This complaint is filed by 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 along with interest till filing of this complaint.

In the instant complaint the Complainant is the intending purchaser, the OP-1 is the developer and the OP 2 & 3 are the Directors of the OP-1-Company. The Complainant by making payment of part consideration amount had availed of service from the OPs. So the OPs are the service providers and the Complainant being the purchaser of the flat is a consumer.

The brief fact of the case of the Complainant is that being allured with the hoarding given by the OPs offering one flat at the cost of only Rs.12,00,000/- the Complainant contacted the developer-Company-OP-1. During discussion the developer presented a colourful story of their project of housing construction at Hatisala and she also impressed and assured by the OPs for booking flat for their own use and occupation. Relying on the assurance of the developer the Complainant decided to book one flat. After several meetings and discussions the Complainant had entered into an agreement for sale with the OPs on 18.04.2017 for a self-contained flat namely ‘Royal Enclave’ on the 5^th Block (Damayanti), 2^nd Floor of the proposed building to be constructed having an area of 450 square feet for a total consideration price for Rs.12,00,000/-. Out of the total consideration amount the Complainant paid Rs.2,66,000/- by way of three A/C payee cheques. Rs. 1,08,000/-, Rs.1,08,000/- and Rs.50,000/- was paid on 15.09.2016, 23.11.2016 and 18.04.2017 respectively. The said cheques were drawn on SBI. Those cheques were duly encashed by the OPs and also acknowledged in the last page of the agreement in presence of the witness. All on a sudden the Assistant Manager of the OP-1 had intimated the Complainant by issuing a letter dated 06.04.2018 that the construction of the said project had hampered due to the policy of the Government and the OPs are unable to construct any project at Hatisala and due to this reason it is shifted to New Town. Immediately the Complainant contacted with the OP-1 and filled up the application for refund of money as the location of the new project is not suitable to her. As per the terms of the refund form the OP should refund of Rs.2,66,000/- after deduction of 5% as administrative cost to the Complainant within six months from the date of submission of the said form i.e. 06.10.2018. But the OPs have neither contacted with the Complainant nor refund of any amount inspite of expiry of the said statutory period. Then the Complainant sent legal notices to the OPs dated 11.12.2018 through her Ld. Advocate demanding Rs.2,66,000/- within 30 days from the date of receipt of the legal notice. The legal notices were duly delivered on 15.12.2018 and 20.12.2018 but the OPs did not pay any heed to the demand of the Complainant. The Complainant being a peace loving citizen is willing to get refund of the paid amount along with penal interest. As the OPs did not take any step to resolve her grievance/dispute, hence finding no other alternative the Complainant had approached before the Ld. DCDRF, Barasat by filing this complaint praying for direction upon the OPs to refund her amounting to Rs.2,66,000/- along with an interest @10% p.a. from the date of deposit of the said amount till realization of the entire amount, to pay Rs.1,00,000/- as compensation due to physical harassment, mental agony and litigation cost of Rs.50,000/-.

It is pertinent to mention herein that initially this complaint was filed before the Ld. DCDRF, Barasat. But after establishment of this Ld. Additional CDRF (Commission as amended in view of the C.P. Act, 2019) this record has been transferred from the Ld. Commission, Barasat to this Ld. Commission in view of the order passed by the Hon’ble SCDRC as from the point of its territorial jurisdiction as this complaint falls within the territorial jurisdiction of this Ld. Commission. From the order sheets it is evident that after admission of this complaint notices were issued upon all the OPs and the OPs inspite of receipt of the notices did not turn up to contest the complaint either orally or by filing written version. Hence the Ld. Commission, Barasat was pleased to pass an order that the 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 vsAman 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 receiptof the notices the OPs chose not to appear and contest the complaint either by filing written version or orally, whatever it may be. Therefore in view of the said judgment the allegation as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegation on behalf of the OPs.

We have carefully perused the entire and documents and heard argument at length advanced by the Ld. Counsel for the Complainant. It is seen by us that the Complainant being attracted with an advertisement given by the OPs offering one flat at the cost of only Rs.12,00,000/- she contacted the developer-Company-OP-1. Being satisfied with the terms and the conditions of the construction she booked one self-contained flat for her own use along with family members. Accordingly the Complainant had entered into an agreement for sale with the OPs on 18.04.2017 for a flat namely ‘Royal Enclave’ on the 5^th Block (Damayanti), 2^nd Floor of the proposed building to be constructed having an area of 450 square feet for a total consideration price for Rs.12,00,000/-. Out of the total consideration amount the Complainant paid Rs.2,66,000/- by way of three A/C payee cheques, i.e. Rs.1,08,000/-, Rs.1,08,000/- and Rs.50,000/- which was paid on 15.09.2016, 23.11.2016 and 18.04.2017 respectively, all were drawn on SBI. Those cheques were duly encashed by the OPs and also acknowledged in the last page of the agreement in presence of the witness. All on a sudden the Assistant Manager of the OP-1 had intimated the Complainant by issuing a letter dated 06.04.2018 that the construction of the said project had hampered due to the policy of the Government and the OPs are unable to construct any project at Hatisala and due to this reason it is shifted to New Town. Immediately the Complainant contacted with the OP-1 and filled up the application for refund of money as the location of the new project is not suitable to her. As per the terms of the refund form the OP should refund of Rs.2,66,000/- after deduction of 5% as administrative cost to the Complainant within six months from the date of submission of the said form i.e. 06.10.2018. But the OPs have neither contacted with the Complainant nor refund of any amount inspite of expiry of the said statutory period. Then the Complainant sent legal notices to the OPs dated 11.12.2018 through her Ld. Advocate demanding Rs.2,66,000/- within 30 days from the date of receipt of the legal notice. All legal notices were duly delivered on 15.12.2018 and 20.12.2018 but the OPs did not pay any heed to the demand of the Complainant. As the OPs did not take any step to resolve her grievance/dispute, hence finding no other alternative the Complainant had approached before the Court of Law by filing this complaint praying for direction upon the OPs to refund the paid amount of Rs.2,66,000/- along with an interest from the date of deposit of the said amount till realization of the entire amount along with other reliefs.

