1.       This is an application under Section 12 of C.P. Act of Aparna Saha and Abhishek Saha (i.e. the complainants) filed on 03.07.2019 against M/S Bengal Shelter Housing Development Ltd. and its General Manager (i.e. the Opposite Parties)  for refund of the advanced amount of Rs.5,15,394/- together with interest at the rate of 18% P.A. and also for compensation of Rs.3,00,000/- on the grounds stated therein.

2.       The Opposite parties began to construct residential flats with car parking spaces at a place near Barasat which was branded as 'NILDIGANTA'. With intent to purchase a flat being No. 9A with car parking space in SOHINI-II (UMIG), Block-2, in Nildiganta at Rs. 1649780/- the complainant submitted an application together with application money amounting to Rs. 50,000/- on 16.10.2012. The Opposite parties accordingly issued allotment letter being No. NDSII/147/1 on  17.10.12. Pursuant to the terms and conditions set by the O.P. a further sum of Rs. 465,394/- was paid by the complainant on 27.11.2012. The possession was due to be delivered within 48 months from the date of Allotment (vide clause 12 of GTA). But the construction of the project was not completed within the aforesaid 48 months. This is why the Complainants demanded refund   of the amount paid with interest by sending letters on 20.10.17, 04.11.17 & 20.09.18. The Opposite parties sent a letter on 24.12.2018 seeking the scope of refunding the deposited amount without interest in 10 monthly installments.  Hence this case. 

3.       The OPs have contested the case by filing written version denying the most of the averments made in the complaint. They have stated therein that for reasons beyond their control the completion of the project was delayed. According to them, the non-supply of power by WBSEDCL & pending litigation with the land owners were the resons for delay. It has been claimed by them that the complainants are not entitled to any reliefs from this Forum.

4.       Now the question which arises for consideration is whether the complainants are entitled to get back the money advanced along with interest, compensation and litigation costs.

5.       Obviously, the construction of NILDIGANTA housing project which was undertaken in 2012 by the OPs could not be completed. It transpires from the contentions of the Ld Advocates that the developers have already given up the project. Admittedly Rs.5,15,394/- was paid to the O.P. for the flat & car parking space. Out of Rs. 5,15,394 /- Rs. 15499 was deducted as service charge. It is the contention of the Ld. Advocate for the OPs that his clients are not bound to refund the amount of service charge. But such contention can not be  upheld as the service sought for was not rendered to the complainant. The whole amount of  Rs.5,15,394/-, was paid for the flat with car parking space and neither the flat nor the car parking space has been given to him. The Complainants, as such, would get back the entire amount inclusive of the aforesaid amount of Rs.15,449/-.

6.       The Ld. Advocate appearing for the OPs has submitted that the Complainants will only get refund of the amount paid with simple interest at the rate applicable to the Savings Bank Account in a Nationalized Bank without damages or compensation. He has referred to clause 16 of the GTA in support of his such submission.  Clause 16 of GTA provides that the amount deposited would be refunded with simple interest at the rate applicable to the Savings Bank Account in a Nationalized Bank without damages or compensation -if the allottee wilfully withdraws his/her application on account of failure on the part of Bengal Shelter to deliver possession within the stiputed time (subject to force majeure as stated therein before). But we do not find an element of force majeure in this case. We also do not find a case of wilful with-drawl of application for flat and parking slot.  Again, the contention of the Ld. Advocate for the complainants that his clients are not bound by clause 16 as it was set unilaterally & arbitrarily by the Developers only to arrest the market condition unjustly protecting his own interest seems to us more impressive. Consequently, we find that an order can, safely, be passed for refund with usual interest.  

7.       The Ld. Advocate appearing for the complainants has referred to a judgment passed by the Hon’ble Supreme Court in April, 2019 in Civil appeal No.12238, 2018 with Civil appeal No.1677, 2019 in support of his submission that the complainants should be allowed higher rate of interest. It has been opined therein by the Honable Supreme Court - keeping in view the current market situation, recent decline in the cost of borrowing and return on investment made with bank - that interest at the rate of Rs.10.70% P.A. would meet the ends of justice. It may be pointed out here that while disposing of the case of VISESH SOOD Vs. M/S RAHEJA DEVELOPERS LIMITED & OTHERS the Honourable National Commission has opined on 15.11.2019 that where a prospective has taken a housing loan compensation @ 12% per annum would meet the ends of justice.  The case of taking housing loan has not been made out by the complainants in the instant complaint. As such, the decision of Honable Apex Court as exposed in in Civil appeal No.12238, 2018 with Civil appeal No.1677, 2019 regarding the rate of interest woule be quite acceptable. Such being the legal position with reference to rate of interest we think that the OPs  should  pay simple interest on the amount they received @ 10.70% P.A. In addition to that they would pay Rs. 25,000/- as litigation cost.

8.    Hence, it is ordered that the case be and the same is allowed on contest, but without cost. The OPs will make refund of Rs.5,15,394/-  with compensation in the form of interest at the rate of 10.70% P.A. from the dates of deposits till realization together with litigation costs of Rs. 25000/-.

          All the aforesaid payments will be made by the OPs in favour of the Complainants by Account Pay Cheque within 3 months hence failing which the amount will accrue compensation @ 12% per annum.

          Let plain copy of this Order be given to the Party/ies free of cost as per CPR, 2005.

(Dictated & Corrected by)

          President

Hon’ble Lakshmi Kanta Das