Date of Filing              :    19 August, 2019.

Date of Judgement     :    13 June, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case is filed by the complainant, Sri Brajeshwar Kumar Gupta, through his Constituted Attorney Sri Anant Kumar Singh, under Section 12 of the Consumer Protection Act, 1986, herein after called the said Act, against (1) M/s. D. K. Land Development & Construction Pvt. Ltd., (2) Sri Asit Pramanik, (3) Smt. Dipali Pramanik and (4) Sri Bapi Mondal, herein after called the Opposite Parties or O. Ps., alleging deficiency in service occurred from the part of the O. Ps.

            The brief statement of the complaint is that the Complainant in the year 2011 came across with a public announcement that the O. P. – 1 company, represented by its Directors i. e. the O. P. – 2 to 4, is going to construct a residential complex or a modern village/township for lower/middle income groups under the name ‘GARDEN CITY’ in a 150 Bighas vacant and un-yielded land under Purba Bishnupur Gram Panchayat at Mouza – Bagi being J. L. No. 78 within the Police Station – Bishnupur in the district of South 24 Paraganas.  Being allured by such announcement complainant visited the registered office and the branch office of the O. P. – 1 company and after a series of discussions with the O. P. – 2, complainant agreed to purchase two plots of land being nos. 461 & 462 admeasuring more about 4 Cottahs = 2880 sq. ft. in the said ‘Garden City’ for a total consideration of Rs.2,00,000/-.  Complainant paid Rs. 1,03,000/- as booking money to the O. Ps. and then entered into an Agreement for Sale with the O. Ps. on 12/01/2012.  It was decided through this agreement that the complainant would pay the rest amount in instalments.  It was assured in this agreement that the O. Ps. would develop his plots of land by converting those into residential plots with proper demarcation, roads and other necessary amnesties. It was assured in this agreement that the entire development works in the project would be completed in the year 2013.  It was also assured in this agreement that after completion of the project possession of the scheduled plots would be handed over to the complainant and execution and registration of the deed of Conveyance would be completed with one month’s prior intimation. Complainant states in his complaint that he has paid the entire consideration of Rs.2,00,000/-  as per the scheduled instalments but whenever he enquired about the progress of development he could not gather any satisfactory information from the O. Ps.  Whenever the complainant requested the O. P. – 2 to register the Deed of Conveyance, the O. P. – 2 stated all sorts of excuses and unavoidable circumstances and thereby delayed the registration.   In the year 2015 when the aggrieved complainant visited the office of the O. P. – 1 company they handed over a letter dated 31/08/2015 in which it was written that due to some unavoidable circumstances the registration would be delayed for another 6 months.  But this registration could not be done till December, 2018 when the complainant suddenly visited the project site he was awestruck to find that there was no development work done by the O. Ps yet.  Even he gathered information from local people that the O. Ps. had sold out a particular plot to two or more purchasers.  Ultimately he filed this complaint through his Constituted Attorney praying to direct the O. Ps. (1) to refund Rs.2,00,000/- paid by him as consideration together with interest or to direct the O. Ps. to execute the Deed of Conveyance in respect of his scheduled plots of land, (2) to pay Rs.70,000/- as compensation, (3) to pay Rs.50,000/- for adopting unfair trade practice, (4) to pay Rs.50,000/- for deficiency in service, (5) to pay Rs.20,000/- as litigation cost and such other orders as this Commission deem fit and proper.

            Complainant submitted copies of (i) Power of Attorney in favour of Sri Anant Kumar Singh, (ii) Agreement for Sale dated 12/01/2012, (iii) some receipts of payments, (iii) letter issued by the O. P. – 1 company dated 31/08/2015 etc. as annexure to the complaint petition.

            Notices were served, after admission, upon the O. Ps. repeatedly and O. P. – 2 & 3 appeared through their Ld. Advocate by filing Vakalatnama and praying to file their written version on the next date.  But later they did not attend the proceedings of this case and the case proceeded ex parte.  Complainant then filed his Affidavit-In-Chief and on the same date complainant intimated the Commission that O. P. – 2 has died on 05/05/2021. As the other Directors were already on record, so the complainant filed a petition to expunge the name of the deceased O. P. – 2 which was accordingly allowed. Consequently ex parte argument was heard and complainant filed his Brief Notes on Argument. We have now come to the position to deliver the Final Order in this case.  We have to decide whether the O. P. is deficient in rendering proper service to the complainant for which he is entitled to get relief as prayed for.

DECISION WITH REASONS

            Before the beginning of our discussion in the case let us first consider the Power of Attorney.  This bears no specific date of execution.  Here ten persons including the present complainant executed the Power of Attorney in favour of Sri Anant Kumar Singh empowering him to take all the relevant steps according to the law.  On the strength of this power Sri Anant Kumar Singh filed this instant complaint on behalf of the complainant, Sri Brajeshwar Kumar Gupta. 