In this respect we are to mention the Judgment passed by the Hon’ble NCDRC, reported in 2019 (4) CPR, 570 (NC), in the CC Case no. 1377/2015, decided on 27.08.2019 in the Case of JayantiMitra and another vs. Merino Shelters Pvt. Ltd. and another, wherein it has been held that ‘if the Complainants are unable to accept the flats with the revised area, they can opt for refund.’

The said ruling can be applicable in the case in hand on the ground that in the instant complaint proposal was given by the OPs to the Complainants for shifting from theexistingplace to another place, (i.e. from Hatisala to Newtown), but the Complainant refused to accept the said proposal and prayed for refund of the paid amount by submitted the prescribed application issued by the OPs. Therefore having regard to the aforementioned judgment the Complainant can opt for refund as the place where the proposed project was scheduled to be shifted, the same is not as per her choice. At the time of agreement for sale and/or making part payment of the consideration money it was scheduled that the construction of the said project will be at Hatisala, but subsequently the OPs have shifted the place for construction of their project without taking any permission or opinion from the Complainant.

In the instant Complaint we may rely on another Judgment passed by the Hon’ble NCDRC reported in 2019 (4) CPR 361 (NC), in the CC Case no. 752/2018, decided on 30.07.2019 in the Case of MukeshMakkar vs. M/s IREO Grace Realtech Pvt. Ltd. and others wherein it has been held that ‘if a builder fails to deliver possession of the flat/plot booked with him within the time period this would constitute a defect or deficiency.’

This ruling is also applicable in the instant complaint on the ground that the OPs have miserably failed either to hand over the complete flat within the stipulated period or to refund the paid amount to the purchaser within the stipulated period i.e. within six months from the date of submitting the prescribed application for refund of the paid amount. In our view as the OPs could not give possession in the flat to the intending purchaser after taking the balance consideration amount, it was the duty of the OPs to refund the amount as paid by the Complainant towards the booking amount within the stipulated period. Therefore it is clear to us that the OPs have failed to discharge their liability and intentionally harassed the Complainant for a prolonged period. Such action of the OPs prove the deficient service on their behalf and the Complainant has successfully proved the same by adducing cogent evidence. For such deficient service of the OPs we are of the opinion that the Complainant is entitled to get compensation. As the OPs did not take any step for redressal of the grievance of the Complainant before filing of this complaint and admittedly for this proceeding the Complainant has to incur some legal expenses, for which the Complainant is also entitled to get litigation cost from the OPs.

It is true that the paid amount of Rs.2,66,000/- is still lying with the OPs since its last payment i.e. 18.04.2017. Therefore in case of refund the Complainant is entitled to get refund along with interest. Now we are to adjudicate what will be interest component in case of refund of the paid amount, if the OPs will fail to deliver the physical possession of the complete flat.

In this respect we are to rely on the Judgment passed by the Hon’ble NCDRC in the case of VisheshSood& 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 respective dates 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 of Pioneer Urban Land & Infrastructure Limited Vs. GovindanRaghvan (2019) 5 SCC 725 and Kolkata West International City (P) Limited vs. DevasisRudra, (2019) CPJ 29 (SC) wherein it has been held by Their Lordships that complainant cannot be made to wait indefinitely for possession of the unit. In the case of Kolkata West International City (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 OPs 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/108/2020 is hereby allowed on exparte against the OPs with cost.

The OPsare directed either severally or jointly to refund of the amount as paid by the Complainant to the tune of Rs.2,66,000/- along with interest in the form of compensation @12% p.a. from the date of making payment of the amount i.e. 18.04.2017 till its entire realization within a period of 45 days from the date of passing this judgment, in default the interest component will be  @14% p.a. instead of 12%(in the form of compensation). The OPs shall pay either jointly or severally a sum of Rs.15,000/- 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 final judgment be given to the parties free of cost as per the CPR, 2005.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER