West Bengal

South 24 Parganas

CC/402/2015

Shampa Halder, Wife of Ajoy Halder. - Complainant(s)

Versus

1. M/S. ABS Land Development and Construction Pvt. Ltd. - Opp.Party(s)

Dipak Ranjan Mukherjee.

25 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _401_ OF ___2015_

 

DATE OF FILING : 8.9.2015                       DATE OF PASSING JUDGEMENT:  25/7/2.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Subrata Sarker

                                                                             

COMPLAINANT             :   Shampa Halder,  w/o  Sri Ajoy Halder, of  of 20A/1, Bhattacharjee Para Road, Kolkata – 63,P.S. Thakurpukur.

 

-VERSUS  -

 

O.P/O.Ps                                :  1. M/s ABS Land Development Construction Pvt. Ltd. 13/B, Jatin Das Road, P.S. Ballygunge, Kolkata – 29

                                                    2.     Mr. Tapan Ghosh, Managing Director, ABS Land Development & Construction Pvt. Ltd. 13/B, Jatin Das Road, P.S. Ballygunge, Kol-29

                                                  3.     Sk. Mokbul Hossain,s/o Sk. Yousuf Ali Director of M/s ABS Land Development & Construction Pvt. Ltd. 13/B, Jatin Das Road, P.S. Ballugunge, Kolkata – 29

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Sri Udayan Mukhopadhyay, President

            This is the  short case of the complainant  that  being attracted with the Project Brochure of the O.Ps , an agreement for sale was executed on 16^th July, 2007 between the O.P-1 and the complainant for plot no.142 measuring an area of little more or less 1440 sq.ft equivalent to two cattahs under “Swapnoneer Abasan” lying and situated at Dist. South 24-Parganas under the jurisdiction of Mirpur Gram Pancvhayat of Mouza-Mirpur, JU.L. No.100, Gram Panchayatof Mouza Mirpur under Bishnupur P.S. at a total consideration of Rs.1,32,000/-. It has contended by the complainant that total consideration money already paid as per agreement . It has further claimed that possession of the said plot was scheduled to be completed in all respect by 31.12.2007 which are super premium plot with a promise to provide modern luxurious amenities and comfort within the township. In an identical manner complainant also paid to the O.P an amount of Rs.2,27,700/- for plot no.38 in Pailan City II developed by the O.Ps on execution of an agreement and this project was scheduled to be completed within 31.12.2007. But inspite of several communications for delivery of possession of the plots to the complainant, nothing was done for which complainant lost his faith in respect of the plots of the O.Ps . Hence this case with a prayer to pass necessary direction upon the O.Ps jointly and/or severally to deliver khas possession and to execute and register the deed of conveyance in respect of the plots or to issue direction upon the O.Ps jointly and/or severally to refund the value of the plot as in Schedule A of the petition along with 12% p.a on and from 1.10.2010 till the date of payment and also prays for compensation of Rs.50,000/- and litigation cost of Rs.20,000/-.

            The O.P nos. 1 and 2 filed written version and prays that this case is not maintainable in the eye of Law and the same is not coming within the purview of C.P Act, for which, the petition is vexatious, malafide ,harassive and liable to be dismissed. Moreover, the case is suffering from barred by limitation. It is the case of the answering O.P that in terms of the agreement dated 16.7.2007 it has been clearly written and signed by the parties that upon completion of the project ,the party of the First Part   shall remain bound to execute and register the deed of conveyance in favour of the allottee and as such till completion of the project complainant cannot claim any relief before the Court of Law since the same is a premature one. It has further stated that in the agreement there is no desire bound clause with regard to the completion of the project, for which O.P in reply of letter dated 3.6.2013 Already informed that the lands will be delivered within a reasonable time after processing with development work and best efforts are being taken for completion of the development work. So, complainant cannot claim any relief before the Court of Law. This O.P denies all the allegations leveled against them and prays for dismissal of the case with cost.

            O.P-3 is not contesting the case for which case is running in exparte against him.

            Points for decision in this case is whether there is any deficiency in service and unfair trade practice on the part of the O.Ps or not.

