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 neither handover the schedule plot to the Complainant as per specification mentioned in the agreement for sale dated 20.01.2013 nor refund the paid amount of Rs.6,10,906/- along with interest till filing of this complaint.

The brief fact of the case of the Complainant is that the OP No.1 is a Company represented by its Director who is carrying on business of property development and management, the OP No.1 is the developer and the service provider in connection with the housing construction to the potential buyers against consideration. The OP Nos.2 and 3 are the land owners. Being authorized by the OP Nos.2 and 3 the OP No.1 developed the landed property by creating plot at his own cost and was fully empowered to negotiate sale with the intending purchasers and to receive monetary consideration by granting receipt. The Complainant was searching a self-contained flat on ownership basis and as such approached the OP No.1, who expressed desire to extend service to the Complainant by providing her a complete flat in habitable condition on the said proposed newly constructed building against payment of consideration. The Complainant entered into an Agreement for Sale with the OP No.1 and it was fixed by and between the parties that the total consideration amount of the said plot will be of Rs.6,00,000/- apart from the cost of registration and the expenses for registration shall be borne by the Complainant. Be it mentioned that the Complainant intended to purchase a piece of developed plot from the OP No.1. It was agreed by the OP No.1 that the OP No.1 shall complete and develop the said plot within 36 months from the date of execution of the agreement for sale dated 20.01.2013 by soil and big built road, children’s park, surface drain with cover, point to point electric poll and water supply of the project. As per the terms and conditions of the agreement for sale the Complainant paid a sum of Rs.2,40,000/- by issuing an A/C payee cheque and subsequently paid the balance consideration money of Rs.3,70,906/- and the OP No.1 had duly acknowledged the said amount. Be it mentioned that the Complainant paid excess amount towards registration cost. But inspite of receipt of the entire consideration amount from the Complainant the OP No.1 did not bother to develop the said plot as per the terms and the conditions of the agreement, the OP No.1 did not take any step to handover the possession of the said plot to the Complainant along with registration of the sale deed. The OP No.1 did not pay any heed to the earnest request of the Complainant and tried to avoid without assigning any reason.  Such act of the OP No.1 is clearly revealed that there is deficiency in service on behalf of the OP No.1 as the OP No.1 has failed and neglected to discharge his liabilities inspite of receipt of the consideration money from the Complainant. Due to non-delivery of the developed plot by the OP No.1, the Complainant had to wait for a prolonged period. As the OP No.1 kept himself silent over the matter, the Complainant issued legal notice through her Ld. Advocate on 15.12.2018, but to no effect. Finding no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OP No.1 either to provide her the schedule plot as per specification mentioned in the Agreement for Sale dated 20.01.2013 or to refund the paid amount of Rs.6,10,906/- along with interest @18%  along with Rs.1,00,000/- by way of compensation due to mental agony, harassment and pain and Rs.50,000/- towards litigation cost.

After admission of this complaint notices were issued upon the OPs through registered post with A/D. On 01.11.2019 the OP Nos.2 and 3 have entered appearance by filing vakalatnama prayed time for filing written version. On the said date track reports was filed by the Complainant from where it was evident that the OP No.1 had received the notice on 14.09.2019. Since receipt of the notice till 01.11.2019 as more than 45 days were elapsed and none was present on behalf of the OP No.1, the Ld. Forum was pleased to pass an order that the complaint will run exparte against the OP-1. Therefore it is clear that the OP No.1 chose not to contest the complaint either orally or by filing written version inspite of receipt of the notice. Date was given to the OP Nos.2 and 3 for filing written version on 13.12.2019. On 13.12.2019 the OP Nos.2 and 3 filed written version with a copy to the other side. Next was given to the Complainant for adducing evidence on 06.01.2020.On 06.01.2020 the Complainant had adduced evidence, none was present on behalf of the OP-2 and 3 on that day, for this reason the OP Nos.2 and 3 were directed to show cause on 03.02.2020 as to why the complaint would not be heard exparte against them. On 03.02.2020 no reply to the show cause were filed by the OP Nos.2 and 3, such being the position the Ld. Forum was pleased to fix hearing of this complaint on 06.03.2020. On 06.03.2020 BNA was filed by the Complainant. None was present on behalf of the OPs. We have heard the argument in full advanced by the Ld. Counsel for the Complainant.

