Date of filing : 31.05.2018
Date of Judgement: 05.12.2019
Mrs. Balaka Chatterjee, Hon,ble Member
This petition of complaint is filed under Section of 12 of the Consumer Protection Act, 986 by Smt Ranjita Kumari Biswal Lenka alleging deficiency in service on the part of the Opposite Parties (referred as OP hereinafter ) ( 1) ABS Developers Pvt. Ltd. )2) Mr. Tapan Ghosh (3) Mr. Tapas Ghosh.
Facts in brieF are that the complainant being informed from a reliable source, went to the Office of ABS Developer’s Pvt. Ltd. ( OP No.1 herein) a sister concern of ABS land development & Construction for purchasing plot of land and met the OP No.3 who is one of the Directors of OP No.1 and was assured that The Project would be completed by December 2013. The complainant has stated that she was showed vacant plot and was handed over Memorandum and Articles of Association of OP No.1 and ABS land development & Construction Pvt. Ltd. and on 31.10.2012 she booked a plot of land being Plot no.A-71 measuring 1800 sq.ft. equivalent to 2.5 cottah comprising of Dag No. 2909, Khatian No. 83,J.. No.44 Mouza – Bishnupur,P.S. Rajarhat, District North 24-Pqarganas under the category of ‘outright’ in the Rajarhat Green Field Project by paying Rs. 5,31,250.00 by cheque bearing no. 991915 dt.31.10.2012 amounting Rs. 297,000/- and Cheque no. 991916 dt.30.11.2012 amounting Rs. 2,34,250/- out of entire consideration of Rs. 10,62,500/-, availing loan from her sister and an agreement for sale was executed accordingly on 16.12.2012 and received plot related documents from the OPs. It is stated by the complainant that she contacted to an Advocate of High Court, for obtaining search report for the said plot and three search reports have been obtained which show that the plot of land is free from all encumbrances and thereafter the complainant has paid an amount of Rs.2,65,625/- by cheque being No.991919 dt. 19.03.2013 and on May 2013 approached the OP for registration of the Deed of conveyance in respect of the said plot of land against payment of balance consideration amount but no date of registration has been fixed by the OPs and being suspicious the complainant along with her husband have visited the said plot of land only to find that no development work has been started so far. It is further stated by the complainant that subsequently she lost her job and had to face tremendous financial problem and owing to such financial problem. She decided to ask for refund of the deposited amount along with interest and as such sent letters on 04.09.2017, 18.11.207 to the OPs but the letters remained un-replied and, finding no other way approached C.A & FBP and , accordingly notices were issued by the CA & FBP to the OPs but they did not turn up so the complainant finding no other alternative way filed the instant consumer complaint praying for directions upon the OPs to refund Rs.13,14,843/- along with interest @13% p.a. till the final payment, to pay Rs. 4,00,000/- towards the compensation and Rs. 1,00,000/- towards cost of litigation.
The complainant annexed photocopies of (i) Certificate issued by OP No.1, (ii) Project document , (iii) Memorandum and Articles of Associations, (iv) Agreement for Sale dt.16.12.2012 , (v) Deed of Conveyance dt.23.09.2011, (vi) General Power of Attorney and (vii) Search Report.
The OPs contested the case by filing written version denying and disputing all the allegations made out in the petition of complainant stating inter alia, that the instant case is not maintainable before this Forum as the OPs have already demarcated and physically handed over the said plot of land to the complainant after developing the same as per Agreement but no step have been taken by the complainant to register the same in favour of herself and accordingly prayed for dismissal of the case.
The complainant adduced evidence of followed by cross-examination in the form of questionnaire and reply thereto.
The OPs prayed for treating their written version as evidence. Prayer was allowed. The complainant filed questionnaire but the Os did not file reply.
In case of argument, Ld. Advocate for the complainant narrated the facts mentioned in the petition of complaint. The complainant placed reliance upon the decision of Hon’ble NCDRC report in (1) 2019(1) CPR 672 NC ( Asha Agarwal & Anr. –vs.- M/s Unitech Hitech Developers & Ors ]. (2) 2019 (1)CPR 660(NC) [Rupesh Singhal & Anr. Vs. M/s. Treo Grace Realtech Pvt. Ltd.] Ld. Advocate on behalf of the OPs submitted that this Forum lacks pecuniary jurisdiction to adjudicate this case.
Points of determination :
- Whether this Forum have pecuniary jurisdiction to entertain the case.
- Whether there is deficiency on the part of the OP.
