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 OP as the OP did not take any step to refund the amount as paid by them towards the consideration price of the flat in part for purchasing one flat from the end of the OPs till filing of this complaint.

The brief fact of the case of the Complainants is that they were searching of one residential flat for their own use and accordingly booked one flat in Damyanti measuring super built up area of 350 sq. ft. more or less containing one Bedroom, one Dining cum Kitchen, one Toilet and one Balcony at the proposed building in phase no-1, part or portion of the housing complex known as Royal Enclave at Mouza- Hatisala, New Town, Benttata-II Gram Panchyat, Bhangore, District-South 24 Parganas. Accordingly the Complainants have entered into an agreement for sale with the OPs on 27.07.2016 and paid Rs.3,00,000/- towards the earnest money through different installments to the OPs and the OPs have duly received the said amount from the Complainants as advance money out of the total consideration of the flat for Rs.9,00,000/-. All on a sudden on 22.02.2018 the Complainants have received a letter issued by the Assistant Manager of the OPs whereby it was informed that the OPs-Company is unable to deliver the aforementioned flat in the abovementioned area or project as promised earlier in the schedule of the agreement for sale dated 27.07.2016 as executed by and between the parties and offered the Complainants an alternative option  to choose another site, which is utterly an illegal conduct in contravention of the agreement for sale or it is clearly a breach of contract on the part of the OPs. Thereafter the Complainants visited the office of the OPs on several occasions and the OPs were intimated that the Complainants are unwilling to accept the another option as requested by the OPs and simultaneously the Complainants requested the OPs to refund the amount as paid by them to the tune of Rs.3,00,000/-. Several requests were made by the Complainants on different times, but the OPs did not bother to pay any heed to their earnest request. Then the Complainants have issued Advocate’s letter on 14.01.2019 to the OPs requesting them to refund the paid amount of Rs.3,00,000/-, but to no effect. Thereafter the Complainants being dissatisfied with the action of the OPs have filed this complaint before this Ld. Forum (now Commission as amendment) praying for direction upon the OPs to refund them the paid amount of Rs.3,00,000/- along with an interest @18% thereon from the date of payment of the said amount i.e. 27.07.2016 till entire realization without any further delay and compensation to the tune of Rs.1,00,000/- due to unnecessary harassment, mental agony and pain on behalf of the OPs.

After admission of this complaint notice was issued upon the OPs. The order dated 23.09.2019 reveals that the service of notice upon the OP-1 could not be effected as the unserved envelop was returned with the endorsement as “Left”, so direction was given to the Complainants to take appropriate step for servicing of notice upon the OP-1. From the said order it is also evident that the OP-2 and 3 received the notices on 31.08.2019 and 04.09.2019 respectively. As the statutory period for filing the written version had not been over and in the meantime Puja Vacation started, hence in the interest of Natural Justice date was fixed on 16.10.2019 for filing written versions by the OP-2 and 3. But on 16.10.2019 the OP-2 and 3 did not turn up to contest the complaint either orally or by filing written version, hence the Ld. Commission was pleased to fix this complaint exparte against the OP-2 and 3.  Subsequently the OP-1 also did not turn up inspite of receipt of the notice and for this reason an order was passed on 16.03.2020 that this complaint will run exparte against the OP-1 also.

This case record was put up by the Bench Clerk on 14.09.2020. Lastly it was fixed on 01.04.2020 for exparte hearing. But due to Lockdown as declared by the Government of India on the ground of severe outbreak of Corona Virus, this record could not be placed. On 14.09.2020 the Complainants remained absent. As the corroborative documents have already been filed by the Complainants at the time of filing of this complaint, hence without wasting any time we were inclined to fix the next date for passing judgment.

We have carefully perused the petition of complaint along with the documents as submitted by the Complainant at the time of filing this complaint. From the pleading it is evident that  the moot question is to be decided as to wheter the Complainants are entitled to get refund of the paid amount of Rs.3,00,000/-  from the OPs or not. Admittedly the Complainants paid a sum of Rs.3,00,000/- to the OPs for purchasing one flat from them. An agreement for sale was also executed by and between the Complainants and the OPs. On 24.08.2018 the OPs have intimated the Complainants by issuing a letter that due to some difficulties the OPs could not start the construction work of the said project and OPs thought to shift the project from the existing site to another site. The Complainants were requested to visit the new proposed site Accordingly the Complainants visited the proposed site, as the said site did not suit them, the Complainants requested the OPs by issuing a letter to refund the booking amount as paid by them. Inspite of receipt of the letter the OPs did not bother to take any initiative to refund the amount to them, as paid. Again on 14.01.2019 the Complainants issued an Advocate’s letter  requesting to refund the paid amount, but inspite of receipt of the said letter also the OPs did neither take any step nor reply to the said letter till filing of this complaint.

It is mentioned earlier that the OPs inspite of receipt of the notices did not appear before this Ld. Commission to contest the complaint, no written version was forthcoming from the end of the OPs, for this reason an order was passed to the effect that this complaint will run exparte against 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 notice the OPs chose not to contest the complaint by filing written version. Therefore in view of the said judgment the allegation as made out by the Complainants in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegation.

As the Complainants paid the booking money/earnest money to the tune of Rs.3,00,000/- for purchasing one flat in the project of the OPs and admittedly the OPs have miserably failed either to construct the proposed project or refund the paid amount to the Complainants, such action clearly proves the deficiency in service as well as unfair trade practice on behalf of the OPs. It is evident from the pleading of the Complainants that due to some complications the OPs have to shift the project from the proposed site to another place and being requested the Complainants visited the said site, but the Complainants did not choice or prefer the said site, so being compelled they requested the OPs to refund the paid amount by issuing letter.  Since then the OPs did not take any initiative to refund the paid amount to the Complainants and keeping them silent over the matter possession the said amount under the custody/control of the OPs 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 Complainants the OPs have adopted such unfair trade practice keeping the hard earned money of the Complainants under their control for a prolonged period. In our considered view the Complainants is very much entitled to get refund of the paid amount of Rs.3,00,000/- along with interest on the ground that the OPs are still earning interest on the said amount from the date of receipt of the same till date.

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 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 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-33/2019 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 Complainants to the tune of Rs.3,00,000/- along with interest in the form of compensation @12% p.a. from the date of making payment of the amount i.e. 27.07.2016 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.6,000/- to the Complainants 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 2005.

Dictated and corrected by

   Mrs. Silpi Majumder

          MEMBER