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 OP as the OP did not bother to refund him the paid amount till of this complaint.
The brief fact of the case of the Complainant is that in order to purchase one self contained residential flat on the 3rd floor, East-North facing, Flat no-3B consisting of one bed room, one kitchen cum dining, one toilet cum bath and one balcony, marble flooring, measuring about 350 square feet super built up area more or less together with undivided proportionate share of land along with proportionate rights of the common areas and facility of a building duly constructed situated at under the Police Station Dum Dum within the territorial limit of this Ld. Commission had entered into an Agreement for sale with the OP. The Complainant has paid a sum of Rs.2,00,000/- as advance money to the OP by issuing two cheques for purchasing the said flat. In the Agreement for Sale it was clearly stated that the flat will be handed over to the Complainant by the OP within one year from the date of singing the agreement for sale. The Complainant has waited for one year from the date of signing the agreement for completion of the flat and taking physical possession therein. But the OP could not deliver him the possession and as such he approached before the OP to know the status of the construction of the flat. The OP had expressed his inability and informed the Complainant that he has failed to take necessary permission from the concerned Municipality to start the construction of the said flat. Then the Complainant had verbally requested the OP for refund of the paid amount to him, but the OP had avoided the said request on several pretext, but ultimately the OP had agreed to refund the entire advance money as paid by the Complainant, but unfortunately the OP did not refund the same. The Complainant issued two legal notices to the OP praying for refund of the entire paid amount, but inspite of receipt of the said two notices the OP did not bother to take any step. As the OP has failed to redress the grievance of the Complainant, hence having no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OP to refund the entire paid amount of Rs.2,00,000/-, to pay compensation to the tune of Rs.3,00,000/- due to deficiency in service, mental agony and harassment and litigation cost of Rs.2,00,000/- to him.
The petition of complaint has been contested by the OP by filing written version contending that as the Complainant has sought for refund of the paid amount, the Complainant should have filed a money suit before the competent Court of Law. It is further stated by the OP that this Commission is not the proper Court which is empowered to pass an order directing the OP to refund the paid amount. Moreover the Complainant has sought for relief in the prayer portion claiming an exorbitant amount, which is not permissible in the eye of law. The OP has prayed for dismissal of the complaint.
Both parties have adduced evidence on affidavit and both parties are cross-examined by each other by way of filing questionnaire and reply. The Complainant has filed BNA. No BNA is forthcoming from the end of the OP.
WE have carefully perused the entire record and documents as available and heard argument. It is seen by us that the OP has not denied that the Complainant had paid him an advance money of Rs.2,00,000/- for purchasing a self contained residential flat from him. For this purchase both parties have entered into an agreement for sale, wherein it is mentioned that within one year from the date of signing the agreement for sale the OP will hand over the questioned flat to him in habitable condition in all respect. But after lapse of one year the Complainant found that there was no construction. Then he rushed to the OP to know the actual status of the construction, the Complainant was informed by the OP that he did not get the permission for the said construction from the competent Municipality, so he is not in a position to construct the building. After request the OP had agreed to refund the paid amount of Rs.2,00,000/- to the Complainant, but ultimately the OP has failed to keep his commitment in respect of refund of the entire paid amount to the Complainant. Being dissatisfied and aggrieved with the action of the OP the Complainant has filed this complaint praying for certain relief along with refund of the paid amount to him.
In our considered opinion the Complainant is very much entitled to get refund of the entire paid amount along with interest as the OP has been enjoying the said amount till date since payment. As the amount is under the custody of the OP, the OP is getting interest on the said amount and as such the OP is liable to pay interest of the paid amount to the Complainant. Admittedly as the OP did not take any step to resolve the dispute of the Complainant before approaching before this Ld. Commission and for this proceeding the Complainant has to incur some legal expenses, for this reason we are of the view that the Complainant is also entitled to get litigation cost from the OP.
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. The Ld. Counsel for the Complainant has placed reliance on the judgment passed by the Hon’ble NCDRC in the case of Vishesh Sood & Another vs. Raheja Developers Limited. We have carefully perused the relied judgment.
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/104/2019 is hereby allowed on contest with cost.
The OP is directed to refund the amount as paid by the Complainant to the tune of Rs.2,00,000/- along with interest in the form of compensation @12% p.a. from the date of making payment i.e. 20.01.2018 (Date of execution of the Agreement for sale and it is mentioned therein) 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 OP shall pay 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 to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
