This complaint is filed by the complainant under Section 12 of the CP Act, 1986 alleging deficiency in service as well as unfair trade practice against the Ops, as the Ops did not provide him the physical possession in the flat along with completion certificate, nor executed the Deed of Conveyance in favour of the complainant till filing of this Complaint.
The brief fact of the case of the complainant is that the Op 1 is the company and the Op 2 and 3 are the directors of the said company. In the year 2016, through various means of advertisements the complainant came to know that the Ops will construct a project namely Prince Town Platinum, located at New Town, Kolkata(east). The complainant being interested with the proposal made by the Ops for purchasing a flat has paid an advance consideration of Rs. 4,61,000/- against one self-contained residential 3BHK flat having its total covered area of 599.5 sq ft, consisting of three bedrooms, one drawing cum dining space with lobby, one kitchen, two toilets and one balcony on the 3rd floor, south-east side at the proposed building of the Housing Complex known as Price Town Platinum along with one covered car parking space having an area of 12.5 sq mtr. on the ground floor at the proposed building. After received an advance consideration amount of Rs. 4,61,000/- an agreement was executed by an between the parties on 03.11.2017. The total consideration of the said flat was settled for Rs. 17,43,005/-. After agreement for sale dt. 03.11.2017 the complainant has made several request to the Ops to execute the sale deed in his favour, but inspite of several request the Ops have failed and neglected to execute the same with the complainant. By Virtue of the said agreement for sale dt. 03.11.2017, the complainant booked one flat by paying an advance consideration as part payment for Rs. 2,00,000/- on 25.09.2016 by cheque bearing number 041707, Rs. 1,00,000/- on 25.05.2017 by cheque bearing number 041727, Rs. 64,000/- on 12.06.2017 cash payment, Rs. 60,000/- on 10.09.2017 by cheque bearing number 041739 and also paid Rs. 37,000/- on 01.10.2017 through cheque bearing number 041740. All the cheques were drawn on ICICI Bank Ltd, Salt Lake, Sector III Branch.
It is submitted by the complainant that Ops have illegally represented such project and obtained unfair trade practice by not giving the possession to the complainant till date. Very recently, the complainant came to know from some reliable source that there is no project and/or construction related to the said property has been started and in this manner the Ops have suppressed the material fact to the complainant. The Ops have made false statements which is pre-judicial to public interest and the complainant further submits that a company was established by the said persons in the name and style as Usashi Real States Pvt. Ltd. having its head office at 594/1, Daksindari Road, Bima Abasan, flat no. E2/1, first floor, P.S- Lake Town, Kolkata-7000048 and thereafter Ops have encouraged innocent public by representing a project being Usashi Prince Town Platinum Project at New Town, Kolkata (east) without any construction of the said project and/or the possession of the said flat. It was learnt by the complainant that the Ops are not being in position to established the said project and on enquiry it was advised by the Ops to make application for refund of the advance consideration and further on the advice of the Ops in terms of the agreement for sale, which contains the cancellation clause, the complainant made request to the Op 1 by issuing letter dt. 17.02.2019 for cancellation of agreement for sale dt. 03.11.2017 along with refund of the earnest money amounting to Rs. 4,61,000/-. After received of the said letter the Ops have accepted the proposal of the complainant and the same was duly intimated to the complainant by issuing letter dated 23.02.2019 and 22.05.2019, but till date the Ops have failed to refund the said advance consideration amount to the complainant. Subsequently complainant had served a letter to the Ops requesting them to deliver the Khas Possession of the said flat or pay the advance consideration of Rs. 4,61,000/- along with a cost and compensation for damages on account of failure to keep the promise amounting to Rs. 1,50,000/- within 7 days from the service of this letter through the Ld. Advocate, Mr. Harish Kumar Singh on 09.07.2019. Inspite of the proper service of the said notice, the Ops have deliberately failed and neglected to response the said letter. It is stated by the complainant that he is ready and willing to pay the rest amount of consideration money, if the possession of the said flat is delivered to him in peaceful vacant, habitable condition after proper registration. As the Ops did not bother to redress his grievance till filing of this complaint, having no other alternative the complainant has approached before this Ld. Forum (Commission as amended w.e.f. 20.07.2020) by filing this compliant praying for direction upon the Ops to provide peaceful khas possession of the flat along with completion certificate, Deed of Conveyance and providing all relevant documents of the statutory bodies ie. Municipal Authority, CESC etc, failing which refund the earnest money for Rs. 4,61,000/- to him along with interest, compensation to the tune of Rs. 1,50,000/- on account of mental agony, pain, undue hardship and financial loss for a prolong delay and litigation cost of Rs. 50,000/- to him.
