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 OPs as the OPs did not take any step to refund the balance paid amount of Rs.3,00,000/- to him till filing of this complaint.

The brief fact of the case of the Complainant is that with a view to purchase one flat he approached before the OPs and being agreed with the documents and papers of the ongoing construction of a multi-storied building the Complainant had entered into an agreement for sale with the OPs for purchasing one flat in the said apartment measuring about 700 square feet. As per the terms and the conditions the Complainant paid a sum of Rs.5,00,000/- out of the total consideration amount for the said flat of Rs.10,00,000/- .It was scheduled that the OPs will provide the flat to the Complainant on the first floor measuring about 700 square feet. There was no delay on the part of the Complainant in making payment of the abovementioned amount of Rs.5,00,000/- to the OPs. At the time of booking of the said flat the OPs have promised to hand over the flat within the specified time, but when the Complainant went in the year 2019 at the site for checking the status of the construction of the apartment, he became shocked to see that they had provided him with only 400 square feet, not 700 square feet as agreed at the time of booking. The Complainant found that there were not a single 700 square feet flat in the apartment, therefore it is clear that since inception the OPs have knowledge that no flat will be constructed measuring about 700 square feet. Therefore commitment and promise to provide 700 square feet flat was nothing but a cheating on the part of the OPs towards the Complainant. Apart from cheating this is also an example of deficiency in service on the part of the OPs as the OPs have mentioned in the agreement for sale that flat will be delivered to the Complainant measuring about 700 square feet. Being not agreed to take delivery of 400 square feet flat, the Complainant requested the OPs to refund the amount as paid by him as per the demand of the OPs. After repeated persuasion of the Complainant the OPs have refunded him Rs.2,00,000/- out of Rs.5,00,000/- in four installments. The last installment was paid on 02.10.2018, but since then no amount is paid by the OPs and the Complainant is still entitled to get a sum of Rs.3,00,000/- from the OPs towards balance paid amount. Till filing of this complaint no step was taken by the OPs for refund of the said amount inspite of several requests on behalf of the Complainant. Legal notice was given to the OPs on 13.09.2019 requesting to refund of the balance paid amount, but to no effect. As the OPs have neglected to resolve the grievance of the Complainant, hence having no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to refund the balance paid amount of Rs.3,00,000/- along with statutory interest thereon, to pay compensation to the tune of Rs.1,50,000/- due to mental agony and harassment and litigation cost of Rs.50,000/- to him.

After admission hearing of this complaint notices were issued upon the OPs, but inspite of receipt of the notices the OPs did not turn up to contest the complaint either orally or by filing written version within the statutory period, hence the Ld. Commission was pleased to pass an order that the complaint will run exparte against all the OPs.

 At the very outset we are to mention to the judgment passed by the Hon’ble NCDRC in the case of 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 the notices the OPs did not turn up to contest the complaint either orally or by filing written version within the statutory period. Therefore in view of the said judgment the allegations as made out by the Complainants in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.

We have carefully perused the record and documents as available and heard argument at length advanced by the Ld. Counsel for the Complainant. It is seen by us that the being agreed with the papers and documents the Complainant had entered into an agreement for sale with OPs for purchasing one flat from the Ops measuring about 700 square feet. The total consideration of the said flat was settled at Rs.10,00,000/- and out of which the Complainant Rs.5,00,000/- to the OPs as per their demand and schedule. During inspection at the site the complainant found that though the OPs were agreed to provide him the flat measuring about 700 square feet, but measurement of the said flat is about 400 square feet. Even in the said apartment no flats were available measuring about 700 square feet and there was no scope to construct further any flat measuring about 700 square feet. It is true when the OPs have entered into the agreement for sale with the Complainant for providing him the flat measuring about 700 square feet, then it was the bounded duty of the OPs to construct the said flat having 700 square feet in measurement. Therefore it was the pre-plan of the OPs not to construct any flat having measurement about 700 square feet, then in our view what prompted the OPs to enter into the agreement for sale with the Complainant promising to provide the questioned flat measuring about 700 square feet. Therefore it is clear to us that breach of contract has arisen on behalf of the OPs. If the OPs could not obtain the sanction plan from the competent authority to construct the questioned flat measuring about 700 square feet, then why by making false and fake commitment/promise the OPs have entered into an agreement for sale with the Complainant. Such action in our view is a glaring example of deficiency in service on the parts of the OPs, for which the OPs are under the obligation to pay compensation to the Complainant. It is seen by us that as the OPs have miserably failed to provide the flat as per the contract, the Complainant had prayed for refund of the paid amount and in pursuance of the said prayer the OPs have refunded him Rs.2,00,000/- out of paid amount of Rs.5,00,000/-. But the balance paid amount has not been paid by the OPs till filing of this complaint inspite of several requests made through the written correspondences including the legal notice. The OPs have remained silent over this issue and since then the said amount of Rs.3,00,000/- is lying under their custody. It is true that as the Ops did not bother to redress the grievance of the Complainant by making refund of the due paid amount, hence this complaint is initiated by the Complainant and to proceed with this complaint the Complainant had to incur some expenses, for this reason in our considered view the Complainant is 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 make refund of the paid amount after making prayer for refund by the Complainant-purchaser in accordance with the terms and conditions of the agreement.

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/35/2020 is hereby allowed exparte with cost. The OPs are directed either jointly or severally to refund the balance paid amount to the tune of Rs.3,00,000/- along with interest in the form of compensation @12% p.a. from the date of making payment i.e. 27.06.2014 (Annexure-P2, Running page-19 of the petition of complaint) 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.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 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