This complaint is filed by the Complainant u/S 35 of the Consumer Protection Act, 2019 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 him for purchasing a flat till filing of this complaint.
The brief fact of the case of the Complainant is that the Complainant booked a flat having seen the advertisement in leading Bengali Newspaper given by the OP for launching a project in the name of Dharitri Infraventure Private limited Universia at Rajarhat measuring about 650 sq. ft. on 19.06.2017. The flat is situated on the 4th floor, Block-1, Flat no-G for Rs.1,79,250/-.Upon receipt of the amount the OP had issued a receipt in favour of the purchaser. The OP had issued an allotment letter to the Complainant on 29.07.2017 confirming the booking and intimated that the project work will start from 2018. But after lapse of one year visiting the project site the Complainant got shock as nothing has been done by the OP during this period and the OP did not entertain the Complainant in respect of handing over the flat to him. The Complainant has made repeated request to the OP, but to no effect. On 19.12.2018 written complaint was delivered by the Complainant to the office of the OP, but inspite of receipt of the same, the OP did not bother to reply the same. Thereafter the Complainant applied for refund of the paid amount on 24.01.2019 before the authorized person and the OP had confirmed that they will refund the said amount in next 06 months. But after expiry of about 08 months the OP had intimated the Complainant about the refund status through e-mail. But till date the OP did not refund him the amount and as and when he visited the office of the OP, the OP did not entertain him. Due to such negligent act of the OP the Complainant has been suffering from mental agony and financial loss, for which he is entitled to get adequate compensation from the OP. AS the OP did not bother to resolve his dispute, hence finding no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OP to refund the paid amount of Rs.1,79,250/- to him along with interest @10% interest along with litigation cost.
After admission hearing of this complaint notice was issued to the OP, inspite of receipt of the notice none was present on behalf of the OP to contest the complaint either orally or by filing written version, due to expiry of the statutory period this Ld. Commission was pleased to pass an order that the complaint will run exparte against the OP.
The Complainant by filing a petition on 13.12.2021 has prayed for adoption of the petition of complaint as his evidence. We have noticed that as the petition of complaint is filed supported by affidavit, hence there is no bar to adopt the complaint petition as the evidence of the Complainant. The Complainant has also submitted the BNA.
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 notice the OP 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 Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.
We have carefully perused the entire record and documents as available and heard argument at length advanced by the Ld. Counsel for the Complainant. It is seen by us that admittedly the Complainant paid a sum of Rs.1,79,250/-towards advance payment to the OP for purchasing a flat from them. The Complainant booked the questioned flat being allured with an advertisement given by the OP in the leading Bengali newspaper. The Complainant booked the flat by making of the said earnest money in the year 2017 and it was settled that the project work will start in the year 2018. Being agreed with such proposal the Complainant booked the said flat. But after lapse of one year the Complainant when visited the project site found that no construction work was started. When the Complainant went to the office of the OP, the OP did not entertain him. The Complainant made written correspondences with the OP, but the OP did not reply the same. Being compelled the Complainant had applied for refund of the paid amount to the authorized person of the OP and the said person promised to refund him the paid amount within 06 months. But after expiry of 08 month the OP did not refund the said amount. But expiry of 08 months the OP had intimated him the refund status. But since then till filing of this complaint the OP did not take any step to refund him the paid amount as such being compelled and finding no other alternative the Complainant has filed this complaint.
In our considered view that as the OP has miserably failed to refund the paid amount to the Complainant nor started the questioned project within due period or thereafter whatever it may be. Therefore the Complainant is very much entitled to get refund of the paid amount along with interest. Admittedly the OP is enjoying interest on hard-earned money of the Complainant since payment; therefore the OP is under the obligation to pay interest on the paid amount. It is also true that as the OP did not bother to settle the grievance of the Complainant before filing of this complaint, being compelled the Complainant had approached before the Court of Law for redressal of her grievance by filing this complaint, hence for such proceeding the Complainant has to incur some expenses, for which in our considered view the Complainant is entitled to get litigation cost from the OP.
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/290/2020 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.1,79,250/- along with interest in the form of compensation@12% p.a. from the date of making payment i.e. 19.06.2017 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 OP shall pay a sum of Rs.10,000/- 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 to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
