This complaint is filed by the Complainants u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the as the OPs did not take any step either to execute and register the deed of conveyance in respect of the flat booked by them in their favour or to refund of the paid amount till filing of this complaint.
The brief fact of the case of the Complainants is that they being the consumers have hired the service of the OPs by making of the part consideration amount towards purchasing of a flat from the OPs and the OPs are carrying business in promoting and developing the land for the purpose of providing residential flats, garages and also commercial spaces to the intending purchasers at large. The OPs are working for their gain within the territorial jurisdiction of this Ld. Commission.
The OP-1-3 have formulated a scheme to develop one residential complex in the State of West Bengal comprising of flats/apartments namely M/s. Dharitri Infraventure Private Limited in accordance with the sanctioned building plan duly sanctioned and approved by the competent authority. Being desired to purchase one flat for their residential purpose the Complainants contacted with the OPs in the year 2015 and expressed their willingness to purchase one flat by making payment of the due consideration amount. Accordingly the Complainants have entered into a MOU and got provisional allotment letter from the OPs on 31.08.2015 with regard to the said flat being agreed with the terms and the conditions of the MOU. The Complainants have paid a sum of Rs.25,000/- in favour of the OP-1-3 by cheque on 31.08.2015 at the time of execution of the MOU for the proposed flat in 9th Tower, South-East facing on the 3rd floor measuring about 350 square feet in the said multi-storied building. The total consideration was scheduled at Rs.7,50,000/- and out of which the Complainants have paid a sum of Rs.1,00,000/- in total. After expiry of several months from the date of execution of the MOU the Complainants found that the OPs did not start the construction works as per the specification of the said flat in terms of the MOU. The OPs did not handover either the peaceful vacant possession of the said flat nor completed the flat in favour of the purchasers. Moreover the OPs could not show their gesture that they have any intention to complete the same. The OP-1-3 with a view to harass the Complainants deliberately and intentionally did not take any step to complete the construction work of the said building as well as the flat of the Complainants. Though the Complainants have requested the OPs to complete the flat in all respect, the OPs did not pay any heed to their request. Due to such inaction of the OPs the Complainants have been suffering from physical and mental agony. The OPs were requested by the Complainants for execution and registration of the sale deed in respect of the flat in their favour, but to no effect. Thereafter the Complainants have started to claim the refund of the paid amount, but the OPs did not take any step to that effect and in this manner the OPs have duped them. On 07.03.2016 the Complainants have issued e-mail in favour of all the OPs requesting them either to arrange for handing over the possession of the questioned flat after completion in all respect along with sale deed in their favour or to refund of the paid amount, but the OPs did not bother to take any positive initiative to that effect and remained silent over this issue. As the OPs did not take any step to redress their grievance, finding no other alternative the Complainants have approached before this Ld. Commission by filing this complaint praying for direction upon the OPs either to handover the flat in habitable and complete condition along with sale deed in their favor or to refund the paid amount along with statutory interest, the Complainants have also sought for compensation to the tune of Rs.2,00,000/- due to harassment, mental agony and litigation cost.
After admission hearing 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. Barasat Commission was pleased to pass an order that the complaint will run exparte against 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.
It is pertinent to mention that initially this complaint was filed before the Ld. Barasat Commission. After establishment of this Ld. Commission this complaint has been transferred from the Ld. Barasat Commission to this Ld. Commission as the office addresses of the OPs lie within the territorial jurisdiction of this Ld. Commission in view of the order passed by the Hon’ble SCDRC.
The Complainants have adduced evidence on affidavit and BNA.
We have carefully perused the record, documents and heard argument at length advanced by the Ld. Counsel for the Complainants. It is seen by us that admittedly the Complainant being agreed with the terms and the conditions of the MOU have entered into an agreement with the OPs for purchasing one flat for residential purpose from the OPs. The measurement and specifications are mentioned in the said MOU. Provisional allotment letter was issued in favour of the Complainants by the OPs. On the date of execution of the MOU the Complainants paid a sum of Rs.25,000/- to the OPs as booking amount and subsequently they paid a sum of Rs.75,000/-, so in total the Complainants paid a sum of Rs.1,00,000/- to the OPs out of the total consideration amount of Rs.7,50,000/-. But inspite of making such amount the OPs could not start the construction of the building. The Complainants have waited for a long period, but the OPs have failed to hand over the physical possession of the flat along with execution and registration of the sale deed in favour of the Complainants. On several times the Complainants told the OPs that they are willing to discharge their duties and performance, but to no effect. Several written correspondences were made by the Complainants with the OPs requesting to provide the flat after sale deed alternatively to refund the paid amount to them. But inspite of receipt of those written correspondences the OPs did not take any fruitful step for redressal of their grievance. Having no other alternative this complaint is initiated by the Complainants praying for certain reliefs.
It is found by us that as the Ops have miserably failed to hand over the possession of the flat along with sale deed in their favour, hence the Complainants are very much entitled to get refund of the paid amount from the OPs. It is also true that as the grievance of the Complainant have not been redressed by the OPs before filing of this complaint, by filing this complaint the Complainants have to incur some expenses, for which the Complainants are very much entitled to get litigation cost from the OPs. It is the fact that as the paid amount is still under the control of the OPs and the OPs after taking the said amount are enjoying the same without doing any fruitful performance, the Complainants is also entitled to get interest over the said unpaid amount 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-RBT/CC/376/2021 is hereby allowed exparte with cost.
The OPs are directed either jointly or severally to refund the amount as paid by the Complainant to the tune of Rs.1,00,000/- along with interest in the form of compensation @12% p.a. from the date 05.09.2015 i.e. date of making payment lastly 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
