The brief fact of the case of the Complainant is that she was searching one residential flat and came to know about the project of the OPs and after inspection of the proposed layout of the said project along with other documents regarding the title of the project became interested and booked a self-contained 2BHK flat measuring more or less 522.74 square feet situate on the 3^rd floor  South-West side along with a covered car parking on the ground floor of Tower no-B4 of the said project together with common user of common areas including common spaces of the said building along with undivided imparitable share of land and common amenities and facilities attached thereto including all easement right and appurtenance against a total consideration of Rs.15,84,686/-, which the OP-1 and 2have  agreed to accept. Accordingly on 09.04.2017 the Complainant booked the said flat by making payment of Rs.50,000/-. Provisional Allotment was supplied by the Op-1 through its authority to the Complainant at the time of booking the said flat. The Complainant had filled up the form and the OP-1 through its authority had acknowledged the said application form being no-KTN003147, wherein necessary terms and the conditions were mentioned. In the application form it was categorically mentioned that the developer will make full endeavor to provide possession of the flat within 40 months from the date of execution of the agreement. Subsequently on 29.12.2017 the Complainant had entered into an agreement for sale with the OP-1 for purchasing the said flat. In terms and of the said agreement for sale the consideration price has been fixed for Rs.15,84,686/-, out of which the Complainant paid as advance/part payment for Rs.4,29,260/-. The Complainant paid Rs.50,000/- in cash on 09.04.2017, Rs.1,51,374/- by cash on 22.04.2017, Rs.2,00,000/- by cash on 20.08.2017 and Rs.27,886/- through ATM on 27.12.2017. After execution of the agreement  and after making payment of the said amount it appears to the Complainant that within next one year the OP-1 and 2 will take necessary steps to proceed with the construction of the proposed project, but the Complainant found that the OPs have miserably failed to do any work of construction in connection with the said project. Later the Complainant came to know that the OPs have abandoned and given up the programme of the said project. Accordingly the Complainant being compelled approached before the OPs for cancellation of the agreement for sale in the month of January, 2019. The Complainant discussed the matter with the OPs and thereafter the OPs through its authority told the Complainant to submit an application along with original agreement paper and money receipts and assured the Complainant that within a few weeks after submitting the application for cancellation along with the required documents the OP-1 through its representative will refund the amount as paid by her and so far received by the OPs directly to the bank account no of the Complainant by NEFT. Relying upon the said representation the Complainant on 18.01.2019 submitted a letter to the OP-1 expressing her desire to cancel the aforesaid agreement for purchasing the flat as the said project has been abandoned. On that date the Complainant submitted the original agreement along with all original money receipts. One of the representatives of the OP-1 had endorsed the acceptance of all the documents. The Complainant had an expectation that she will get back her payment of consideration so far made by her within the month January, 2019 but unfortunately for next four months inspite of repeated request either over telephone or by visiting the office of the OP-1, no fruitful result has come out. On 24.05.2019 the OP-1 through its authority intimated the Complainant by issuing a letter that the payment of Rs.3,96,172/- will be made by four installments, out of which first installment for Rs.96,172/- will be paid within the month of June, 2019, thereafter three installments of Rs.1,00000/- each will be paid by August, September and December, 2019 and the refund of the said amount will be made through NEFT. Upon receipt of the said letter the Complainant on 27.05.2019 filed a declaration before the OP-1 mentioning her Bank Details etc. Thereafter another four months have been elapsed, but the OP-1 willfully and purposely did not make any payment to the Complainant inspite of their promise, for which the Complainant had to face mental agony, harassment along with financial loss. Moreover they have taken the original copy of the agreement and money receipts from her. On 01.10.2019 the Complainant sent a legal notice to the OP-1 and 2 through her Ld. Advocate claiming a sum of Rs.4,29,260/-. In the said notice it was stated that the aforesaid agreement for sale has already been rescinded due to non-performance on the part of the OPs, therefore the question of payment of GST or Service Tax does not arise. The Complainant claimed the entire paid amount within next 15 days from the date of receipt of the notice or before 30.10.2019, whichever is earlier, in default the Complainant shall have no other alternative but to take legal action against the OP-1 and 2 before the competent Court claiming the refund of Rs.4,29,260/- along with interest @18% over the said amount from January 2018 till realization and also cost and compensation. After received of the said notice the OPs replied to the same on 14.10.2019 wherein it was stated that due to paucity of fund the Ops are unable to refund the payment of the Complainant within the stipulated period. In the said reply there was no mentioning regarding any stipulated time when the OPs will be able to refund the said amount to her. But the OPs have admitted that the Complainant is entitled to get refund of her paid amount. As the OPs did not take any step to resolve her dispute by making refund, hence finding no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to refund the amount as paid be her to the tune of Rs.4,29,260/- along with interest thereon @18% p.a. from January, 2018 till its entire realization, to pay her Rs.50,000/- as compensation due to mental agony, harassment and litigation cost of Rs.25,000/-

