This Complaint is filed by the Complainants u/Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP, as the OP did neither provide the complete flat according to the Agreement nor refund the amount as paid by them along with interest till filing of this complaint.

            The brief fact of the case of the Complainants is that they booked two single room flats in their names and executed an Agreement with the OP on 30.06.2014. According to the Agreement the Complainants paid 15% of the entire consideration towards booking money as advance i.e. for Rs.2,29,447/- to the OP for the flat in Nestwood Maple Project at New Town (Rajarhat). The total consideration amount of the said flat is for Rs.14,83,800/-. As per the terms and the conditions of the agreement the OP was under the obligation to hand over the complete flat within 36 months from the date of allotment. After expiry of 32 months the Complainants noticed that no construction work was started in the said Project and till filing of the Complaint OP did not allot any flat in the names of the Complainants. The Complainants informed the matter to the OP, but came to know from the OP that the OP could not mutated and convert the Land from Sali to Bastu till date. After long wait on 01.04.2016 the Complainants demanded for refund of the booking amount as paid by them along with interest from the OP and the OP accordingly replied the said letter on 13.05.2016 through an e-mail whereby they became agree to refund the booking amount as paid by them within July, 2016. After completion of July,2016 the Complainants did not get any response from the OP regarding refund of the amount according to the promise of the said e-mail. Then, on 07.09.2016 the Complainants met with Mr. Anand Sinha, said to be the Chairman of the OP at his office, but Mr. Sinha behaved with them very roughly and denied to refund the booking amount to them. Thereafter, on several occasions the Complainants requested the OP through written correspondences as well as verbally to refund the booking money along with interest, but the OP did not pay any heed to their request, rather did not bother to reply the written correspondences of the Complainants. Subsequently, the Complainants approached before the Assistant Director, Central Consumer Grievance Redressal Cell, Kolkata for mediation by lodging a Complaint, but to no effect and the complaint was dropped with a direction to file a specific Complaint before the Ld. DCDRF, Barasat for redressal. Having no other alternative the Complainants approached before the Ld. Forum, Barasat by filing this Complaint praying for direction upon the OP either to hand over the complete flat or refund the paid amount along with interest. The Complainants have also prayed for compensation to the tune of Rs.25,000/- due to harassment and mental agony and Rs.10,000/- as litigation cost.

             The Complaint has been contested by the OP by filing written version admitting admitted that the Complainants booked a flat in the Project of the OP and paid a sum of Rs.2,29,447/- to the OP which was duly acknowledged by this OP. It is contended by the OP that the construction work of the said flat has been delayed due to technical reasons and as such the OP has approached the Complainants for shifting from the existing project to a new project, but the Complainants have refused to shift and opted for refund of the booking money from the OP. The OP is ready to provide a flat to the Complainants in another place. As the Complainants are not inclined to receive the same, the allegations as made out by the Complainants against this OP does not stand at all. According to the OP this Complaint is liable to be dismissed on the ground that there is no deficiency in service as well as unfair trade practice on behalf of the OP.

              The Complainants have adduced evidence on affidavit. The Order sheets reveal that on the date of adducing evidence i.e. 20.06.2018, the OP was absent on calls, for this reason the Complainants could not supply the copy of the evidence to the OP. Service copy was kept in the record. On 17.12.2018 the OP remained absent, in the interest of Natural Justice scope was given to the OP for adducing evidence by the OP on 02.04.2019 subject to payment of cost of Rs.500/-. It is pertinent to mention that after adducing evidence by the Complainants, no prayer was made by the OP to cross-examine the Complainants by way of questionnaire. On 02.04.2019 the OP remained absent. The Ld. Forum was pleased to provide scope for adducing evidence by the OP. As no evidence was adduced by the OP accordingly date was given for argument on 22.07.2019 along with filing BNA.

