DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS,

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

      C.C. CASE NO. 109 of 2016

DATE OF FILING: 20/09/16                DATE OF PASSING JUDGEMENT:  29/05/2018

Present                     :   President       :   Ananta Kumar Kapri

                                        Member(s)    :     Subrata Sarker  & Jhunu Prasad                                   

COMPLAINANT           : Debabrata Hazra, P.O – Memari (Sonapatty) Dist –        Burdwan, Pin – 713 146

• VERSUS  -

J U D G M E N T

Sri Ananta Kumar Kapri, President

The nub of the facts leading to the filing of the instant case by the complainant is that the complainant booked a land bearing plot no. – 263, area 2.5 cottah (1800 square feet) in Raghabpur Mouja as succinctly  described in letter of allotment dated 23.05.11 filed herein by the complainant, for a price of Rs. 47,500/-. Total value of the land as agreed upon by and between the parties was Rs. 2, 37,500/- only. The balance amount was to be paid by 48 EMIs of Rs. 3,959 each. The complainant paid total amount of Rs. 1, 42,016/-including the booking money ^________ which is more than 50% of the total consideration price of the land. But, the O.P did not execute any sale agreement, nor did he hand over possession of the land to the complainant. The complainant, therefore, now prays for refund of the money paid by him and also for compensations etc.

Hence, this case.

The O.P has been contesting the case by filing written statement wherein he admits the receipt of booking money, the value of the land and also the plot no. and area of the land alongwith the issue of letter of allotment and also the scheme of EMI for payment of the consideration price of the land. He admits that he received 24 EMIs from the complainant, which is more than 50% of the total consideration price. But, according to him, complainant was not ready and willing to get a sale agreement registered in his favour. He also became defaulter in payment of EMI since 24.08.11. So, the allotment was cancelled and the land was handed over to other in terms of Clause 7 of agreement dated 24.03.10. It is further submitted in the written version of the O.P that the complainant was a marketing member of his company and that he received commission as such till July, 2011. So, complainant is entitled to get any relief in this case and the case should be dismissed in limine with cost.

POINTS FOR DETERMINATION

1. Is the case maintainable in law?
2. Is there any deficiency in service on the part of the O.P as alleged?
3. Is the complainant entitled to relief as prayed for?

EVIDENCE OF THE PARTIES

Evidence is filed on affidavit by both the parties. Questionnaires, reply, BNAs filed by the parties are kept in record for consideration.

DECISION WITH REASONS

Point no. - 1

It has been urged on behalf of the O.P that the complainant was marketing member of his business and as such the complaint lodged by him is not maintainable in as much as he indulged in a commercial business in so far as the acquisition of the case plot is concerned. On behalf of the O.P, some documents have been filed and from these documents, it is found that the complainant acted as marketing member of the O.P and also earned the considerable amount of commission from the O.P for that act. Now to see whether this kind of business on the part of the complainant stands in the way of maintainability of the instant case. A person may act in different capacity. In one capacity he may be a business person and in another capacity he may be a purchaser of a land or a thing. We have to see whether there was any relation between the earning of commission and the agreement for purchase of the land by the complainant. We fail to find out any such relation between the two. We cannot find out any link between the commission of business of the complainant and the agreement for purchase of land by him. Agreement for purchase land is done in his private capacity and in this regard he is a consumer and such purchase is not for any commercial purpose. Regard being had to this aspect of the matter; we do hold that the complaint is quite maintainable in law. Hence, this point is primarily answered in favour of the complainant.

Point nos. - 2 & 3

Some undisputed facts have cropped up to the surface in the instant case. It is admitted fact of the case that the complainant booked one plot of land on payment of Rs.47,500/- to the O.P, that letter of allotment was also issued on 23.05.11 by the O.P and that the complainant also paid 24 EMIs to the O.P till 20.07.11. Money receipt no. – 219 dated 20.07.11 (photocopy) also establishes such payment. Since after that date, no payment of EMI whatsoever has been made by the complainant to the O.P and it is so stated by the complainant himself. According to the version of the O.P, the complainant did not pay EMI in terms of his agreements and that’s why he has cancelled the allotment letter and that the land has also been allotted to others. On perusal of record, it is found that the complainant went into slumber for about 5 years after payment of last EMI on 20.07.11. Thereafter, he is seen to have filed the instant case on 20.09.16. There is no correspondence made by the complainant to the O.P, asking him to accept the EMIs. After long 5 years, the complainant has woke up to file the instant case. The continued inertia and somnolence on the part of the complainant for about 5 years goes to prove only that the complainant was not ready and willing to perform the part of his contract. Clause 7 of agreement noted of the reversed of the allotment letter dated 23.05.11 lays down that the allotment shall be cancelled if the complainant makes default of any payment of 4 EMIs. In the light of such agreement, we would say and say only that the O.P has acted lawfully and rightly in canceling the allotment of the complainant. There is no deficiency in service on the part of the O.P in so far as the cancellation of allotment letter of the complainant is concerned. But, the O.P should have refunded the money received by him to the complainant; non-refund of such money to the complainant is obviously a glaring instance of the deficiency in service on the part of the O.P. The O.P will have to refund the money paid to him by the complainant with reasonable rate of interest. The complainant is not entitled to get any compensation from the O.P, because it is he who has dug a pit for himself. Both the points are disposed of accordingly. In the result, the case succeeds in part.

Hence,

ORDERED

That the complaint case be and the same in decreed on contest against the O.P with the cost of Rs. 5,000/-.

The O.P is hereby directed to refund Rs. 1, 42,016/- received from the complainant by him with interest @ 9% p.a from the date of payment of each installment to the date of realizations of the whole amount alongwith Rs. 5,000/- as litigation cost as referred to above, within a month of this order, failing which the complainant will be entitled to claim penal interest @ 12% p.a upon both amounts as mentioned above till full realization thereof.

Let a copy of the order be supplied or sent free of cost at once to the parties concerned.

I/We agree                                                                                                          President

                        Member                                           Member

Dictated and corrected by me

                                                President