                                                                        Decision with reasons

            There is no dispute regarding agreements for sale for transferring the plots of land in the project of Swapnoneer Abasan as well as Pailan City claimed by the complainant. But the contention of the contenting O.Ps is that after completion of the project the party of the first part shall remain bound to execute and register the deed of conveyance in favour of the allottees herein the complainant and as such till completion of the project complainant cannot claim any relief. So, this complaint is baseless, premature one.

            On the other hand it is the contention of the complainant in the written complaint that as per agreement for sale the development and allotment of possession of the land was scheduled to be completed in all respect by 31.12.2007 in respect of the two projects.

            It appears from the agreement for sale dated 16.7.2007 from point no.8 as mentioned below;

“The company, the party of the first part herein, shall remain bound to execute and register the deed of conveyance in the name of the allottee/purchaser upon completion of the project, and payment of entire consideration by the purchaser and no expiry of the term of this agreement failing which the allottee/purchaser shall have the option either to receive refund of the money so deposited with the company, the party of the first part herein or to take the land allotted for him”.

            It is true that agreement for sale was prepared with the assistance of verbal brain ,that is why, it has mentioned here in point no.14 that “O.P-1 shall not be responsible for the delay of completion and failure to complete shall not be deemed as an offence of O.P-1. Again it has mentioned that if ,however, the order of Government of Court remained undecided for a long time say for a period of maximum three years, the purchaser will be free to withdraw their investment amount”.

            With that score we find that there should be a specific terms for period of completion of the development work in the said project but O.Ps knowing fully well that they will not be able to complete the development work prepared such type of agreement for sale which is unheard to the Contract Act since there must be a date of delivery of the plots , building, land etc. ,otherwise the said contract is not at all a contract in the eye of Law. So, the purpose of agreement for sale clearly suggests to squeeze good money from the innocent complainant and other intending buyers  by the O.Ps   but ultimately they did not provide or developed the land which is agreed to be sold. This is unfair trade practice and deficiency of service, since the total consideration money has already been taken.

            Moreover, it is the contention of the complainant in relates to the complainant for sale of plot no.38 , Pailan City II , the same was withheld by the O.P. So, this is also another deficiency of service.

            In the totality of the circumstances we find that it would be just and proper if we accept the alternative prayer of the complainant, otherwise suffering of the complainant will not be meted out by passing any order, if we direct the O.Ps to deliver khas possession of the plots and to execute and register the deed of conveyance, for which we are accepting the alternative prayer of the complainant.

            Thus we find that complainant has been able to prove the case and from the annexure we find that the complainant has paid their good money to the O.P which requires to be refunded.

            Hence,

                                                                        Ordered

That the application filed under section 12 of the C.P Act is allowed on contest against the O.P nos. 1 and 2 and exparte against O.P-3 with cost of Rs.20,000/- ,which will be borne by the Directors of the  O.P-1 namely O.P nos. 2 and 3 jointly and/or severally.

All the O.Ps are directed jointly and/or severally to refund the entire consideration money of Rs.3,59,700/- along with interest @10% p.a from the date of filing the case i.e. 8.9.2015 to till its realization.

The O.Ps are further directed to pay jointly and/or severally compensation to the tune of Rs.50,000/- to the complainant within 30 days from the date of this order.

All the payments should be made within 30 days from the date of this order, failing which, complainant is at liberty to execute the order through this Bench.

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 so that Directors , the other O.Ps, can aware regarding   the direction of this bench.

 

                                                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 under section 12 of the C.P Act is allowed on contest against the O.P nos. 1 and 2 and exparte against O.P-3 with cost of Rs.20,000/- ,which will be borne by the Directors of the  O.P-1 namely O.P nos. 2 and 3 jointly and/or severally.

All the O.Ps are directed jointly and/or severally to refund the entire consideration money of Rs.3,59,700/- along with interest @10% p.a from the date of filing the case i.e. 8.9.2015 to till its realization.

The O.Ps are further directed to pay jointly and/or severally compensation to the tune of Rs.50,000/- to the complainant within 30 days from the date of this order.

All the payments should be made within 30 days from the date of this order, failing which, complainant is at liberty to execute the order through this Bench.

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 so that Directors , the other O.Ps, can aware regarding   the direction of this bench.

 

                                                Member                                                                       President