This complaint is filed by the Complainants u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step either to handover the contractual unit or to refund the amount as paid as advance to the Complainants till filing of this complaint.

The brief fact of the case of the Complainants is that being intended to purchase a Row House Bunglow she had entered into a Memorandum of Understanding with the OPs on 14.12.2017. The total consideration of the said bunglow was settled at Rs.16,20,000/-, out of the total consideration money the Complainants paid a sum of Rs.5,00,000/- as advance on the date of signing the MOU and it was scheduled that the remaining amount would be paid within 36 months along with 06 months grace period and during that period the OPs were liable to handover the contractual unit to her. On 16.07.2017 the Complainants paid a sum of Rs.50,000/- in cash and Rs.4,50,000/- on 23.07.2017 to the OPs. After making such payment both parties have entered in to the MOU and the OPs have issued allotment letter in favour of the Complainants on 26.07.2017. The MOU/Agreement was notarized on 14.12.2017 and accordingly it was delivered to the Complainants. The OPs have assured the Complainants that the construction of the said project would be completed within the stipulated time. But after lapse of 06 months the Complainants found that no construction of the said project was started. Immediately the Complainants contacted with the OPs at their office wherein the Complainants was informed that due to lack of booking the construction of the project could not be proceeded and it was not possible for them to complete the project within the stipulated period. The Complainants belonging in the middle class family requested the OPs that the deposited amount is her hard earned money, so it was not possible for her to extend the time for getting the contractual unit and he was in dire need of a shelter and requested the OPs to expedite the construction work. But the OPs did not pay any heed to her request. On 18.03.2018 when the Complainants visited the project site it was found by her that the OPs did not start any construction work therein. Then the Complainants visited the office of the OPs and asked the actual time it would take to complete the project. The Complainants was told by the OPs that they would not proceed with the project and the Complainants may apply for getting refund of the paid advance amount. Being helpless the Complainants had preferred an application on 19.03.2018 addressing to the OPs requesting to refund the advanced money for Rs.5,00,000/-, which was duly received by the OPs and it was assured by the OPs that the Complainants will get refund of the paid amount within a month. After lapse of one month as the OPs did not refund the amount, the Complainants contacted with the OPs giving reminder. The Complainants was assured by the OPs that the refund procedure was in process and progress and the Complainants will get information from the OPs within a very short span of time. But after lapse of another month the OPs have neither refund the amount not contacted with the Complainants. The Complainants again visited the office of the OPs, but on that day the OPs have kept the Complainants waiting for more than 05 hours and lastly one staff of the OPs informed the Complainants that the Directors would not come on the said date. It is pertinent to mention that the mother of the Complainants is an elderly lady, who used to reside with her daughter i.e. the Complainants hereof and due to such prolonged waiting the mother of the Complainants became very sick and gradually bed ridden condition. Due to such inaction on behalf of the OPs the mother of the Complainants became a cardiac patient as the money paid as advance was her life time savings and she paid the amount due to dire need of a shelter to stay for the rest of her life. Being frustrated with such action of the OPs the Complainants being compelled to lodge a complaint before the Consumer Affairs Department on 11.01.2019 and also lodged a complaint before their local Commissioner of Police, Bidhannagar against the OPs on 14.08.2019. But till date no action had been taken by the concerned authorities. Having no other alternative the Complainants had consulted with her Ld. Advocate and decided to serve a legal notice to the OPs and accordingly it was served through her Ld. Counsel on 06.01.2020. The notices were duly delivered, but inspite of receipt of the said notice the OPs did not bother to reply to the said notice as also contact with the Complainants. The Complainants had made telephonic conversation with the OPs on several times, but the OPs have refused to discharge their contractual obligation and sternly refused to complete the said project. According to the Complainants such action definitely denotes the deficient service of the OPs. Finding no other alternative the Complainants has approached before this Ld. Commission by filing this complaint praying for direction upon the OPs either to deliver her the contractual unit or refund the amount as paid towards advance along with interest to her. The Complainants has also sought for compensation for Rs.1,00,000/- towards compensation due to harassment, mental and physical agony and litigation cost of Rs.25,000/- from the OPs.

