PER: HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of Opposite Parties to assail the final order/judgment being order No. 20 dated 19.04.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit- I (in short, Ld. District Forum) in Consumer Complaint no. 294/2014. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent Sri Pradip Kumar Halder ex parte with the following directions:

          “The OPs are jointly and/or severally directed to refund a sum of Rs. 10,07,037/- (Rupees ten lakhs seven thousand thirty seven) only to the complaint along with compensation of Rs. 1,00,000/- (Rupees one lakh) only for harassment and mental agony and litigation cost of Rs. 20,000/- (Rupees twenty thousand) only within 30 days from the date of communication of the order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realisation.”

             The respondent herein being complainant lodged the complaint under Section 12 of the Act before the Ld. District Forum stating that after comming to know about ‘SONARTORI’ project to be developed by the OPs in Mouza-Natagachi, P.S.- Sonarpur, Dist- South 24 Parganas, he intended to purchase two plots of land to 1440 sq. ft. each of Rs. 1,10,000/- only aggregating Rs. 2,20,000/-. The complainant has stated that he has paid part consideration amount of Rs. 33,000/-+33,000/-= Rs. 66,000/- on 05.01.2008 and it was agreed that the balance consideration amount of Rs. 1,54,000/- will be paid by 36 Nos. of equal monthly instalments of Rs. 2,139/-+Rs. 2,139/-= Rs.4,278/- only per month as EMI.  After payment of the said amount of Rs. 66,000/-, the complainant got two application Nos. for plot Nos. 71 and 72 and after receiving the said application money signed two agreements on 28.01.2008. The complainant has also stated that he intended to have plots in another land for purchasing 2160 sq. ft. each of Rs. 1,95,000/-+Rs. 1,95,000/-= Rs. 3,90,000/- and paid part consideration money of Rs. 58,500/-+Rs. 58,500/-=Rs. 1,17,000/- on 05.01.2008 and it was agreed that the rest consideration money of Rs. 2,73,000/- will be paid by 36 equal monthly instalments of Rs. 3,792/-+ Rs. 3,792/-= Rs. 7,584/-. The complainant has stated that he has paid Rs. 2,20,008/-+ Rs. 3,90,014/-= Rs. 6,10,002/- to the complainant as part consideration amount to purchase the plots in question. However, the complainant has failed to fulfil their promise and project has not been started. The complainant has made several correspondences including letter dated 29.03.2011 to the Managing Director of OP No. 1 company but all went in vain. Hence, the respondent approached the Ld. District Forum with prayer for following reliefs, viz.- (a) a direction upon the OPs to refund the entire sum of Rs.10,07,037/- with immediate effect; (b) to direct the OP No. 1 though the OP No. 2 to pay an amount of Rs. 1,20,000/- as compensation for harassment and mental agony; (c) to direct the OPs to pay Rs. 30,000/-as litigation costs; (d) to direct the  OPs to pay interest @12% p.a. amounting to Rs. 2,47,015/- etc.

             The OPs/appellants initially appeared before the Ld. District Forum and were contesting the case but subsequently they abstained from participating in the proceeding and as such the complaint was heard ex parte.

              After assessing the materials on record, the Ld. District Forum  by impugned order allowed the complaint with certain directions upon the Opposite Parties, as indicated above. Challenging the final order/judgment the OPs have come up in this commission with the present appeal.

          Ld. Advocate for the appellants has submitted that the Ld. District Forum in violation of principles of natural justice directed the appellant to  refund the sum of Rs. 10,07,037/- to the respondent along with compensation  of Rs. 1,00,000/- for harassment and mental agony and litigation costs of Rs. 20,000/- only within 30 days from the date of communication of the order although the respondent has paid only a sum of Rs. 6,10,022/- as part consideration amount towards the total consideration amount. Therefore, the impugned order being not in conformity with the contents of petition of complaint, it is liable to be set aside.

          Ld. Advocate for the respondent, on the other hand, has admitted that the respondent/complainant has paid a sum of Rs. 6,10,022/- to the appellants/developer and as such the respondent is entitled to refund a sum of Rs. 6,10,022/- along with interest thereon @ 12% p.a. as per prayer of petition of complaint.

          Upon hearing the Ld. Advocates for the parties and on going through the materials on record, we find, substance behind the contention of the Ld. Advocate for the appellants. In the petition of  complaint and the evidence led by the respondent/complainant himself, it would reveal  that the OPs/appellants are liable to refund an amount of Rs. 2,20,008/-+Rs. 3,90,014/- totalling Rs. 6,10,022/-. Apart from the same, the respondent has claimed an interest @ 12% p.a. from the date of payment. However, it is not clear how the respondent/complainant has claimed refund of  Rs. 10,07,037/- in the prayer clause of the petition of complaint.

             Therefore, relying upon the statements of respondent/complainant himself it would reveal  that the respondent/complainant has paid only Rs. 2,20,008/-+Rs. 3,90,014/-= Rs. 6,10,022/- to the appellant company and as such the respondent/complainant is entitled to refund of the amount not more than that. However, the Ld. District Forum has directed for refund of Rs. 10,07,037/- which is totally beyond the pleading and the evidence led by the respondent/complainant himself. Since the Ld. District Forum has awarded interest @ 10% p.a. the interest rate cannot be enhanced to 12%p.a. as no appeal has been preferred by the complainant/respondent. However, the order of imposition of cost of Rs. 20,000/- appears to be justified and, therefore, it should not be interfered with.

              In view of the above, the impugned order is modified only to the extent that the appellants/OPs shall refund Rs. 6,10,022/- along with compensation in the form of simple interest @ 10% p.a. over the amount from the date each payment till its realisation. The respondent/complainant is also entitled to litigation costs of Rs. 20,000/- imposed by the Ld. District Forum. The appellants/OPs are directed to make payments of the amount within 45 days from the date, in default, the respondent/complainant shall have liberty to put the order in execution before the Ld. District Forum.