Parties are present.
Order will be passed in course of this day.
This complaint is filed by the Complainants u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OP 1 had neither completed the construction of the flat, deliver peaceful possession, registration of the sale deed and deliver the completion certificate in favour of the Complainants, nor refund the paid amount of Rs. 5,00,000/- along with interest till filing of this complaint.
The brief fact of the case of the complainants is that the OP 1 is the developer, OP 2 to 7 are the land owners and the complainants are the intending purchasers of a flat.
In pursuance of the development agreement, the OP 2 to 7 have executed registered power of attorney in favour of the OP 1 to do acts on behalf of the OP 2 to 7 and to construct the building as per the sanctioned building plan, duly sanctioned by the Rajarhat Municipality. The OP 1 had offered the complainants in respect of sale of flat measuring about 1,000 sqft more or less super built up area, on the first floor, eastern side, Block B of the multi-storied building comprising two bedrooms, one living cum dining room, two bathrooms, one kitchen and one varanda together with common rights at the newly constructed building along with undivided proportionate share of the land. The total consideration of the said flat was settled at Rs. 13,50,000/-. Accordingly agreement for sale was executed by and between the complainant 1 and the husband of the complainant 2, since deceased on 29.09.2011. It is pertinent to mentioned that the Complainant 1 and 2 are the legal heirs of the deceased Dhiraj Kumar Chattaraj. The Complainant 1 is the son and the Complainant 2 is the wife of the deceased. On the date of the execution of the agreement for sale the Complainants paid a sum of Rs. 5,00,000/- to the OP 1 out of the total consideration price of Rs. 13,50,000/-. In the agreement for sale the OP 1 agreed to hand over the possession in the said flat within 24 to 30th months since the date of booking. The OP 1 inspite of receipt of Rs. 5,00,000/- did not bother to provide possession in the said flat. The Complainants have repeatedly requested the OP 1 to deliver and register the flat in their favour, but the OP 1 inspite of giving assurance verbally did not bother to take any step. Failure on the part of the OP 1 in discharging their obligation constituted a case of deficiency in service on the part of the OP 1. Inspite of best effort of the Complainants the OPs have failed and neglected to deliver the physical possession and registration of the sale deed in their favour. As the Ops have miserably failed to resolve the grievance of the Complainants, finding no other alternative the Complainants have approached before the Ld. DCDRF Barasat by filing this complaint praying for direction upon the OP 1 either to complete the construction of the flat, deliver peaceful possession therein after execution and registration of the sale deed in their favour and provide the completion certificate to the Complainants or to refund the paid amount of Rs. 5,00,000/- along with interest @ 18% pa. from 27.09.2011 till its entire realization, to pay compensation to the tune of Rs. 3,00,000/- for causing mental agony and harassment and litigation cost of Rs. 5,000/- to them.
After admission of this complaint before the Ld. DCDRF, Barasat, notices were issued. From the track reports filed by the Complainants it was evident that the OP 1 received the notice on 17.05.2018 and the OP 2 and 3 on 16.05.2018. Track report showed that OP 4 has expired. Complainant was directed to take necessary step in respect of the OP 4. Due to no S/R on 06.06.2018 in respect of OP 5, 6 and 7 the Complainants were directed to take necessary step. Accordingly date was fixed on 28.06.2018 for filing WV by the OP 1, 2, 3 and taking steps by the Complainants in respect of other OPs. After expiry of statutory period for filing written version, as the OP 1, 2, 3 did not turn up to contest the complaint either orally or by filing written version, hence the Ld. Forum was pleased to pass an order that the Complaint will run ex parte against the OP 1, 2 and 3. The Complainant had sought liberty for publication of the notices in respect of the OP 5, 6 and 7 in the daily well circulated Newspaper. Liberty was given and the Complainants were directed to submit the Newspaper showing publication of the notices in respect of the OP 5, 6, 7. From the Newspaper filed by the Complainants it was evident that publication was made in a proper manner. Date was given to the OP 5, 6, 7 for filing WV. As the OP 5, 6, 7 did not take any step to file written version or to contest the complaint orally, the Ld. Forum was pleased to pass an order that the complaint will run ex parte against the OP 5, 6, 7 also. The Complainants were directed to take necessary step in respect of OP 4, since deceased. Subsequently, the Complainants were pleased to expunge the name of the OP 4 from the cause title of the complaint.
