This Complaint is filed by the Complainant under Section 12 of the CP 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 amount as paid by his till filing of this Complaint.

          The brief fact of the case of the Complainant is that he was in search for a residential accommodation for his family and accordingly he came to know that the Op 1 undertook a job of construction of a multi storied building under the name and style as ‘Gulmohor’ at New Town, Kolkata.

          The Complainant accordingly approached the Op 1 with intension to purchase a flat at the said project. The Op 1 is the registered private limited company and the Op 2 to 8 are their responsible officers who use to look after the day to day business of the Op 1 company. The Ops have stated the Complainant that as per his requirement of flat measuring about 1000 Sqft. was not available and he had to purchase two different flats measuring about 1000 Sqft. area. The Complainant agreed to purchase two different flats measuring about 1000 Sqft. more or less in the said project. Accordingly Op 1 offered flat on third floor, South-west side in Tower no. 7 measuring about 627 Sqft. more or less @ 1950 Sqft. of the covered area and one open free car parking space to the Complainant. In terms of the demand of the Ops the Complainant paid a sum of Rs. 1,83,397/- from time to time till date i.e. Rs. 50,000/- as booking amount and Rs. 1,33,397/- at the time of signing the MOU. As per the MOU so executed by and between the Complainants and the Ops the price of the said flat was fixed at Rs. 12,22,650/-. The MOU was executed on 30.08.2017 and as per the MOU the Ops were agreed to execute the Agreement for Sale within 90 days from the date of signing the MOU. But unfortunately inspite of repeated request and reminder made by the Complainant the formal agreement for sale was not executed by the Ops. It is stated by the Complainant that the Ops were agreed that the possession of the flat will be handed over on or before 2019, but the Ops did not take any step to raise the construction over the said project and as such there is no hope of getting flat in that project within the stipulated/assured time. So, having no other alternative being dissatisfied with the attitude and conduct of the Ops the Complainant requested the Ops to refund the deposited amount of Rs. 1,83,398/- along with interest there on, but to no effect. Due to such inaction of the Ops the Complainant had to sustained loss, suffering, harassment and mental agony, for which the Ops are liable to pay him adequate compensation. The Complainant issued written reminder to the Ops requesting either to hand over the flat or to refund the deposited amount. Upon receipt of the said reminder, the Op replied by issuing notice dt. 27.05.2019 that they are agreed to hand over the flat in other project which is now under construction and if the Complainant does not choose to purchase the said flat, then they will refund the amount. The Complainant is not at all interested to purchase any flat in other project and prayed for refund of the amount as paid by him. As the Ops did not take any step to make refund of the paid amount to the Complainant inspite of written commitment, having no other alternative the Complainant had approached before this Ld. Forum (Ld. Commission as amended w.e.f.  20.07.2020) to direct the Ops to refund the amount of Rs. 1,83,397/- along with interest @ 18% p.a. from the date of deposit till entire realization, compensation to the tune of Rs. 50,000/- on account of loss, suffering, harassment and mental agony and litigation cost of Rs. 30,000/-.

          After admission hearing of this Complaint notices were issued upon the Ops through speed post with A/D and date was fixed on 28.08.2019 for S/R and appearance. On 28.08.2019 as the service of notices could not be effected, next date was given for taking necessary steps by the Complainant as well as S/R and appearance. On 30.09.2019 from the track report it was evident that Op 1 received the notice on 23.09.2019, inspite of receipt of the notice on the said date Op 1 did not turn up and further date was given on 07.11.2019 for S/R and appearance and filing WV by the Op 1. On 07.11.2019 as the Op 1 did not turn up and chose not to contest the complaint either orally or by filing WV, hence this Ld. Commission was pleased to fixed the record ex parte against the Op 1. Next date was given on 29.11.2019 for S/R and appearance of Op 2 to 8. On 29.11.2019 due to insufficient address notices could not be served. Next date was given on 22.01.2020 for taking necessary steps by the Complainant. Ultimately on 05.02.2020 prayer was made by the Complainant for publication of the notices in respect of the OP-2-8 in the daily and well circulated newspaper namely Aajkal. The prayer was allowed On 06 03.2020 the Complainant had submitted the concerned newspaper dated 28.02.2020 and date was fixed on 27.03.2020 for filing written version by the OP-2-8.

