This complaint is filed by the Complainant u/S 12 of the Consumer Protection 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 him towards purchasing a flat from the OPs till filing of this complaint.
The brief fact of the case of the Complainant is that in response to the publication made by the OPs the Complainant deposited a sum of Rs.500/- for application money with a view to purchase one flat from the OPs. The application was purchased from the United Bank of India. Thereafter the Complainant paid the booking amount of Rs.25,000/- to the OPs by issuing cheque in favour of the Company on 10.08.2015 for booking one 2 BHK flat having super built up area of 600 square feet more or less on the South-East side of the Block-Priyamvada-14, 2nd Floor together with undivided proportionate share of land including all other common service areas, amenities and facilities. As per the advice of the OPs the Complainant further deposited an amount of Rs.1,44,800/- in favour of the Company by issuing cheque on 15.10.2015 and the company issued a money receipt after taking payment in favour of the Complainant. The aforementioned two cheques were encashed by the OPs on 14.08.2015 and 19.10.2015 respectively. Subsequently an agreement was executed by and between the parties on 27.10.2015 and the copy of the said agreement was duly handed over to the Complainant and in the said agreement it was mentioned that the total cost of the said flat will be for Rs.14,40,000/-. But due to illness of the parents of the Complainant, the Complainant decided not to proceed with the said agreement with regard to purchase of the booked flat and accordingly availed of the clause 2.6 of the terms and conditions the Complainant made an application for cancellation of the booked flat on 16.03.2016 and requested to refund the paid amount to him and the said representation of the Complainant was duly received by the OPs on 16.03.2016. After cancellation of the booking along with the agreement the Complainant met with the OP-2 and 3 on several times when he was told by them and in case of refund of the paid amount expiry of one year is required from the date execution of the agreement The OP-2 and 3 have assured him verbally that after expiry of one year the Complainant will get refund of the paid amount either by cheque or through banking transaction directly. So the Complainant had to maintain contact with the OPs over telephone without going there personally. Before completion of one year as per the commitment the OPs have issued one cheque dated 20.10.2017 in favour of the Complainant amounting to Rs.80,000/-, but the said cheque was dishonored due to ‘insufficient fund’. For making payment of the balance amount of Rs.89,800/- the OPs have issued another cheque in favour of the Complainant amounting to Rs.89,800/- dated 19.11.2017 and requested the Complainant to deposit the cheque for encashment after one month from the date of issuance of the cheque and as per advice of the OPs the Complainant deposited the said cheque to his banker and on 23.02.2018 the bank informed the Complainant that the cheque cannot be encashed on the ground its ‘post dated/ out of date’. With a view to realize the paid amount the Complainant met with the OPs on several times at their office, on each and every time they assured the Complainant that they will refund the paid amount at any moment and requested not to take any legal steps against them. Due to non-response for a prolonged period inspite of verbal commitment the Complainant further met with the OPs at their office on 12.12.2018 when similar assurance was given stating that within three days they will refund the amount directly in his bank account. But after checking of the bank account the Complainant came to know the OPs did not pay any amount in his bank account. Then the Complainant contacted with the OPs over telephone and finally on 03.04.2019 the OPs promised to refund the paid amount of Rs.1,69, 800/- within 05.04.2019 through bank directly, but nothing had been done by the OPs. The Complainant has issued a legal notice upon the OPs on 18.04.2019, but inspite of receipt of the same did not bother either to reply the same or take any fruitful step. As the OPs have miserably failed to redress the grievance of the Complainant hence having no other alternative the Complainant has approached to this Ld. Commission by filing this complaint praying for direction upon the OPs to refund the paid amount of Rs.1,69,800/- along with interest @10% p.a. thereon, to pay compensation to the tune of Rs.2,00,000/- due to mental agony, pain and harassment and litigation cost to him.