- Whether the complainant is entitled to the reliefs as prayed for
Decision with reasons
Point No.1 : It is submitted by the OP that this Forum does not have pecuniary jurisdiction to entertain this case. On perusal of documents on record it appears that value of the Plot of land is Rs. 10,62,500/- and the complainant by filing the instant case prayed for direction to refund of deposited amount and Rs.7,96875/- along with interest @ 13% p.a. since 16.03.2013 till disposal of the case and RS. 4,00,000/- towards compensation and Rs.1,00,000/- as cost of litigation. As per Section II (I) of the C. P. Act the District Forum shall have jurisdiction to entertain any case where value of service and compensation claimed if any does not exceed Rs. 20 lakhs. In the instant case value of service hired by the complainant is Rs. 10,62,500/- and compensation claimed by the complainant Rs. 4,00,000/- and summing up the amounts it becomes Rs. 14,62,500/-.
Interest claimed by the complainant does not fall under the category of value of service or compensation and, therefore,the same has not been taken into consideration. So the case of the complainant is well within the pecuniary jurisdiction of this Forum and thus the case is maintainable.
Point nos. 2 & 3 :
Both points are taken up for comprehensive discussion and decision. Admittedly, the complainant entered into an Agreement fro Sale on 16th December, 2012 with the OPs in respect of a plot of land measuring about 1800 sq.ft. equivalent to 2.5 cottahs comprising of Dag No. 2609, Khatian No. 834, J.. No.44, Mouza – Bishnupur demarcated in the Master Plan as plot no. A71 ( Block - A). Copy of Agreement for Sale dt. 16.12.2012 also supports such averment. It is also admitted that the complainant paid Rs.7,96,875/- Money receipts also supports such averment. Though the OP No.3 was not a party to the Agreement for Sale but the OP No.3 did not make any specific denial on his defence. Moreover filed written version jointly with OP Nos. 1 & 2. It is alleged by the complainant that the OPs neither handedover the possession of the said plot of land nor did register the Deed of Conveyance in favour of the complainant.
On the other hand, the OPs stated that they demarcated the plot of land in question and handed over physical possession of the said plot to the complainant. However, no document have been filed by the OPs to substantiate their claim regarding handing over possession of the plot to the complainant. Furthermore, the complainant by filing questionnaire cross-examined the OPs asking the OPs to produce any document to establish their claim of handing over possession which was marked as question No.5 but the questionnaire were remained un-replied which suggests that the OPs never handed over the plot in question to the complainant which was to have been delivered by December 2014. It further appears from clause no.13 of Agreement for Sale dt. 16.12.2012 that in case of failure on the part of the OP regarding delivery of possession of the plot in question the OPs would allot another plot of land in favour of the complainant or refund the deposited amount along with interest. The complainant paid Rs. 2,97,000/- on 31.10.2012, Rs. 2, 34, 250/- on 30.,11.2012 of Rs. 2,65,625/- on 16.03.2013 to the OPs.
On further perusal of the Agreement for Sale t. 16.12.2012 it appears that balance consideration amount was to have been paid by 2 equal instalments within six months from the date of execution of Agreement for Sale and in case of non-payment/default in payment on the part of the purchaser agreement or sale would be automatically cancelled and in that situation the complainant would get refund of the deposited amount after adjustment of necessary proceeding fees and charges deducting 30% of the total amount. It appears from said Agreement for sale that there is also provision for revival of booking . However, the complainant neither paid the entire consideration amount nor did ask for revival of the booking. Moreover, sending letter asked for refund of deposited amount only on 04.09.017.
It is also observed that the OPs made no communication regarding said matter. Though the complainant failed to pay the balance consideration amount but the OPs too neither intimated the complainant regarding cancellation of booking and refund of deposited amount as per Agreement for Sale and therefore, entire amount paid by the complainant till 16.03.2013 was lying with the OPs. Had the OPs refunded the amount immediately after expiry of statutory period of payment as mentioned in the agreement for sale, the complainant would not have been prejudiced. Under such state of affairs as mentioned hereinabove, we are of opinion that the complainant is entitled to get refund of deposited amount.
The OPs compelled the complainant to file the instant case and therefore, they are liable to pay litigation cost.
Considering the circumstances we are not inclined to pass any order as to compensation.
In the result , the instant consumer complaint succeed in part.
Hence,
Ordered
That the consumer complaint being no. CC/316/2018 is allowed in part on contest with cost. The OPs are directed to refund Rs. 7,96,875/- to the complainant within three months from the date of this order. The OPs are further directed to pay Rs. 10,000/- towards cost of litigation within the above-mentioned period id the amount shall carry interest @ 7% p.a.
