This complaint is filed by the Complainant 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 refund the earnest money to him till filing of this complaint.

 The brief fact of the case of the Complainant is that he had entered into a Memorandum of Understanding with the OPs on 21.07.2017 for purchasing one 2 BHK flat having an area of 650 sq ft more or less at the subject premises on the 5th floor, Block-16, flat type-C, flat no-P5 (PENT HOUSE) at Dharitri Universia. The Complainant agreed to pay total consideration amount of Rs.26,15,000/- as per MOU for purchasing the said flat. The Complainant had already paid a sum of Rs.5,00,000/- as an advance/ earnest money as per the MOU executed by and between the Complainant and the OPs. After lapse of one year the Complainant could not find any progress of the said project of the OPs and on several occasions he visited the office of the OPs for getting information regarding the concerned project in which the Complainant paid a sum of Rs.5,00,000/-, out of the total consideration amount of Rs. 26,15,000/-. But on each and every occasion the Complainant returned in empty hand. Subsequently the Complainant got the information regarding the same project and sent a letter for cancellation of the MOU on 04.03.2020. But the Complainant did not get any response from the end of the OPs and after 6 months the Complainant had issued another legal notice on 21.09.2020 for getting refund of the earnest amount of Rs.5,00,000/-. Thereafter the Complainant came to know that the OPs have cheated other purchasers in the name of the same project and series of cases are pending before the various Court f Law against the OPs and its Directors. Without getting any response to the legal notice dated 21.09.2020 the Complainant being compelled issued another legal notice through his Ld. Advocate Mr. Tuhin Chatterjee, but till filing of this complaint no fruitful result had yet been yielded. As the OPs did not take any step to redress his grievance by making refund of the earnest money as paid by him, finding no other alternative the Complainant had approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to refund him the earnest money to the tune of Rs.5,00,000/- to pay compensation to the tune of Rs.3,00,000/- for deficiency in service and unfair trade practice and also to pay litigation cost of Rs.1,00,000/- to him. The Complainant has further prayed for Rs.5,00,000 due to his mental agony, anxiety, physical pain and Rs.2,00,000/- on account of unnecessary harassment and trauma.

   After admission of this complaint notices were sent to the OPs. On 27.09.2021 the Ld. Advocate appeared for all the OPs by filing Vakalatnama and prayed time for filing written version. On the next date Ld. Counsel for the OPs was present, but none was present on behalf of the Complainant. On the said date also the OPs prayed time for filing written version. But in view of the order passed by the Hon’ble Apex Court time could not be granted for filing written version to the OPs, the Ld. Commission was pleased to pass an order that the complaint will run ex-parte against the OPs. Date was given to the Complainant for adducing evidence. On the next date the Complainant adduced evidence on affidavit. Next date was fixed for hearing argument and BNA.

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.

We have carefully perused the record and documents as available and heard argument at length advanced by the Ld. Counsel for the Complainant. Admittedly the Complainant with a view to purchase one 2 BHK flat approached to the OPs. Being satisfied with the documents the Complainant decided to purchase the same. The Complainant paid a sum of Rs.5,00,000/- in total towards earnest money out of the entire consideration of the said flat to the tune of Rs.26,15,000/- to the OPs. Upon receipt of the said amount the OPs have issued money receipts in favour of the Complainant and MOU was executed by and between the parties.  But after lapse of one year the Complainant found that at the site no construction work was started. Then and there he rushed to the office of the OPs, but the OPs could not satisfy him to the extent that when the construction work will be started. Subsequently after getting call from the OPs he went further to the office of the OPs and at that point of time also he came to know that no construction of the concerned project was started. Then the Complainant decided to cancel the MOU executed by and between him and the OPs and claimed the earnest money of Rs.5,00,000/- as paid by him. But the OPs did not pay any heed to his request. Being compelled the Complainant issued legal notices on several occasions, but to no effect. The OPs have neither replied the said notices nor refund the amount as paid by him. Therefore being dissatisfied with such action of the OPs the Complainant has filed this complaint praying for certain reliefs along with refund of the paid amount.

Upon considering the above mentioned we are of the opinion that as the OPs have miserably failed to construct the concerned flat booked by the Complainant by making payment of the earnest money within the specified time or refund the paid amount to the Complainant, the OPs are under the obligation to refund the entire paid amount to the Complainant. In our view the Complainant is very much entitled to get refund of the paid amount of Rs.5,00,000/- 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 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 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-CC/276/2021 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.5,00,000/- along with interest in the form of compensation @12% p.a. from the date of issuance of the last legal notice i.e. 21.0.9. 2020 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