This complaint is filed by the Complainant u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step either to execute and register the deed of conveyance in respect of the suit flat in her favour or to refund the paid amount along with interest till filing of this complaint.

The brief fact of the case of the Complainant is that she is an intending purchaser of one flat for residential purpose and the OPs are the developers of the flats, who had formulated a scheme to develop residential complex in the State of West Bengal in accordance with the sanctioned building plan duly sanctioned and approved by the competent authority. In the year 2018 the Complainant was searching of one residential flat and came to know about the project of the OPs under the name and style ‘Prince Town Platinum’ and simultaneously the OPs invited the customers/intending purchasers with a view to sell out the constructed flats/garage/commercial space etc. upon receipt of consideration money from them. Being interested the Complainant contacted with the OPs for purchasing one flat for residential purpose and expressed her desire to purchase the same by making payment of consideration money and accordingly the Complainant had entered into an agreement for sale with the OPs on 28.06.2018 along with certain terms and conditions. After discussion with the officials and representatives of the OPs and upon inspection of the documents related with the property the Complainant agreed to purchase the flat and the OPs have also agreed to sell the flat comprising 3 BHK, 1 drawing cum dinning space, 1 kitchen, 2 toilets and one balcony, on the 3^rd floor, South-East side, one covered car parking space having an area of 12.5 square meter on the ground floor of the said proposed building, total covered area of 674.65 square feet along with added common covered area of 114 square feet more or less includes proportionate share of the ground floor pathway and the total floor lobby, entire stair lobby, lift area, meter room, stair, lift, roof, over head tank in Phase-I of the Housing Complex namely Prince Town Platinum. The total cost of the said flat was scheduled at Rs.13,42,553.50/- i.e. @ Rs.1990/- per square feet including other charges. Accordingly the OPs have issued an allotment letter in favour of the Complainant and on 29.10.2016 the Complainant paid Rs.2,00,000/- in favour of the OPs as earnest money/booking money by issuing cheque and on 07.04.2018 further payment was made through cheque for Rs.2,86,000/-, which was duly acknowledged by the OPs in issuing proper money receipts under seal and signature. After making payment of the aforementioned amount the Complainant decided to visit the construction site and when she reached therein it was very much surprising to her to see that no construction work of the schedule project had yet been started. Then and there she rushed to the office of the OPs and asked them the reason for such delay in the construction of the project work including the flat of the Complainant. But the OPs have failed to assign any satisfactory reason to her.  At the time of booking the flat the OPs have assured the Complainant that within a very short span from the date of booking formal allotment will be executed by and between the Complainant and the OPs, but it is a matter of regret that till date no such steps/initiative has been taken by the OPs to execute the same. At the time of booking the Complainant paid a sum of Rs.4,86,000/-, but subsequently she stopped to make any further payment in favour of the OPs as per the payment schedule on the ground that the OPs have failed to start the construction work of the project including her flat, therefore the OPs are not entitled to get any further amount from the Complainant as per the payment schedule. After lapse of two years the OPs could not start the construction of the questioned project in terms of the allotment letter and the OPs have failed to hand over the peaceful khas possession of the questioned flat to the Complainant nor completed the flat in any respect. Even the OPs could not show any intention to complete the same. In this manner the OPs have harassed the Complainant intentionally and deliberately. The Complainant on several times requested the OPs to complete and finish the unfinished constructional work of the flat, but the OPs did not pay any heed to her request, rather threatened the Complainant that they will not hand over the possession of the said flat along with execution and registration of the sale deed in her favour in respect of the concerned flat. Lastly on 12.03.2020 the Complainant has issued one letter to the OPs requesting to do the needful and expressed her willingness that she will discharge her obligation by making payment of the residual amount. But after long persuasion the OPs have refunded a sum of Rs.65,000/-  to her. Till filing of this complaint the OPs did not take any initiative or positive step regarding registration of the flat of the Complainant nor give any reply to her bonafide request. It is palpably clear that the OPs have duped the Complainant, but they are contractually obliged and liable to hand over the possession of the flat along with registration of the sale deed in her favour. As the OPs did not bother to redress the grievance of the Complainant, finding no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OPs either to execute and register the sale deed in respect of the suit flat in her favour or to refund the balance paid amount of Rs.4,21,000/- along with statutory interest thereon, to pay compensation to the tune of Rs.2,00,000/- on account of harassment, mental agony and deficiency in service, to provide completion certificate in respect of the building issued by the competent authority, to pay entire tax and rent till the date of receiving the completion certificate and to pay litigation cost to her.

