DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 67_ OF ___2016
DATE OF FILING : 5.7.2016 DATE OF PASSING JUDGEMENT: 12.03.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Prabir Kumar Guha, son of late Parimal Kumar Guha Of “Swastik” Apartment, Anandapally, Mahamayatala, Garia, P.S Sonarpur, Kolkata-84.
O.P/O.Ps : 1. M/sWhite Fild Realtors India Pvt. Ltd. At 1C, Milan Park, 1st Floor, Garia, P.S Sonarpur, Kolkata – 84.
2. Debanjan Sengupta, Managing Driector, M/s White Fild Realtors India Pvt. Ltd. 235A/1, N.S.C Bose Road, Kolkata – 47.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
To be brief, the complainant made an agreement with the O.P-2 i.e developer for purchasing a plot of land from him, measuring 3 cattahs as succinctly described in the schedule to the complaint on 4.5.2009 for a consideration price of Rs.2,40,000/-. O.P-2 also covenanted to develop the said plot by filling with earth, making roads, drainage and sewerage etc. Rs.72000/- was paid by the complainant to the O.P-2 at the time of booking the land and the rest of the consideration price i.e Rs.1,68,000/- was to be paid by 24 equal monthly instalments , out of which 18 instalments have been paid by the complainant. But nothing sort of development as agreed by and between the parties was done by the O.P-2. No registration of deed of conveyance was also effected in favour of the complainant. Repeated requests by the complainant to O.P-2 for performing his obligation proved a blind alley. So, the complainant has come up before this Forum with the filing of the instant case , praying for issuing a direction to O.P-2 to develop the land as per agreement , to cause registration of sale deed in his favour and alternatively to return the consideration price received by the O.P-2 and also to pay Rs.5 lacs as compensation for mental agony and harassment. Hence, this case.
By filing written statement O.P-2 has admitted the agreement and transaction as alleged by the complainant. Payment of the booking amount i.e Rs.72,000/- and also 18 months instalments is also admitted. It is also admitted by the developer i.e O.P-2 that complainant will have to pay Rs.42,000/- only’to him as per terms of the agreement. The positive case of the O.P developer is that the complainant defaulted in payment of EMI since April 2010 and he is still ready and willing to execute and register the sale deed of schedule land on “As is where is basis” or to refund the consideration price received by him after deduction of 30% therefrom in terms of the agreement .
Upon the averments of both the parties ,the following points are formulated for consideration in this case.
POINTS FOR DETERMINATION
- Is the developer i.e O.P-2 committed any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The written complaint is treated as evidence of the complainant on the basis of his petition dated 3.11.2016. Similarly the written statement filed by the O.P is also treated as his evidence, vide his petition dated 16.3.2017. Questionnaire , replies and also the BNAs are filed by the parties and all these are kept in the record for consideration.
DECISION WITH REASONS
Point nos. 1 and 2:
The Ld. Lawyer appearing for the O.P. developer has contended that the complainant has failed to make payment of monthly instalments in terms of the agreement and, therefore, he is not entitled to get the relief as prayed for. According to him, if a consumer fails to pay in terms of the agreement, he forfeits all his right to get benefit under the agreement and the complainant is not entitled to get the reliefs as prayed for.
Ld. Lawyer appearing for the complainant has contended that he has paid about 80% of the consideration money to the developer but the developer has made no attempt to develop the land in terms of the agreement and ,therefore, he has stopped to pay any instalments further.
The submissions made on behalf of the O.P and as referred to above, seems to be devoid of any merits in the facts and circumstances of the instant case. A consumer will forfeit his right under the agreement owing to his fault, only when the agreement is rescinded by the other party. In so far as the facts of the instant case is concerned, the agreement has not been rescinded or stopped by the complainant. Even, it is averred in the written statement filed by the O.P that he is ready and willing to effect a sale deed in favour of the complainant, if the complainant is willing to take over the possession of the land on “As is where is basis” . So, regards being bad to this aspect in particular, we feel no difficulty to say that the contract has not been rescinded by the developer as yet and, therefore, there arises no question of the complainant getting no benefit under the said contract.