            Now, let us consider the Agreement for Sale executed between the O. Ps. and the complainant on 12/01/2012, taking into account the statement of the complaint petition along with the receipts of payments.  This agreement was executed between the O. P. – 1 company, represented and signed by its Director, Sri Asit Pramanik, the O. P. – 2 stated herein above, and the Complainant.  It is stated in this agreement in page – 2 that the O. P. – 1 company “to be/has procured in the 150 Bighas vacant and un yielded land under Purba Bishnupur Gram Panchayat at Mouza – Bagi and J. L. No. 78, P. S. - Bishnupur, in the District of South 24 Paraganas”  “for the purpose of established a residential complex or modern village/township for Lower/Middle income groups under the name and style of GARDEN CITY.”  But there is no description about the manner of acquisition of such a huge portion of land.  It is stated in the agreement that the complainant requested the vendor/company to allot the plots of land being no. 461 & 462 in Dag Nos, 3566 & 3600 admeasuring about 4 Cottahs = 2880 sq. ft. in the project area for a consideration @Rs.50,000/- per Cottah, totalling Rs.2,00,000/- after being satisfied by all the necessary documentations.  Complainant paid Rs.1,03,000/- before signing the agreement and it was decided that the balance amount should be paid in 15 equal instalments @Rs.6,500/-.  Complainant stated in his complaint that he had paid the entire consideration within 2013.  But the complainant annexed receipts of payments which support payment of Rs.1,03,000/- and an additional receipt has been annexed with the complaint for payment of Rs.13,500/- vide cheque no. 179487, dated 26/02/2012, thereby total payment becomes Rs.1,16,500/-.  Payment of balance consideration cannot be ascertained as the other receipts has not been annexed with the complaint, but the complainant, stated through his affidavit that he has paid the full consideration amount.

            In Clause-10, page-4 of the agreement, it is stated that the development works of the project was expected to be completed in the year 2013.  But whenever the complainant enquired about the development of the project the O. Ps. took some pretext or others about the delay in developing the project.  In the year 2015 when the complainant met with the O. Ps. at their office, they gave a letter to the complainant issued by the O. P. – 1 company, signed by the O. P. – 2, since deceased, dated 31/08/2015, in which it is stated that ‘due to abruptly appeared unavoidable circumstances’ they were not in a position to execute and register the Sale Deed in his favour. In this letter they requested the complainant to allow them another six months for such execution.  Ultimately this time also the registration could not happen.  Then the complainant suddenly visited the project site in December, 2018 and found that the project site has not been developed yet.  Even he came to know that the O. Ps. had sold out plots of land to multiple prospective purchasers. Being aggrieved he filed a case before this Commission U/S. 12 of the C. P. Act, 1986 on 19/08/2019 against the O. Ps., through his constituted attorney Sri Anant Kumar Singh.

            Considering the facts stated above we are of the view that the O. Ps. failed to execute the Agreement for Sale dated 12/01/2012.  The O. Ps. failed to complete the development works in the project site within 2013. Even after a long period of eight years the O. Ps. could not execute and register the scheduled plots of land in favour of the complainant/purchaser.  So, the O. Ps. are deficient in rendering service to the complainant.  It is a settled principle that, as we see in the judgement of the Hon’ble National Commission in Emmar MGF Land Ltd, & Othrs –Vs– Amit Puri, [II (2015) CPJ 568 (NC)] or in the judgement of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. –Vs– Debasis Rudra [II (2019) CPJ 29 (SC)],  it is the discretion of the purchaser/ complainant whether he wants to accept the offer of the O. P., if any, or seek refund of the amount paid with interest, if it is held that it is well within the complainant’s right to seek for the refund of the principal amount with interest and compensation as the development of the project is still not complete. Complainant showed his bonafideness by paying the total consideration amount within the specified time of completion of the development works.  It was the duty of the O. Ps. to inform the Complainant/ Purchaser(s) about the delay in development of the project, but they did not.  Yet, they received payments from purchaser without informing about non-completion of the project within the stipulated time period.  So, we must say that the O. Ps. has made a gross deficiency in rendering service to the purchaser/complainant and for this act of deficiency of the O. Ps. the complainant is entitled to get relief.  Complainant prays to direct the O. Ps. to refund his deposited amount with interest or to execute the Deed of Conveyance in his favour.  As the complainant himself states that he has not found any development work in the project site, so question of execution of the Deed of Conveyance does not arise since the complainant has came to purchase these plots for residential purpose.  Hence we find refund of the paid amount is justified and the interest on this amount @10% will bring the compensation and interest to the complainant.  The Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. –Vs– D S Dhanda & Othrs [II (2019) CPJ 117 (SC);  SLP(C) Nos. 3623 – 3654 of 2019] held that: “when interest is awarded by way of damages awarding additional compensation is unjustified”.  The complainant is entitled to get Rs.8,000/- from the O. Ps. as litigation cost since he is compelled to file this instant complaint before this Commission/Forum. 

Hence,

            it is

          ORDERED

           That the Complaint Case No. CC/436/2019 is allowed ex parte.

            The Opposite Parties are directed to refund the entire amount paid by the complainant together with simple interest at the rate of 10% per annum with effect from the date of last payment made by the Complainant up to the date of this order within 60 days from the date of this order to the complainant.  The O. Ps. are also directed to pay Rs.8,000/- to the Complaint as litigation costs within the aforesaid period, failing which the entire sum shall carry 10% interest per annum till full and final realisation.