Heard argument in full.

Judgment will be passed in course of this day.

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 refund the paid amount to him till filing of this complaint.

The brief fact of the case of the Complainant is that he had entered into an agreement for sale with the OPs for purchasing 1BHK residential flat at the multi-storied building known as PRINCE TOWN on the ground floor, total covered area of 319.3 square feet along with common area more or less super built up area consists of one Bedroom, one Kitchen, one Dining, one Balcony and one Toilet together with proportionate undivided importable share of land and common amenities and facilities at the said multi-storied building. The Complainant agreed to pay an amount of Rs.7,85,407/- towards the consideration amount for purchasing the said flat to the OPs and out of the said amount he paid a sum of Rs.2,55,000/- to the OPs and the Complainant admitted that there is due of Rs.5,30,407/-, for which on several occasion he approached to the OP-1 for making necessary payment and he is ready to pay the said amount as and when it will be required and/ otherwise as per direction of the Ld. Commission. Primarily agreement was executed by and between the OPs and one Mr. Nitesh Gupta. Later on the subject flat was allotted to this Complainant upon settled terms and conditions executed by and between the Complainant and Mr. Gupta. In view of such document dated 29.01.2018 the Complainant became the bonafide consumer and the OPs are the service providers as developers. Unfortunately on 29.07.2019 the Complainant received a letter from the OPs regarding the cancellation of booking of the flat wherein it was mentioned that the booking of the flat has been cancelled. The Complainant was assured by the OPs that the flat will be ready within 40 months from the date of agreement for sale i.e. 11.07.2018 and thereafter it will be handed over to the Complainant without any delay. But till filing of this complaint the construction work of this project has not yet been started by the OPs. The Complainant on several occasions met personally with the authorized person of the said project to know about the status of the concerned project, but to no effect. Subsequently the Complainant issued legal notice to the OPs requesting them to refund the paid amount of Rs.2,55,000/- to the Complainant on the ground that the OPs have cancelled the said project and till date no fruitful result has yet been yielded, but the OPs did not bother to take any step to refund him the paid amount till filing of this complaint and having no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to refund him the paid amount of Rs.2,55,000/- to him along with interest thereon, compensation to the tune of Rs. 1,90,000/- on account of mental agony, pain, anxiety and unnecessary harassment and litigation cost of Rs.50,000/- to him.

The petition of complaint have been contested by the OP 1 and 3 by filing conjoint written version stating that the Complainant and the OPs have never entered into an agreement for sale, hence the Complainant is not a consumer of the OPs. The OPs have entered into an agreement for sale with one Nitesh Gupta, but the Complainant has not been made him a party in this proceeding. The Complainant has no locus-standi to file this complaint against the OPs. The OP 1 and 3 have denied the entire allegations as made out by the Complainant in the complaint petition. According to the OP-1 and 3 this complaint is liable to be dismissed with cost.

The petition of complaint has also been contested by the OP-2 by filing written version wherein it is stated that the OP-2 is not the Director nor an employee of the OP-1 and hence he has no connection with this complaint. As no cause of action has arisen against him the complaint cannot lie against the OP-2, therefore it is liable to be dismissed with cost.

Both parties have adduced evidence on affidavit and cross-examination has been made by each other by way of questionnaire and replies. The Complainant has filed BNA. On the date of final hearing none was present on behalf of the OPs. On 15.02.2022 this complaint was also fixed for hearing argument and on that date adjournment was sought for on behalf of the OPs. Vehement objection was raised by the Ld. Advocate for the Complainant. However for the ends of Justice on 10.03.2022 this complaint was fixed for hearing argument with clarification that no further adjournment will be granted on the next date on the prayer of either party on any ground what so ever. In view of this order the Ld. Commission was not pleased to allow the adjournment prayer as sought for by the OPs. However further date was given for argument on 16.03.2021. 

We have carefully perused the entire record, documents as available and heard argument. It is seen by us that admittedly an agreement for sale was executed primarily by and between the OPs and one Nitesh Gupta. Subsequently, through an agreement by and between the Complainant and Mr. Gupta the concerned booking of the flat was handed over to the Complainant and this fact was very much known to the OPs. In this manner the Complainant became the consumer of the OPs. Not only that though Mr. Gupta paid the booking amount to the OPs, subsequently the said amount was refunded by the Complainant to Mr. Gupta, therefore no occasion arose that the deposited amount of Rs.2,55,000/- was withdrawn either by Mr. Gupta or by the Complainant whatsoever. Therefore, it is clear that inspite of received of Rs.2,55,000/- from the Complainant the OPs have miserably failed to deliver the flat to the Complainant after realization of the balance amount or refund of the paid amount to the Complainant. We have noticed that for purchasing one flat the Complainant paid part consideration amount out of the entire consideration money of Rs.7,85,407/-. The Complainant was ready and willing to pay the balance amount as per requirement of the OPs. Time and again the Complainant went to the office of the OPs for making payment of the balance amount but the OPs did not allow him to make further payment. When the Complainant asked the OPs regarding the status of the flat, the OPs could not give him any fruitful reply. Being dissatisfied and aggrieved with such action of the OPs, the Complainant decided to withdraw the deposited amount lying with the OPs and accordingly prayed for refund of the said amount after filing an application to that effect. But till filing of this complaint the OPs did not bother to refund him the paid amount. In our considered view as the OPs have failed to deliver the questioned flat to the Complainant, the Complainant is very much entitled to get refund of the paid amount 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 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/186/2019 is hereby allowed on contest with cost.

The OPs are directed either jointly or severally to refund the amount as paid by the Complainant to the tune of Rs.2,55,000/- along with interest in the form of compensation @12% p.a. from the date of filing of this complaint ie. 16.12.2019 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.5,000/- 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 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