DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __39_ _ OF ___2017
DATE OF FILING :_23.03.2017 DATE OF PASSING JUDGEMENT: 29.11.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Pradip Kumar Sen, son of late Amarendra Kumar Sen of 63A, Lake East Sixth Road, (Ground Floor), P.O Santoshpur, P.S Survey Park, Kolkata- 75.
O.P/O.Ps : Akilene Merchandise Pvt. Ltd. Vishwa Karma Building, 6th Floor, SW-Block, 86C, Topsia Road, (S), Kolkata-46, represented by Jayanta Routh, Director of the Company.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Delay in delivering the possession of the flat to the complainant by the O.P has galvanized the complainant to file the instant case against the O.P under section 12, C.P Act, 1986, alleging deficiency in service on the part of the O.P.
The facts leading to the filing of the instant case may be epitomized as follows.
O.P/company is a developer engaged in the business of real estate. An agreement for allotment-cum-development dated 30.4.2014 was effected between the complainant and the O.P and thereby the O.P agreed to sell a “Villa “measuring an area about 864 sq.ft built up area in his dream project “Harbour Green Township” to be constructed on plot no.D-207 as succinctly described in schedule to the complaint, for a total consideration price of Rs.16,13,260/- within 36 months from the date of booking. Complainant paid Rs.80,000/- on 20.11.2013 as booking money; he also paid thereafter Rs.5,86,994/- to O.P on different dates including booking money. O.P did not start the development work of the project in any way. On 6.12.2016 O.P gave a letter to the complainant and thereby intimated the complainant that another plot being no.Ë-36”was re-allocated in his name instead of plot no.D-207. Complainant by letter dated 10.12.2016 apprised the O.P of his unwillingness to accept the said plot. That apart, O.P also started demanding additional payment from the complainant on one pretext or another. So, the complainant has filed the instant case, praying for refund of the money paid to the O.P with interest and hence arises the instant case.
By filing written statement the O.P has been contesting the case. It is admitted by him that allotment-cum-development agreement dated 30.4.2014 was executed by him and that he also received a sum of Rs.80,000/- as booking money from the complainant. The development work of the project was to be commenced only after registration of conveyance deed on condition of payment of Rs.3,48,652/- plus applicable service tax up to the date of registration apart from booking money. But the said amount was not paid by the complainant. According to the version of the O.P, the complainant paid only Rs.2,98,342/- and thus he failed to honour the terms of the agreement. So, the plot was not registered . In the meantime, during 2016, the initially approved lay-out of project was revalidated , resulting in modification of locality and number of the plots in revised lay-outs. So, the O.P offered a new plot to the complainant by his letter dated 6.12.2016. Complainant accepted the proposal; he appealed for a discount of Rs.1 lac which was declined by him. Complainant demanded refund and he was ready to refund the money received from the complainant subject to deduction of 20% in terms of the agreement. There is no deficiency in service on the part of the O.P and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Has the O.P caused deficiency in service by not acting in terms of the agreement?
- Has the O.P caused any unfair trade practice to the prejudice of the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidences on affidavit is led by both the parties. Questionnaire, replies and BNA filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
The entire blame is now cast upon the complainant by the O.,P. It is the version of the O.P that the complainant did not pay Rs.3,48,652/- plus applicable service tax before the date of registration and, therefore, the registration of the land was not made in favour of the complainant. This submission of the O.Ps appears to be wholly incorrect. It is the version of the complainant that he paid Rs.5,86,994/- including Rs.80,000/- as booking money. The complainant has also filed the money receipt to prove the payment. That apart, the O.P has admitted in his reply to question no.11 of the complainant that complainant has paid Rs.5,86,994/- to him. From own admission of the O.P it stands proved that the complainant paid Rs.5,86,994/- to the O.P and this admission of the O.P by itself falsifies the version of the O.P that the complainant did not pay Rs.3,48,652/- before the date of registration in terms of the agreement. But, it is the O.P who has not complied with the terms of the agreement and ,therefore, it is none but the O.P who is defaulter in terms of the agreement. This default on the part of the O.P is nothing but gross deficiency in service on his part.
Point no.1 is thus answered against the O.P.
Point no.2 :
Now to see, whether the O.P has indulged in any unfair trade practice. It is undisputed fact that the O.P could not deliver the possession of the plot being no. D-207 to the complainant. The agreement was executed between the parties in respect of the plot no.D-207. The O.P could not deliver the possession of the said plot and it might be due to the fact that there was no existence of the said plot. It is admitted by the O.P that he revised his lay-out plan and that he offered a new plot i.e plot no.E-36 to the complainant. It is the discretion of the complainant whether to accept the new plot or not to accept it. The complainant has expressed his unwillingness to accept the new plot and for this exercise of his choice we cannot blame the complainant. All these facts and circumstances of the case go to establish that plot bearing no.D-207 had at all no existence and, therefore, the O.P was compelled to revalidate the plan under the pressure of competent authority. But what did the O.P do, he realized money from the complainant, having convinced him that he would sell plot no.D-207 to him. This practice on the part of the O.P is undoubtedly an unfair trade practice .
Point no.2 is also answered against the O.P.
Point no.3 :
Upon what have been discussed above, it is found that the complainant is entitled to refund of entire consideration money paid to the O.P without any kind of deduction, because O.P is defaulter in terms of the agreement. For refund of the consideration money to the complainant, the complainant will certainly bear a heavy loss due to inflation of the market price of the land for which the O.P will have to pay compensation.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P with a cost of Rs.10,000/- .
The O.P is directed to refund the consideration price of Rs.5,86,994/- , paid to him by the complainant, with compensation by way of interest @15% p.a from the last date of payment i.e 22.12.2014 till full realization thereof, within a month of this order, failing which the complainant is at liberty to recover the said sum of money with cost of proceeding as referred to above by execution of this order through the Forum’s machinery.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
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 complaint case be and the same is decreed on contest against the O.P with a cost of Rs.10,000/- .
The O.P is directed to refund the consideration price of Rs.5,86,994/- , paid to him by the complainant, with compensation by way of interest @15% p.a from the last date of payment i.e 22.12.2014 till full realization thereof, within a month of this order, failing which the complainant is at liberty to recover the said sum of money with cost of proceeding as referred to above by execution of this order through the Forum’s machinery.
Let a free copy of this order be given to the parties concerned at once.
Member Member President
