DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _21_ OF ___2017
DATE OF FILING : 15.2.2017 DATE OF PASSING JUDGEMENT: 8.6.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Mr. Prosenjit Talukdar, son of Anil Krishna Talukdar of AB-81, Street no.74, Flat no.4B, 4th Floor, Renaissance Co-operative Housing Society Ltd. New Town, Action Area – 1A, P.O & P.S New Town, Kolkata – 700 156.
O.P/O.Ps : 1. Astha Infracom Pvt. Ltd. at 16A, Amrita Banerjee Road, P.S Kalighat, Kolkata – 26, represented by its Proprietor Ashim Kumar Saha & Another.
2. Ashim Kumar Saha, son of alte Madhusudhan Saha of 452, Swami Vivekananda Road, Raja Westpur, Flat no.14, Kolkata-32.
3. Mr. Bhabatosh Das, son of late Surendra Kumar Das of Flat no.B2, Priyatama Apartment, ½, Chittaranjan Park, Kolkata-32, partner of O.P-1.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The nub of the facts leading to the filing the instant case by the complainant is that O.P-1 is a developer. The O.P nos. 2 and 3 are the partners of O.P-1. One agreement for sale was executed on 1.2.2011 between the complainant and the O.Ps and thereby the O.Ps agreed to sell two plots of land as succinctly described in schedule to the complaint for a total consideration price of Rs.5,61,000/- . The complainant paid Rs.3 lac as advance booking money to the O.Ps on 26.1.2011 and the balance consideration money was to be paid within 73 months and thereafter the registration of the sale deed was to be effected. But, the O.Ps made no development of the land as yet and, therefore, the complainant prays for returning of the consideration money paid to the O.Ps and also for payment of compensation for pecuniary loss and for harassment and mental agony suffered by him. Hence, this case.
The O.Ps have been contesting the case by filing written statement ,wherein it is contended inter alia that the agreement for sale was executed and they also received Rs.3 lac from the complainant. The total consideration price as alleged by the complainant is also admitted by the O.Ps. According to the O.Ps, the complainant made default in payment of installments to the O.Ps. That apart, there was no provision for rendering any services to the complainant by the O.Ps; the transaction was a sale simpliciter. As the complainant defaulted in payment of installments to the O.Ps, the agreement stood terminated and, therefore, the complainant is not entitled to refund as prayed for . As the transaction is a sale simpliciter ,the case is not also maintainable in law and, therefore, the complaint should be dismissed in limini with cost.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by the O.Ps. The petition of complaint is treated as evidence of the complainant vide his petition dated 12.7.2017. Questionnaire and replied filed by the parties are kept in the record. No BNA is filed by the parties.
DECISION WITH REASONS
Point no.1 & 2 :-
Now to see, whether the O.Ps are guilty of deficiency in service as alleged by the complainant. It has been contended on behalf of the O.Ps that the transaction is a sale simpliciter and that there is no provision of any kind of service involved in the agreement executed by and between the parties and that the complainant is ,therefore, not entitled to get any relief as prayed for.
In the context of such submission as advanced on behalf of the O.Ps, it is to be seen whether the O.Ps agreed to provide any services to the complainant .
The agreement for sale is filed herein on behalf of the complainant. Execution of agreement for sale is not disputed by the O.P. Receipt of Rs.3 lac as part payment of consideration price is not also disputed by the O.Ps. On perusal of the sale agreement dated 1.2.2011 it is found that the lands which were agreed to be sold to the complainant by the O.Ps are situated within the project area of Nepalgung New Garden ,vide at page 2 of the said agreement. In para 3 of the evidence of O.Ps it is stated that the O.Ps made a scheme plan to sell out said plot demarcating into several plots of land. From the averment of the agreement as pointed out above and also the evidence as pointed just above, it stands established that the O.Ps wanted to sell the schedule plots to the complainant and that the schedule plots are situated within the project area of Nepalgung Ne Garden. It also further stands established that O.Ps agreed to demarcate the plot of land into several plots of land. Demarcation of plot of land into several plots of land is a kind of service towards development of land. That apart, the schedule lands are part of a project. What is meant by project of land. Project of land, as in this case, means the development of land and such development can be carried on by filling earth, demarcation in plots, laying out roads to those plots, arrangement for supply of drinking waters, electricity etc. All these are included in the term “Service “as provided under section 2(1)(o) of the C.P Act, 1986 . Regards being had to all these facts and circumstances and materials ,we do say that the O.Ps agreed to provide services to the complainant with respect to the schedule lands and that they received Rs.3 lac as part payment of consideration price therefor. But the O.Ps have renegedfrom their promises. They have not been able to fulfill their promise so long. No development work has been conducted by them in the schedule lands. Now ,the complainant wants to get refund of the money paid by him to the O.Ps. He also prays for compensation for the loss sustained by him.
In the facts and circumstances of the case, it appears to us that it is a fit case for allowing refund of the consideration price paid by the complainant to the O.Ps and also for granting compensation to the complainant for loss sustained by him.
Point nos. 1 and 2 are thus answered in favour of the complainant.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs.10,000/- to be paid to the complainant by the O.Ps jointly or severally.
The O.Ps , who are liable jointly and/or severally, are directed to refund Rs.3 lacs to the complainant with 12% interest from the date of payment to the date of full realization thereof, along with a payment of Rs.1 lac as compensation for loss ,harassment and mental agony suffered by the complainant, within a month of this order, failing which both the amounts of compensation and cost as referred to above will bear interest @12% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
