Date of filing : 18.09.2017
Judgment : Dt.13.03.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Mrs. Papiya Sinha alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Desire Agro Resorts Development Pvt. Ltd., (2) Ashok Kumar Basu and (3) Sanjay Kumar Shaw.
Case of the Complainant, in short is that she was lured by the OP Company with a tempting scheme to invest in the Diamond Gate project ventured by the OP No.1. She being lured she deposited a sum of Rs.2,21,000/- in the OP Company Diamond Gate project in order to purchase a plot No.0231 and Company issued receipts dt.26.12.2006 and 29.5.2012. A agreement was also executed by and between the parties, whereby the OP Company agreed to give her plot of land measuring more or less 1800 sq.ft. on receiving full consideration price of Rs.2,21,000/-. But in spite of making the full payment, the OP did not hand over the plot of land as agreed. A letter was sent by the OP to the Complainant stating that they were compelled to convert each and every land project to housing complex and thus offered the Complainant a flat measuring 325 sq.ft at free of cost in the said housing Complex in lieu of the plot. But in spite of the said letter the OP failed either to hand over the plot of land or the flat. So, finding no alternative, Complainant sent a letter dt.7.6.2017 to the OP asking to refund the money deposited by her. But the OP company has also not returned the money deposited by her and thus the present complaint has been filed by the Complainant praying for directing the OP to return the amount of Rs.2,21,000/- paid by her and to pay compensation to the tune of Rs.1,00,000/-.
The case has been contested by the OPs by filing written version denying the allegations made in the complaint petition. It has been contended by the OPs that the complaint is not maintainable as only the competent Civil Court has the jurisdiction to adjudicate the subject mat ter. It is the case of the OP that it is simplicitor a money suit and so this Forum has no jurisdiction. Due to some legal impediments the OPs were restrained from doing the needful as per the agreement entered into between the parties. The consideration money was to be paid within three years. But the Complainant did not make the payment as agreed and so there has been no violation on the part of the OPs. Thus, the OPs have prayed for dismissal of the case.
During the course of the evidence, both the parties have adduced evidence by filing their respective affidavit-in-chief followed by filing of questionnaire and reply thereto. Ultimately, both the parties have filed written notes of argument.
So, the following points require determination
- Whether the Complainant is a consumer under the provision of Consumer Protection Act?
- Whether there has been any deficiency on the part of the OPs?
- Whether the Complainant is entitled for the relief as prayed for?
Decision with reasons
Point Nos.1 to 3:
All the points are taken up together for a comprehensive discussion and decision.
On perusal of the agreement entered into between the parties dt.2.6.2009 it appears that the OPs agreed to sale a plot of land measuring more or less 1800 sq.ft in the project called ‘Diamond Gate’ on payment of total amount of Rs.2,12,500/-.
It may be pointed out that now it is a settled principle of law when a person enters into an agreement for allotment or purchase of a plot of land to be developed by a firm/body as well as by a person on payment of the consideration as and when, he/she is said to have availed or hired service of the concerned developer and thus is ‘a consumer’ within the meaning under Section 2(1)(d) of the Consumer Protection Act. It is apparent from the said agreement dt.2.6.2009 the OP agreed to sale the plot of land after it is developed and on payment of the consideration price as agreed within 36 months. So, it is apparent that the land was to be developed as agreed by and between the parties and so the contention of the OP that the Complainant is not a consumer cannot be accepted.
On perusal of the written version and other materials in the record, it is apparent that the OP has not disputed and denied the claim of the Complainant about purchase of a plot of land and payment of the entire amount. Complainant has also filed the money receipts in order to substantiate her claim of payment of entire amount. It is an admitted fact that the project was not developed and the plot of land as agreed has not been handed over to the Complainant. A copy of the letter dt.7.2.2012 has been filed by the Complainant wherefrom it appears that the OPs have stated that they were compelled to convert each and every project to the housing complex and offered the Complainant a flat measuring 325 sq.ft. per cottah in the said housing complex in lieu of the plot of land. It is also stated in the said letter that unwilling plot holder members will be refunded their deposited money within 120-150 days. It has been categorically claimed by the Complainant that she has neither been handed over any flat as offered in the said letter nor has been refunded the money as stated therein. The said letter also suggests that the entire money as agreed was paid by the Complainant. In such a situation, there remains no doubt that there has been deficiency of service and as such Complainant is entitled to refund of the money of Rs.2,12,500/- as stated in the agreement and not Rs.2,21,000/- as stated in the complaint as the total consideration price was Rs.2,12,500/- and also entitled to the compensation for harassment and mental agony.
Thus the points are answered accordingly.
Hence
ordered
That CC/545/2017 is allowed on contest. OPs are directed to refund Rs.2,12,500/- to the Complainant within two months from the date of this order. The OPs are also directed to pay Rs.40,000/- as compensation within the aforesaid period of two months, failing which the entire sum shall carry interest @ 10% p.a. till its realization.