The Complainant have filed amended complaint expunging the name of the OP 4 adduced evidence on affidavit and brief notes of argument.
We have carefully perused the entire record and documents as available in the record. It is necessary to mention that primarily this complaint was filed before the Ld. DCDRF Barasat, after establishment of this Ld. Additional Forum (Commission as amended w.e.f. 20.07.2020) this complaint has been transferred from the Ld. Barasat Commission to this Commission in view of the order passed by the Hon’ble SCDRC.
From the case record it is revealed that admittedly for purchasing a flat from the OP 1, the complainants have entered into an agreement for sale on 27.09.2011. On the date of the agreement the Complainants paid Rs. 5,00,000/- to the OP 1. It is pertinent to mentioned that the agreement for sale was executed by and between the Complainants and OP 1. Other OPs did not put any signature in the agreement for sale. It was settled that within 24 to 30th months from the date of booking a flat, the OP 1 shall deliver the Complainants peaceful and vacant possession in the newly constructed flat in all respect. The total consideration of the said flat was scheduled for Rs. 13,50,000/-, out of which the Complainants paid a sum of Rs. 5,00,000/-. But within the stipulated period as mentioned in the agreement for sale the OP 1 had failed to deliver him the physical possession in the flat, completed in all respect. Several reminders and requests were made by the Complainants to the OP praying for possession in the completed flat in all respect, but inspite of giving false assurance to the Complainants, the OP 1 had miserably failed to discharge his liability/responsibility in regard to the terms and conditions of the agreement for sale, rather the OP 1 did not provide him physical possession in the said flat along with execution of the deed of conveyance in respect of the flat in favour of the Complainants. As the OP 1 did not take any step to resolve the grievance of the Complainants, the Complainants sought for refund of the paid amount of Rs. 5,00,000/- from the OP 1 along with interest. But it is seen by us that the OP 1 did not bother to take any step to refund them the paid amount. Having no other alternative, this complaint is initiated by the Complainants against the OPs (specially OP 1) praying for certain reliefs.
We have noticed that the agreement for sale was executed by and between the Complainants and the OP 1. The land owners being no. OP 2 to 7 (except OP 4) has no role in the said agreement for sale on the ground that no endorsement was put by any of the OPs except the OP 1. Therefore liability cannot be casted upon the shoulder of the OP 2 to 7 (except OP 4) either to deliver the peaceful vacant possession in the flat or refund of the paid amount to the Complainants. As the OP 2 to 7 except 4 did not turn up inspite of receipt of the notices, in this respect we are to mention to the Judgment passed by the Hon’ble NCDRC in the case of Singla Builders & Promoters Limited vs 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 the notices the OPs did not turn up to contest the complaint either orally or by filing written version within the statutory period. 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.
It is true that as the OP 1 did not take any step to redress the grievance of the Complainants before filing of this complaint and admittedly to proceed with this complaint, the complainants have to incur some expenses, hence the Complainants are entitled to get the litigation cost from the OP 1. In our considered view the Complainants is also entitled to get refund of the paid amount of Rs. 5,00,000/- from the OP 1.
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-RBT/CC/306/2020 is hereby allowed exparte against the OP-1 with cost and dismissed against the rest OPs without any cost.
The OP 1 is directed to refund the amount as paid by the Complainants to the tune of Rs. 5,00,000/- along with interest in the form of compensation @12% p.a. from the date of making payment lastly i.e. 29.07.2011 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 judgment to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
