West Bengal

South 24 Parganas

CC/438/2013

SMT. OLIVIA DAN - Complainant(s)

Versus

1. DESIRE AGRO RESORTS DEVELOPMENT PRIVATE LIMITED. - Opp.Party(s)

31 Jul 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

         C.C. CASE NO. _438_ OF ___2013_

 

DATE OF FILING : 18.11.2013                   DATE OF PASSING JUDGEMENT: _31/07/2015

 

Present                                      President       :   Udayan Mukhopadhyay

                                                  Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT                 : Smt. Olivia Dan, w/o Sri Sankar Dan of 103A, Rakhal Das Auddy Road,

Kolkata – 27, P.S. Alipore.

 

-VERSUS  -

 

O.P/O.Ps                            : 1.    Desire Agro Resorts Development Pvt. Ltd. P-525, Hemanta Mukhopadhyay Sarani, (Raja Basanta Roy Road), Kolkata – 29, P.S. Lake, (previously P.594, Purna Das Road, Calcutta – 29, P.S. Lake).

                                           2.     The Managing Director,     Desire Agro Resorts Development Pvt. Ltd. P-525, Hemanta Mukhopadhyay Sarani, (Raja Basanta Roy Road), Kolkata – 29, P.S. Lake.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Jinjir Bhattacharya, Member

 

 

             The case of the complainant, in brief, is that she has paid full consideration money to the O.Ps but they have not executed and registered the deed of conveyance in respect of the property in question as per agreement . Several requests to the O.Ps in this regard yielded no result. The O.Ps have expressed their inability to hand over the plot in question as per agreement. But the O.Ps have offered another plot to the complainant to which the complainant disagreed. Hence, this case.

            The O.Ps have contested the case by filing a written version denying all the material allegations against them and contending , inter alia that due to some unavoidable circumstances, the O.Ps are not in a position to comply with the agreement regarding allotment of plot of land to the complainant. But instead of that they are ready and willing to allot another plot  , but the complainant is not agreeable to the proposal of the O.Ps for accepting an alternative plot of land. There is no deficiency of service and they have prayed for dismissal of the case.

                                                                        Decision with reasons

            In the written version , the O.Ps challenged the maintainability of the case. Ld. Counsel for the O.Ps submitted that this Forum has no jurisdiction to entertain the complaint and the case was barred by limitation of time.

 

 

           

 

The complainant on the other hand submitted that as per clause 19 of the agreement it is clear that the agreement was executed in the office of the first part which was within the jurisdiction of Alipore, South 24-Parganas. The complainant further submitted that the O.Ps by letter dated 17.10.2012 requested the complainant to accept another plot under Sun City Project and on 16.11.2012 the complainant declined to accept it and the complaint petition was filed on 18.11.2013, that is, within the period of limitation.

            We have gone through the agreement in question and the records available to us and hold that as per clause 19 of the agreement  the complainant filed the complaint petition before the South 24-parganas Forum which has the territorial jurisdiction over the complaint case and we further hold that the complaint petition has been filed within the stipulated period of two years. Hence, the point of dispute on maintainability of the case is decided in favour of the complainant.

            It is an admitted fact that the O.Ps did not comply with the agreement by not handing over the plot allotted initially to the complainant s per agreement entered with the complainant. It is also not clear as to why the land in question could not be handed over to the complainant after development. The O.Ps did not dare to produce any document that they asked the complainant to pay any amount remaining unpaid by the complainant. We find that the O.Ps requested by a letter dated 17.10.2012 the complainant to allow their new plot in the same project instead of previous allotted plot but there is no mention of any outstanding dues of the complainant in that letter. The complainant has filed copy of documents showing full payment for the plot as per agreement along with her petition of complaint duly supported by affidavit. Despite payment of full consideration money as per agreement, the O.Ps have failed to hand over plot in question after development . So, there is deficiency in service and unfair trade practice on the part of the O.ps.

            Ld. Counsel for the O.Ps at the time of argument has submitted that they are ready and willing to refund the money received from the complainant with interest. But there is no prayer from the side of the complainant that they are ready and willing to take back the money. She has prayed for a direction upon the O.P to execute and register necessary deed of conveyance in her favour in respect of the landed property fully described in paragraph 3 of the petition of complaint with cost.

            In views of the above discussion , the petition of complaint is allowed and the case succeeds.

 

 

 

            Hence,

                                                                                    Ordered

That the case be and the same is allowed on contest against the O.P but in the circumstances without any cost.

The O.Ps are directed to execute and register the deed of conveyance and deliver possession in respect of the property in question as per agreement within one month from this day.

Let a copy of this order be served upon the parties free of cost.

 

 

Member                                                           Member                                                                       President                    

Dictated and corrected by me

 

                        Member

 

                

 

 

 

 

 

 

                   

 

 

 

 

 

 

 

 

 

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

Ordered

That the case be and the same is allowed on contest against the O.P but in the circumstances without any cost.

The O.Ps are directed to execute and register the deed of conveyance and deliver possession in respect of the property in question as per agreement within one month from this day.

Let a copy of this order be served upon the parties free of cost.

 

 

Member                                                           Member                                                                       President