The complainant has filed a complaint U/s 34 (1) of the Consumer Protection Act, 2019 as the Opposition parties received payments from the complainant, but allegedly neither handed over possession of the flat, nor registered the sale agreement in favour of the complainant nor provided completion certificate, till filing of the instant complaint.

The brief of the fact of the case as averred by the complainant is that the OP 1 is the developer company and the OP 2 is the constituted attorney of the said developer .The complainant being interested with the proposal advanced by the OPs took a decision for purchasing a flat and a car parking space in the housing project namely ‘King Town, New Town’ West Bengal.  For the said purpose, the complainant also made a payment of  Rs. 1,45,500/- on 04.04.2017 as booking money . The complainant further made payment of another Rs. 1,59,091 /- only on 10.08.2017 in favour of the OPs as a consideration money against the said  3BHK Flat ad-measuring 728 Sq.ft. including common covered area in the proposed  housing complex of King Town, New Town. The complainant again paid a sum of another Rs. 1,50,000/- on 27.02.2017 and Rs. 80,034/  dated 10.09.2017 to the developer. Thereafter an agreement was executed between the developer and the complainant on 10.10.2017 against a total consideration money for purchase of the said flat for Rs. 14,85,120/-  and Rs. 3,00,000/- for one number covered parking space and Rs. 2,00,000/- for all the amenity charges totaling to Rs. 19,85,120/- excluding service tax and other taxes. After execution of the said agreement, the complainant made several requests to the OPs to complete the construction and hand over the said flat alongwith execution of sale deed and completion certificate. But in spite of several requests the OPs failed and neglected to comply with the same in violation of the terms & conditions of the executed agreement dated 10.10.2017.

It is further submitted by the complainant that the OPs have illegally represented about developing the said project and adopted unfair trade practices by not only refusing to give possession of the said flat and car parking space but also the construction work of the said project did not commence till filing of this complaint petition.  When the petitioner enquired from the office of the OPs about the reason of such delay in construction of the project including that of the said flat of the petitioner in question, the OPs failed to provide any satisfactory reason for the same. The complainant paid Rs. 5,34,625/- (Rs. Five Lac Thirty Four Thousand Six Hundred and Twenty Five)  in total, to the OPs but subsequently had to stop making further payment as the construction work of the project was not in commensurate to the payments effected as per schedule of the agreement. After passage of two years after allotment of the said flat, the complainant was surprised to discover that the developer has not even started the construction work, neither completed the construction of the said flat nor handed over peaceful possession of the said flat nor shown any intention to complete the same. The complainant in his complaint has annexed the following documents in support his argument :-

1. Pre-agreement application form no. KTN2074 with mention of date of booking as 27.02.2017.
2. Copy of sale agreement dated 10.10.2017.
3. Copy of cheque being no. 656649, dated 27.02.2017 for Rs. 1,50,000/- in favour of the developer.
4. Copy of cheque being no. 656650, dated 04.04.2017 for Rs. 1,45,500/- in favour of the developer.
5. Copy of cheque being no. 217570, dated 10.08.2017 for Rs. 1,59,091/- in favour of the developer.
6. Copy of cheque being no. 217572, dated 10.09.2017 for Rs. 80,034/- in favour of the developer.
7. Receipt from developer dated 27.02.2017 for Rs. 1,50,000/- + Rs. 1,45,500/- = Rs. 2,95,500/-.
8. Receipt from developer dated 22.07.2017 for Rs. 1,59,091/-.
9. Receipt from developer dated 20.08.2017 for Rs. 80,034/-.
10. Letter of application dated 08.04.2019 for cancellation of booking of flat issued by complainant and acknowledged by developer with stamp and signature.
11. Reply of developer dated 12.04.2019 regarding refund procedure, issued in response to the said cancellation letter dated 08.04.2019 from complainant.
12. Cancellation request dated 03.06.2019 by complainant as per format provided by developer duly acknowledged on 03.06.2019 by developer with signature and seal.
13. Letter from developer dated 07.06.2019 intimating confirmation for refund, post-cancellation of booking of the flat.