It is the fact that the land has not been developed in any way by the developer and it is so admitted by the developer vide his reply to question no.3 furnished by the complainant. The agreement was effected on 4.5.2009. Since then, five years have passed away and the developer has made no development of the land in terms of the agreement. According to the developer, he made endeavour to fill up the earth on the plot of the complainant but he could not do so, having been obstructed by the local hooligans. To prove it, he has filed a copy of FIR dated 3.2.2014. On perusal of the FIR it is found that it was alleged by the instant O.P before the concerned Police on 3.2.2014. But the question which arises for consideration is why the O.P waited for so many years i.e from 2009 to 2014 for taking step for development upon the subject land. There is no answer available on record. Considering this aspect, we do hold that the explanation given by the developer for not taking any step towards the development of the subject land is not acceptable and satisfactory.
There is also another aspect ,which should be considered in this regard. The subject land is required to be developed by the developer ,but before doing this, the developer should have taken permission from the competent authority for conversion of the land. The developer could have done this thing immediately after the execution of the agreement between him and the complainant. But no such step in this regard is also found to have been taken by the developer and this also goes to indicate and indicate only that the developer was negligent in so far as the discharge of his obligation is concerned. The blame is sought to be imposed upon the shoulder of the complainant. It has been submitted on behalf of the developer that the complainant stopped the payment and ,therefore, the developer has not been able to discharge his duty as a developer in terms of the agreement. This contention of the developer also appears to be not acceptable. The complainant has discharged lion’s share of his obligation ; he has paid about 80% of the consideration money to the developer. He stopped the payment of further instalments only when it came to the notice of the complainant that no attempt is made by the developer towards the development of the land. The complainant has acted rightly like a prudent man. So, he is not to blame in any way.
It has been contended on behalf of the developer that the developer is still ready and willing to effect registration of the subject plot in favour of the complainant on “As is where is basis” . Even the developer has expressed his inability to develop the land vide the developer’s letter dated 4.4.2014, as transpiring in his reply to question no.7 of the complainant. So, the ultimate effect which stands demonstrated is that the developer is not in a position to cause development of the subject land in terms of the agreement. Under such circumstances, it will not be proper to direct the developer to effect registration of the subject land in favour of the complainant. It will be most appropriate to direct the O.P to refund the consideration money , especially when the complainant is praying for return of the consideration money with other remedies.
The Ld. Lawyer appearing for the developer has contended that the developer will refund the consideration money to the complainant after having deducted 30% therefrom in terms of the agreement. It is laid down in the agreement vide clause 11 thereof that a deduction of 30% from the price paid to the developer will be made if the agreement is cancelled by the developer owing to any default made by the purchaser. In the instant case, no default seems to have been made by the complainant nor is the agreement cancelled by the developer. So, there arises no question of deduction of 30% from the price paid by the complainant.
It has transpired on record that the developer has been gross negligence in discharging his obligation in terms of the agreement. This negligent on the part of the de6h66veloper has led the complainant to suffer irreparable loss. The price paid by the complainant to the developer has been detained by the developer ,resulting with the loss of interest to the complainant. That apart, the complainant is not getting the land in terms of the agreement. The market price of the subject land has gone up about more than 3 times during the period of 9 years. He has been deprived of the benefit of appreciation in value of the land. This is a huge loss to the complainant and the developer will have to compensate it.
In the result, the case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with cost of Rs.5000/-.
The O.Ps are directed to refund the consideration price along with simple interest @12% p.a from the date of each payment till full realisation thereof.
The O.Ps are also directed to make payment of Rs.6 lacs as compensation for loss sustained by the complainant due to appreciation in value of the land and also to make payment of Rs.50,000/- as compensation for harassment and mental agony suffered by the complainant during this period.
All the payments are to be made by the O.Ps within a month of this order, failing which, the amount of compensations as made out above will bear interest @12% p.a until full realisation thereof. Let a free copy of this order be given to the parties concerned at once.
President
We / I agree
Member Member
Dictated and corrected by me
President
