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 OP-1 to 3 as the said OPs did not take any step to execute and register the sale deed in respect of the schedule flat along with peaceful vacant possession therein till filing of this complaint.
The brief fact of the case of the Complainant is that in the instant complaint the Complainant is a consumer under the purview of the Section 2(1) (d) (ii) of the Consumer Protection Act, 1986, the OP-1-3 are the developers with whom the Complainant had entered into an agreement for purchasing a flat and the OP-4 to 9 are the land owners with whom OP-1-3 has executed the development agreement on 02.05.2017. After execution of the development agreement the Complainant had entered into an agreement for sale with the OP-1-3 for purchasing a self-contained flat on the first floor at North-East side, marble flooring, and measuring about 550 sq.ft. covered area more or less situated under the South Dumdum Municipality within the jurisdiction of this Ld. Commission. By virtue of the development agreement a General Power of Attorney were given to the OP-1-3 by the OP-4-9. The OP-1-3 has floated an advertisement inviting the intending buyers for booking the flats and entering into the agreement for sale. Having a dire need of a residential unit at the above locality, the Complainant approached before the OP-1-3 for purchasing one flat from them. After discussion by and between the parties, the OP-1 had handed over the photocopies of the relevant documents of the said property i.e. original title deed, development agreement, tax receipt, registered General Power of Attorney along with other relevant and required papers of the concerned property to the Complainant. Being satisfied with the documents the Complainant had handed over the same to the OP-1-3. Being satisfied with the documents, the Complainant had agreed to purchase a flat from the OP-1-3. Total consideration of the price was settled at Rs.9,62,500/-, out of which Complainant deposited Rs.4,75,000/- by issuing different cheque and cash. The Complainant paid one cash payment on 05.05.2017 to the tune of Rs.75,000/-. Rs.4,00,000/- was paid by the Complainant by issuing cheque dated 02.05.2017. Accordingly the Complainant entered into an agreement for sale on 02.05.2017 with the OP-1-3, being Constitute Attorney of the land owner. The Complainant paid the consideration amount in part as per the terms and conditions of the agreement for sale. It is stated by the complainant that inspite of giving assurance for completion and handing over the questioned flat, by the OP-1-3, the OP-1-3 did not bother to comply with the terms and the conditions of the agreement. On several occasions the Complainant visited the office of the OP-1 requesting to execute and registered the sale deed in respect of the suit flat in his favour, but the OP-1-3 tried to avoid the same. Till filing of this complaint, the Complainant paid a sum of Rs. 4,75,000/- on different dates. It was settled that within 18 months from the date of the agreement for sale flat will be handed over to him completing the same in all respect. As the OP-1-3 did not bother to keep their assurance and promise, finding no other option the Complainant issued a demand notice through his Ld. Advocates on 03.08.2019 in the name of the OP-1-3 and also the land owners. But till filing of this complaint, the OP-1-3 did not contact with the Complainant and intentionally refused to receive a single scrap of paper from the Complainant. For getting this flat the Complainant had to run from pillar to post, no fruitful result has been yielded. As the OP-1-3 did not take any step to redress his grievance by executing the sale deed in respect of the flat in his favour till date, finding no other alternative, the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OP-1-3 to execute and register the sale deed in respect of the schedule flat along undivided proportionate share of land in his favour, to deliver the peaceful vacant possession, to complete the building as per the sanctioned plan, to hand over the possession certificate in respect of the schedule flat, to bear the enhanced registration cost, to hand over the flat in habitable condition, failing which to refund the paid amount of Rs. 4,75,000/- along with banking interest from the date of making payment till its entire realization, to pay compensation to the tune of Rs. 3,00,000/- and litigation cost of Rs. 30,000/- to him.