The Ld. Advocate of the complainant and the OPs advanced their arguments during the course of the proceedings. The OPs deposed through Written Version but refrained from filing any Questionnaire and so the Evidence adduced by the complainant remained unchallenged. Only the complainant filed Brief Notes of Arguments.

We have carefully perused the petition of the complainant, related documents as available in record including the above- as listed and heard arguments at length advanced by the advocate. It is found that the complainant’s payments including the advance consideration money to the OPs for purchasing the said flat and car parking space after executing agreement for sale on 10.10.2017 were never contested by the OPs. After execution of the sale agreement, the complainant on several occasions requested the OPs to give vacant possession of the said flat and car parking along with execution of deed of conveyance for the suit property in his favour but the OPs have neglected to execute the same in favour of the complainant on each and every occasion In spite of accepting the various payments of the aforesaid amounts, the OPs did not bother to either complete the construction or to hand over vacant and peaceful possession and execute sale deed in favour of the complainant. The complainant as a result had other no way out but to apply for cancellation of the allotment of the flat. But the possession of the said flat is never delivered to him by the OPs in peaceful, vacant, habitable condition nor any registration of sale deed was ever effected. During the adjudication before this Ld. Forum, the OPs never came out with any cogent reason or evidence or any convincing reply in support of any of their counter-claim whatsoever.

In the written version filed by the OPs on affidavit, nowhere it is denied that the OPs having received the aforesaid amounts from the complainant towards selling out of the flat in the said housing project of the OPs. Upon consideration of the factual aspect of this complaint,  in our opinion, the OPs are liable either to hand over the peaceful and vacant possession along with registration of sale deed in respect of the flat in question in favour of the complainant or refund the amount as received by the OPs from the complainant.

Admittedly as the grievances of the complainant have not been redressed by the OPs before filing of this complaint, the complainant had to approach before this Ld. Commission by filing this complaint finding no other alternative and has to incur expenses towards various proceedings and litigation costs. Hence due to this reason, it is our considered opinion that the complainant is entitled to get litigation cost from the OPs as well.

The complainant has also prayed for compensation on account of harassment, mental agony and pain and in our view he is entitled to get compensation but in the form of interest on the paid amount.

In this respect there are catena of recent judgements from various Higher Courts and National Commission & State Commissions in similar matters where it is held that the Opposite Parties (Appellants) shall refund the principal amount along with compensation @ 9% Simple interest per annum from the date of the respective deposits till the date of realization of the entire principal amount and payment of default interest @ 12% simple interest per annum as below :-

1. Judgement dated 03.02.2022 by Justice Dr. D.Y. Chandrachud and Justice Sanjiv Khanna in the matter of Civil Appeal No. 784 of 2022 at Supreme Court of India - Indusind Bank Limited Vs. Simarjit Singh.
2. Reportable Judgement dated 11.01.2021 by Justice Dr. D.Y. Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee in the matter of Civil Appeal No. 5785 of 2019 at Supreme Court of India – Ireo Grace Realtech Pvt Ltd. Vs Abhishek Khanna & Ors.  .
3. Judgement dated 21.04.2022 by Hon’ble State Commission, West Bengal in the Complaint case no CC/687/2017  ( Moumita Paul & Ors Vs Netailal Chatterjee & Ors)

Going by the above said discussions and observations, it is ordered that the Consumer Complaint case being no. CC/309/2020 filed on 18.11.2020 at ADCDRC, Rajarhat is hereby allowed on contest against all the OPs with costs.

The OPs are directed either jointly or severally to refund the paid amount of Rs. 5,34,625/-(Rs. Five Lac Thirty Four Thousand Six Hundred and Twenty Five) only alongwith interest in the form of compensation @ 9% simple interest per annum from the respective date(s) of making payments till it’s entire realization within a period of 45 days to the complainant from the date passing of this Judgement in default of which the interest in the form of compensation shall be increased to @ 12% simple interest per annum instead of @ 9% simple interest per annum. The OPs shall also pay either jointly or severally a sum of Rs. 10,000/- to the complainant as litigation costs within a period of 45 days from the date of passing of this judgement, failing which the complainant will be at liberty to put the entire order into execution as per provisions of law.

Let a plain copy be provided to both the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Partha Kumar Basu]

MEMBER