The petition of complaint have been contested by the OP-1 and 2 by filing conjoint written version contending that the Complainant had received various satisfactory services from every corner through these OPs along with allied ancillary services whenever needed by the Complainant till the cessation of the agreement by virtue of a letter dated 02.04.2019 by the Complainant and its acceptance by the OPs through the letter dated 11.04.2019, therefore the question of  allegation of deliberate deficiency of service on the part of the OPs does not arise at all. So the instant complaint filed against these OPs is speculative, false and frivolous and hence cannot be entertainable before any Court/Tribunal or elsewhere. According to the OPs the petition of complaint is liable to be rejected with cost.

The Complainant had adduced evidence on affidavit, the OPs have filed questionnaire, the Complainant filed replied to the said questionnaire on affidavit. Thereafter scope was given to the OPs for adducing their evidence, but the OPs did not adduce the same inspie of getting several chances. Thereafter this Ld. Commission was pleased to fix the complaint for final argument and scope was also given to the parties to filing their BNA. Though the Complainant has filed BNA, but the OPs did not file the same.

We have carefully perused the entire record, documents, as available and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that admittedly the Complainant booked one self-contained 2BHK flat measuring about 522.74 square feet on the 3^rd floor southern side along with a covered car parking on the ground floor of the Tower no-B4 of the said project along with common facilities and amenities being satisfied with the proposed layout of the project of the OPs against a total consideration of Rs.15,84,686/-, which the OP-1 and 2 have  agreed to accept. Accordingly on 09.04.2017 the Complainant booked the said flat by making payment of Rs.50,000/-. Provisional Allotment was supplied by the OP-1 through its authority to the Complainant at the time of booking the said flat. The Complainant had filled up the form and the OP-1 through its authority had acknowledged the said application form wherein necessary terms and the conditions were mentioned. In the application form it was categorically mentioned that the developer will make full endeavor to provide possession of the flat within 40 months from the date of execution of the agreement. Subsequently on 29.12.2017 the Complainant had entered into an agreement for sale with the OP-1 for purchasing the said flat. In terms and of the said agreement for sale the consideration price has been fixed for Rs.15,84,686/-, out of which the Complainant paid as advance/part payment for Rs.4,29,260/-. The Complainant paid Rs.50,000/- in cash on 09.04.2017, Rs.1,51,374/- by cash on 22.04.2017, Rs.2,00,000/- by cash on 20.08.2017 and Rs.27,886/- through ATM on 27.12.2017. But the Complainant found that the OPs have miserably failed to do any work of construction in connection with the said project. Accordingly the Complainant being compelled approached before the OPs for cancellation of the agreement for sale in the month of January, 2019. The Complainant discussed the matter with the OPs and thereafter the OPs through its authority told the Complainant to submit an application along with original agreement paper and money receipts and assured the Complainant that within a few weeks after submitting the application for cancellation along with the required documents the OP-1 through its representative will refund the amount as paid by her and so far received by the OPs directly to the bank account no of the Complainant by NEFT. Relying upon the said representation the Complainant on 18.01.2019 submitted a letter to the OP-1 expressing her desire to cancel the aforesaid agreement for purchasing the flat as the construction of the said project has not been started at all. On that date the Complainant submitted the original agreement along with all original money receipts. One of the representatives of the OP-1 had endorsed the acceptance of all the documents. The Complainant had expectation that she will get back her payment of consideration so far made by her within the month January, 2019 but unfortunately for next