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 did not bother either to execute and register the sale deed in favour of the Complainants in respect of the questioned flat or to refund the paid amount of Rs.1,25,000/- along with interest to them till filing of this complaint.

The brief fact of the case of the Complainants is that the Complainants are the consumers, who paid consideration money to the OPs in part and the OPs are the developers, who has formulated scheme to develop a residential complex comprising of flats/apartments over the land of the land owners in accordance with the building sanctioned plan duly sanctioned and approved by the competent authority. In the year 2016 the Complainants wanted to purchase one flat for residential purpose for their own along with their family members and accordingly they contacted the OPs. The Complainants have expressed their desire to purchase one flat and after a fruitful discussion they decided to purchase a flat measuring about 867 square feet @Rs.1950/- per square feet at the Tower no-3, Block no-T-22, Direction South-East in the Gulmohor Project and accordingly the Complainants have submitted an application form conjointly on 06.12.2016 and issued cheque in favour of the OP-1 drawn on Axis Bank, Golpark Branch amounting to Rs.50,000/-. On 21.12.2016 another cheque was issued by the Complainants drawn on the same Bank in favour of the OP-1 to the tune of Rs.50,000/- as advance money and upon receipt of Rs.1,00,000/- the OP-1 issued proper money receipt with seal and signature. The Complainants have agreed with the terms and conditions and they were allotted provisional allotment of the proposed flat having a covered area of 867 square feet more or less consisting of 03 bed rooms, 01 dinning cum hall, 01 kitchen, 02 toilets and 01 balcony in the housing complex namely Gulmohor situated within the territorial jurisdiction of this Ld. Commission. The total consideration for the flat was settled at Rs.16,90,000/-, out of which the Complainants paid a sum of Rs.1,25,000/-. Within few months from the date of allotment letter the Complainants found that the OPs did not start the construction work of the said project and till date construction work is not completed/ started as per the specification in view of the terms and conditions of the agreement for sale. The OPs did not take any step to hand over the peaceful khas possession in the said flat and the OPs have no intention to complete the flat in all respect. In this manner the OPs have harassed the Complainants deliberately and intentionally. The Complainants on several times requested the OPs to complete and finished the unfinished constructional work of the flat, but the OPs did not pay any heed to the request of the Complainants. The OPs were told to hand over the physical possession along the sale deed in respect of the flat in favour of the Complainants, but to no effect. Lastly the OPs have refused to do the construction work along withs registration of the sale deed. Thereafter at the earnest request of the Complainants the OPs agreed to refund the consideration money as paid by the Complainants within April, 2019, but ultimately the OPs have failed to keep their commitment and did not pay any amount. The OPs are contractually obliged and liable to hand over the possession of the flat along with execution and registration of the sale deed in favour of the purchasers in respect of the questioned flat, but the OPs shave neglected to perform their obligations. As the OPs did not take any step to redress the grievance of the Complainants, hence having no other alternative the Complainants have approached before the Ld. DCDRF, Barasat by filing this complaint praying for direction upon the OPs either jointly or severally to execute and register the deed of conveyance in favour of the Complainants in respect of the flat, failing which to refund the paid consideration amount of Rs.1,25,000/- to them, to pay the enhanced cost of registration, to pay compensation for Rs.2,00,000/- due to harassment, mental agony and deficiency in service, to provide the completion certificate of the multistoried building, to pay entire tax and rent till the date of receiving the completion certificate from the local Municipality and to pay litigation cost to them.

After admission hearing before the Ld. DCDRF, Barasat notices were issued to the OPs. At the stage of filing postal track reports by the Complainants this record has been transferred from the Ld. DCDRF, Barasat to this Ld. Forum (Commission as amended w.e.f. 20.07.2020) in view of the order passed by the Hon’ble SCDRC. After receipt of this complaint notices were issued to the OPs along with the copy of the complaint and other related documents through speed post with A/D and the OPs were directed to file written version within 30 days from the date of receipt of the notices. On 26.11.2020 the Complainants showed their interest to take the facility of the alternative service. Accordingly liberty was given to the Complainants for publication of the notices in respect of the OP-1 and 2 in the daily well circulated Bengali Newspaper and accordingly the Ld. Counsel for the Complainants had submitted the copy of the newspaper showing publication of the notices of the OP-1 and 2. Since publication as the statutory period was not over for filing written version, the OPs were given scope to file written versions. But on the next date also the OPs did not turn up to contest the complaint either orally or by filing written version and in the meantime the statutory period being over the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs. The Complainants have adduced evidence on affidavit.

On the date of hearing argument none was present on behalf of the OPs.

At the very outset 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.

We have carefully perused the entire record and the documents as available and heard argument at length advanced by the Ld. Counsel for the Complainants. It is seen by us that in the year 2016 the Complainants wanted to purchase one flat for residential purpose for their own along with their family members and accordingly they contacted the OPs. The Complainants have expressed their desire to purchase one flat and after a fruitful discussion they decided to purchase a flat measuring about 867 square feet @Rs.1950/- per square feet at the Tower no-3, Block no-T-22, Direction South-East in the Gulmohor Project and accordingly the Complainants have submitted an application form conjointly on 06.12.2016 and issued cheque in favour of the OP-1 drawn on Axis Bank, Golpark Branch amounting to Rs.50,000/-. On 21.12.2016 another cheque was issued by the Complainants drawn on the same Bank in favour of the OP-1 to the tune of Rs.50,000/- as advance money and upon receipt of Rs.1,00,000/- the OP-1 issued proper money receipt with seal and signature. The Complainants have agreed with the terms and conditions and they were allotted provisional allotment of the proposed flat having a covered area of 867 square feet more or less consisting of 03 bed rooms, 01 dinning cum hall, 01 kitchen, 02 toilets and 01 balcony in the housing complex namely Gulmohor situated within the territorial jurisdiction of this Ld. Commission. The total consideration for the flat was settled at Rs.16,90,000/-, out of which the Complainants paid a sum of Rs.1,25,000/-.  The petition of complaint speaks that within few months from the date of allotment letter the Complainants found that the OPs did not start the construction work of the said project and till date construction work is not completed/ started as per the specification in view of the terms and conditions of the agreement for sale. The OPs did not take any step to hand over the peaceful khas possession in the said flat and the OPs have no intention to complete the flat in all respect.  Therefore in our view In this manner the OPs have harassed the Complainants deliberately and intentionally. The Complainants on several times requested the OPs to complete and finished the unfinished constructional work of the flat, but the OPs did not pay any heed to the request of the Complainants. The OPs were told to hand over the physical possession along the sale deed in respect of the flat in favour of the Complainants, but to no effect. Surprisingly, the OPs have refused to do the construction work along with registration of the sale deed. Thereafter at the earnest request of the Complainants the OPs agreed to refund the consideration money as paid by the Complainants within April, 2019, but ultimately the OPs have failed to keep their commitment and did not pay any amount.  In our opinion the OPs are contractually obliged and liable to hand over the possession of the flat along with execution and registration of the sale deed in favour of the purchasers in respect of the questioned flat, but the OPs shave neglected to perform their obligations. As the OPs did not take any step to redress the grievance of the Complainants, hence the Complainants have initiated this complaint praying for certain reliefs.

From the documents-7 as annexed by the Complainant along with the petition of complaint that on 09.06.2018 the OP-2 had issued a money receipt in favour of the Complainant-1 for Rs.25,000/-, which was duly paid by the Complainant by issuing cheque drawn on Axis Bank. It is also true that as the OPs did not bother to settle the grievance of the Complainants before filing of this complaint, being compelled the Complainants have approached before the Court of Law for redressal of her grievance by filing this complaint, hence for such proceeding the Complainants have to incur some expenses, for in our considered view the Complainants are entitled to get litigation cost from the OPss.

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/102/2020 is hereby allowed exparte against the OPs with cost.

The OPs are directed either jointly or severally to refund the amount as paid by the Complainants to the tune of Rs.1,25,000/- along with interest in the form of compensation @12% p.a. from the date of making payment lastly i.e. 21.12.2016 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