This complainant is filed by the Complainants u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs have neither executed and registered the deed of conveyance in respect of the flat and garage in their favour or refund the entire paid consideration money till filing of this complaint.
The brief fact of the case of the Complainants is that during the time of constructional work of the concerned building upon the schedule land as per the sanctioned plan the OP-1 invited the applications from the intending purchasers to sell out the residential flats/units/commercial spaces/garages/car parking spaces of the said building from the developer’s allocation. Be it mentioned that the developer had executed development agreement with the land owners on 27.09.2005 upon certain terms and conditions to construct the building and the land owners also executed one Registered General Power of Attorney on 03.11.2005 to do the acts, deeds on behalf of the land owners – OP-2–9. On the strength of the sanctioned building plan the OP-1 started the construction work of the building on the schedule land. At that point of time the Complainants were searching one residential flat for their purpose along with their family members and accordingly came in contact with the OP-1. After prolonged discussion by and between the Complainants and the OP-1 and upon inspection of the relevant papers relating to the schedule property the Complainants have agreed to purchase one flat from the OP-1 and simultaneously the OP-1 also agreed to sell out the flat to the intending purchasers. An agreement for sale was executed by and between the Complainants and the OPs on 05.08.2018, wherein it was settled that unit no-410A, on the 4th Floor measuring area about 732 square feet more or less along with one two wheeler parking space together with undivided proportionate share or interest in the said building will be sold out by the OP-1 to the Complainants. The total consideration money was settled at Rs.18,50,000/-. The Complainants paid Rs.50,000/- by way of cheque bearing no-10586 dated 07.08.2018, drawn on ICICI Bank as earnest money in favour of the OP-1 and the OP-1 acknowledged the said amount and issued money receipt in favour of the Complainants under seal and signature. Subsequently the Complainants have paid Rs.50,000/-, Rs.5,00,000/-, Rs.15,800/- and Rs.25,000/- in favour of the OP-1 and in this manner the Complainants have paid a sum of Rs.6,40,800/- in total out of the total consideration amount of Rs.18,50,000/-. The OP-1 used to send several letters to the Complainants demanding money and the Complainants on each and every occasion tried to meet the demand of the OP-1 and paid the abovementioned amount on good faith. On several times the Complainants contacted the OPs requesting them to deliver the peaceful khas vacant possession of the flat in favour of them, but the OPs remained silent over this issue. As per the agreement for sale the OPs are contractually liable to hand over the suit flat to the Complainants within 31.12.2018, but the OPs deliberately and intentionally have failed to hand over the same. The Complainants have always discharged their liabilities but the OPs have failed to discharge their obligation without discharging their liability and snatched money from the Complainants illegally. Apart from making payment of Rs.6,40,800/- the Complainants have paid some extra charges on several accounts as per demand of the OP-1, Inspite of making such payment the OPs did not deliver the possession of the suit flat to the Complainants. Till date the OPs could not complete the entire constructional work of the building. Inspite of receipt of the said amount as the OPs have miserably failed either to deliver the suit flat to the Complainants along with execution and registration of the sale deed or refund of the paid amount of Rs.6,40,800/- till filing of this complaint. Finding no other alternative the Complainants have approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to execute and register the deed of conveyance in respect of the suit flat along with garage either jointly or severally or to refund the entire paid consideration money of Rs.6,40,800/- along with statutory interest thereon, to pay Rs.3,00,000/- to the them as compensation due to harassment, mental agony, negligent act, deficiency of service of the OPs and to pay litigation cost.
After admission hearing of this complaint notices were issued to the OPs. On 23.11.2020 it was apparent that OP-4 and 5 have refused to accept the notices on 01.10.2020. Refusal is tantamount to good service. As the OP-4 and 5 did not file any written version within the statutory period this Ld. Commission was pleased to pass an order that this complaint will run exparte against the OP-4 and 5. It is seen that since receipt of the notice the OP-6 did not turn up to contest the complaint either orally or by filing written version, hence the complaint is running exparte against the OP-6. The OP- 2 to 8 did not appear before this Ld. Commission to contest the complaint; hence the complaint is also running exparte against the OP-2 to 8. As the notices in respect of OP-1, 3 and 7 could not be effected as per prayer of the Complainants the said notices were published in the daily and well circulated newspaper by the Complainants. The OP-9 did not appear to contest the complaint. After expiry of the statutory period an order was passed that the complaint will run exparte against the OP-9. From the copy of the newspaper it is apparent that in a correct manner the notice was published in the newspaper regarding the OP-1, 3 and 7. But inspite of successful publication the OP-1, 3 and 7 did not turn up. No written version is forthcoming from the end of the OP-1, 3 and 7. Hence, the complaint is running exparte against all the OPs. The Complainants have adduced evidence along with BNA. The Ld. Counsel for the Complainants has advanced his argument. On the date of final argument none was present on behalf of the OPs.
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.
We have carefully perused the record; documents as available and heard argument at length advanced by the Ld. Counsel for the Complainants. It is seen by us that the Complainants have approached to the OP-1 with a view to purchase one flat from him for residential purpose. The OP-1 being the developer had entered into the Development Agreement with the land owners and after obtaining sanctioned building plan from the competent authority the OP-1 started to erect the multi-storied building on the land of the land owners. The OP-1 was empowered to sell out flats/garages/car parking spaces by way of Registered Power of Attorney executed in his favour by the land owners. Being satisfied with the land related documents the Complainants have entered into an agreement for sale with the OP-1 for purchasing one flat and paid a sum of Rs.6,40,800/- to the OP-1 on different dates out of the entire consideration price of Rs.18,50,000/-. But inspite of receipt of the said amount the OP-1 did not bother to handover the peaceful khas possession of the flat to the Complainants along with execution and registration of the sale deed in respect of the flat in their favour. On several occasions the Complainants have requested the OPs to deliver possession of the flat, but the OP-1 did not pay any heed to their request. Not only that the OP-1 did not complete the entire construction work till filing of this complaint. Being dissatisfied with the inaction of the OP-1 the Complainants have to approached before the Court of Law praying for direction upon the OPs either to execute and register the sale deed in their favour in respect of the flat and the garage space alternatively to refund the paid amount of Rs.6,40,800/- to them along with interest thereon.
We are of the opinion that as the Complainants could not get possession of the flat due to inaction and deficiency in service, the Complainants are very much entitled to get refund of the paid amount along with interest component. Admittedly as the OP-1 have failed to resolve the grievance and dispute of the Complainants before filing of this complaint and to proceed with this complaint the Complainants have undoubtedly incurred expenses, for which in our considered view the Complainants are also entitled to get litigation cost from the OP-1.
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/204/2020is hereby allowed exparte against the OP-1 with cost and dismissed against the other OPs without any cost. The OP-1 is directed to refund the amount as paid by the Complainants to the tune of Rs.6,40,800/- along with interest in the form of compensation @12% p.a. from the date of making payment lastly i.e. 31.08.2018 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.10,000/- to the Complainants 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 the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
