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 bother to hand over the subject flat in view of the agreement for sale to him till filing of this complaint.

The brief fact of the case of the Complainant is that the OP-1 being the Partnership Firm, the OP-2 and 3 being partners of the said Firm have entered into an agreement for sale with the Complainant on 01.12.2016 with some terms and conditions contained therein in respect of one self-contained flat on the first floor, measuring about 600 square feet more or less at a total consideration of Rs.9,35,300/-. But as per the agreement for sale the OPs were unable to hand over the said flat to him till filing of this complaint. The Complainant had issued a legal notice dated 20.09.2017 to the OPs, but the OPs did not reply the same and the notice was returned with the endorsement as ‘NOT KNOWN’. The Complainant paid a sum of Rs.9,30,000/- in cash on various dates and upon receipt of the said amount the OPs have issued money receipts in favour of the Complainant. The Complainant has paid his hard earned money for purchasing this flat, but he did not get possession in the said flat till date.  On several occasion the Complainant had requested the OPs either to hand over the subject flat to him after completion in all respect or to refund the amount, but the OPs did not pay any heed to his request. As the OPs did not bother to redress his grievance for a prolonged period, hence finding no other alternative the Complainant has approached before the Ld. Commission, Barasat by filing this complaint praying for direction upon the OPs to hand over him the physical possession in the said flat, to pay interest on the paid amount, to pay compensation to the tune of Rs.50,000/- due to mental and harassment and also to pay litigation cost to him.

At the very outset it is pertinent to mention that initially this complaint was filed by the Complainant before the Ld. Commission, Barasat. After establishment of this Ld. Commission this case record has been transferred from the Ld. Barasat Commission to this Ld. Commission in view of the order passed by the Hon’ble SCDRC.

It is seen by us that after admission hearing notices were issued to the OPs. But inspite of receipt of the notices the OPs did not turn up and in this manner the statutory period for filing written version was over and the Ld. Commission was pleased to hold that the complaint will run exparte against all the OPs. Accordingly the Complainant had adduced evidence on affidavit. After fixing the case record for final argument and BNA, at that juncture this case record has been transferred. Inspite of this, notice was issued by the office of this Ld. Commission to the Complainant, but the Complainant remained absent on consecutive three days. Therefore we took up the record for hearing and its disposal as the Complainant’s evidence is available in the record.

It is seen by us from the record that the Complainant had entered into an agreement for sale with the OPs on 01.12.2016 for purchasing one self-contained flat on the first floor measuring about 600 square feet more or less consisting of 1 bed room, 1 kitchen cum dining space, 1 toilet and 1 verandah together with undivided proportionate share of underneath land and other common amenities and facilities. The total consideration of the said flat was scheduled at Rs.9,35,000/-, out of which the Complainant paid Rs.9,30,00,000/- on the date of execution of the agreement for sale. But till filing of this complaint the OPs did not bother to hand over the physical possession of the subject flat to the Complainant along with sale deed in respect of the property in question in his favour. Several requests were made by the Complainant including written correspondences for providing the possession of the flat, but to no effect. Hence this complaint is instituted by the Complainant praying for certain reliefs.

 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.

As the Complainant has paid almost the entire consideration amount for the said flat in our considered view the Complainant is very much entitled to get handover the possession in the subject flat from the OPs without any further delay in pursuance of the terms and conditions of the agreement for sale date 01.12.2016 in habitable condition in all respect. Though the Complainant did not make any prayer for registration of the concerned flat, hence if we do not pass any order to that effect, mere handover of the possession of the subject flat will be meaningless. However in the agreement for sale it is specifically mentioned that the OPs shall execute and register the sale deed in respect of the flat in favour of the purchaser at the cost of the purchaser. Therefore though the execution and registration of the sale deed has not been prayed for by the Complainant, we are inclined to pass an order to this effect.

In the pleadings the Complainant has also mentioned to direct the OPs to refund of the paid amount in case of failure to deliver the possession in the subject flat. So we are of the view that if the OPs will not deliver possession at the subject flat within the specified time as mentioned in this judgment along with execution and registration of the sale deed in favour of the Complainant in respect of the flat, then the Complainant is very much entitled to get refund of the paid amount of Rs.9,30,000/- from the OPs. It is admitted fact that since receipt of the said amount of Rs.9,30,000/- the OPs are enjoying the same till date. So the Complainant is also entitled to get refund of the said amount along with interest. 

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-RBT/CC/404/2021 is hereby allowed exparte against the OPs with cost.

The OPs are directed to hand over the physical possession at the subject flat along with execution and registration of the sale deed in respect of the flat in favour of the Complainant within 45 days from the date of passing this judgment.

The OPs shall also pay compensation to the tune of Rs.10,000/- due to unnecessary harassment, mental agony and mental pain and litigation cost of Rs.15,000/- to the Complainant within 45 days from the date of passing this judgment.  In case of failure to provide possession in the subject flat along with sale deed by the OPs, the OPs shall refund either jointly or severally the amount as paid by the Complainant to the tune of Rs.9,30,000/- along with interest in the form of compensation @12% p.a. from the date of making payment i.e. 01.12.2016 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.15,000/- to the Complainant 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 plain copy of this judgment be supplied to the parties free of cost as per the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER