Heard argument in full.

Judgment 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 did not take any step either to deliver them physical possession in the questioned flat or to refund the paid amount along with interest till filing of this complaint.

The brief fact of the case of the Complainants is that they were allotted one flat by issuing the allotment letter dated 10.04.2013 issued by the OPs at Neel Diganta Sohini-II (UMIG), measuring about an area of 820 square feet along with covered car parking space in the Block-3, Flat no-7E, on the 7^th Floor of the concerned building at Barasat, North 24 Parganas. The total cost of the said flat along with car parking space was settled at TRs.17,49,780/-. The flat was scheduled to be constructed by M/s. Bengal Shelter Housing Development Limited, which is a joint sector Company with West Bengal Housing Board.  On 28.01.2013 the Complainants have submitted an application being no-1256 to the authority of M/s. Bengal Shelter Housing Development Limited i.e. OP-1 and 2 along with application money of Rs.50,000/-. After receipt of the said amount the OPs have issued money receipt in favour of the applicants. Thereafter the authority was pleased to issue an allotment letter to the Complainants on 10.04.2013. It was scheduled that the application money of Rs.50,000/- will be adjusted with the final payment as per the terms and conditions of Bengal Shelter S.L.-12. The OPs will give possession of the flat to the Complainants within 48 months from the date of allotment i.e. 10.04.2013. After receipt of the allotment letter the Complainants paid Rs.6,81,939/- to the OPs i.e. Application money of Rs.50,000/-, Allotment money for the apartment of Rs.3,74,945/-, Allotment money for the covered car parking space of Rs.1,25,000/-, Service tax of Rs.16,994/- and 1^st installment of Rs.1,15,000/- on 02.05.2014. On 16.12.2015 the Complainants visited the project site and found that the construction work was totally stopped. The Complainants wanted to know the cause of stopping construction work to the OPs, but the OPs could not satisfy the Complainants by providing any satisfactory reply. The Complainants realized that the OPs will not provide them the delivery of possession of the said flat within the schedule period i.e. within 48 months from the date of issuance of the allotment letter. Then the Complainants rushed to the office of the OPs and requested them verbally as well as in writing to give them physical possession of the allotted flat immediately or refund them the deposited amount of Rs.6,81,939/-. Upon receipt of the letter from the Complainants dated 17.12.2015 the OPs have refunded them only the application money of Rs.50,000/- and told them by issuing letter dated 25.02.2016 that the balance paid amount will be refunded within a period of 12 months. After expiry of one year from the date of letter 25.02.2016 the Complainants went to the office of the OPs and requested them verbally as well as in writing to refund them the rest amount of Rs.6,31,939/-, but the OPs did not pay any heed to their request. Having no other the Complainants have lodged a complaint before the Assistant Director, CA & FBP, Salt Lake for mediation, but no mediation was made and the concerned Department was pleased to drop the complaint with a direction to file specific complaint before the appropriate DCDRF, Barasat, North 24 Parganas for redressal of their grievance. Accordingly the Complainants have approached before the Ld. Commission, Barasat by filing this complaint praying for direction upon the OPs either to deliver the physical possession of the said flat to them or to refund the balance paid amount of Rs.6,31,939/- along with interest thereon, to pay compensation to the tune of Rs.1,00,000/- on account of harassment and mental agony and litigation cost of Rs.5,000/- to them.

The petition of complaint have been contested by the OPs by filing conjoint written version contending that the allotment letter dated 10.04.2013 was in form of an agreement which contained the General Terms and Conditions for the allotment of the flat and the said GTC are binding over both parties. The OPs have always performed their part of duties as per the GTC, but the Complainants have filed the instant complaint with the malafide intention and ulterior motive to get some illegal benefit from the OPs. The OPs are always very much diligent in providing their service to the Complainants of their extreme satisfaction. The instant complaint is filed by the Complainants suppressing the material fact and on this score alone the complaint cannot be maintainable and entertained in the eye of law. There is no deliberate and intentional laches and negligence on the part of the OPs. The Complainants are very much aware of Force Majeure clause of the GTC and as the Complainants and the OPs have put their respective signature in the allotment letter, the terms and conditions of the allotment letter is very much binding over the both parties. Due to local syndicate problem, litigation over the subject land, dispute regarding electric sub-station, interruption in the supply of material/utilities, local disturbance, non-availability of workmen as per requirement the OPs being compelled could not finish the questioned project/apartment. In response to the letter of the Complainants the OPs replied that the project will be completed within the middle of 2016 and due to the aforementioned unintentional laches of the OPs the OPs have sought for co-operation of the Complainants. The OPs have also offered the Complainants an option to transfer the booking from the instant project to another project of the OPs namely Sisirkunja at a discounted price. Therefore it is clear that the delay in complete the questioned project is beyond the control of the OPs. Due to non-supply of electric power from the end of the WBSEDCL, it was not possible to complete the construction of the concerned project and for these reasons the OPs could not hand over the possession of the flat to the Complainants within the due time. The said fact was duly intimated to the Complainants, but all on a sudden they have changed their mind and approached before the OPs claiming the deposited amount along with interest. The OPs are ready and willing to refund the paid amount, but as per the GTC the OPs are not under the obligation to pay any amount towards cost and compensation as sought for.  According to the OPs the instant complaint being vexatious, fabricated and frivolous is liable to be dismissed with exemplary cost.

