This complaint is filed by the complainant under Section 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 either to hand over the scheduled flat along with the car parking space or refund of the total amount as paid for Rs. 2,11,500/- till filing of this complaint.
The brief fact of the case of the complainant is that the Op 2 and 3 are the directors of the Op 1 company. In the month of August,2016 the complainant visited the office of the Ops and after being satisfied with the project brochure and conversation regarding the project ‘My Town’, Baruipur, Phase 1 the complainant along with the Ops visited the project site and being satisfied with the project site she decided to book a flat along with the car parking space in the said project. Being asked by the Ops the complainant filled up an application for booking a self-contained 1 BHK residential flat (measuring about 427 Sq. Ft. approx) along with car parking space at Block D, type 1 BHK, 3rd Floor situated at Uttar Bhag Mouza, P.S- Baruipur, Dist.- 24 Parganas (South). The total consideration for the flat was scheduled for Rs. 8,50,000/-. For car parking space consideration amount was settled at Rs. 2,00,000/- and for facilities and amenities 1,00,000/- ie. total cost of the said flat along with the car parking space and common facilities and amenities was settled at Rs. 11,50,000/-. Accordingly the complainant paid three cheques. One on 15.08.2016 amounting to Rs. 76,500/- another on 28.10.2016 for Rs. 50,000/- and lastly on 28.10.2016 amounting to Rs. 85,000/-. In this manner the complainant paid Rs. 2,11,500/- in total out of the entire consideration to the Op 1 in respect of the questioned flat along with car parking space. The Ops have issued money receipts in favour of the complainant. On 20.09.2016 the Ops have handed over an allotment letter to the complainant. On 04.04.2017 an agreement for sale was executed by and between the complainant and the Ops whereby it was agreed that the flat will be handed over very soon from the date of agreement for sale. Thereafter the complainant visited several times to the project site of the Ops but could not find any project work in the said site. After making payment of the consideration money on several occasion the complainant verbally asked the Ops regarding the progress of the said project, but on every occasion the Ops have assured the complainant not to be worried and she was further assured that Ops will inform her regarding progress of the project. On good gesture the complainant believed the false assurance of the Ops. In the month of January 2018 the complainant sent her son to visit the project site, but he could not see any sign of construction work at the said site. The Complainant met the Ops and asked regarding the project and at that time the complainant was asked by the Ops to pay 50% of the total consideration amount and assured her that the project work will be started very soon. Being surprised with such inaction of the Ops the complainant decided not to pay any more money to the Ops as since 2016 till 2018 the Ops never done any project work at the project site as per their assurance.
Thereafter the complainant along with her husband and son again visited the project site in the month of March 2018, but they could not find any construction work at the site. Complainant went to the office of the Ops and verbally informed them that she was not willing to pay any more money on the ground that there is construction work and asked the Ops to refund the amount as paid by her. After a long discussion with the Ops they informed her that their project namely ‘My Town’, Baruipur, Phase 1 has been abandoned. The Ops assured the complainant that they will refund the consideration money and accordingly she submitted the application for refund of money on 26.03.2018, which was duly received by the Ops putting their stamp and signature. The Ops have also provided two telephone numbers to the complainant for getting update about refund of money. Thereafter on several occasion the complainant sent whatsapp massages through her son, which was not replied by the Ops.
After a prolonged wait the complainant made a complaint on 04.04.2019 before the Directorate of Consumer Affairs and Fair Business Practice, Salt Lake. The said authority received the complaint. The Consumer Affairs Department fixed a date for meeting at their Office on 08.08.2019 to resolve the dispute through the process of mediation. On the said date Ops did not turn up inspite of receipt of notice and accordingly the Assistant Director, Consumer Affairs, Salt Lake issued a letter on 16.08.2019 addressing the complainant to prefer a statutory complaint before the competent Forum. Till filing of this complaint the complainant did not get the possession of the flat nor receive any refund as paid by her towards the part consideration amount. From the act of the Ops it is crystal clear that the Ops have intentionally avoided to resolve the dispute of the complainant and kept the paid amount in hold under their custody illegally and for ulterior motive. Having no other alternative the complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the Ops either to hand over the schedule flat along with the car parking space or to refund the amount as paid by her to the tune of Rs. 2,11,500/- along with interest @ 18% p.a. from the date of receipt of the said amount till entire realization, to pay Rs. 4,00,000/- as compensation due to mental agony and harassment and litigation cost of Rs. 60,000/- to her.
