This Complaint is filed by the Complainants u/S 34(1) of the Consumer Protection Act, 2019  alleging deficiency as well as unfair trade practice against the OP as the OP did not bother to hand over the schedule flat in finished condition as per the terms and condition of the Agreement for Sale,to execute the Deed of Conveyance in respect of the schedule flat in their favor, to hand over the completion certificate of the concerned building and possession letter of the concerned flat to them till filing of this complaint. The Complainants have also prayed for to return the entire consideration amount as paid by them along with interest @18% p.a. from the date of making payment till realization of the entire amount.

            The brief fact of the case of the Complainants is that the OP used to carry on their promoting business at the address of the schedule project, which is situated within the Territorial Jurisdiction of this Ld. Commission. The Complainants came to know about the housing project of the OP-Company through an advertisement published in the Newspaper namely ‘The Telegraph’, Kolkata Edition dated 07.03.2014 and being interested with the said advertisement the Complainants collected the requisite application form from the Bank and being satisfied with the terms and conditions of lottery the Complainants submitted the application form for Individual(s) for one 2BHK flat at SANHITA Project (Application No-624664). Along with application form Rs.20,000/- was paid in favour of the OP through pay order dated 04.04.2014 drawn on UBI, Rafi Ahmed Kidwai Road Branch bearing no- 789228 along with the necessary documents as required. The Complainants have also provided the entire information as per the guideline. After receipt of the application form along with money, the OP had drawn a lottery, held on 15.07.2014 at the Main Auditorium of Science City in presence on Legal Firm, Dignitaries, Invitees and Applicants. By issuing a letter dated 30.06.2014, Mr. Uttam Chatterjee being the authorized signatory of the OP-Company had intimated the Complainants to be present at the lottery contest. In the said lottery the Complainants won and subsequently the Complainant-1was intimated by the OP through the letter dated 16.07.2014 for depositing of the allotment money against the application for booking of one 2 BHK flat at SANHITA Project. In the said letter the Complainants were directed to pay Rs.2,68,378/- by Demand Draft payable at Kolkata in favour of the Simoco Systems and Infrastructure Solutions Limited within one month i.e. within 16.08.2014. It was also intimated to the Complainant-1 through the said letter that after submission of the Demand Draft, the Complainants will be able to pickup their own Block and Flat numbers by themselves from the box where token of all the Flat numbers and Block numbers will be kept. Accordingly, the Complainants have issued a Demand Draft of Rs.2,68,378/- drawn on SBI, Surya Sen Street Branch, dated 28.07.2014 and deposited with the office of the OP. Upon receipt of the said amount the OP had issued money receipt in favour of the Complainant-1 mentioning the Block number as 2B11, first floor and the flat number 1D at the SANHITA Project. Subsequently, on being asked verbally by the OP the Complainants paid Rs.7,22,244/- and Rs.2,88,378/- by issuing two cheques in favour of the OP-Company drawn on SBI, Calcutta University Branch, dated 29.05.2015 for showing their good gesture and avoiding any further complications and delay. It is pertinent to mention that during that period the Complainant-1 was transferred in North Bengal from Kolkata in connection to his service and for this reason advanced payment was made to avoid the penalty of late payment, if any. In this manner the Complainants paid the entire consideration amount towards the allotted flat to the Company well before hand. By issuing a cheque dated 03.08.2015 the Complainants paid service tax to the OP drawn on SBI, Berhampur Branch. Upon receipt of the said amount the authorized signatory of the OP-Company had issued an invoice cum receipt dated 03.08.2015 in favour of the Complainant-1 through which the OP had agreed that they had received the entire consideration amount for the flat along with service tax to the tune of Rs.13,44,465/- from the Complainants. On 27.11.2014 Mr. P. Mukherjee, being authorized signatory of the Company had issued a letter to the Complainant-1 mentioning the flat floor and building numbers as allotted to them being 1D, First Floor and 2B 11 respectively. The Company had also acknowledged the payment made by the Complainants in the said letter. The Complainants were also intimated that the preconstruction activity in the project site had already been started in full motion and commitment was given to complete the project as per schedule. It is mentioned in the letter that the Company had submitted the relevant documents to couple of Banks and Financial Institutions for approval of the project and requested to them for availing of the home loan facility from the desired Bank/Financial Institution, if required and the project approval is under process and is likely to be in place within couple of weeks. Through the said letter the complainants were directed for entering into an Agreement for Sale with the Company. On 29.05.2015 the Complainants have entered into an agreement with the OP-Company and on behalf of the Company-Simioco Systems & Infrastructure Solutions Limited Mr. Aloke Kumar Das put his signature in the said Agreement.As per the Agreement the Company was agreed to provide one self-contained residential flat no-1D on the1st Floor, Block-2B11 havingsuper built-up area approximately 734 square feet (subject to increase/decrease) of 2.5% which will not affect the total consideration in any way consisting of 2 (Two) Bed Rooms, 2(two) Toiles,1 (one) Living/Diningroom, 1 (one) Kitchen and 1 (one) Verandah together with proportionate undivided share of land. Super Built-up Area shall mean and include the covered area, verandah and balcony inclusive of the area under periphery walls, area under the columns and walls, area utilized for services, viz. area under staircase, circulation area, walls, lifts, shafts, passages, corridors, lobbies and refuge areas. The total consideration of the flat is mentioned for Rs.12,99,000/-and it is also mentioned that the Complainants have already paid Rs.2,88,378/- + Rs.20,000/- as Application money + Rs.2,68,378/- as Earnest money to Simoco Systems and Simoco Systems had admitted and acknowledged the said amount.In the page-9 of the Agreement under Article-4 it is mentioned that SIMOCO SYSTEMS shall make its best endeavors to deliver the possession of the flat/unit to the purchasers within 36 (Thirty Six) months with a grace period of 6 (Six) months from the date of allotment subject to payment of total consideration and other payments along with applicable taxes and levies by the purchaser/s. The Complainants have also agreed that the Company shall additionally be entitled to a period of 180 days as Grace period after the expiry of the said commitment period to allow for unforeseen delays in obtaining the occupation certificate etc. from the Government under the Act in respect of SANHITA subject to “Force Majeure” circumstances and after all dues in respect of the flat/unit including stamp duty and registration charges as applicable have been paid. The Company shall give notice to the Complainants-purchasers regarding the date on which SIMOCO SYSTEMS would be effecting Possession of Apartment and the Complainants shall himself/themselves or through his/their agent or Attorney take delivery of the flat within 30 days from the issuance of the final notice of possession. In the event the purchaser fails to accept and take over possession of the flat/unit within the time as notified in the notice, the delivery of the flat shall be deemed to have been taken by the purchasers on the date indicated in the notice.

