1. The Ops being realtors lauched a housing project named as “Nil Diganta” near Barasat in the District of North 24 Parganas and the complainant being in need of dwelling unit selected a flat named as “Sohini - ii” UMIG Category and in the said housing project procured an allotment letter from the Ops in respect to the said flat on 11.08.2010. Payment of Rs. 50,000/-  +  Rs. 2,62,400/-  +  Rs. 75,000/- totalling Rs. 3,87,400/- (Rupees three lakh eighty seven thousand four hundred) was made by the complainant for the said flat with covered car parking space in between 11.02.2010 and 20.09.2010. The allotted flat with car parking space was priced at Rs. 11,99,600/- (Rupees eleven lakh ninety nine thousand six hundred). As per general terms and conditions, the project was due to be completed within 48 months from the date of first allotment and in case of withdrawal of the allotment refund would be made within 21 days from the date of withdrawal. But the Ops were found to have parted with the said housing project for the reason best known to them. When the complainant came to know that completion of the project would not be done within 48 months he issued a letter on 12.03.2014 asking the Ops to transfer the booked flat in his name and in response to that a fresh proposal was given to him under letter dated 10.12.2014 for acceptance of similar flat in Sisir Kunja, 15 kms is away from Nil Diganta. The complainant sent a legal notice on 10.10.2015 and thereafter on 24.03.2017 seeking refund of the paid amount, but in vain. This is why he had to file this case on 12.04.2022 seeking refund with compensation of Rs. 3,00,000/- and litigation cost of Rs. 15,000/-. It may be mentioned here that in addition to Rs. 3,87,400/- (Rupees three lakh eighty seven thousand four hundred). The complainant paid Rs. 6,757/- (Rupees six thousand five hundred fifty seven) as his tax which is not refundable one.

2. The Ops contested the case by filing W/V dated 05.02.2019 seeking dismissal of the case with cost and denying the material averment incorporated in the petition of complaint. It has not been denied under the aforesaid W/V that payment of Rs. 3,87,400/- + Rs. 6,657/-  were advanced by the complainant.

3. During the course of argument, the Ld. Advocate appearing for the complainant has catergorically sought for order directing the Ops for returning Rs. 3,87,400/- - although the some amount was additionally paid by the complainant on account of tax, charges etc. According to the Ld. Advocate of the complainant there should be an order directing the Ops to return Rs. 3,87,400/- in addition to interest, compensation and litigation cost. Ld. Advocate appearing for the Ops has also concurred with the submission of the Ld. Advocate of the complainant about refund of Rs. 3,87,400/- and therefore there will be a direction to the OP for causing refund of Rs. 3,87,400/-.

4. It is in the agreement (Clause - 12)  that within a period of 48 months possession would be handed over. It is also in Clause – 16 of the agreement that in case of delay in causing delivery of possession if the allottee wants to withdraw the application refund would be made with simple interest as applicable to savings bank account in any nationalized bank. Ld. Advocate appearing for the OP has made reference to the aforesaid clauses in support of his submission that Rs. 3,87,400/- would only carry with interest at bankers rate. But in our opinion the bankers interest rate would have been applicable had the developers proceeded with the work sincerely for the construction of Nil Diganta. The construction work was not taken seriously by the developers and request for refund was only made by the complainant when he could realize from the conduct of the developers that Nil Diganta would never see the light of the day. Fact remains that Nil Diganta Housing project never saw the light of the day. None of those who applied for flats in Nil Diganta has got anything from the Ops. As a matter of fact, for collection of fund advertisement of the said housing project was made inviting application from the prospective buyers and in response to such advertisement many buyers booked flats in Nil Diganta by investing money. The view taken by the Hon’ble NCDRC in the case reported as 2022(1) CPR 572 (NC). The complainant cannot be made to wait indefinitely for possession of their apartment and he is entitled to refund the principal amount with reasonable interest. Here we find that the developers utilized the money of the buyers for years together and instead of refunding the same they led the buyers to Court and Forum with their legitimate claims. The complainant is one of them. The developers who have not, at all, performed their part of agreement should not be allowed to derive benefit from any of the clauses of the same. Therefore, the contention of the Ld. Advocate about imposition of interest at bankers rate cannot be held. Theory of reasonable interest as propounded by Hon’ble NCDRC would apply. It would be justifiable in this case to issue direction for refund of Rs. 3,87,400/- with interest @ 10% with effect from 20.09.2010 till realization. The relief clause of the complaint contains prayer for compensation of Rs. 3,00,000/-. The Hon’ble Apex Court has observed on 24.08.2020 in the case of Wg. Cdr Arifun Rahaman Khan Vs. Dlf Southern Homes Private Limited as follows :-

   “The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done.

The court has also observed while delivering the judgement in the aforesaid case as follows:-

The award of compensation has to be based on a finding of loss or injury and must correlate to it. The court observed that no “hard and fast rule” could be prescribed: (1994) 1 SCC 243 (2004) 5 SCC 65. No hard –and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is recived/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Where possession has been given, one of the circumstances which must be factored in is that the purchaser has been compensated by the increase in the value of the property…………..

       7.  Thus it is abundantly clear from the above that this Tribunal has to go for assessment of compensation irrespective of what has been claimed by the petitioner. It was observed on 17.03.2004 (Gajiabad Development Authority and Babir Singh) that also in the case reported as (1997) 6 SCC 487 that where damages are awarded there must be assessment thereof. It was also held tha the order awarding damages must contain an indication as to the basis upon which the amount awarded is arrived at. It was further held that in the Order there must be some statement about the relationship between the amount awarded and the default and unjustifiable delay and harassment found to have been cause. As recently opined by the Honourbale Justice V.M. Velumoni of High Court of Madras, the Courts and Tribunals have to award just compensation and that they are empowered to award more compensation that claimed. Therefore the extent of harassment and agony and sufference due to deficiency in rendering service on the part of the developers are to be taken into consideration while assessing the amount of compensation. It should be be borne in mind that the booked flat in the proposed housing complex and the OP who collected Rs. (3,87,400/- + 6,657/- =) 3,94,057/- from the complainant with promise to provide him with flat cancelled the scheme at the incipient tage without assigning any reason”

It is abundantly clear that this Tribunal as to go for assessment for compensation.

In this process the complainant has lost the amount paid on account of tax and charges etc. his money amounting to Rs. 3,87,400/- is lying with the OP since 20.09.2010 i.e. 12 years. The complainant has been running from pillar to post for realisation of the said amount. He had to put up with agony and harassment for the unlawful trade practice on the part of the Ops for the last 12 years. To bring about the party with the same we think that sum of Rs. 75,000/-, if awarded would be just compensation in this case. As such, the amount of compensation may be worked out as Rs. 75,000/-. Litigation cost may be calculated Rs. 10,000/-.

5.  The case is thus disposed off :-

1. The OP will pay Rs. 3,87,400/- (Rupees three lakh eighty seven thousand four hundred) with interest @ 10% per annaum with effect from 20.09.2010 till realization within a period of 45 days hence, failing which the amount will carry interest @ 12% per annum.
2. The Ops will also pay Rs. 75,000/- as compensation and Rs. 10,000/- as litigation cost totalling Rs. 85,000/- within a period of 45 days hence, failing which the amount will accrue interest @ 12% per annum.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Lakshmi Kanta Das]
PRESIDENT