Date of filing :20.6.2018
Judgment : Dt.5.8.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Amitava Sarkar alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Central Government Employees Welfare Society and (2) Mr. Apurba Kumar Saha.
The Case of the Complainant, in short, is that OP No.2 is the constituted attorney of OP No.1. Complainant got himself enrolled with the OP No.1 and paid life membership fee of Rs.500/- on 24.9.90. Complainant booked a plot of land being plot No.150, Sector-III, Phase-I of Pailan Park Housing Project Ltd., more or less 3.01388 cottahs of land @ Rs.17,000/- per cottah and he made the payment in four installments. OP No.1 executed deed of conveyance in favour of the Complainant on 24.6.1994 in respect of the said plot in question. OP No.1 further demanded Rs.14,520/- on different dates for sewerage and water scheme and Rs.225/- towards maintenance charge from June, 1997 to August, 1997. But Complainant has paid all the charges towards maintenance and extra development. In spite of making full payment towards cost of land and other charges, the OP by their letter dt.20.10.2003 offered the Complainant to replace the plot of land by plot No238/3 instead of plot No150 in Sector-III and again demanded a sum of Rs.31,215/-. But the Complainant has not been provided with the possession of the said land as agreed after development. So, he sent notice dt.10.6.2013 demanding possession of the plot of land 150, Sector-III. But the OP again offered replacement by their reply dt.6.2.2014. Thereafter OP No.2 sent two letters dt.7.8.2017 and 20.9.2017 along with two cheques. But the same were not encashed by the Complainant. Ultimately the Complainant sent a legal notice dt.8.5.2018 to the OP asking for delivery of vacant khas possession of the plot No.150 of Sector-III as agreed as per registered deed of conveyance dt.24.6.1994 or in alternatively refund of the money paid along with interest and compensation. Since the OP did not comply the same the present complaint has been filed for directing the OP to handover the vacant khas possession of the plot in question, in alternatively to pay a sum of Rs.5,50,000/- towards principal with accrued interest, to pay a sum of Rs.3,00,000/- as compensation and litigation cost of Rs.50,000/-.
Complainant has annexed with the complaint petition copy of the deed dt.24.6.1994, the receipts showing payment, copies of the several letters exchanged between the parties and demand notice dt.8.5.2018 sent by the Complainant.
OPs have contested the case by filing written version disputing and denying the allegations made in the complaint petition. It is contended by the OPs that the Complainant did not make the payment of the consideration price in time. However, they had executed the deed in favour of the Complainant as the OP is a benevolent Society for the life members. It is further contended that the plot which was allotted/sold to the Complainant on the basis of flexible agreement with the original land owner, subsequently, the said land owner refused to sell the said land to the Society and thus OPs informed the said matter to the Complainant and requested him for replacement of the plot by letter dt.20.10.2003. But the Complainant kept quiet and thus ultimately OPs started processing of refunding the amount and sent cheque of Rs.23,895/- as first installment vide letter dt.24.10.2008. But Complainant again turned deaf ear. They further sent the cheque of Rs.35,000/- by letter dt.27.7.2010. But again the Complainant did not encash the same. In reply to letter dt.12.2.2014 OP again sent cheque for refunding of the consideration money. But the Complainant did not encash the same. The OP is always ready and willing to refund the consideration money along with bank interest or willing to allot / handover another available plot. So, as there has not been any deficiency of service, the OPs have prayed for dismissal of the case.
During the course of evidence, Complainant and the OPs have adduced their evidence followed by filing questionnaire and answer thereto. Ultimately argument has been advanced. Written notes of argument have also been filed by both the parties. OP has referred to a decision reported in 2018 CPJ 200 (NC) in support of their argument that when the Complainant himself remained silent to the offer of the OP for delivery of possession of the alternative plot and also refund was made but not encashed, the OP cannot be held liable.
So the following points require determinations
- Whether there has been 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 discussion for the sake of convenience.
It is the claim of the Complainant that he had booked a plot of land being plot No.150 Sector-III, Phase-I and had made payment of Rs.51,236/- towards plots price. The deed was executed and registered by the OP in favour of the Complainant on 24.6.1994. It is his claim that he further paid an amount of Rs.14,520/- towards development and further Rs.225/- as maintenance charge.
So far as execution of the deed of conveyance by the OP in favour of the Complainant in respect of the plot being No.150, Sector-III, Phase-I, has not been disputed and denied by the OP nor the payment of Rs.65,756/- in total has been disputed by the OP. The specific contention of the OP is that as the owner with whom they had entered into agreement to purchase the land, refused to sell the same subsequently, and so they were unable to hand over the possession of the said plot to the Complainant and thus offered an alternative plot to which Complainant remained silent. In this context, it may be mentioned here that it is strange that the OPs who themselves did not acquire the ownership over the land started selling the same to the different intending purchasers and went to the extent of executing the deed of sale in the name of purchasers including the Complainant. The OP cannot force a purchaser to buy a different plot if it he has purchased a specific land. So, OPs who were not the owner of the land to sell the same to the Complainant but they sold it, by itself is an unfair trade practise. However, as it is admitted case of the OP that they did not acquire any title over the land which was sold to the Complainant, in our view the deed executed in favour of the Complainant on 24.6.1994 becomes nonest in the eye of law. So, as there is no existence of plot allegedly sold to the Complainant, there cannot be any direction to deliver the possession of the same. However, Complainant is entitled to refund of the amount of Rs.65,756/- admitted to have been received by the OP. It appears from the documents filed by the parties that OP had sent cheque of Rs.23,895/- with letter dt.24.10.2008 but the same was not encashed by the Complainant. Again cheque of Rs.35,000/- sent by OP along with letter dt.27.7.2010, which was also not encashed. It might be due to non-payment of the full amount. OP ought to have refund the entire amount received by them but they did not so. Complainant has been struggling since 1994. He paid the entire consideration price and development charge in 1994 and since then waiting for plot of land. So, Complainant is entitled to refund of Rs.65,756/- along with interest at the rate of 10% per annum. Since interest is allowed we find no justification to allow compensation as prayed.
Hence
ordered
CC/371/2018 is allowed on contest. OPs are directed to refund Rs.65,756/- along with interest on the said amount @ 10% p.a. from the date of last payment in 1994 to till this date within two months from the date of this order. OPs are further directed to pay litigation cost of Rs.12,000/- within the aforesaid period of two months, in default the entire sum shall carry interest @ 10% till realization.
