Today is fixed for hearing argument.

Heard argument in full.

Judgment would be delivered in course of this day.

This complaint is filed by the Complainants under Section 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 complete the questioned flat and to provide completion certificate, physical possession to the Complainant or to refund the paid amount along with compound interest to them till filing of this complaint.

The brief fact of the case of the Complainant is that the Complainants being the daughter and father respectively were looking for an accommodation to purchase so that both can stay nearby. The Complainant no. 1 and her husband booked a flat in the same locality. The Complainants met the OPs and expressed their desire to purchase a flat. Accordingly the OPs placed the sanctioned plan of the questioned building issued by the Baranagar Municipality. The OPs made negotiation with the Complainants whereby both parties have agreed to execute and register an agreement for sale in respect of the flat along with garage space. The OPs represented itself to be a reputed company and carrying on business in good reputation and goodwill in respect of the construction of the building and the OPs represented themselves in such a manner that they will not duped the purchaser in any manner whatsoever. Regarding title of the said plot, the OPs assured the Complainants that there is no dispute in the same and accordingly one self-contained flat being no. 4 of ‘Mayer Bari’ measuring about super built up area of 326 sqft. more or less on the third floor (marvel flooring) and the total consideration of the said flat was settled at Rs. 9,00,000/-. With the earnest representation of the OPs, the Complainants were convinced and satisfied and ready to pay the aforesaid amount. Accordingly the Complainants paid a sum of Rs. 1,80,000/- and agreement for sale was executed by and between the parties on 12.12.2013 in respect of the said flat. Even after the payment of the total consideration amount the OPs are declining to execute and register the deed of conveyance in favour of the purchaser till filing of this complaint and more over in accordance with the sanctioned plan issued by the Municipality, the OPs could not complete the construction work therein and always demanding more money from the purchasers. The Complainant on 08.11.2013 paid Rs. 1,80,000/- by issuing cheque, Rs. 1,35,000/- was paid through cheque on 21.01.2014, Rs. 1,35,000/- paid on 14.07.2014 by issuing cheque, Rs. 1,80,000/- paid on 07.11.2014 by issuing cheque and lastly on 01.03.2015 an amount of Rs. 25,000/- was paid by the Complainant in cash. Therefore, the Complainant paid a sum of Rs. 6,55,000/- in total to the OPs. Inspite of making payment of such hefty amount, the OPs did not pay any deed to the request of the Complainant for completion of the flat and giving possession therein. Time and again the OPs are extending time by giving letters showing vague and lame excuses towards delay in delivering of the possession in the said flat. On several occasion Complainant went to the office of the OPs, but they did not pay any heed to his submission and asked to wait for few months. Lastly in the year 2017, complainant went to the office of the OPs, but they flatly refused to answer anything. The Complainant no. 2 is aged about 80 years and for this reason it is very trouble for him to start a litigation against the OPs. As the OPs did not take any step to redress the grievance of the Complainant till filing of this complaint, having no other alternative this complaint is instituted against the OPs praying for direction to complete the questioned flat in all respect, provide possession in the said flat in favour of the Complainant forthwith, failing which to refund the paid amount of Rs. 6,55,000/- to the Complainant along with compound interest, to pay compensation to the tune of Rs. 5,00,000/- and Rs. 1,00,000/- towards litigation cost to them.

After admission hearing notices were issued upon the OPs. Inspite of receipt of the notices, the OP 2, 3,4 and 5 did not turn up to contest the complaint either orally or by filing written version. As the statutory period for the filing WV was over, the Ld. Commission was pleased to pass an order on 28.11.2017 that the complaint will run ex parte against OP 2, 3, 4 and 5. On 22.03.2018 Complainant was directed to take step for issuance of notice upon the OP 1. On 10.04.2019 the Ld. Commission was pleased to hold that on the ground of expiry of the statutory period for filing written version, the complaint will also run ex parte against OP 1. Accordingly, the Complainant was directed to file evidence on affidavit. On 15.12.2021 the Complainant had adduced evidence along with BNA. On the date of final argument, none was present on behalf of the OPs to contest the complaint orally.

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 notice the OP 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 petition of complaint and other related documents as available in the record and heard argument at length advanced by the Ld. Counsel for the Complainants.

It is seen by us that the Complainants had approached before the OPs with a view to purchase a flat being satisfied with the flat and land related documents produced by the OPs, the Complainant desired to purchase one flat in the project of the OPs namely ‘Mayer Bari’ measuring about super built up area of 326 sqft. More or less, flat no. 4, on the third floor and marvel flooring. The total consideration amount of the said flat was settled at Rs. 9,00,000/-. On different dates through different mode the Complainants paid a sum of Rs. 6,55,000/- to the OPs out of the total consideration price of Rs. 9,00,000/- by issuing cheques as also in cash. But inspite of making payment of such hefty amount, the OPs did not bother to provide them the physical possession in the questioned flat or execution and registration of the sale of the said flat in favour of the purchasers till filing of this complaint inspite of repeated verbal requests of the Complainants and written correspondences. The OPs also did not complete the questioned flat in all respect. As the OPs did not pay any heed to their request, having no other alternative, this complaint is instituted by the Complainants before this Ld. Commission, praying for direction upon the OPs to complete the questioned flat in all respect, to provide possession therein, in default to refund the paid amount of Rs. 6,55,000/- along with compound interest till entire realization, to pay compensation to the tune of Rs. 5,00,000/- on account of mental agony, harassment and deficiency in service and litigation cost of Rs. 1,00,000/- to them.

Considering the fact of the Complainants in our opinion that as the OPs have miserably failed to complete the questioned flat in all respect, in terms of the agreement for sale and to deliver possession therein, the Complainants are very much entitled to get refund the paid amount of Rs. 6,55,000/- along with interest. It is further an admitted fact that the paid amount is still lying under the custody of the OPs and they are enjoying interest from the said amount till date since payment. So, in our considered view, the OPs are under the obligation to pay interest on the paid amount. Admittedly, as the OPs did not bother to redress the grievance of the Complainants till filing of this complaint and being compelled with the deficiency in service of the OPs, the Complainants have to approach before this Ld. Commission by filing this complaint, obviously the Complainants have incurred some expenses for these proceedings. For this reason we are of the opinion that the Complainants are also entitled to get litigation from the OPs.  

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 make refund of the paid amount after making prayer for refund by the Complainant-purchaser in accordance with the terms and conditions of the agreement.

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/286/2021 is hereby allowed exparte against all the OPs.

The OPs are directed either jointly or severally to refund the amount as paid by the Complainants to the tune of Rs.6,55,000/- along with interest in the form of compensation @12% p.a. from the date 01.03.2015 (i.e. payment by the Complainants lastly in cash) 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 Complainants will be at liberty to put the entire order in execution as per provision of law.

Let a 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