The petition of complaint have been contested by the Ops by filing WV denying the averments as made out by the complainant therein. According to the Ops the complainant is totally ambiguous and civil in nature which can be entertained under the Specific Performance of the Contract Act, not under the Consumer Protection Act. The instant compliant being fabricated and frivolous is liable to be dismissed with exemplary cost.
Both parties have adduced evidence on affidavit and cross-examined by filing questionnaire and replies.
We have carefully perused the petition of compliant, related documents as available in record and heard argument at length advanced by the Ld. Advocates of the parties. It is seen by us that admittedly the complainant paid advance consideration amount to the tune of Rs. 4,61,000/- to the Ops for purchasing a flat from them. After making payment of the said amount agreement for sale was executed on 03.11.2017. The total consideration of the flat was settled at Rs. 17,43,005/-. After execution of the sale deed, the complainant on several occasions requested the Ops to give vacant possession in the said flat along with execution of the sale deed in his favour, but the Ops have neglected to execute the same in favour of the complainant on each and every occasion. By virtue of the agreement for sale the complainant paid an advance consideration of Rs. 2,00,000/- on 25.09.2016 by cheque bearing number 041707, Rs. 1,00,000/- on 25.05.2017 by cheque bearing number 041727, Rs. 64,000/- on 12.06.2017 cash payment, Rs. 60,000/- on 10.09.2017 by cheque bearing number 041739 and also paid Rs. 37,000/- on 01.10.2017 through cheque bearing number 041740. All the cheques were drawn on ICICI Bank Ltd, Salt Lake, Sector III Branch. In this manner the complainant paid Rs. 4,61,000/- towards advance consideration out of the total consideration for Rs. 17,43,005/-. Inspite of making payment of the above amount, the Ops did not bother to execute the sale agreement with the complainant and/nor start the construction of the concerned project. The complainant is always ready and willing to pay balance consideration amount if the possession of the said flat is delivered to him in peaceful, vacant, habitable condition after proper registration in his favour.
In the Written Version as also replies filed by the Ops on affidavit nowhere it is denied that the Ops have received the aforementioned amount from the complainant toward selling out of a flat in the Ops project. In our opinion upon consideration of the factual aspect of this complaint the Ops are liable either to hand over the peaceful vacant possession along with sale deed in respect of the questioned flat in favour of the complainant or to refund the amount as paid by him to the complainant along with interest.
Admittedly as the grievance of the complainant have not been redressed by the Ops, before filing of this complaint, finding no other alternative the complainant approached before this Ld. Commission by filing this complaint and has to incur some expenses towards this proceeding. Due to this reason in our considered opinion the complainant is entitled to get litigation cost from the Ops.
The Complainant has also prayed for compensation on account of his harassment, mental agony and pain and in our view he is also entitled to get compensation but in the form of interest on the paid amount.
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 maturity till its entire realization.
Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no- CC/45/2019 is hereby allowed on contest against all the OPs with cost.
The OPs are directed either jointly or severally to refund the paid amount of Rs.4,61,000/- along with interest in the form of compensation @12% p.a. from the date of making payment i.e. on 01.10.2017 till its entire realization within a period of 45 days from the date of passing this judgment, in default the interest 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 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 CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