The petition of complaint has been contested by the OP-4-9 by filing conjoint written version contending that the agreement for sale was executed by and between the Complainant and the OP-1-3. These OPs were not made parties in the said agreement and within the four corners of the agreement for sale no endorsement was put by the OP-4-9. Admittedly development agreement was executed by and between the OP-1-3 and Mihirlal Das, since deceased and after the death of Mihirlal Das, the OP-4-9 have come in to the picture as the legal heirs of the said deceased. It was settled in the development agreement that after sanctioning of the building plan by the competent authority within 24 months the OP-1-3 will hand over the peaceful vacant possession at the land owner’s allocation. General Power of attorney was also given by Mihirlal Das, since deceased in favour of the OP-1-3. But unfortunately the OPs-1-3 has miserably failed to erect the said multi-storied building and complete the same till date. The OP-4-9 have provided extreme co-operation to the OP-1-3, but to no effect. Being dissatisfied with the OP-4-9 has also approached before the Court of Law. According to these OPs the Complainant is very much entitled get the flat from the OP-1-3 as he has already paid the a hefty amount to them and promised to pay the balance amount in terms of the agreement for sale. So these OPs are supporting the claim of the Complainant, but these OPs cannot be held liable for deficiency in service towards the Complainant as there is no contractual agreement by and between these OPs and the Complainant. Prayer is made by the OP-4-9 for dismissal of the complaint against them.
After admission of this complaint notices were issued upon the OPs directing them to appear and to file written version within 45 days from the date of receipt of the notices. Inspite of receipt of the notices the OP-1-3 did not turn up to contest the complaint either orally or by filing written version. After expiry of the statutory period the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OP-1-3. The written version was filed by the OP-4-9. The Complainant and the OP-4-9 have adduced their respective evidence and both are cross-examined by each other by way of filing questionnaire and replies. Both the contesting parties have filed Brief Notes of Argument with a copy to the other side. On the date of hearing final argument the Complainant and the OP-4-9 were present; none was present on behalf of the OP-1-3.
We have carefully perused the entire record, documents as available in the record and heard argument at length advanced by the Ld. Counsel for the Complainant and the OP-4-9. It is seen by us that the Complainant had entered into an agreement for sale with the OP-1-3 on 02.05.2017 for purchasing a self-contained flat on the 1st floor at North-East side, marble flooring measuring about 550 sq ft super built up area more or less under the South Dum Dum Municipality. The total consideration of the said flat was settled at Rs.9,62,500/-, out of which the Complainant paid a sum of Rs.4,75,000/- on different dates by way of cash and cheque. It is mentioned in the agreement for sale that within 18 months from the date of execution of the agreement for sale the flat will be completed in all respect. But inspite of receipt the said amount towards consideration money the OP-1-3 did not bother to comply with the terms and conditions of the agreement for sale and kept them silent over the matter. Being dissatisfied with the action of the OP-1-3 and compelled the Complainant has filed this complaint before this Ld. Commission praying for direction of refund of the paid amount along with interest. The Complainant has also prayed for litigation cost and compensation.
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 OP-1-3 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 Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.
In our considered view that as the OP-1-3 have miserably failed to handover the peaceful vacant possession in the flat for which part consideration amount was paid by the Complainant according to the terms and conditions of the agreement for sale, hence the Complainant is very much entitled to get refund of the paid amount along with interest. Admittedly the OP-1-3 are enjoying interest on hard-earned money of the Complainant since payment; therefore the OP-1-3 are under the obligation to pay interest on the paid amount. It is also true that as the OP-1-3 did not bother to settle the grievance of the Complainant before filing of this complaint, being compelled the Complainant had approached before the Court of Law for redressal of her grievance by filing this complaint, hence for such proceeding the Complainant has to incur some expenses, for in our considered view the Complainant is entitled to get litigation cost from the OP-1-3.
It is necessary to mention that in the instant complaint no contractual obligation can be cast upon the shoulder of the OP-4-9 on the ground that the Complainant did not enter into the agreement with the OP-4-9. In the agreement for sale the OP-4-9 was not made party and no endorsement is available of the OP-4-9 in the agreement for sale. The Complainant has made party of the said OPs only to avoid the question of non-joinder of necessary parties.
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/87/2019 is hereby dismissed on contest against the OP-4-9 without any cost and allowed exparte against the OP-1-3 with cost.
The OP-1-3 are directed either jointly or severally to refund the amount as paid by the Complainant to the tune of Rs.4,75,000/- along with interest in the form of compensation @12% p.a. from the date of making payment lastly i.e. 05.05.2017 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 OP-1-3 shall pay either jointly or severally a sum of Rs.10,000 /- 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 a plain copy of this judgment to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