The complainants being agreed with the terms and the conditions of the Agreement have entered into the same and paid the entire consideration amount for the scheduled flat well beforehand of the payment schedule as mentioned in the Agreement. But it is very much unfortunate for the Complainants that inspite of payment of the entire consideration amount theOP-Company did not take any step to provide them the possession in the said flat. The Company had committed that within 36 months with a grace period of 06 months from the date of allotment subject to payment of the total consideration along with other taxes/charges the possession of the flat shall be given to the purchaser. The letter dated 27.11.2014 issued by the Company reveals that allotment of the flat was given to the complainants and the intimation was given to them by issuing the said letter. So within 36 months and/or 06 months grace period from the said date (27.11.2014), the Complainants are entitled to get possession in the scheduled flat by 27.11.2017 (30.11.2017). But the OP did neither deliver the possession in the flat nor make any written correspondences with the Complainants till filing of this complaint stating the reason as to what prevented the Company not to give possession as yet. It is mentioned in the petition of complaint that there is “Force Majeure” clause in the agreement, the Company did not intimate anything to these Complainants in view of the aforementioned clause till date by issuing any letter.

Therefore being very much dissatisfied with the action and activity of the OP-Company the Complainant-1 had issued a letter to the Competent Authority (Manager Customer Support), Simoco Systems and Infrastructure Solutions Limited on 02.01.2020 praying for providing possession in the flat within 02 months from the date of the letter along with compensation for Rs.10,000/- per month from the date of giving possession as per the agreement including 06 months grace period. In the said letter it was also mentioned that the Complainant-1 being the Government employee under the Government of West Bengal is residing in the Government Housing in Salt Lake. But the Complainant-1 will retire from his service on 31.07.2020 and for this reason the Complainants have to leave the Government Housing within three months from the date of his retirement. As the Complainants have no own accommodation in or around Kolkata and 24 Parganas (North), then after leaving of the Government quarter they will have to face immense problems unless the possession is given to them in the said flat. The son and two daughters are pursuing their education in Kolkata. It will be very much hardship to the Complainants to stay at a rented house after making payment of the entire consideration amount to the OP-Company. Through the said letter the Complainants have requested the OP to provide possession in the said flat as early as possible. Though the OP had received the said letter by putting their seal and signature, did not take any step in this regard till filing of this complaint. No written correspondences have been made by the OP in this context. Due to such inaction of the OP the Complainants are passing their days in helpless condition. As the OP did not bother to take any step to handover the physical possession in the said flat till date as well as make any correspondences in this regard, having no other alternative the Complainants have approached before this Ld. Commission by filing this complaint praying for direction upon the OP to handover the schedule property/flat to them as soon as possible, in default direction be given to the OP to return the entire consideration amount i.e. Rs.12,99,000/- as paid along with the amount paid on account of service tax for Rs.45,465/- i.e. Rs.13,44,465/- in total along with an interest @ 18% p.a. for the period from the date of making payment i.e. 29.05.2015 & 03.08.2015.  It is pertinent to mention that on 03.08.2015 the amount for service tax was paid and the entire consideration amount was paid within 29.05.2015 till realization of the entire amount.