               After establishment of the Ld. CDRF, Rajarhat (New Town) as the Territorial Jurisdiction of this Complaint falls under the Jurisdiction of this Ld. Forum, in view of the order passed by the Hon’ble SCDRC, this record has been send down to this Ld. Forum from Barasat Forum. After receipt of this Record, intimation was given to the Ld. Advocate for the Complainants and the OP individually through the Ld. Forum over telephone on 05.02.2020. Inspite of receipt of information from this Ld. Forum none is present on behalf of the OP for advancing argument as the record is transferred in the argument stage. The Ld. Counsel for the Complainants is present. Having no other option we have heard from the Ld. Counsel for the Complainants and carefully perused the entire record, documents and written version filed by the OP.

               The documents as annexed by the Complainants reveal that the Complainants paid Rs.2,29,447/- i.e. 15% of the entire consideration amount towards booking money and the OP had issued money receipts in favour of the Complainants upon receipt of the said amount. It was scheduled by and between the parties that completed flat will be delivered within 36 months from the date of allotment. It is stated by the Complainants that after completion of 32 months when the Complainants found that no construction work was started in the said project, being dissatisfied and frustrated with such action of the OP the Complainants by issuing letter requested the OP to refund the amount as paid by them towards the booking amount for Rs.2,29,447/- along with interest. In reply the OP had informed the Complainants through an e-mail that the OP will refund the amount within July, 2016. Since then the OPdid not contact with the Complainants regarding refund. Several contacts were made by the Complainants, written correspondences were issued on behalf of the Complainants and the Complainants requested the OP verbally to refund the amount as paid by them on several occasions, but the OP did not bother to take any step in this context, rather the OP kept himself silent over this matter for a prolonged period. Due to such inaction on behalf of the OP finding no other alternative the Complainants have approached before the Court of Law for redressal of their grievance. In our considered view that as the OP has miserably failed to hand over the complete flat as per the agreement and commitment, it was the bounden duty of the OP to refund the amount as  paid by the intending purchasers to them immediately without any harassment. In the written version the OP has contended that proposal was given on behalf of the OP to the Complainants for shifting from the existing project to another project, but the Complainants have refused to adopt the said proposal. In this respect we are to mention the Judgment passed by the Hon’ble NCDRC, reported in 2019 (4) CPR, 570 (NC), in the CC Case no. 1377/2015, decided on 27.08.2019 in the Case of Jayanti Mitra and another vs. Merino Shelters Pvt. Ltd. and another, wherein it has been held that ‘if the Complainants are unable to accept the flats with the revised area, they can opt for refund.’  The said ruling can be applicable in the case in hand on the ground that in the instant complaint proposal was given by the OP to the Complainants for shifting from the existing project to another project, but the Complainant refused to accept the said proposal and prayed for refund of the paid amount.

                In the instant Complaint we may rely on another 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 complainton the ground that the OP has miserably failed either to hand over the complete flat within the stipulated period or to refund the paid amount to the purchasers inspite of written commitment within the stipulated period i.e. within July, 2016. In our view as the OP could not give possession in the flat to the intending purchasers, it was the duty of the OP to refund the amount as paid by the Complainants towards booking amount within the stipulated period. Therefore it is clear to us that the OP has failed to discharge his liability and intentionally harassed the Complainants for a prolonged period. Such action of the OP proves the deficient service on his behalf and the Complainants have successfully proved the same by adducing cogent evidence. For such deficient service of the OP we are of the opinion that the Complainants are entitled to get compensation. As the OP did not take any step for redressal of the grievance of the Complainants before filing of this complaint and admittedly for proceeding with this complaint the Complainants have to incur some legal expenses, for which the Complainants are also entitled to get litigation cost from the OP.

                 It is true that the paid amount of Rs.2,29,447/- is still lying with the OP since its payment. Therefore in case refund of the Complainants are 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 will fail to deliver the physical possession of the complete flat. 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 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-RBT CC/58/2020 is hereby allowed on contest against the OP with cost.

                  The OP is directed to refund of the amount as paid by the Complainants to the tune of Rs.2,29,447/- 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 OPshall 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 plain copy of this final judgment be given to the parties free of cost as per the CPR, 2005.

        Dictated & Corrected by

[Hon’ble MRS. Silpi Majumder]

     Member