Date of filing :15.11.2017

Judgment : Dt.19.2.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Durga Rani Ghorai through her constituted attorney alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Desire Agro Resorts Development Private Limited, (2) Ashok Basu and (3) Sanjay Shaw.

            Case of the Complainant, in brief, is that the OP is a Private Limited Company engaged in business of land development, thereby developing large scale of land and developing the same into small plots by taking out lanes and/or roads, water bodies, etc.

            Complainant booked one piece of plot of land in Middle Town Bhasa- Plot No.290, situated at Bhasa, Dist.- South 24-Parganas, West Bengal, together with all the easement rights and  common facilities attached therein. The Complainant paid a sum of Rs.75,000/- on 25.7.2006 as booking amount out of total consideration of Rs.3,75,000/-. The OP issued a certificate of specification. The remaining balance of consideration money was agreed to be paid by the Complainant at equal monthly installment of Rs.6,250/- for the period of 4 years. The Complainant has paid the entire amount of consideration and the OP has also acknowledged full payment of the consideration amount. But, in spite of full payment, OPs have failed to develop, handover and registration of the plot in favour of the Complainant. On numerous occasions requests have been made and ultimately in spite of sending of legal notice, OPs have failed to deliver the possession of the plot and or refund the amount. Thus, being compelled the present complaint has been filed by the Complainant for directing the OPs to register the deed of conveyance and hand over the possession of the plot of land to the Complainant. Alternatively, to direct the OPs to refund the amount of consideration of Rs.3,75,000/- along with interest @ 18% p.a. from the date of final payment i.e. since December, 2010, to pay compensation of Rs.3,00,000/- and also litigation cost of Rs.50,000/-.

            The complaint petition has been contested by the OPs by filing the written version denying the material allegations made in the complaint petition contending inter alia that the complaint is not maintainable as the dispute relates  to plot of land and refund of money which is purely a Civil dispute and to be adjudicated by the competent Civil Court only. OP in their written version also stated that as per the clause 5 of the Agreement if the Complainant fails to pay three consecutive installments the agreement shall be terminated. In this case, the Complainant has failed to make Regular EMI payment as alleged by the OP. Thus, OPs have prayed to dismiss the complaint petition.

            Complainant has annexed with the complaint petition copy of the money receipts, letters sent and also the reply thereto and the copy of the legal notice and copy of power of attorney executed by Durga Rani in favour of Dayal Krishna.

            In course of the evidence, both the parties filed their respective evidence-in-chief followed by filing of questionnaire and reply thereto.

            Both the parties have also advanced their argument.

So, the following points require determination..

            1) Whether this complaint is maintainable in its present form?

            2) Whether the Complainant is entitled to the relief as prayed for?

            Decision with reasons

            Point No.1 & 2 – Both these points are taken up for a comprehensive discussion.

            It has been argued by the Ld. Counsel for the OP that the dispute being over a plot of land, it will not fall within the ambit of Consumer Protection Act and the Civil Court only has jurisdiction. But, in this connection it may be pointed out that it is now settled principle of law that any person who enters into agreement for allotment or purchase of plot of land to be developed by a firm, body as well as a person on payment of consideration as agreed, he is said to have availed or hired the service of concerned developer and thus is a ‘consumer’ under the Consumer Protection Act.

            However, it may be pertinent to point out that Complainant has filed certain Xerox copies of documents. No agreement allegedly entered into between the parties, is filed in spite of repeated opportunities given to the Complainant. On perusal of documents in record, it appears from the annexure in running page 39 with the complaint petition that there are two applicants who booked the plot of land. These applicants are Durga Rani Ghorai and Dhukishyam Ghorai. So, they both are entitled to the alleged plot of land so booked. But this Complaint is filed only by Durga Rani Ghorai through her constituted attorney namely Dayal Krishna Ghorai. There cannot be any denial and dispute that Dhukisyam Ghorai is a necessary party in this case because, if there is any direction to OPs to hand over the plot of land and to register the same, it has to be done in favour of both the applicants. But, no explanation is forthcoming as to why said Dhukisyam Ghorai has not been made a party in this case. So, apparently this case is bad for non-joinder of necessary party and thus the Complaint is not maintainable in its present form. In these view of the matter, without entering into further discussions as to merits of the case, we find that the Complainant is not entitled to the  reliefs as prayed for.

            These points are thus answered accordingly.

            Hence

                                    Ordered

            CC/648/2017 is dismissed on contest.