We have carefully perused the entire record, documents, written version of the OP Nos.2 and 3 and the BNA and heard the argument of the Complainant at length. From the petition of Complaint it is evident to us that admittedly the Complainant with a view to purchase a piece of developed plot from the OP No.1 entered into an Agreement for Sale and paid the entire consideration amount of Rs.6,00,000/- along with excess payment for execution of the Deed of Conveyance in respect of the said plot in her favour. After acknowledging the said amount the OP No.1 issued money receipt in favour of the Complainant. It was agreed by the OP No.1 that the completed developed plot will be handed over to the Complainant within 36 months from the date of execution of agreement dated 20.01.2013 by soil & big built road, children’s park, surface drain with cover, point to point electric pole and water supply of the project. Initially the Complainant paid a sum of Rs.2,40,000/- by issuing an A/C payee cheque dated 03.01.2013 and subsequently a sum of Rs. 3,70,906/- was also paid by the Complainant towards the balance amount to the OP No.1. It is pertinent to mention that the OP Nos.2 & 3 are the land owners in this complaint from whom land was obtained by the OP No.1 and the OP Nos.2 & 3 provided the said land for development so that the intending purchasers of the said land which will be divided in plot for construction of flat / building. The OP No.1 promised to develop the said land at his own cost. Subsequently the OP No.1 was searching for the intending purchasers of the developed plot to sell out the same to them. Accordingly the Complainant approached before the OP No.1 to purchase a developed plot from the OP No.1 for construction of a building therein. Though in the Agreement for Sale it was under taken by the OP No.1 that possession of the developed plot will be handed over to the Complainant within 36 months from the date of execution of the agreement subsequently the OP No.1 has miserably failed to keep the said promise and failed to hand over the developed plot to the Complainant even after lapse of the 36 months from the date of execution of the Agreement. As the OP No.1 did not provide the physical possession of the said developed plot to the Complainant for a prolonged period, being frustrated and dissatisfied the Complainant made several written correspondences along with legal notice with the OP No.1 requesting to hand over the developed plot to her, to no effect. The OP No.1 did not pay any heed to her request and avoided the subject matter without assigning any reasons. For this reason the Complainant is suffering from mental pain, agony and harassment for a prolonged period along with monetary loss. As the OP No.1 did not take any step to resolve her dispute, finding no other alternative the Complainant has initiated this complaint before this Ld. Forum.

Inspite of receipt of notice the OP No.1 did not turn up to contest this complaint by filing written version or orally. In this respect we may mention to the judgment by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited Versus Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of notice, the OP No.1 chose not to contest the complaint by filing written version. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.

In the prayer portion the Complainant has prayed for either physical possession of developed plot as per specification mentioned in the Agreement for Sale dated 20.01.2013 or to refund the paid amount Rs. 6,10,906/- along with interest from the date of making payment of the said amount till entire realization. The record speaks that inspite of making payment of the entire consideration amount by the Complainant the OP No.1 did not take any step to discharge his liability by handing over the possession of the developed plot in favour of the Complainant along with the execution of the Sale Deed till filing of this complaint.

In this respect we may refer to the Judgment passed by the Hon’ble NCDRC reported in 2019 (4) CPR 361 (NC), in the CC Case no. 752/2018, decided on 30.07.2019 in the Case of Mukesh Makkar vs. M/s IREO Grace Realtech Pvt. Ltd. and others wherein it has been held that ‘if a builder fails to deliver possession of the flat/plot booked with him within the time period this would constitute a defect or deficiency.’ This ruling is also applicable in the instant complaint on the ground that the OP No.1 has miserably failed either to hand over the developed plot within the stipulated period or to refund the paid amount to the purchaser. In our view as the OP No.1 could not give possession in the plot to the Complainant, it was the duty of the OP No.1 to refund the amount as paid by the Complainant towards the entire consideration amount. Therefore it is clear to us that the OP No.1 has failed to discharge his liability and intentionally harassed the Complainant for a prolonged period. Such action of the OP No.1 proves the deficient service on his behalf and the Complainant has successfully proved the same by adducing cogent evidence. For such deficient service of the OP No.1 we are of the opinion that the Complainant is entitled to get compensation. As the OP No.1 did not take any step for redressal of the grievance of the Complainant before filing of this complaint and admittedly for proceeding with this complaint the Complainant has to incur some legal expenses, for which the Complainant is also entitled to get litigation cost from the OP No.1.

It is true that the paid amount of Rs.6,10,906/- is still lying with the OP since its payment. Therefore in case refund of the Complainant is entitled to get refund along with interest. Now we are to adjudicate what will be interest component in case of refund of the paid amount, if the OP No.1 will fail to deliver the physical possession of the developed plot.

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 Consumer Case no-2923/2017, on 15.11.2019, wherein Their Lordships have held that the developer shall refund the principal amount with compensation @12% p.a. from the respective dates 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 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 complainant cannot be made to wait indefinitely for possession of the unit. In the case of Kolkata West International City (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 in case of refund of the paid amount by the OP No.1 to the Complainants 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/68/2019 is hereby allowed exparte against the OP No.1 with cost and dismissed against the OP Nos.2 & 3 without any cost.

The OP No.1 is directed to refund of the amount as paid by the Complainant to the tune of Rs.6,10,906/- along with interest in the form of compensation @12% p.a. from the date of making payment of the amount 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 interest @14% p.a. instead of 12%. The OP No.1 shall pay 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 Complainants will be at liberty to put the entire order in execution as per provision of law.

Let plain copy of this final judgment be given to the parties free of cost as per the CPR, 2005.

(Dictated & Corrected by)

            Member

Hon’ble Silpi Majumdar