Both parties have adduced their respective evidence on affidavit. The OPs have filed questionnaire to cross-examine the Complainant. At the stage of filing reply by the Complainant, this complaint is transferred from the Ld. Commission, Barasat to this Ld. Commission in view of the order passed by the Hon’ble SCDRC. After completion of all steps in accordance with law both parties have filed their respective BNA and advanced their oral argument.

We have carefully perused the record; documents as available and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that admittedly for purchasing one flat measuring about 820 square feet along with one covered car parking space from the OPs the Complainants paid a sum of Rs.6,81,939/- towards part payment out of the total consideration amount of Rs.17,49,780/-. Initially the Complainants paid application money of Rs.50,000/-, upon receipt of the said amount the OPs have issued money receipts in favour of the Complainants. Accordingly an allotment letter was issued in their favour by the OPs on 10.04.2013, wherein it was mentioned that from the date of the allotment letter within 48 months the possession of the flat will be delivered to them by the OPs. After making payment of the aforementioned amount of Rs.6,81,939/- the Complainants have visited the construction site and they found that the construction work had not yet been completed, rather it was totally stopped. On being asked the Complainants could not get any satisfactory reply from the OPs. In this context the OPs have submitted that due to some serious problems i.e. local syndicate problem, litigation over the subject land, dispute regarding electric sub-station, interruption in the supply of building material/utilities, local disturbance, non-availability of workmen as per requirement the OPs being compelled could not finish the questioned project/apartment. According to the OPs the abovementioned problems/disturbances were beyond their control. Therefore from the averment of the OPs it is clear that due to some problems the OPs could not complete the project and admittedly the Complainants did not get delivery of the possession of the flat in their favour. So in our view as the OPs have failed to deliver the possession of the flat to the Complainants within the due time and also subsequently, hence it was the duty of the OPs to refund the amount as paid by the Complainants in part to the OPs for purchasing one flat. The Complainants have requested the OPs time and again to refund the paid amount verbally as well as in writing, but the OPs after refunding an amount of Rs.50,000/- did not take any step to refund balance paid amount. The Ops have assured the Complainants that within one year from the date of making refund of Rs.50,000/- the balance amount will be refunded, but the OPs have miserably failed to discharge their duty and liability. Being harassed by the OPs the Complainants approached before the Assistant Director, CA & FBP for mediation so that they can get refund of the balance paid amount, but the concerned Department could not resolve the dispute due to absence of the OPs and the Complainants were directed to file consumer complaint before the appropriate Consumer Forum/Commission for redressal of their grievance. Hence this complaint is initiated by the Complainants praying for either to deliver the physical possession of the flat or refund of the balance paid amount along with interest thereon and also for litigation cost and compensation.

In our considered opinion the Complainants are very much entitled to get refund of the paid amount along with interest thereon on the ground that the OPs are enjoying the said paid amount since long without making refund. It is also true that as the grievance of the Complainants have not been redressed by the OPs before approaching before the Court of Law and by filing this complaint the Complainants have to incur some expenses, for this reason the Complainants are also entitled to get litigation cost from the OPs. 

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/156/2020is hereby allowed on contest with cost. The OPs are directed either jointly or severally to refund the balance amount as paid by the Complainants to the tune of Rs.6,31,939/- along with interest in the form of compensation @12% p.a. from the date of making payment lastly i.e. 02.05.2014 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.5,000/- 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 judgment be given to the parties free of cost as per the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER