Date of filing :13.7.2017
Judgment : Dt.30.5.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Dipak Kumar Daw alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely Desire Agro Resorts Development Pvt. Ltd., (2) The Managing Director and Directors of Desire Agro Resorts Development Pvt. Ltd.
Case of the Complainant, in brief, is that the Complainant entered into an Agreement in 2004 with the OPs for purchasing a plot of land to be developed by the OP measuring about 1800 sq.ft. lying and situated at Mouza- Danga, Dag No.632, under Khatian No.580, under Rajpur Sonarpur Municipality, P.S.- Sonarpur, Dist.- South 24 Parganas. The Complainant has stated that the OP issued a notice dt.28.12.2011 for execution of registration of Deed of Conveyance in favour of the Complainant and also issued receipt dt.28.12.2011 against payment of full consideration amount of Rs.1,12,500/- and receiving the said notice the Complainant started visiting the OP Developer’s office frequently and made several phone calls to contact the OPs but the OPs did not execute the registration of Deed of Conveyance. It is further stated by the Complainant that the agent of OPs insisted the Complainant to invest money in the said project for gain and such proposal made the Complainant suspicious about the activity of the Complainant since the failed to register the Deed of Conveyance of said plot of land current valuation of which is Rs.6,20,339/- as per the W.B.Dept. of Land & Land Reforms and the Complainant by filing the instant Consumer Complaint prayed for direction upon OPs to refund an amount of Rs.10,00,000/-, to pay Rs.1,12,500/- and to pay cost and other expenses.
The Complainant annexed agreement dt.20.09.2004, money receipts dt.20.1.2004, 20.3.2004, 30.04.2004, 02.06.2004, 02.07.2004, 4.08.2004, 6.10.2004, 9.11.2004, 8.12.2004, 12.01.2005, 14.02.2004, 22.03.2005, 28.04.2005, 27.05.2005, 24.06.2005, 29.07.2005, 02.9.2005, 30.9.2005, 28.10.2005, 2.12.2005, 10.01.2006, 31.01.2006, 31.3.2006, 26.04.2006, 22.06.2006, 28.7.2006, 30.8.2006, 3.11.2006, 17.01.2007, 18.5.2007, 16.11.2007,16.11.2007, 4.11.2008, 18.01.2008, 8.12.2009 and a document under caption ‘Necessary information for Deed of Conveyance and other documents’.
The OPs contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the Complainant booked the plot by paying Rs.8,000/- on 20.01.2004 towards booking amount and thereafter paid EMI towards consideration and lastly on 8.12.2009 paid an amount of Rs.2,000/- vide cheque being No.030801 dt.16.3.2009 and filed the instant Consumer Complaint on July, 2017 i.e. 7 years after payment of last EMI.
The OPs further stated that as per terms of the agreement dt.20.09.2004 the Complainant was to pay 36 EMI which was to have been completed by 2007 but the Complainant failed to pay monthly installments as per the said terms and paid last installment in 2009.
It is further stated by the OPs that the Complainant submitted registration format but did not deposit registration fee so the registration could not be executed in favour of him and regarding valuation which the Complainant has stated in petition of complaint was a manufactured document and copy of that document has not been annexed with the petition of complaint and, accordingly, the OPs prayed for dismissal of this case.
The Complainant prayed for treating the petition of complaint as affidavit-in-chief. Prayer was allowed to which OP files questionnaire and Complainant filed reply.
The OPs prayed for treating the written version as affidavit-in-chief. Prayer was allowed but the Complainant did not file questionnaire.
In course of argument, Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint.
Ld. Advocate for the OP submitted that no cause of action arose at all against the OPs. It is further submitted that the Complainant himself violated the terms of the Agreement and paid EMI in 2009 instead of 2007 and the Complainant invested the amount for future gain and the investment was made only for commercial purpose.
Points for determination
- Whether there is deficiency on the part of the OPs?
- Whether the Complainant is entitled for the relief as prayed for?
Decision with reasons
Point No.1
The Complainant claimed to have entered into an agreement dt.20.09.2004 for purchasing a plot of land measuring about 1800 sq.ft. lying and situated at Mouza – Danga, Dag No.632, Khatian No.580 with the OP and paid Rs.1,12,500/- towards consideration. Copy of Agreement dt.20.09.2004 and money receipts filed by her support such averment of the Complainant although it is evident therefrom that the Complainant paid last three EMIs far beyond the agreed period of time but the said amount was accepted by the OPs and hence, it is considered that delay in making payment of EMI is not a constraint to put the agreement in force. The Complainant has alleged that in spite of receiving entire amount of consideration the OPs failed to execute registration of Deed of Conveyance in favour of him though he approached the OPs on several occasions for the same. However, the Complainant has failed to furnish any documentary evidence in support of such claim that he requested the OPs on several occasions for registration of Deed of Conveyance. On the other hand, admittedly, the OPs handed over “necessary information for Deed of Conveyance” on 28.12.2011. In this regards, the OPs have stated that the Complainant after receiving the said document did not deposit required amount of fees for Registration. However, it is statutory obligation on the part of the Developer to execute and register Deed of Conveyance in favour of the purchaser. In the instant case no documentary evidence like notice, letter etc. served upon the Complainant has been adduced by the OPs, wherefrom it would have been evident that they were ready to comply the statutory obligation it amounts to deficiency on the part of the OPs.
Point No.1 is decided accordingly.
Point No.2
The Complainant has prayed for refund of Rs. not less than Rs.10,00,000/- but nowhere in the petition of complaint he has stated that he ever paid such amount to the OPs so that the OPs are liable to ‘refund’ the same.
Apart from ‘refund’ we find there is no reason to award such hefty amount even in the form of compensation since the Complainant failed to prove that he had to suffer loss to such quantum which may be compensated by payment of Rs.10,00,000/- by the OPs.
The Complainant has further prayed refund of Rs.1,12,500/- with interest @ 18% p.a. Since the said amount admittedly has been paid by the Complainant to the OPs for a plot of land which in reality, has not been transferred in favour of him, the OPs are liable to refund the same. As regards interest, we, keeping in mind the rate of interest of Bank, think it is just and proper if the OPs pay interest on the aforesaid sum @ 8% p.a.
As regards litigation cost, we are inclined to allow cost of litigation of Rs.7,500/- to the Complainant.
In the result, the Consumer Complainant succeeds in part.
Hence, ordered,
That CC/396/2017 is allowed in part on contest.
OPs are directed to refund Rs.1,12,500/- along with interest @ 8% p.a. from the date of last payment of EMI till realization thereof within two months from the date of this order.
OPs are further directed to pay Rs.7,500/- towards cost of litigation within aforesaid period.