After admission hearing of this complaint direction was given to issue notices were upon the OPs. But after lapse of a considerable period the service of notices could not be effected the Complainants had prayed for publication of the notices in the daily and well circulated newspaper. The prayer was allowed by the Ld. Commission and date was fixed on 04.02.2021 for production of the newspaper showing publication of the notices in respect of the OPs. On 04.02.2021 the newspaper was submitted by the Complainants, but the OPs did not turn up.  Since publication of the notices as the statutory period was over for filing written version, hence the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs. The Complainants has adduced evidence on affidavit along with BNA.

We have carefully perused the petition of complaint, related documents, BNA and heard argument at length as advanced by the Ld. Counsel for the Complainants.

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 publication of notices in the daily and well-circulated newspaper 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.

It is seen by us that the Complainants is that being intended to purchase a Row House Bunglow had entered into a Memorandum of Understanding with the OPs. The total consideration of the said bunglow was settled at Rs.16,20,000/-, out of the total consideration money the Complainants paid a sum of Rs.5,00,000/- as advance on the date of signing the MOU and it was scheduled that the remaining amount would be paid within 36 months along with 06 months grace period and during that period the OPs shall handover the contractual unit to her. On 16.07.2017 the Complainants paid a sum of Rs.50,000/- in cash and Rs.4,50,000/- on 23.07.2017 to the OPs. After making such payment both parties have entered in to the MOU and the OPs have issued allotment letter in favour of the Complainants on 26.07.2017. The OPs have assured the Complainants that the construction of the said project would be completed within the stipulated time. As no construction was started the Complainants contacted with the OPs at their office wherein the Complainants was informed that due to lack of booking the construction of the project could not be proceeded and it was not possible for them to complete the project within the stipulated period. The Complainants told the OPs that she deposited her hard earned money, so it was not possible for her to extend the time for getting the contractual unit and moreover she was in dire need of a shelter and requested the OPs to expedite the construction work. But the OPs did not pay any heed to her request. On 18.03.2018 when the Complainants visited the project site it was found by her that the OPs did not start any construction work therein. Then the Complainants visited the office of the OPs and asked the actual time it would take to complete the project. The Complainants was told by the OPs that they would not proceed with the project and the Complainants may apply for getting refund of the paid advance amount. Being helpless the Complainants had filed an application on 19.03.2018 addressing to the OPs requesting to refund the advanced money for Rs.5,00,000/-, which was duly received by the OPs and it was assured by the OPs that the Complainants will get refund of the paid amount within a month. After lapse of one month as the OPs did not refund the amount, the Complainants contacted with the OPs giving reminder. The Complainants was assured by the OPs that the refund procedure was in process and progress and the Complainants will get information from the OPs within a very short span of time. But after lapse of another month the OPs have neither refund the amount not contacted with the Complainants. The Complainants again visited the office of the OPs, but to no effect. Being frustrated with such action of the OPs the Complainants under compelling situation to lodge a complaint before the Consumer Affairs Department on 11.01.2019 and also lodged a complaint before their Police Commissioner of  Bidhannagar Police Commissonerate against the OPs on 14.08.2019, but till date no action had been taken by the concerned authorities. Having no other alternative the Complainants had consulted with her Ld. Advocate, on whose advice and direction served a legal notice to the OPs through her Ld. Counsel on 06.01.2020. The notice was duly delivered, but inspite of receipt of the said notice the OPs did not bother to reply to the said notice as also contact with the Complainants. The Complainants had made telephonic conversation with the OPs on several times, but the OPs have refused to discharge their contractual obligation.

In our view such action of the OPs is clearly revealed deficiency in service on behalf of the OPs on the ground that as the OPs have received a sum of Rs.5,00,000/- from the Complainants, it was their contractual liability or obligation either to handover the physical possession of the contractual unit or to refund the paid amount to the Complainants. Due to such deficient service the Ops are liable to pay compensation to the Complainants. Admittedly by filling this complaint for her redressal the Complainants has to incur some expenses and for this reason in our considered view the Complainants 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 deliver the physical possession in the schedule flat or refund the paid amount immediately after making prayer for refund by the Complainants-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 Complainants 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 Complainants 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-187/2020 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 Complainants to the tune of Rs.5,00,000/- along with interest in the form of compensation@12% p.a. from the date of making payment lastly i.e. 23.07.2017 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 @14% p.a. instead of 12%. The OPs shall pay either jointly or severally a sum of Rs.5,000/- to the Complainants as litigation cost within a period of 45 days from the date of passing this judgment, failing which the Complainants 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 CPR.  

 Dictated and corrected by

 [HON'BLE MRS. Silpi Majumder]
              MEMBER