in the final order dated 11.01.2022 as well as certified copy. 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. 75/2022 is disposed off.