But due to lockdown declared by the Government of India as well as the Government of West Bengal on account of severe outbreak of Corona Virus the record could not be placed before the Ld. Bench. On 26.08.2020 this record was placed and on that date the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OP-2-8 and date was given to the Complainant for adducing evidence. On 17.12.2020 the Complainant filed an application praying for treating the complaint as evidence. Thereafter date was given on 01.02.202021 for filing BNA and hearing argument.

We have carefully perused the petition of complaint and other related documents as also the BNA filed by the Complainant. As the OPs did not take any step to contest the complaint either orally or by filing written version inspite of receipt of the notices, hence the Ld. Commission has been pleased to pass an order that the complaint will run exparte against all the OPs.

In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. 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 notices the OPs chose not to appear and contest the complaint by filing written version or orally, whatever it may be. 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 on behalf of the OP-Company.

It is seen by us that with a view to purchase one flat the Complainant approached before the OPs. The Complainant was intended to purchase a flat measuring about 1000 square feet. But at that point of tome the flat having said square feet was not available, hence the OPs offered him to purchase two separate flats having 1000 square feet. Accordingly the Complainant and the OPs have entered into a MOU and the price of the said flat was settled at Rs.12,22,650/-. The Complainant paid a sum of Rs.1,83,397/- in total  out of the entire consideration amount. Rs.50,000/- was paid as booking amount and rs.1,33,397/- at the time of signing the MOU. The OPs were agreed to hand over the possession at the flat on or before 2019. But the OPs did not raise any construction of flat for a prolonged period. Being aggrieved with the attitude and conduct of the OPs the Complainant issued a letter to the OPs requesting either to hand over the possession in the said flat or to refund the amount as paid by him. In response to the said letter the Ops have informed the Complainant in writing that the Complainant may choose one flat of similar nature in another project, or the paid amount will be refunded to him. Out of the said two proposals the Complainant chose to get refund of the amount as paid by him to the OPs and the OPs were also agreed to refund the paid amount. But since then the OPs did not take any step to refund him the paid amount inspite of several request. Having no other alternative this complaint is initiated by the Complainant praying for direction upon the OPs to refund the paid amount along with interest, compensation and litigation cost to him.

In our considered opinion since receipt of the part consideration money to the tune of Rs.1,83,397/- the OPs did not take any initiative either to provide him possession along with sale deed in respect of the flat in favour of the Complainant or to refund the paid amount to him and keeping them silent over the matter of possession or refund of the said amount and kept the paid amount under their custody/control for a prolonged period in an unauthorized manner and with mal-intension. From such action of the OPs it is crystal clear to us that with a view to harass the Complainant the OPs have adopted such unfair trade practice keeping the hard earned money of the Complainant under his control for a prolonged period. In our view the Complainant is very much entitled to get refund of the paid amount of Rs.1,33,397/- along with interest on the ground that the OPs have been earning interest on the said amount from the date of receipt of the same till date. The Complainant paid the entire amount on 30.08.2017 i.e. on the date of execution of the MOU. But before the MOU the Complainant paid Rs.50,000/- towards booking money, the said date has not been mentioned in the petition of complaint. 

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’bleNCDRC in the case of Vishesh Sood& Another vs. M/s. Raheja Developers Limited, in the Consumer 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/s 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 the Hon’ble NCDRC we are of the opinion that in case of refund of the paid amount by the OP-Service Provider to the Complainant/s it will carry interest @12% p.a. from the date of making payment of the amount till its realization.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-02/2019 is hereby allowed exparte against the OPs with cost. The OPs are directed either jointly or severally to refund the amount as paid by the Complainant to the tune of Rs.1,33,397/- along with interest in the form of compensation @12% p.a. from the date of making payment of the amount 30.08.2017 till its entire realization within a period of 45 days from the date of passing this judgment, in default the interest in the form of compensation shall carry interest @14% p.a. instead of 12%. The OPs shall pay either jointly or severally 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 be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER