Date of Filing: 20/06/2019
Date of Judgment: 15/02/2023
Mrs.Ashoka Guha Roy Bera, Hon’ble Member
This complaint is filed by the complainant, namely Mr. MALAY BHATTACHARJEE under section 12 of the C.P Act,1986 against the Opposite parties namely Desire Agro Resorts Development Pvt. Ltd.being represented by its Directors(herein referred to as O.Ps), alleging deficiency in service on its part.
The case of the complainant in short is that O.P is a private limited company and engaged in the business of land development thereby developing large scale of land and selling the same in plots to the prospective buyers after its developments .The complainant entered into an Agreement dated 5.2.2007 with the O.P.s for purchase of a plot measuring an area 1800 sq.ft in the project being developed by the O.P at Mouza Khariberia, Dag No.432, under khatian No.1423, J.L. NO. 29, Police Station- Bishnupur, District- South 24-Parganas, being booking No. DIAMOND GATE-84. On receiving a total sum of Rs. 2,12,500/-the O.P.s issued acknowledgement of receipts showing total payment made and to the said effect the O.P.s have also issued Certificate. Time and again the complainant had visited the office of the opposite party no. 1 and requested for registration of deed of conveyance in respect of the aforesaid plot but the O.P.s intentionally avoided the complainant by making false stories though at the time of booking the O.P.s had assured to execute and register a Deed of Conveyance in favour of the complainant in respect of the plot of land as agreed upon. Hence realising the ulterior intention of the O.P.s when neither the plots were handed over nor the money was refunded,the complainant was compelled to file the instant complaint directing the O.P to hand over the possession of the plots and to execute and register the deed of conveyance or alternatively to refund the part consideration money amounting to RS. 2,12,500 paid by the complainant along with interest @ 18% and further to pay compensation of Rs. 3,00,000 Lacs only and litigation cost of Rs. 10,000/-.
Complainant has filed the Agreement dated 5.2.2007 for booking of the plots, money receipts , the certificate issued by the O.P in respect of plot of land in question.
O.P is contesting the case by filing written version contending mainly that this is a case of sale of land simplicitor and so complainant is not a consumer under the provisions of C.P Act. Since the present case is not involved consumer dispute, the same is liable to be dismissed.
So, following points require determination:
- Whether the complainant is a consumer under the Consumer Protection Act ?
- Whether there has been any deficiency in service on the part of the opposite parties ?
- Whether the complainant is entitled to the reliefs as prayed for ?
DECISIONWITH REASONS
Point no. 1:
O.P in this case has mainly contended that the complainant is not a consumer under the provisions of the C.P Act as this case relates to a simplicitor sale of land. But on a careful scrutiny of the documents inclusive of the Agreement dtd.05.2.2007,wherein, it appears that terms and conditions specifically provides that the development of the land would be done and there will be infrastructure relating to development of roads, demarcation of plots, fencing etc. which have to be done by the O.P. So, the said Agreement is very categorical that after the development, the plots would be handed over to the complainant and so the service of the O.P was hired by the complainant to develop the land in the said project in respect of the plots which was agreed to be purchased by the complainant. In such a situation, contention of the O.P that this is a case of simplicitor sale of land cannot be accepted and thus this point is answered against the O.P.
Point nos. II& III :
Both the points are taken up together for discussion in order to avoid repetition.
On perusal of the documents filed by the complainant it appears that the complainant had entered into an agreement with the O.P.s for purchase of a plot measuring an area 1440 sq.ft in the project being developed by the O.P at Mouza Khariberia, Dag No.432,under khatian No.1423, J.L. NO. 29, Police Station- Bishnupur, District- South 24-Parganas, being booking No. DIAMOND GATE-84, he has filed number of receipts which shows that they were issued by the O.P on receipt of the part payment as agreed between the parties in respect ofthe aforementioned plot. These receipts show that the complainant has paid a total amount of Rs. 2,12,500/-in respect of the plot no mentioned above.
On a careful scrutiny of the written version as well as the reply filed by the O.P to the questionnaire filed by the complainant, it appears that the O.Ps have not denied and disputed about payment of total sum of Rs. 2,12,500/-. So, on consideration of the receipts filed by the complainant showing payment of entire sum of Rs. 2,12,500/-,he is entitled to refund of the same ,especially when it is the own case of the complainant that there is no such development of the project by the O.P. Complainant is also entitled to the interest in the form of compensation on the said sum from the date of last payment made by him.
Hence,
ORDERED
That CC/296/2019 is allowed on contest against the O.P.
The O.P is directed to refund Rs. 2,12,500/-to the complainant alongwithinterest@10%p.aonthe said sum from the date of last payment made by the complainant till this date within 3 months from the date of this order, in default the entire sum shall carry interest@10% p.a till realization.
O.P is further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of 3 months.
