Date of filing: 06/08/2018
Judgment: Dt. 21/10/2022
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Donald Mukherjee alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) ABS Land Development and Construction Pvt. Ltd. (2) Sri Tapan Ghosh and (3) Sk. Mokbul Hossain.
Case of the Complainant, in short, is that he booked a plot being plot No. 329 measuring an area of 2228 sq.ft. in the project namely Green Vally Phase – I on 02.09.2005, paying the initial booking amount of Rs. 23,700/- to the OP. OP issued the allotment letter in favour of the Complainant and an agreement was also executed between the parties on 25.10.2006, whereby OP agreed to sell the plot as described in the schedule B of the agreement at a consideration of Rs. 1,54,722/- and deliver the possession after its development. Complainant has paid sum of Rs. 1,38,360/-. But the OP Company has failed to execute the sale deed in favour of the Complainant. On physical inspection of the site, it was noticed that no development of the project was done. So, Complainant wrote a letter to the OP on 28.01.2016 calling upon to handover the plot of land with all infrastructural development upon receipt of balance consideration price of Rs. 16,380/- or in alternatively to refund the amount of Rs. 1,38,360/- along with interest. But neither the possession was handed over nor the money has been refunded. Again complainant wrote to OP No. 2 on 24/04/2018 but all in vain. So, the present complaint has been filed by the Complainant praying for directing the OPs to deliver the physical possession of the schedule property and to execute and register the deed of conveyance or in alternatively to refund Rs. 1,38,360/- along with interest, to pay compensation of Rs. 75,000/- and litigation cost of Rs. 15,000/-.
Complainant has annexed with the complaint petition, copy of the allotment letter dt. 02.09.2005, copy of agreement, money receipt, copy of the letters dated 28.01.2016 and demand notice dated 14.04.2018.
OPs 1 & 2 have contested the case by filing written version contending inter alia that the OPs have already developed the said plot. It is the Complainant himself who has taken no step for registration of the deed of sale. So, the OPs have prayed for dismissal of the case with exemplary cost. OP No. 3 did not take any step, so the case proceeded exparte against OP No.3.
During the course of the trial parties adduced their respective evidence followed by filing questionnaire and reply thereto. Ultimately argument has also been advanced.
So, the following points require determination:-
- Whether there is any deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion.
Complainant has claimed that he booked the plot in the project namely Green Valley and an agreement was also executed between the parties on 25.10.2006. Complainant has filed the said agreement wherefrom it appears that the OP agreed to sale the plot described in the B schedule of the agreement, after its development, at a total consideration of Rs. 154,722/- and agreed to complete the development work within 31st December, 2007. Complainant has also filed the receipts showing payment of the consideration price of Rs. 1,38,360/-.
On perusal of the written version filed by the OP, it appears that the execution of the agreement and the payment by the Complainant, has not been disputed and denied. The only contention which has been raised by the OP is that they have already developed the said plot to handover but it is the Complainant himself who did not take any step to register the deed of sale in his favour. But in support of their claim that the said plot has already been developed and demarcated, no document has been filed by the OP. Barring a bare statement in the written version, no document has been filed to show that the project is completed or that they informed at any time to the complainant that the plot was ready. So, in the absence of any document, contention of the OP is nothing but a subsequent development and an afterthought. In such a situation, as neither the plot has been handed over and registered in favour of the Complainant, nor the money has been refunded to the Complainant, he is entitled to the relief as prayed. So, the Complainant is entitled to refund of the said sum of Rs. 1,38,360/- along with interest @ 12% (in the form of compensation).
Hence
ordered
CC/490/2018 is allowed on contest against OP 1 & 2 and exparte against OP No. 3. OPs are directed to pay the sum of Rs. 1,38,360/- to the Complainant along with interest on the said sum @ 09% p.a. from the date of last payment to till this date within two months from the date of this order. OP is further directed to pay litigation cost of Rs.12,000/- within aforesaid period of two months, in default the entire sum shall carry interest @ 09% till realization.