After admission hearing of this complaint notices were issued through speed post with A/D, but as the said service could not be effected, the Complainant was directed to publish the notice in the daily well circulated newspaper. The publication was made properly, but the OPs did not turn up within the statutory period to contest the complaint either orally or by filing written version, the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs. After adducing evidence by the Complainant along with BNA, the matter was heard and date was given for delivery of the judgment. At the time of writing judgment it was detected that the Complainant has made the Juristic Person as party, then the Complainant was directed to make the chair/post of the said Juristic Person and accordingly the Director of the Company was made as necessary party. Thereafter further notice was issued to the Director of the Company, but the same was returned as ‘Refused’ As refusal tantamount to ‘Good Service’, date was given to the said Director to file written version within the statutory period from the date of refusal of the notice. But the Director of the Company did not turn up and as the statutory period was over, hence the Ld. Commission decided to proceed exparte against the Director. On the date of final argument the Ld. Counsel for the OPs has appeared by filing vokalatnama.
We have carefully perused the record and the documents as available and heard argument at length advanced by the Ld. Counsel for the parties.
As the Ld. Counsel for the OPs was present on the date of final argument and submitted vokalatnama, he was given scope for advancing argument.
The Ld. Counsel for the OPs has argued that the OPs are intending to refund the amount as paid by the Complainant for purchasing one flat from them. The OPs have admitted that on earlier occasion two separate cheques were given to the Complainant towards the refund of the paid amount, but the said two cheques could not be encashed due to some reason. But regarding dishonor of the cheques this Ld. Commission cannot pass any order on the ground that the Complainant has to approach before the appropriate authority/Court in respect of bouncing of two cheques. According to the OPs as the case is maintainable u/S 138 of the N.I. Act, the Complainant cannot get any relief/benefit through this complaint. The OPs have prayed for dismissal of the present complaint.
From the money receipts it is evident that the Complainant paid a sum of Rs.1,69,800/- to the OPs for purchasing a flat from them out of the total consideration of the said flat in two installments. But after making such amount the Complainant wanted to cancel the agreement with the OPs on account of illness of his parents. Accordingly prayer was made for cancellation of the agreement and refund of the paid amount to him. Upon receipt of the said prayer the OPs have intimated him that the agreement will be cancelled in view of the prayer and they will take step to refund of the paid amount within a very short span i.e. after completion of one year from the date of execution of the agreement. Being satisfied with such assurance the Complainant did not raise his claim within the specified period, but after expiry of the said period the Complainant requested the OPs to refund him the paid amount. Inspite of giving assurance ultimately the OPs did not refund the paid amount to him. Subsequently the OPs have issued one cheque in favour of the Complainant amounting to Rs.80,000/-, but the said cheque could not be encashed due to insufficient fund. Be it mentioned the total consideration of the questioned flat was settled at Rs.14,40,000/- and out of which the Complainant paid Rs.1,69,8000/- to the OPs. Thereafter another cheque amounting to Rs.89,800/- was issued in favour of the Complainant, but same also could not be encashed on the ground of cheque is post dated/out of date. So it is crystal clear to us that the Complainant did not get any amount towards refund of the paid amount till the date of bouncing of the second cheque issued by the OPs. Thereafter the Complainant on several times requested the OPs to take step so that he can get refund of the paid amount. Though the OPs gave him assurance, ultimately as the OPs did not take any step to redress his grievance, having no other alternative the Complainant has instituted this complaint before this Ld. Commission praying for direction upon the OPs to refund him the paid amount along with interest and other reliefs.
In our considered view as the OPs have accepted the prayer for cancellation of the agreement and agreed to refund the paid amount of Rs.1,69,800/- to him, at this juncture the OPs are under the obligation to refund the same. Not only that, with a view to refund him the amount the OPs have issued two separate cheques amounting to Rs.1,69,800/- in total in favour of the Complainant, but unfortunately due to some reason the said cheques could not be encashed by the Complainant. So it is clear to us that till date the Complainant did not get any amount from the OPs towards refund of the paid amount. In our opinion the Complainant is very much entitled to get refund of the paid amount from the OPs. It is an admitted fact that as the grievance of the Complainant have not been redressed by the OPs before coming to the Court of Law and by filing this complaint he has to incur some expenses towards litigation, hence in our opinion the Complainant 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 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-CC/43/2019 is hereby allowed on contest with cost. The OPs are directed either jointly or severally to refund the amount as paid by the Complainants to the tune of Rs.1,69,800/- along with interest in the form of compensation @12% p.a. from the date 26.11.2016 (i.e. after one year from the date of execution of the Agreement) 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 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 a 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
