This complaint is filed by the Complainants u/S 34(1) of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did neither take steps to execute and register the deed of conveyance in respect of the flat in favour of the Complainants including handing over the possession or to refund the entire paid amount to them till filing of this complaint.
The brief fact of the case of the Complainants is that the Op-1 is a Company, who is represented by its two Directors namely the OP-2 and OP-3. The Ops are the promoters and developers by profession and engaged in promoting and developing the land for the purpose of providing residential flats and garages and commercial space to the customers or intending purchasers at large. The OPs are carrying on business and working for gain within the territorial jurisdiction of this Ld. Commission.The OPs have formulated a scheme to develop residential complex in the State of West Bengal comprising of flats/apartments in accordance with the sanctioned building plan duly sanctioned and approved by the competent authority. The Complainants were searching of one residential flat for the purpose of his own use along with his family members and at the material point of time the Complainants came to know that the construction work of the project is going on by the OPs under the name and style as “Price Town” and the OPs were inviting applications form from the intending purchasers to sell out the flats/units, residential units/commercial space/garages etc. upon receipt of the consideration money from them. The complainants being interested contacted with the OPs with a view to purchase one flat from the OPs. The complainants have expressed their desire to purchase the concerned flat at a valuable consideration money and accordingly the Complainants have entered into an agreement for sale on 12.04.2017 with regard to the said flat upon some agreed terms and conditions and memo of consideration money as described in the said agreement for sale. However after discussion with the representatives of the OPs and upon inspection of the property related documents the Complainants agreed to purchase one 2 BHK flat having a total covered area of 608.8 square feet more or less which includes proportionate share of the ground floor pathway, total floor lobby, entire stair lobby, lift area, meter room, stair, lift roof and overhead tank consisting of 02 bedrooms, 01 drawing cum dining space, 01 kitchen, 02 toilets and 01 balcony and 01 utility on the 2nd floor south-east side of the said proposed building in Phase-1 of the housing complex namely ‘Prince Town’.The total consideration of the said flat was settled at Rs.13,61,512/- i.e. Rs.1990/- per square feet including other charges. Thereafter the Complainants have submitted an application form to the OPs as per requirement and accordingly the OPs issued an allotment and also executed an agreement for sale in respect of the said flat and on 29.07.2016 the Complainants have paid Rs.1,20,000/- for the first time in favour of the OPs towards earnest money in cash. On 18.01.2017 the Complainants have further paid a sum of Rs.1,33,206/- along with service tax in favor of the OPs by three different cheques, which were duly received by the OPs by issuing proper money receiptsunder seal and signature. One day the Complainants decided to visit the site wherein the construction work of the project namely ‘Prince Town’ is going on and when the Complainants reached the place it is surprising to see that construction works of the said project has not yet been started. Then and there the Complainants went to the office of the OPs and asked for the reason for such delay in construction of the project works including the flat of the Complainants, but the OPs have failed to show any satisfactory reason to the Complainants. At the time of booking of the flat the Ops have assured the Complainants that soon after the booking the formal allotment will be executed by and between the Complainants and the OPs, but it is a matter of regret that till date no such initiative has been taken by the OPs to execute the same. Though initially the Complainants have paid a sum of Rs.2,53,206/-, but subsequently they stopped to make any payment in favour of the OPs as per the payment schedule as the OPs have failed to start the construction work of the project including the flat of the Complainants.So the OPs are the entitled to get any further consideration money from the Complainants.Inspite of lapse of two years after the allotment it is utter surprise of the Complainants that the developers did not start the construction work till date as per the specification of the said flat in terms and conditions of the said allotment. The OPs did not hand over the peaceful khas and vacant possession of the said flat in favour of the Complainants nor completed the flat in any respect, rather the OPs did not show any intention to complete the same. The construction work of the questioned flat is in incomplete and unfinished condition and inspite of several request the OPs are harassing the Complainants intentionally and deliberately without paying any heed to their request. By way of doing such illegal and negligent act and conduct of the OPs the Complainants are suffering from physical and mental harassment. Time and again the Complainants have requested the OPs to hand over the physical possession in the said flat along with execution and registration of the sale deed in their favour in respect of the flat, to no effect. No positive step or initiative have been taken by the OPs to this effect and in such manner the OPs have duped the Complainants. The Ops have miserably failed to discharge their contractual liability as per the agreement for sale, hence their service is certainly suffering from deficiency, for which they are liable to pay adequate compensation to the Complainants. As the grievance of the Complainants have not been redressed by the OPs prior to 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 either to deliver the peaceful possession in the questioned flat along with execution and registration of the sale deed in their favour in respect of the said property or to refund the entire paid amount along with statutory interest thereon, to complete the entire incomplete construction work in respect of the schedule flat, to pay compensation to the tune of Rs.2,00,000/- due to unnecessary harassment, mental agony, pain, negligent act and deficiency in service, to provide the completion certificate sanctioned by the competent Municipality and to pay litigation cost to them.
The petition of complaint have been contested by the OPs by filing conjoint written version contending that the Complainants are customers of the OPs as they have entered into an agreement for sale with them on 12.04.2017, but due to pandemic situation the Ops could not complete the questioned flat and hand over the same to the Complainants. Therefore such delay is not intentional, rather beyond their control. Prayer is made by the OPs for dismissal of this complaint as the complaint is devoid of any merit.
The Complainants have adduced evidence and cross-examination is completed by way of filing questionnaire by the OPs and replies by the Complainant. But inspite of getting chance the OPs did not adduce any evidence on affidavit.
On the date of final argument none was present on behalf of the OPs, but the Ld. Advocate for the Complainants was present.
We have carefully perused the entire record, available documents and heard argument at length advanced by the Ld. Counsel for the Complainants. It is seen by us that the Complainants with a view to purchase one flat from the project of the OPs have entered into an agreement for sale with them on 12.04.2017. The total consideration price of the said flat was settled at Rs.13,61,512/-, out of which the Complainants have paid a sum of Rs.2,53,206/-in total on different dates. Though the Complainants were ready to pay the consideration amount as per the payment schedule mentioned in the agreement for sale, but as the OPs have failed to start construction work of the project including the questioned flat, hence the Complainants decided to stop further payment. The Complainants visited the construction/project site but they got very much shocked as there was no construction work. On being asked by the Complainants the OPs could not reply any satisfactory answer and then the Complainants decided to get refund of the paid amount. The Complainants on several times requested the OPs either to deliver the physical possession in the said flat along with execution and registration of the sale deed in their favour in habitable condition and after completion of all unfinished and incomplete works or to refund the paid amount along with statutory interest thereon, but the OPs did not take any initiative to this effect till filing of this complaint.
In our considered opinion the OPs are bound to deliver the physical possession in the said flat in terms of the agreement for sale and the purchaser should not wait for an indefinite period for the said purpose. As the OPs have failed to discharge their contractual liability hence the OPs shall refund the entire paid amount to the complainant along with interest.
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/176/2020 is hereby allowed exparte on contest against the OPs with cost. The OPs are directed either jointly or severally to refund the amount as paid by the Complainants to the tune of Rs. 2,53,206/- (Rupees two lakh fifty three thousand two hundred six) only along with interest in the form of compensation @12% p.a. from the date of making payment lastly i.e. 18.01.2017 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 judgement be given to the parties free of cost as per CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
