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 , Mrs. Snigdha Ganguly 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 agreed to purchase a plot measuring an area 1440 sq.ft in the project being developed by the O.Ps at Mouza –Khariberia, Dag No.491 under khatian No.1057, J.L. NO. 29, District- South24-Parganas , being booking No. Diamond Gate 417. Upon receiving a total sum of Rs. 1,50,000/- the opposite parties duly issued acknowledgement receipts to the complainant for the said plot of land at Mouza –Khariberia, Dag No.491 under khatian No.1057, J.L. NO. 29, District- South24-Parganas , being booking No. Diamond Gate 417 at a total consideration of Rs. 1,50,000/-. On receiving the said booking amount of Rs. 1,50,000/- the booking certificate with particulars of plot in respect of Diamond Gate plot no.417 was issued by the O.P in favour of the complainant. The complainant time and again had visited the office of the O.P. and every time the Ops assured to make registered Deed of Conveyance in respect of the plot of land allotted to her. 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 but 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 hand over the possession of the plot and to execute and register the deed of conveyance or alternatively to refund the entire consideration paid by the complainant alongwith @18% p.a. interest and further to pay compensation of Rs. 3,00,000/- and litigation cost of Rs. 10,000/-.
Complainant has filed the Deed Of Agreement dtd. 27th day of September 2007 duly executed by the OP as Vendor for booking of the plot, money receipts, the certificate issued by the O.P in respect of Mouza –Khariberia, Dag No.491 under khatian No.1057, J.L. NO. 29, District- South24-Parganas , being booking No. Diamond Gate 417.
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:
- 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 ?
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 Mouza –Khariberia, Dag No.491 under khatian No.1057, J.L. NO. 29, District- South24-Parganas , being booking No. Diamond Gate 417. However, she has filed number of receipts which shows that they were issued by the O.P on receipt of the consideration price as agreed between the parties in respect of the aforesaid plot of land. These receipts show that the complainant has paid a total amount of Rs. 1,50,000/- in respect of the aforementioned plot.
On a careful scrutiny of the written version as well as the questionnaire filed by the O.Ps and the reply to the filed by the complainant, as well as the affidavit –in-chief filed by the Complainant it appears that the O.Ps have not denied and disputed about payment of a total sum of Rs. 1,50,000/- . Apart from this. So, on consideration of the receipts filed by the complainant showing payment of entire sum of Rs. 1,50,000/- , she is entitled to refund of the same ,especially when it is the own case o f 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 her.
Hence,
ORDERED
That CC/301/2019 is allowed on contest against the O.P.
The O.P is directed to refund Rs. 1,50,000/- 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.
