Sri Ashoke Kumar Pal, President

The matrix of the instant complaint case in a nut shell is that with the intention to construct his own house with garden etc. the complainant booked 5 (five) plots of land in the same block e.g. plot No:CD-2, CD-3, CD-11 and CD-12 and later on CD-1 more fully described in the petition of complaint as well as in the second schedule of the agreement for sale dated 26.08.2014 at a valuable consideration of Rs.7,00,000/- (Rupees seven lakhs) only.  The complainant paid Rs.3,50,006/- (Rupees three lakhs fifty thousand and six) only as earnest money to the OPs who acknowledged the receipt of the same by and issuing customer ledger showing payment to the OPs.  A copy of agreement for sale has been marked as Annexure-“B” and copy of customer ledger showing the payment of earnest money has been marked as Annexure-“C”.  Thereafter the complainant on several occasions requested the OPs to hand over the vacant peaceful possession of the developed plot of land taking the balance consideration amount and to execute and register a proper deed of conveyance in respect of the scheduled plot of land in favour of the complainant in terms of the agreement for sale dated 26.08.2014.  But except giving assurance the OPs did not do anything.  Lastly, the complainant sent a legal notice to the OPs on 10.11.2020 but despite receipt of the said notice, the OPs failed to comply with the requirements of the same which prompted the complainant to file the instant complaint case on the reliefs sought for in the petition of complaint.

The OP No.2, Director, Arun Kumar Sarkar died during the pendency of the case and his name has been expunged.  OP No.1 & 3 did not come forward to contest the case by filing W/V and as such the instant case proceeded exparte as against the OPs.

Points for consideration:-

1. Is the complainant, a consumer?
2. Are the O.Ps. guilty of deficiency in service and unfair trade practice?
3. Is the complainant entitled to get reliefs as prayed for?

Decision with Reasons :-

Point No. 1 :-   

On perusal of the case record along with copies of documents, it appears that the complainant was willing to purchase about 2 cottahs of land being Plot No:CD-1 more fully described in the Second Schedule of the petition of complaint as well as agreement for sale dated 26.08.2014 and the OPs agreed to sale the same to the complainant for which the agreement for sale dated 26.08.2014 has been made by and between the parties.  The complainant paid Rs.3,50,006/- (Rupees three lakhs fifty thousand and six) only on different dates towards earnest money and the OPs acknowledged the same issuing customer ledger showing the payment (Annexure-“C”).  Therefore, the complainant is a consumer as defined under Section 2 (7) of the Consumer Protection Act, 2019.

As such, Point No.1 is decided in favour of the complainant and against the OPs.

Point No. 2 :-  

The complainant booked the scheduled plot of land and entered into an agreement dated 26.08.2014 with the OPs to that effect.  The complainant also made part payment of Rs.3,50,006/- (Rupees three lakhs fifty thousand and six) only out of the total consideration amount of Rs.7,00,000/- (Rupees seven lakhs) only on different dates and the OP acknowledged the receipt of the same by issuing customer ledger (Annexure-“C”) from which it appears that all the payments have been properly made.  On the other hand, despite payment of the earnest money by the complainant as per terms of the agreement dated 26.08.2014 the OPs failed and neglected to hand over the possession of the schedule plot of land to the complainant taking balance consideration amount of Rs.3,49,994/- (Rupees three lakhs forty nine thousand nine hundred and ninety four) only and to execute and register a proper deed of conveyance in favour of the complainant.  The complainant finding no other alternative send a legal notice to the OPs dated 10.11.2020 but despite receipt of the same the OPs did not do anything.  Therefore, it is clear from the averment of the complainant that the OPs are guilty of deficiency in service and unfair trade practice.

As such, the 2nd point is also decided in favour of the complainant and against the OPs.

Point No.3 :-

The complainant booked the scheduled plot of land CD-1 from the OPs and made a part payment of Rs.3,50,006/- (Rupees three lakhs fifty thousand and six) only out of the total consideration amount of Rs.7,00,000/- (Rupees seven lakhs) only on different dates.  But the OPs violated the terms and conditions of the agreement dated 26.08.2014.  Neither the OPs handed over the scheduled plot of land as described in the 2^nd schedule of the petition of complaint and the agreement for sale dated 26.08.2014 nor they returned back the amount of Rs.3,50,006/- (Rupees three lakhs fifty thousand and six) only with interest which they received from the complainant as per terms of the agreement for sale dated 26.08.2014.  Therefore, as the complainant did not get any positive response from the OPs he has been compelled to file the present complaint case against the OPs on the reliefs sought for in the petition of complaint. As such, there is no hesitation to hold that the complainant is entitled to get the reliefs as prayed for as the OPs did not hand over physical possession of the scheduled plot of land (CD-1) to the complainant taking balance consideration amount nor any deed of conveyance has been executed and registered in favour of the complainant.  The complainant failed to get service from the OPs.  On the other hand, the complainant was harassed by the OPs by various ways. Therefore, the complainant is entitled to get the reliefs as prayed for.

Thus the 3^rd Point is also decided in favour of the complainant and against the OPs.

In the result, the complaint case succeeds.

Fees paid is correct.

Hence, it is,                           

ORDERED

That the instant case be and the same is hereby allowed exparte against the OPs with cost of Rs.25,000/- (Rupees twenty five thousand) only.

The OPs are jointly and severally liable and are directed to hand over the vacant peaceful possession of the scheduled plot of land (CD-1) as described in the 2^nd schedule of the petition of complaint as well as agreement for sale dated 26.08.2014 in favour of the complainant taking the balance consideration amount of Rs. 3,49,994/- (Rupees three lakhs forty nine thousand nine hundred and ninety four) only and to execute and register a proper deed of conveyance in respect of the scheduled plot of land as aforesaid within 60 days from the date of passing this order. 

Alternatively, the OPs are jointly and severally liable and are directed to refund the entire earnest money amounting to Rs.3,50,006/- (Rupees three lakhs fifty thousand and six) only along-with simple interest @ 10% p.a. w.e.f. 26.08.2014 (date of agreement for sale) till the date of final realization within 60 days from the date of passing this order.

The OPs are jointly and severally liable and are also directed to pay compensation to the tune of Rs.1,00,000/- (Rupees one lakh) only for mental pain and agony suffered by the complainant, within 60 days from the date of passing this order. 

The OPs are jointly and severally liable and are also directed to pay the litigation cost of Rs.25,000/- (Rupees twenty five thousand) only within 60 days from the date of passing this order.

The complainant is at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the OPs within 60 days from the date of passing this order. 

Let a copy of the order be supplied free of cost to both the parties as per rules.            

The Final order will be made available in www.confonet.nic.in.

Dictated and corrected by me.                              

               President