West Bengal

South 24 Parganas

CC/355/2014

1. SHRI JAYANTA GHOSH, S/O. Shri Jiban Kumar Ghosh. - Complainant(s)

Versus

1. MANAGING DIRECTOR Desire Agro Resorts Development Pvt. Ltd. - Opp.Party(s)

27 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _355_ OF ___2014_

 

DATE OF FILING : 6.8.2014                       DATE OF PASSING JUDGEMENT: 27.02.2017

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Subrata Sarker

                                                                             

COMPLAINANT        :     Shri Jayanta Ghosh, son of Shri Jiban Kumar Ghosh of 535, Dakshindari, P.S. Lake Town, Kolkata – 700 048.

 Through Consumers’ and Elderlys’ Rights Protection Society , Registration no.S/IL/No57340 of 2008-2009 having its office at 4H, Shanagar Road, P.S. Tollygunge, Kolkata – 26.

 

-VERSUS  -

 

O.P/O.Ps                            :     1. Managing Director, Desire Agro Development Private Limited. P-525, Hemanta Mukhopadhya Sarani, (Formarly Raja Basanta Roy Road, 1^st Floor, P.S. Lake, Kolkata – 29.

                                                2.     Shri Sanjoy Kumar Shaw,s/o Mewlal Shaw, Director of Desire Agro Development Private Limited. P-525, Hemanta Mukhopadhya Sarani, (Formerly Raja Basanta Roy Road, 1^st Floor, P.S. Lake, Kolkata – 29

                                                   Having its South 24-Parganas Project office under P.S. Bishnupur, P.O Sonarpur, Dist. South 24-Parganas.

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that he decided to purchase a plot of  Homestead land  being no.EM-53 of Eastern Meadows (Extension ) Project of the O.P situated in Mouja Khodahati, P.S. Sonarpur, Dist. South 24-Parganas at a total consideration of Rs.1,30,000/- ,for which he booked the said plot on payment of entire agreed consideration  on 13.2.2008 and O.Ps acknowledged receipt of the same . It has specifically mentioned that after receipt of the entire agreed consideration money O.Ps did not take any step for completion of the deal and even after repeated visit to the office of the O.Ps with the strong persuasion no development work of the land in question was in progress along with physical demarcation , conversion of the same from Sali to homestead as well as delivery of physical possession and execution of the deed of conveyance. At last in the month of December, 2008 they jointly visited the spot and observed that the land remained in the same state as it was before payment of booking money. It has also been mentioned that the sign board indicating the name of the O.P Firm as  owners of the land had been removed. So, at that juncture there was no indication that the O.Ps are the owners of the land in question ,for which serious doubts clouded in the mind of the complainant and they discussed the matter with the other intending purchasers and visited the office of the O.P-1 who assured that within six months development works , infrastructure and demarcation will be finished . But inspite of the same nothing was done till the end of 3^rd quarter 2010 and thereafter denied to meet the complainant and other intending purchasers . Hence, this case ,praying for refund of Rs.1,30,000/- , the consideration money along with interest @12% p.a from 24.10.2007   , compensation of Rs.2,00,000/-, damages Rs.1,50,000/- , litigation cost Rs.10,000/- etc.

The O.Ps contested the application by filing written version and has denied all the allegations leveled against them on the ground of non-joinder of the parties. It has claimed save and except what has been specifically admitted herein, all the statements and the allegations made are concocted ,baseless , motivated and the same are hereby denied parawise. It is the positive case of the O.Ps that owing to certain acute legal complication/obligation for about last consideration period this O.P failed to complete the development work of the project which is still prevailing . It has claimed that complainant hopelessly failed to comply with and/or abide by the terms and conditions of the written bilateral agreement dated 10.10.2005 and also failed to tender the EMI regularly and systematically. The O.Ps admitted that complainant is only entitled to get principal amount deposited with the office and that on installment basis since complainant has paid money through installments. The O.Ps denied any act of negligence ,unfair trade practice as well as deficiency of service on the part of them. Hence, O.Ps pray for dismissal of the case and to allow them to pay the principal amount in five or six installments and to pass such other order or orders as your Honour may deem fit and proper for the ends of justice.