four months inspite of repeated request either over telephone or by visiting the office of the OP-1, no fruitful result has come out. On 24.05.2019 the OP-1 through its authority intimated the Complainant by issuing a letter that the payment of Rs.3,80,090/- will be made by four installments, out of which first installment for Rs.96,172/- will be paid within the month of June, 2019, thereafter three installments of Rs.1,00,000/- each will be paid by August, September and December, 2019 and the refund of the said amount will be made through NEFT. Upon receipt of the said letter the Complainant on 27.05.2019 filed a declaration before the OP-1 mentioning her Bank Details etc. Thereafter another four months have been elapsed, but the OP-1 willfully and purposely did not make any payment to the Complainant inspite of their promise, for which the Complainant had to face mental agony, harassment along with financial loss. Moreover they have taken the original copy of the agreement and money receipts from her. On 01.10.2019 the Complainant sent a legal notice to the OP-1 and 2 through her Ld. Advocate claiming a sum of Rs.4,29,260/-. In the said notice it was stated that the aforesaid agreement for sale has already been rescinded due to non-performance on the part of the OPs, therefore the question of payment of GST or Service Tax does not arise. The Complainant claimed the entire paid amount within next 15 days from the date of receipt of the notice or before 30.10.2019, whichever is earlier, in default the Complainant shall have no other alternative but to take legal action against the OP-1 and 2 before the competent Court claiming the refund of Rs.4,29,260/- along with interest @18% over the said amount from January 2018 till realization and also cost and compensation. After received of the said notice the OPs replied to the same on 14.10.2019 wherein it was stated that due to paucity of fund the OPs are unable to refund the payment of the Complainant within the stipulated period. In the said reply there was no mentioning regarding any stipulated time when the OPs will be able to refund the said amount to her. But the OPs have admitted that the Complainant is entitled to get refund of her paid amount. Therefore it is crystal clear to us that  after cancellation of the agreement for sale as endorsed by the OPs as per prayer of the Complainant the OPs did not take any step to refund the amount to the Complainant till filing of this complaint, rather the OPs showed their inability to refund the same due to paucity of fund. It is surprising to us that after receipt of the amount from the Complainant the OPs did not start the construction of the project nor refund the paid amount to the Complainant for a prolonged period. Such inaction on behalf of the OPs certainly denotes their deficiency in service on their, for which the Complainant is entitled to get compensation from the OPs. At the same breath we are also of the view that the Complainant is very well entitled to get refund of the amount as paid by her from the OPs along with interest. Admittedly the OPs are enjoying interest on hard-earned money of the Complainant since payment; therefore the OPs are under the obligation to pay interest on the paid amount. It is also true that as the OPs did not bother to settle the grievance of the Complainant before filing of this complaint, being compelled the Complainant had approached before the Court of Law for redressal of her grievance by filing this complaint, hence for such proceeding the Complainant has to incur some expenses, for in our considered view the Complainant is not 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-171/2019 is hereby allowed on contest with cost.

The OPs are directed either jointly or severally to refund the amount as paid by the Complainant to the tune of Rs.4,29,260/- along with interest in the form of compensation@12% p.a. from the date of making payment lastly i.e. 27.12.2017 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 @14% p.a. instead of 12%. The OPs shall pay either jointly or severally a sum of Rs.15,000/- 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 plain copy of this judgment be given to the parties free of cost as per CPR.  

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER