Date of filing : 15.11.2017

Judgment : Dt.10.1..2019

Mrs. Sashi Kala Basu, President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Nilanjan Ghorai 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 measuring about 1440 sq.ft. in the project namely Middle Town (Bhasa) 32, lying and situated at Mouza – Bhasa, J.L.No.20 under Bishnupur P.S., together with all the easement rights and  common facilities attached therein. The Complainant paid a sum of Rs.48,000/- on 1.11.2006 as booking amount out of total consideration of Rs.2,40,000/-. The OP issued a certificate of specification dt.23.5.2008. An agreement dt.10.9.2008 has also been executed by and between Complainant and the OP No.1 being represented by OP No.3. The remaining balance of consideration money was agreed to be paid by the Complainant at equal monthly installment of Rs.4,000/- for the period of 48 months. 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 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.2,40,000/- along with interest @ 18% p.a. from the date of final payment i.e. since December, 2011, 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. Thus, OPs have prayed to dismiss the complaint petition.

            Complainant has annexed with the complaint petition the certificate regarding  the booking of the plot, copy of the agreement, copy of the statement of accounts, letters sent and also the reply thereto and the copy of the legal notice.

            In course of the evidence, both the parties adduced their respective evidences by filing the affidavit-in-chief and the cross examinations in the form of filing the questionnaire and the reply thereto.

            Both the parties filed the written notes of argument at the stage of argument. So, the following points require determination..

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

            2) Whether there has been any deficiency in providing services on the part of the OPs?

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

            Decision with reasons

            Point No.1 – It is a settled principle of law that any person enters into agreement for allotment or purchase of plot of land to be developed by a firm, body as well as by 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 within the meaning of Section 2(1)(d) of the Consumer Protection Act. On perusal of the agreement entered into by and between the parties. It is apparent that the OP agreed to sale a plot of land in the project Middle Town (Bhasa) described in the schedule of the complaint petition as well as in the agreement which was to be developed, on payment of total consideration of Rs.2,40,000/-. So, there remains no doubt that as per the said agreement dt.10.9.2008 the Complainant has hired or availed the services of the OPs and thus is a consumer within the meaning as provided under the provision of Consumer Protection Act. So, the contention of the OP that it is purely a money suit and the case will lie only before a Civil Court cannot be accepted.

            This point is thus answered accordingly.

Point No.2 & 3 – Both the points are taken up together for discussion for the sake of convenience and in order to avoid repetition.

In this case, it is an admitted fact that the Complainant had booked a plot of land described in the schedule of the complaint petition in the project namely Middle Town (Bhasa) on payment of consideration of Rs.2,40,000/- and accordingly a booking certificate was issued and pursuant to the same an agreement was executed on 10.9.2008. The certificate of specification was issued on 23.5.2008. In order to substantiate his claim that he has paid the entire consideration amount, Complainant has filed the statement of account showing the payment of monthly installment as agreed of Rs.4,000/- and also the certificate whereby booking amount of Rs.48,000/- was paid. A document relating to customer updating which appears to have been issued by the OP on 18.5.2011 has also been filed, wherefrom it appears that the OPs have acknowledged receiving the full payment towards consideration price.

On perusal of the questionnaire filed by the Complainant to the evidence of the OPs being question No.8, it has been asked whether the OP No.1 Company has received the entire consideration amount including the development charges in respect of the scheduled plot of land from the Complainant, in answer to the said question, the OPs in their reply to the questionnaire being No.8 has stated that the “matter to be verified”. So, the OPs have not specifically denied that the entire consideration amount has not been received. On the contrary, in their letter dated 15.12.2015 OPs have also assured to the Complainant that they shall refund the amount. Said letter indicates that there was some problem regarding requisition of land. It further appears that by letter dated 28.1.2013 Complainant had even given option of reallocation of another plot in place of old plot No.32. But admittedly plot has not been handed over.

So, in spite of payment of the entire consideration money, the OPs have failed to deliver the plot of land as agreed and have also not refunded the amount paid by the Complainant and as such there has been deficiency in services on the part of the OPs. Thus the Complainant is entitled to the relief as prayed for.

However since there is no materials in record to show that the development in respect of the said project is completed and ready to be handed over, it would be appropriate for directing the OPs to refund the consideration price along with interest. But, as interest is allowed, we decline to pass an order as to compensation.

These points are answered accordingly.

Hence, it is

                                                             ordered

CC/651/2017 is allowed on contest. OPs are hereby directed to refund Rs.2,40,000/- to the Complainant along with interest @ 10% p.a. from the date of last payment made by the Complainant i.e. in December,2011 to till this day within two months from the date of passing of this order. The OPs shall also pay an amount of Rs.10,000/- towards litigation cost, in default, the entire amount shall carry interest @ 10% p.a. till realization.