Date of filing: 27/03/2019
Judgment date: 02/08/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainants (1) Sri Jayanta Sanyal and (2) Smt. Daliya Sanyal under section 12 of the Consumer Protection Act, 1986 alleging deficiency in rendering of service and unfair trade practice on the part of the opposite parties (referred as OPs hereinafter) namely (1) GMG Devacon Pvt. Ltd. (2) Mr Alvin Philip and (3) Mrs. Thankamma Philips..
Case of the complainants in short is that OP 1 is engaged in the business of developing the modern city with all amenities and the OP 2 and 3 are the Managing Director and the Director of OP 1 Company. On seeing the advertisement published by the opposite parties complainants booked two nos. of plots in GMG Heaven City to be developed by the opposite parties vide application dt 08/03/2013. The complainant was allotted plot nos. 585 & 586 measuring 5 Cottah in total @ Rs. 1,82,500/- per Cottah. Complainant paid booking amount of Rs. 2,73,750/- to the OPs. The balance amount of Rs. 6,38,750/- was payable in 36 nos. of equal installment. As per the terms of the agreement the OPs were to demarcate it as well as deliver the possession within three years along with a grace period of six months. Complainants have paid the entire consideration money of Rs. 9,12,500/- which has been acknowledged by the OP 1 by issuing money receipts. But the OPs have failed to develop the land and on visit by the complainants in the project site in June 2018, complainants found that no development work at all as promised was done by the opposite parties. So the complainants sent a notice through their Ld. Advocate dated 18/02/2019 demanding the physical possession of the plot and to register the deed of conveyance in respect of said two plots or in alternatively to refund the entire consideration price of Rs. 9,12,500/- but OPs paid no heed. So the present complaint has been filed by the complainants praying for directing the OPs to complete the development work of the project and to deliver the physical possession of plot nos. 585 & 586 in GMG Heaven City with all the amenities and facilities as agreed and to register the deed of conveyance in respect of the said two plot being nos.585 & 586 in favour of the complainants, to jointly and severally hand over the total deeds of the land mutation certificate, porcha, tax receipts and permission granted by Gram Panchayat to develop the project. In alternatively to direct the OPs to jointly and severally refund the sum of Rs. 9,12,500/- to the complainants, to pay compensation of Rs. 4,00,000/-, to pay interest @ 12% p.a. over the sum of Rs. 9,12,500/- and to pay litigation cost of Rs. 75,000/-.
Opposite parties have contested the case by filing the written version denying and disputing the allegations contending specifically that the OP has completely finished the development work over the land and they had already intimated the complainants that they are ready and willing to register the plots in their favour but the complainants did not show any interest towards the same. OPs are still ready and willing to register the property in favour of the complainants and also handover all the papers in relation to the same. So the OPs have prayed for dismissal of the complaint.
During the course of evidence complainants filed their examination in chief on affidavit which was followed by filing of questionnaire by the OP and reply by the complainant. OP also filed a petition praying to treat the written version filed by them as affidavit in chief subsequent to the same questionnaire were filed by the complainants but no reply was filed by the OPs. The OPs also did not take any step during the argument. The argument on behalf of the complainant was heard. BNA was also filed on behalf of the complainants.
So the following points require determination;
- Whether there has been any deficiency in rendering of service by the OPs?
- Whether the complainants are entitled to the relief as prayed for
DECISION WITH REASONS
In support of their claim, complainants have filed copy of the application towards booking of the two plots and have also filed the money receipts and the declaration dated 04/04/2013 executed by the developer.
On a careful scrutiny of written version filed by the opposite parties, it is evident that neither execution of declaration to sell the two plots as claimed by the complainants being plot nos. 585 & 586 has been disputed and denied by the OPs nor the payment of entire consideration money by the complainants have been disputed. It is evident from the terms and conditions of the said declaration that the OPs were to demarcate it as well as deliver the possession of the plots after its development within three years along with a grace period of six months. It is also specifically stated in the said declaration that it is declared by the OPs that if the company failed to demarcate and/or to deliver the possession of the promised plots to the complainants due to some unprecedented reason, they would accommodate the complainants to any other plot having similar facilities. It is an admitted fact that OPs have not delivered the possession of the two plots neither they have made arrangement to deliver the possession of any other plot as declared in the said declaration. Though OPs have contended that they have completely finished the development work and have intimated the complainant that they are ready and willing to register the property but it is the complainant who did not show any interest but no document has been filed to substantiate their claim that the project is complete. Certain photographs have been filed by the OP but from those photographs it cannot be ascertained that the development of the project has been completed as agreed and it is ready for delivery. It is the specific claim of the complainants that no development work was done in the said project when they visited the site.
It may be pertinent to point out that since there is no denial that the entire consideration price has been paid by the complainants, then it is hard to believe that they would not take any step to get the possession of the property. So the contention of the OPs that the development work over the land is completed but the complainants themselves did not show any interest cannot be accepted and appears to be afterthought and subsequent development for the purpose of this case. So in view of discussion as highlighted above, as complainants have neither been handover the possession of the plots nor deed has been registered and further they have also not been refunded the sum paid by them, complainants are entitled to the relief of direction upon the OPs to hand over possession of the plots and registration of the deed of conveyance, in alternatively they are entitled to refund of sum along with compensation in the form of interest.
Hence
ORDERED
CC/199/2019 is allowed on contest. OPs are directed to deliver the possession of the two plots as per declaration dated 04/04/2013 and to register the deed of conveyance in favour of the complainants in respect of the said two allotted plots being nos. 585 & 586 within two months from the date of passing of this order. In alternatively if OPs fail to deliver the two plots and register the deed of conveyance, they are directed to refund the sum of Rs. 9,12,500/- to the complainants along with interest on the said sum @ 10% p.a. from the date of the said declaration dated 04/04/2013 to till this date within the aforesaid period of two months. In default of payment, the entire sum shall carry interest @ 10% p.a. till realization. OPs are further directed to pay litigation cost of Rs. 12,000/- to the complainants within the aforesaid period of two months.
