Dt. of filing- 15/03/2018
Dt. of Judgement- 17/04/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint is filed by Shri Sudipta Kumar Dey under Section 12 of the Consumer Protection Act against the Opposite Party namely Broadway Realtors Pvt. Ltd. represented by its Managing Director Mr. Arun Kumar Sarkar alleging deficiency in service on this part.
Complainant’s case in short is that OP Company has been doing the business of selling of land being infrastructure development in favour of the intending purchaser. complainant thus agreed to purchase a piece of land comprised to Plot No. BB/02 measuring about 2 cottahas at a consideration price of Rs. 6,00,000/-. A booking amount was paid of Rs. 1,20,000/-. An agreement was effected between the parties for sale dated 24.12.2010. OP was represented by its Director, Arun Kumr Sarkar. Complainant has paid the entire money towards the consideration price. After payment of the entire consideration price complainant requested the Managing Director vide his letter dated 21.07.2012 to arrange the process of registration of said plot of land. In reply to OP informed that they will inform to the complainant the exact number of plot which can be handed over and registered once the plotting process is complete. Complainant was shocked to know that there was already an agreement to purchase the plot no. BB/02. Since after September, 2012 OP started avoiding the complainant. Finally in the month of August, 2014 complainant learnt from the OP that due to some legal complications they could not execute the deed and transfer the plot of land. So finding no other alternative, vide his letter dated 21.11.2014, complainant requested the OP to refund his deposited amount along with interest. OP asked the complainant to submit the original copy of the agreement for sale which was done by the complainant but in spite of the same, the money was not returned. However, OP through their letter dated 16.03.2016 sent a cheque of Rs. 1,00,000/- only. Complainant had also filed a case earlier, before the Ld. District Consumer Forum, North – 24 parganas. So, the present complaint filed by the complainant for directing the OP Company to refund sum of Rs. 5,00,000/- with interest @ 18% from 20.06.2012 till realisation, to pay interest amount @18% within a period from 20.06.2012 to 16.03.2016 on refunded amount of Rs. 1,00,000/-, to pay Rs. 1,00,000/- for mental agony, Rs. 1,00,000/- for harassment and Rs. 60,000/- for litigation cost. Complainant has also further prayed for compensation to the tune ofRs.1,00,000/-.
Complainant has annexed with the petition of complaint. Xerox copy of agreement, money receipt exchanged between the parties, the statement given by the OP and the order passed earlier in CC/580/2016.
OP has contested the case by filling the W.V. denying the material allegations contending inter alia that the complainant had booked two number of plots which means that he purchased the same for the purpose of investment and thus for commercial purpose. Since the complainant cancelled the agreement, after receiving the part amount of the deposited sum, the relation between the complainant and the OP of Consumer and Service Provider has been ceased. So, the OP has prayed for dismissal of the case.
During the course of the evidence, both the parties, adduced evidence by filing their respective affidavit in chief followed by filing of questionnaire and reply thereto. Ultimately, argument has been advanced by the parties. Complainant has also filed written notes of argument.
So, the following points require determination:
- Whether there has been any deficiency in services on the part of the OP?
- Whether the complainant is entitled to the relief as prayed for?
Decision with reasons
Point Nos. 1 and 2 :
Both these points are taken up together for discussion in order to avoid the repetition and also for the sake of convenience. Complainant entered into an agreement to purchase a plot of land has not been disputed and denied by the OP. It is also not in dispute that the entire consideration amount of Rs. 6,00,000/- has been paid by the complainant. Vide their letter dated 27.07.2012, OP has acknowledged receiving of the entire amount and it has been stated there that they have registered and handed over several plots to the customers and process is continuing indicating that the complainant was assured that the plot would be handed over to him. It further appears from the letter dated 13th July, 2012 even though there was an agreement entered into between the parties to sell Plot No. BB/02 but in the said letter OP stated that they would inform the exact number of Plot which could be handed over and registered. So apparently, the plot which was agreed to be developed by the OP for transfer to the complainant was actually not ready. By the letter dated 01.04.2017, it further appears that the OP informed to the complainant that there was some unforeseen situation for which they were unable to execute and register the deed in respect of the plots. So, it is apparent that even till 2017, OP was unable to execute and register the deed in respect of the plot of land purchased by the complainant. It is true that the complainant due to the situation as was noticed by him before, had cancelled the agreement and had asked for refund of the money but from the letter of OP in April 2017, it is apparent that the OP even in April 2017 was unable to execute and register the deed. It cannot be expected that the complainant would wait for unlimited period to get the Plot of land and also loose the money. So, cancellation of agreement by the complainant will not cease the relationship between the complainant and the OP as Consumer and Service Provider and thus the argument in this regard by the OP cannot be accepted.
It is also contended by the OP that complainant had purchased two plots which means that he purchased it for investment and thus for commercial purpose . But in this context, it may be mentioned here that no evidence is brought before this Forum to establish that the complainant is engaged in the business of selling and purchasing of property on a regular basis. It would not be proper to classify such acquisition of two number of plots as a commercial activity. Reliance is placed in the decision of Hon’ble National Commission in the case of Poonam Agarwal –vs.- Gujral Associates & Ors.).
So, it is well established that there has been deficiency of services on the part of the OP , they neither handed over the Plot to the complainant and when he cancelled the agreement they have neither returned the amount of Rs. 5,00,000/-. In such view of the matter, complainant is entitled to refund of the said amount of Rs. 5,00,000/-. He is also entitled to the interest on the said amount @ 12%. But as the interest is allowed, there is no justification in allowing the compensation as prayed by the complainant.
Hence,
Ordered
CC/134/2018 is allowed on contest. OP is directed to pay Rs. 5,00,000/- along with interest therein @12% from 20.06.2012 to till this date and further directed to pay litigation cost of Rs. 10,000/- within two months from the date of this order failing which the entire sum shall carry interest @ 12% till realisation.
