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 neither take any step to execute and register the deed of conveyance in respect of the subject flat in favour of the Complainant nor deliver the vacant peaceful possession of the same to him till filing of this complaint.
The brief fact of the case of the Complainant is that he is an intending purchaser of a flat, the OP-2-4 are the developers, and OP-1 is the developer’s company. On 13.08.2015 the Complainant had entered into an agreement for sale with the developers for purchasing one self-contained flat on the 3rd floor, South-East side, marble flooring, measuring about 700 square feet super built up area more or less along with proportionate share of lift, 35% service area, consisting of two bed rooms, 1 dining cum drawing, 1 kitchen, 1 bath cum privy and one balcony. The landowner had entered into a Development agreement with the developers and the landowner also executed a general power of attorney in favour of the developer to look after all the affairs in respect of the said property. In pursuance of the said power of attorney the developers have invited the intending buyers for booking the flats and for this purpose entering into the agreement for sale with them. Being satisfied with the documents relating to the said property and the concerned flat the Complainant had executed the said agreement for sale with the developers. The total cost of the said flat was settled at Rs.11,55,000/-, but the Complainant paid a sum of Rs.11,74,000/- towards the entire consideration amount along with the cost for the extra works. The extra cost was for Rs.19,000/-.Inspite of giving specified time for proving the physical possession of the flat, as the OPs did not take any step to that effect, the Complainant had visited the office of the OPs requesting to execute and register the sale deed in favour of him , but they have avoided the same on some false pretext. Till filing of this complaint the Complainant had paid a sum of Rs.11,74,000/- to the developers on several date through several cheque and in cash, but inspite of receipt of the said amount the OPs did not bother to complete the flat and deliver the same in habitable condition. After wait for a considerable period the Complainant issued legal notice to the developers along with the land owner through his Ld. Advocate on 23.05.2018, but till date the said OPs did not bother to contact with the Complainant. According to the Complainant the developers are legally and contractually bound to deliver the physical possession of the flat to him along with sale deed in respect of the flat in his favour in view of the terms and conditions of the agreement for sale. As the OPs did not take any step to redress his grievance, hence finding no other alternative the Complainant has approached before the Ld. Commission, Barasat, by filing this compliant prayinfg for direction upon the OPs to execute and register the subject flat in his favour, to hand over the physical and vacant possession of the flat after completion of the same in all respect, to complete the entire building, to hand over the possession certificate to him in respect of the concerned flat, to pay compensation to the tune of Rs.1,00,000/- to him due to mental agony, anxiety and unnecessary harassment and to pay litigation cost of Rs.15,000/- him.
It is pertinent to mention that during pendency of this complaint the OP-4 had expired and after his death the name of the OP-4 was substituted by his legal heirs namely OP-4 (i) to 4 (vi) by way of amendment in the cause title of the complaint.
The petition of complaint has been contested by the OP-4 (i) to 4 (vi) 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 (i) to 4 (vi). Admittedly development agreement was executed by and between the OP-1-3 and Mihirlal Das, since deceased and after the death of Mihirlal Das, these OPs have come into 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. General Power of attorney was also given by Mihirlal Das, since deceased in favour of the OP-1-3. But unfortunately the OP-1-3 have miserably failed to erect the said multi-storied building and complete the same till date. The OP-4 (i) to 4 (vi) have provided extreme co-operation to the OP-1-3, but to no effect. Being dissatisfied with the action of the OP-1-3 the OP-4 (i) to 4 (vi) have approached before the Court of Law. According to these OPs the Complainant is very much entitled to get the flat from the OP-1-3 as he has already paid the entire amount to them in terms of the agreement for sale. Therefore 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 these OPs 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. But 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 (i) to OP-4 (vi). The Complainant and the contesting OPs have adduced their respect evidence and both are cross-examined by each other by way of filing questionnaire and replies. Both the contesting parties have filed BNA with a copy to the other side. On the date of hearing final argument the Complainant and the OP-4 (i) to OP (vi) were present through their respective Ld. Advocates. Not was present on the part of the OP-1-3.
This complaint was initially filed before the Ld. Commission, Barasat. After establishment of this Ld. Commission this record has been transferred from the said Ld. Commission to this Ld. Commission in view of the order passed by the Hon’ble SCDRC.
We have carefully perused the entire documents as available in the record and heard argument at length advanced by the Ld. Counsel for the contesting parties. It is seen by us that the Complainant had entered into an agreement for sale with the OP-1-3 on 13.08.2015 for purchasing one self-contained flat on the 3rd floor at South-East side, marble flooring measuring about 700 square feet super built up area more or less under the South Dum Dum Municipality. The Total consideration of the said flat was settled at Rs.11,55,000/-, which was paid by the Complainant on different date by way of cash and cheque. It is mentioned in the agreement for sale that the flat will be completed within 18 months from the date of execution of the agreement for sale in all respect. But inspite of receipt of the said amount 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 the Complainant compelled to file this complaint before the Ld. Commission praying for direction upon the OPs to deliver him the subject flat after completing the same in all respect along with execution and registration of the sale deed in his favour. 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(1)- 4(vi) on the ground that the Complainant did not enter into the agreement with the OP-4(1)- 4(vi). In the agreement for sale the OP-4(1)- 4(vi) 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- RBT/CC/214/2019 is hereby dismissed on contest against the OP-4(1)- 4(vi) 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.11,55,000/- along with interest in the form of compensation @12% p.a. from the date of making payment lastly i.e. 13.08.2015 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