After admission hearing of this complaint notices were issued to the OPs. On 21.12.2020 the OPs have entered appearance by filing Vokalatnama. From the postal track report filed by the Complainant it was evident that the OPs have received the notices on 23.09.2020 and 24.09.2020 respectively. On 21.12.2020 the OPs have prayed time for filing written version, but as the statutory period was over for filing written version, hence the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs. Date was given for adducing evidence by the Complainant. Accordingly the Complainant had adduced evidence. The OPs have filed questionnaire without filing the written version and the Complainant had replied to the said questionnaire. Thereafter scope was given to the OPs for adducing evidence, the Complainant filed questionnaire for cross-examination, but inspite of getting several chances the OPs did not bother to submit their replies, hence the ld. Commission was pleased to pass an order that due to non-filing of the replies the evidence of the OPs became non-est. The Complainant has filed BNA. On the date of final argument of this complaint none was present on behalf of the OPs.

We have carefully perused the complaint petition, related documents as available and heard argument at length advanced by the Ld. Counsel for the Complainant. It is seen by us that the dispute of the instant grievance revolves within a very short compass as to whether the Complainant is entitled to get the flat after registering the sale deed or refund of the balance paid amount or not.

It is an admitted fact that with a view to purchase one flat for residential purpose along with one covered car parking space the Complainant had approached the OPs and after discussion in detail and going through the cogent documents related with the said property the Complainant paid a sum of Rs.4,86,000/- to the OPs as earnest money by issuing two different cheques on different dates, out of the entire consideration amount of Rs.13,42,553.50/-. But inspite of receipt of the aforementioned amount the OPs could not start the construction of the concerned project along with the flat of the Complainant even after lapse of two years from the date of allotment letter issued by the OPs in favour of the Complainant. On being asked by the Complainant the OPs could not reply to the Complainant in a satisfactory manner. On several occasions the Complainant had requested the OPs to complete and finish the questioned flat and to execute and register the sale deed in her favour in respect of the said flat, but to no effect. The OPs sat tightly over the paid amount without doing anything in favour of the purchaser. As the OPs have miserably failed to discharge their duties and performance in terms of the allotment letter, the Complainant had stopped to make further payment as per the payment schedule. Ultimately the OPs have refunded an amount of Rs.65,000/- only to the Complainant, out of the paid amount of Rs.4,86,000/-. It was not mentioned by the OPs that when the Complainant will get refund of the balance amount or whether she will get the same or not whatever it may be. After remitting the amount of Rs.65,000/- the OPs kept themselves silent over the refund issue. By issuing letter the Complainant had earnestly requested the Complainant to resolve her dispute by making payment of the residual amount or to provided peaceful possession of the flat after completion of all incomplete and unfinished works in all respect along with registration, but the OPs did not bother to reply the said letter of the Complainant. Finding no other alternative the Complainant has initiated this complaint against the OPs praying for certain reliefs.

In our considered view as the OPs could not provide her the questioned flat after completion of all incomplete and unfinished works along with registration of the sale deed, hence the Complainant is very much entitled to get refund of the paid amount. Admittedly the Complainant paid a sum of Rs.4,86,000/- to the OPs out of entire consideration money. Out of Rs.4,86,000/- the OPs have refunded Rs.65,000/- to the Complainant and the Complainant has received the said amount. Therefore at present the Complainant is still entitled to get Rs.4,21,000/- from the OPs as residual amount, which the OPs did not bother to pay to the Complainant before filing of this complaint. It is true that as the grievance of the Complainant have not been redressed by the OPs before filing of this complaint, by filing this complaint the Complainant has to incur some expenses, for which the Complainant is very much entitled to get litigation cost from the OPs. It is also true that as the paid amount was under the control of the OPs and the OPs after taking the said amount are enjoying the same without doing any fruitful performance, the Complainant is also entitled to get interest over the said unpaid 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 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-CC/194/2020 is hereby allowed exparte with cost. The OPs are directed either jointly or severally to refund the amount as paid by the Complainant to the tune of Rs. 4,21,000/- along with interest in the form of compensation @12% p.a. from the date 07.04.2018 i.e. date of making payment lastly 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 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 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