Points for decision in this case is whether there is any deficiency in service or unfair trade practice adopted by the O.Ps or not.

                                                                        Decision with reasons

The positive case of the O.Ps is that complainant’s case is hopelessly barred by law of limitation as on the point of jurisdiction and on that view complainant is only entitled to get back the invested or paid money from this O.P and that too same is in easy installments. This is the averment in the BNA filed by the O.Ps.

In this regard our considerable observation is that the case is not barred by limitation because if any delay was condoned by disposing of M.A. no. 76 of 2016 by this bench, that point is go-bye since that was not challenged by the O.Ps before the appropriate Commissions. Thus we find that self contradictory admission clearly suggests that O.Ps have nakedly admitted in their written version in para 14 that the complainant is only entitled to get back the principal amount and that too in easy installments.

Thus considering the admission of the O.Ps in para 14 coupled with para 12 wherein O.Ps have admitted that they have failed to complete the development work of the project, which is still prevailing and in para 13 regarding the condition of bilateral agreement dated 10.10.2015, it can be safely presumed that the O.Ps made deficiency in service and unfair trade practice . It is true that there was a terms of payment in the agreement between the parties but there was no condition of the agreement that if the developer agreement was not made ,then O.P will refund money in that mode of payment of installment, what complainant did in terms of the agreement. Thus, the said argument has no leg to stand upon since complainant is not in agreement with that installments and denied the same in his evidence in chief . So, all corners of argument made in the BNA is undoubtedly attractive from the side of the O.Ps but on meticulous scrutiny in terms of the Consumer Protection Act, 1986 no leg to stand upon.

Again it is interesting to point out that O.ps have agreed by filing BNA through Ld. Advocate Sudarshan Roy that O.Ps are very much ready and willing to refund the principal amount in easy installments, otherwise O.Ps shall seriously be prejudiced.

So, all these circumstances clearly suggests that O.Ps  accepted  the payments made by the complainant , for which complainant has been able to prove his case.

Hence,

                                                                        Ordered

That the application filed by the complainant is allowed on contest against the O.Ps.

The O.Ps are hereby directed to refund jointly and/or severally  Rs.1,30,000/- along with 8% p.a interest on the above amount on and from 13.8.2008 till the date of refund to the complainant , within 30 days from the date of this order.

The O.Ps are also directed jointly and/or severally to pay compensation to the tune of Rs.50,000/- towards the compensation along with litigation cost of Rs.20,000/- to the complainant within 30 days from the date of this order .

The prayer for damages of Rs.1,50,000/- is not considered by this Bench because land was not developed and question of registration and its cost has not been collected by the O.P or paid by the complainant.

All the orders have to be complied with within 30 days from the date of this order, failing which complainant is at liberty to approach before this Bench for executing the order.

It should be mentioned here that prayer for installments of payment will be considered after observing the mode of payment regarding the above mentioned order by the Executing bench . So, at this stage that prayer cannot be considered without observing the mode of payment and if DHr. was agreed in the execution case then power is given to the Executing Bench to do the needful considering the situation for the interest of the complainant .

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                                                                                       President

           

Dictated and corrected by me

                               

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

                                    Ordered

That the application filed by the complainant is allowed on contest against the O.Ps.

The O.Ps are hereby directed to refund jointly and/or severally  Rs.1,30,000/- along with 8% p.a interest on the above amount on and from 13.8.2008 till the date of refund to the complainant , within 30 days from the date of this order.

The O.Ps are also directed jointly and/or severally to pay compensation to the tune of Rs.50,000/- towards the compensation along with litigation cost of Rs.20,000/- to the complainant within 30 days from the date of this order .

The prayer for damages of Rs.1,50,000/- is not considered by this Bench because land was not developed and question of registration and its cost has not been collected by the O.P or paid by the complainant.

All the orders have to be complied with within 30 days from the date of this order, failing which complainant is at liberty to approach before this Bench for executing the order.

It should be mentioned here that prayer for installments of payment will be considered after observing the mode of payment regarding the above mentioned order by the Executing bench . So, at this stage that prayer cannot be considered without observing the mode of payment and if DHr. was agreed in the execution case then power is given to the Executing Bench to do the needful considering the situation for the interest of the complainant .

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                                                                           President