After admission of this complaintnotice was issued upon the OP. From the order dated 21.12.2020 it is evident that the track report submitted by the Ld. Counsel for the Complainants, from where it is cleared that the OP had received the notice, but chose not to appear before this Ld. Commission to contest the complaint either orally or by filing written version. For this reason this Ld. Commission was pleased to pass an order that the complaint will run exparte against the OP. Time was given to the Complainant for adducing evidence. On 21.01.2021 the Ld. Counsel for the Complainants by filing a petition had prayed for treating the petition of complaint as evidence. Upon perusal of the petition it is seen by us that as the petition of complaint is submitted by the Complainants supported by affidavit, hence there was no bar to treat the petition of complaint as the evidence of the Complainants. On the said date Brief Notes of Argument was also filed on behalf of the Complainants and advanced oral argument.

In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vsAman 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 chose not to appear and contest the complaint by filing written version or orally, whatever it may be. Therefore in view of the said judgment the allegations as made out by the Complainants in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations on behalf of the OP-Company.

We have carefully perused the petition of complaint along with the documents as submitted by the Complainants at the time of filing this complaint. From the pleading it is evident that the Complainants booked one 2 BHK flat at Sanhita Project initially by making payment of the booking money. It is pertinent to mention that the Complainants won in the lottery contest and thereafter the concerned flat was allotted to them by the OP-Company. As per the Agreement the Company was agreed to provide one self-contained residential flat no-1D on the1st Floor, Block-2B11 havingsuper built-up area approximately 734 square feet (subject to increase/decrease) of 2.5% which will not affect the total consideration in any way consisting of 2 (Two) Bed Rooms, 2(two) Toiles,1 (one) Living/Diningroom, 1 (one) Kitchen and 1 (one) Verandah together with proportionate undivided share of land.On 27.11.2014 Mr. P. Mukherjee, being authorized signatory of the Company had issued a letter to the Complainant-1 mentioning the flat, floor and building numbers as allotted to them being 1D, First Floor and 2B 11 respectively.The total consideration of the said flat was settled at Rs.12,99,000/- and the Complainants have paid the entire consideration amount to the OP and the OP also acknowledging the said amount issued money receipts and in the letter also it was also mentioned by the OP. Not only that as per direction of the OP the Complainants paida sum of Rs.45,465/- towards service tax  and in this manner the Complainants paid Rs.13,44,465/- in total to the OP.

The documents reveal that inspite of making payment of the entire consideration amount for the scheduled flat, the OP did not bother to take any step to provide possession in the said flat till filing of this complaint. The period for providing possession had already been over including the grace period and in this context the Complainants made several written correspondences with the OP, but to no effect. Therefore having no other alternative this complaint have been initiated by the Complainant praying for either to provide possession in the said flat along with execution and registration of the sale deed, in default prayer is made to refund the amount as paid by them along with interest @ 18% p.a. from the date of making payment of the amount till its realization. The Complainants have also prayed for compensation and litigation cost from the OP due to unnecessary harassment, mental pain and agony.

In our considered opinion Since receipt of the entire consideration money the OP did not take any initiative either to provide them possession along with sale deed in respect of the flat in favour of the Complainants or to refund the paid amount to the Complainants, rather and keeping them silent over the matter of possession or refund of the said amount and kept the hefty amount as paid by the Complainants under their custody/control for a prolonged period in an unauthorized manner and with mal-intension. From such action of the OP it is crystal clear to us that with a view to harass the Complainants the OP has adopted such unfair trade practice keeping the hard earned money of the Complainants under his control for a prolonged period. In our view the Complainants is very much entitled to get refund of the paid amount of Rs.13,44,465/- along with interest on the ground that the OP has been earning interest on the said amount from the date of receipt of the same till date. The Complainants paid the entire amount on 29.05.2015 & 03.08.2015. 

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’bleNCDRC in the case of VisheshSood& Another vs. M/s. Raheja Developers Limited, in the Consumer 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/s 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. GovindanRaghvan (2019) 5 SCC 725 and Kolkata West International City (P) Limited vs. DevasisRudra, (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 the Hon’ble NCDRC we are of the opinion that in case of refund of the paid amount by the OP-Service Provider to the Complainant/s it will carry interest @12% p.a. from the date of making payment of the amount till its realization.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-196/2020 is hereby allowed exparte against the OP with cost. The OP is directed to refund the amount as paid by the Complainants to the tune of Rs.13,44,465/- along with interest in the form of compensation @12% p.a. from the date of making payment of the amount i.e. 29.05.2015 & 03.08.2015 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 shall pay 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 judgment be given to the parties free of cost as per CPR.

Dictated and Corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER