Date of Filing: 20.6.2019

Date of Judgment:  15.02.2023 

Mrs.  Ashoka Guha Roy Bera, Hon’ble  Member

This complaint is filed by the complainant , Mr. Sachindra Mishra  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.  By an agreement dtd 28^th February, 2008, the complainant agreed to purchase a plot of land measuring an area 1440 sq.ft in the project being developed by the O.Ps at Mouza –Joykrishnapur Chiari, Dag No. 1629 under khatian No. L.R 2803, J.L. NO. 63, District- South24-Parganas , being booking No. BIDYUT NAGAR-153. Opposite parties had issued a certificate in favour of the complainant giving the specifications and details of plot booked by the complainant. Upon receiving a total sum of Rs. 50, 663/- the Ops informed the complainant that they were unable to give the land for which booking has been made by an agreement dtd 28^th February, 2008. The complainant time and again had visited the office of the O.P. for refund of money but every time the Ops avoided the complainant showing excuses and verbally assured that they will refund the entire amount of Rs. 50, 663/- but in spite of several representations to the O.P and its Managing Director, the O.Ps have neither handed over the plot nor executed and registered the deed nor the money was refunded. The Ops had only refunded Rs. 5,000/- out of Rs. 50,663/- paid to them. As they are unable to give possession of the plot, so they forcibly asked the complainant to surrender all his documents related to the plot of land. Since the complainant did not have any other option except to surrender the documents the complainant had signed the ‘SURRENDER FORM’ and submitted all the documents to the OPs. Since neither the plot was handed over nor the money was refunded, the present complaint has been filed by the complainant for directing the O.P to refund the money of Rs. 45, 663/- alongwith interest @ 18% p.a. to the complainant and litigation cost of Rs. 10,000/-. 

            Complainant has filed the Deed Of Agreement dtd. 28th February 2008 duly executed by the OP as Vendor for booking of the plot, the certificate issued by the O.P in respect of the plot mentioned therein.

            O.P is contesting the case by filing written version along with a non-maintainability petition dtd. 16.9.2019 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:

1. Whether the complainant is a consumer under the Consumer Protection Act?
2. Whether there has been any deficiency in service on the part of the opposite parties?
3. Whether the complainant is entitled to the reliefs as prayed for ?  

DECISION WITH 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 booking application, it appears that terms and conditions consist therein 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 booking application 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. So, the contention of the O.P that this is a simplicitor case of sale of land cannot be accepted and thus since the complainant is a consumer, 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 bought a plot of land mentioned herein. He  has filed ‘the certificate’ and ‘the surrender form’ which shows that they were issued by the O.P on receipt of the consideration price vide agreement dtd. 28^th February, 2008  between the parties in respect of the aforesaid plot of land. The ‘SURRENDER FORM’ show that the complainant has paid a total amount of Rs. 50,663/- in respect of the aforementioned plot. Terms and conditions mentioned in paragraph 1, 2, 5 & 6 of the aforesaid agreement have duly been complied by the complainant.

            On a careful scrutiny of the written version as well as the questionnaire filed by the O.Ps and the reply  filed by the complainant, as well as the affidavit –in-chief and ‘Surrender form’ filed by the Complainant it appears that the O.Ps have not denied and disputed about payment of a total sum of Rs. 50,663/- apart from this. So, on consideration of the surrender form filed by the complainant showing payment made to the OP, a sum of Rs. 50,663/- out of which Rs. 5,000/- has already been paid, so he is entitled to refund of the (Rs. 50, 663-Rs. 5,000)= Rs. 45,663/-, 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/299/2019 is allowed on contest against the O.P.

The O.P is directed to refund Rs. 45,663/- to the complainant along with interest @10% p.a on the 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.