The petition of complaint has been contested by the OP-1 by filing written version contending that due to Government interference in the mutation and conversion process, the project ‘My Town’,
Baruipur, Phase-1 was stuck and the Company could not move further in construction and delivery of project as without mutation and conversion the plan sanction of the project could not be done. This is a huge loss for the OP-Company as for the purpose of the project the Company had already invested a huge amount for the purchased process of the land. Inspite of huge loss the Company has invest in a new land so that the existing customers of the instant project can get transfer to the New Royal Enclave Project and get their property. For such shifting of the project the Company had to take a long time. After knowing the situation and getting replacement offer from the Company the Complainant rejected all the proposals and filed this complaint before this Ld. Forum. The Company has land related legal papers for the project namely New Royal Enclave, Phase-1 at the Hudrait Mouza and the Company has already given the abovementioned offer to the Complainant. If the Complainant is not willing to accept the offer, the Company is ready to refund the paid amount of Rs.2,11,500/- in five consecutive installments @ Rs.42,300/- per month. But the Complainant did not agree with such proposal and filed this complaint on ulterior motive with a view to harass the Company. According to the OP-1 this complaint is liable to be dismissed with exemplary cost.
After admission hearing notices were issued upon the OPs through speed post. After receipt of the notice the OP-1 had entered appearance by filing vokalatnama along with the written version. But inspite of receipt of the notices as the OP-2 did not turn up to contest the complaint either orally or by filing written version, after expiry of the statutory period this Ld. Forum (Commission as amended) was pleased to pass an order that the complaint will run exparte against the OP-2. Subsequently the Ld. Counsel for the OP-1 appearing on behalf of the OP-3 had adopted the written version of the OP-1. So the contention of the written version of the OP-3 is similar to the OP-1 as mentioned above.
The contesting parties have adduced their respective evidence on affidavit and they were cross-examined by way of filing questionnaire and replies. The contesting parties have also filed BNA.
We have carefully perused the entire record, documents and heard argument at length advanced by the Ld. Counsel for the contesting parties. It is seen by us that the moot point is to be decided as to whether the Complainant is entitled to get refund of the paid amount of Rs.2,11,500/- from the OPs or not. It is an admitted fact that the Complainant paid a sum of Rs.2,11,500/- to the OPs towards earnest money for purchasing one flat from them. An agreement for sale was executed by and between the purchaser and the seller. The Complainant had paid the abovementioned amount in three separate cheques and last payment was made by her on 28.10.2016. But inspite of the said amount the Complainant found that the OPs did not start the construction of the project. On several occasion the Complainant visited the office of the OP-1 to know as to whether the construction will start or not, but on every occasion the OP-1 gave assurance to the Complainant that the construction of the said project will start very soon and the OPs will intimate her about the construction. But ultimately the OPs could not start the construct of the said project till filing of this complaint and being dissatisfied with the action of the OPs the Complainant requested to refund the amount as paid by her. Accordingly as per instruction of the OP-1 the Complainant filled up an application praying for refund of the paid amount, but since then the OPs did not bother to take any positive step in this regard. Therefore it is crystal clear to us that the OPs did neither delivered her the possession in the questioned flat nor refund the paid amount till filing of this complaint. So finding no other alternative the Complainant has filed this complaint praying for certain reliefs.
We have noticed that inspite of receipt of the part consideration amount from the Complainant to the tune of Rs.2,11,500/- the OPs have miserably failed either to construct the proposed project or refund of the paid amount to the Complainant. Such action of the OPs is clearly proved the deficiency in service as well as unfair trade practice on the part of the OPs. The contention of the OPs is that due to interference of the Government they could not mutate and convert the land and until and unless it is done they were not in a position to receive the sanctioned plan from the competent authority. It is further contended by the OPs that they have invested huge money in this project, but ultimately they could not start the project due to some dispute and problem. Inspite of this they have invested money in the project at other site and offer was given to the Complainant to choice a flat in the said project, but the Complainant had refused to accept their proposal and prayed for refund of the paid amount. The OPs have further stated that they are willing to refund the paid amount, but at one time it is not possible for them to pay, rather they are ready to refund the amount in five consecutive installments. But the Complainant being not agree with such proposal has filed this complaint.
It is seen by us that no document is forthcoming from the end of the contesting OPs from where it is evident that the OPs were ready to refund the paid amount in five consecutive installments to the Complainant, rather after submitting the application for refund by the Complainant, the OPs did not bother to take any fruitful step in this context. In the written version for the first time the OPs have contended the said view. On being asked the Complainant has replied that when the matter is pending before the Trial Commission, hence at this juncture the Complainant is not ready to accept the said proposal. It is clear that without taking any step to refund the paid amount, the OPs kept themselves silent over this issue and the amount is still under the custody of the OPs, which indicates the mal-intention of the OPs. With a view to harass the Complainant the OPs have adopted such unfair trade practice keeping the hard earned money of the Complainant under their control for a prolonged period. In our considered view the Complainant is very much entitled to get refund of the paid amount of Rs.2,11,500/- 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 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-133/2019 is hereby allowed on contest against the OP-1 and 3 and exparte against the OP-2 with cost. The OPs are directed either jointly or severally to refund the amount as paid by the Complainant to the tune of Rs.2,11,500/- along with interest in the form of compensation@12% p.a. from the date of making payment lastly i.e. 28.10.2016 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 @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 CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
