Dt. of filing- 11/06/2018
Dt. of Judgement- 29/08/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by the complainant namely Aloke Kumar Roy under Section 12 of the Consumer Protection Act against the Opposite Party ( referred as O.P hereinafter) namely ABS Land Development & Construction Pvt. Ltd. being represented by its Director namely Tapan Ghosh and Sk. Maqbul Hossain alleging deficiency in service on their part.
Case of the complaint in short is that OP has been carrying on business of land development and construction. Complainant booked a plot of land on 15.09.2008 measuring 1800 sq.ft. equivalent to 2.5 cottaha under Project namely ‘Anjali’ being plot no. 157 at a consideration of Rs. 2,35,500/-. Booking amount of Rs. 83,126/- was paid. Subsequently an agreement for sale was also executed on 20.03.2009 whereby it was agreed that the balance amount of Rs.1,54,374/- will be paid in 36 equal monthly instalments. Complainant has paid the entire consideration amount of Rs. 2,37,500/- but the OP has neither delivered the plot of land nor the deed has been executed in favour of the complainant. But OPs have not started the project and has left and deserted the work of development of the said project . So, the present case has been filed by the complainant praying for directing the OPs to complete the said project and execute and register the deed of conveyance in respect of the said plot or in alternative to refund the money paid by the complainant along with interest @18% p.a., to pay compensation as per the present market value of the schedule plot of land, further compensation of Rs.5,00,000/- for harassment and mental agony and litigation cost of Rs. 50,000/-.
Complainant has annexed with the complaint petition. Copy of the agreement for sale dt. 20.03.2009 entered into between the parties, copy of the brochure about the project ‘Anjali’, copy of the several receipts showing payment of the consideration price and notice dated 01.09.2017 sent by the complainant to the OPs through his Ld. Advocate.
Case has been contested by the OPs namely the Firm and its Director Tapan Ghosh by filing Written Versions denying and disputing the allegations made in the complaint, contending inter alia that the OPs have already demarcated and physically handed over the plot to the complainant. The plot have been developed according to the agreement long before and it is complainant, himself who has not taken any step to register the deed of sale in his favour inspite of request by the OPs. So, OP has prayed for dismissal of the case with an exemplary cost of Rs. 5,00,000/-.
During the course of the evidence, complainant by filing a petition prayed for treating the complaint petition as affidavit in chief. Questionnaire was filed by OP No.1. Thereafter, OP also prayed for treating their W.V. as evidence and ultimately argument has been heard.
So, the point requires determination is :-
Whether the complainant is entitled to the reliefs as prayed for.
Decision with reason
On perusal of the Written Versions filed by the OP, it appears that the claim of the complainant about the execution of agreement by the OPs to sell a plot of land bearing no. 157 in the project ‘Anjali’ on 20.03.2009, at a consideration of Rs.2,37,500/- has not been disputed and denied. With regard to the claim of the complainant that the entire consideration price has been paid to the OPs, several receipts have been filed showing the payment of the said consideration price. On a careful perusal of the Written Versions filed by the OP, it appears that the payment of the consideration price by the complainant has not been specifically denied. On the contrary, the specific claim of the OP is that they have already handed over the possession of the plot in question after its development, to the complainant. So, the said claim of the OP about allegedly handing over of the possession, further strengthens claim of the complainant about the payment of the entire consideration price. So far as, the contention of the OP that they have already handed over possession of the plot to the complainant, Written Versions is completely silent about the date of alleged delivery of possession. No document has been filed by the OP showing the delivery of the possession of the plot to the complainant. It is the specific case of the complainant that the said project namely ‘Anjali’ has been left and deserted and no work of development has been carried out by the OPs. Since no document has been filed by the OPs showing the delivery of possession of the plot in question in favour of the complainant, the claim of the OP that plot is handed over, cannot be accepted. In such a situation , as neither the plot has been handed over nor the deed of conveyance has been executed in favour of the complainant in terms of the agreement dt. 20.03.2009 inspite of payment of consideration price by the complainant, complainant is entitled to the relief of either handing over of the possession of the plot or to refund the amount paid by him along with the interest . However, as the interest being allowed we do not find any justification to allow the compensation as prayed for.
Hence,
Ordered
CC/341/2018 is allowed on contest against the OP No.1 and OP 1(a) and exparte against the OP No. 1(b). OPs are directed to handover plot in question described in schedule of the agreement and to execute and register the deed of conveyance in respect of the said plot in favour of the complainant within three months from the date of this order or in alternative they are directed to refund Rs. 2,37,500/- along with interest @ 12% p.a. from the date of payment to till this date within three months from the date of this order. OPs are further directed to pay litigation cost of Rs. 12,000/- within the aforesaid period of three months failing which the entire sum shall carry interest @12% till realisation.
