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 OPs as the OPs did not refund the paid amount to him till filing of this complaint.

The brief fact of the case of the Complainant is that in the year 2018 the Complainant came to know about the project of the OPs through advertisement. The name of the said project is USASHI PRINCE TOWN. The brochure for the said project was purchased by the Complainant by making payment of Rs. 300/- it was told by the OPs that within 12 months from the date of agreement for sale the project will be completed and handed over to the intending purchasers subject to full and final payment of the entire consideration money. Being convinced with such proposal and attracted with the advertisement given by one Tollywood actress, the Complainant became interested and eager to see the construction site. The Complainant accordingly booked one 2BHK flat on the third floor measuring about 608.80 square feet more or less and paid an advance consideration for Rs. 1,94,000/- to the OPs. Upon receipt of the said amount the OPs have issued money receipts in favour of the Complainant. After making payment of the said amount, the Complainant was provided the questioned flat. As the construction work was not started by the OPs inspite of their commitment then the Complainant by issuing a letter dated 06.03.2019 requested the OPs to refund the advance consideration amount as paid by him. By and between the date of payment and this letter approximately one year was elapsed. Before issuance of this letter the Complainant approached the OPs time and again for execution of the agreement for sale, but the OPs did not bother to pay any heed to his requests. It was told by the OPs that there is no option for refund of the advance amount to the purchaser. Thereafter, the Complainant issued legal notice through his Ld. Advocate on 07.12.2019 requesting for refund of the paid amount along with an interest @ 18% pa., inspite of receipt of the said notice the OPs did not bother to take any step. By issuing a letter dated 16.03.2019, the OPs have accepted the proposal of the Complainant regarding refund of the earnest money, but till filing of this complaint, no refund has been made by the OPs, for which the Complainant has been facing mental agony, pain and harassment.   As the grievance of the Complainant have not been redressed by the OPs till filing of this Complaint, having no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to refund him the paid amount of Rs.1,94,000/- to him along with interest thereon, compensation to the tune of Rs. 1,50,000/- on account of mental agony, pain, anxiety and unnecessary harassment and litigation cost of Rs.50,000/- to him.

The petition of complaint have been contested by the OPs by filing conjoint written version stating that though the Complainant entered into an agreement with the OPs but the agreement was not completed till filing of this complaint and this complaint was filed by the Complainant with malafide intention. The OPs have denied the entire allegation as made out by the Complainant in the petition of complaint. It is further contended by the OPs that Complainant is not a consumer as per Law on the ground that there was no such agreement executed by and between the Complainant and the OPs, so the Complainant has no locus-standi to file this complaint. According to the OPs this complaint is liable to be dismissed with cost.

Both parties have adduced evidence on affidavit. Though scope was given to the OPs for filing questionnaire to cross-examine the Complainant, but inspite of getting several chances the OPs did not file any questionnaire, hence the evidence of the Complainant remains uncontroverted. The Complainant has filed BNA. On the date of final hearing none was present on behalf of the OPs.

We have carefully perused the entire record, documents as available and heard argument. It is seen by us that for purchasing one flat from the OPs, the Complainant paid part consideration amount of Rs. 1,94,000/-. The Complainant was ready and willing to pay the balance amount as per requirement of the OPs. When the Complainant asked the OPs regarding the status of the flat, the OPs could not give him any fruitful reply. Being dissatisfied and aggrieved with such action of the OPs, the Complainant decided to withdraw the deposited amount lying with the OPs and accordingly prayed for refund of the said amount after filing an application to that effect. But till filing of this complaint the OPs did not bother to refund him the paid amount. In our considered view as the OPs have failed to deliver the questioned flat to the Complainant, the Complainant is very much entitled to get refund of the paid amount 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-CC/197/2019 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.1,94,000/- along with interest in the form of compensation @12% p.a. from the date of last payment ie. 15.04.2018 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 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 the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER