Date of Filing: 07.12.2018
Date of Judgment: 06.09.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant , Sri Bikash Kanti Das, under section 12 of the C.P Act, 1986 against the Opposite Parties(referred to as O.Ps hereinafter) namely 1)Miles & Acres Developers Limited and 2) Antara Bose, alleging deficiency in service on their part.
The case of the complainant in short is that by an Agreement for sale dated 12.6.2012 he agreed to purchase one plot of land measuring about 1440 sq.ft from the O.P under the proposed project namely Northern Enclave at a total consideration of Rs.3 lac of which a booking amount of Rs. 1,25,000/- was paid by the complainant by 2 separate cheques to the erstwhile company namely Desire Hotel & Resorts Ltd. Thereafter complainant has also paid installments and thus paid total sum of Rs. 1,93,750/- . But no work regarding development of the said land was initiated by the O.P and as a result the project got delayed. In June, 2016 the O.P intimated that they would be delivering the possession but all in vein. On 13.5.2016 complainant got a letter from the O.Ps herein intimating the change of name and address of the company from Desire Hotel & Resorts Ltd .to Miles and Acres Developers Ltd. In the said letter it was promised that they would start the registration of the deed from June, 2016 onwards and also had made the proposal for refund of the money paid by the intending purchasers on surrendering of their plot of land. But inspite of the said letter the sum paid by the complainant was not refunded to him . He had surrendered the allotment of plot on 15.2.2018. So, the present complaint for refund of sum of Rs. 1,93,750/- along with 18% p.a , to pay a sum of Rs 1,50,000/- towards compensation for mental pain and agony suffered by him and Rs.50,000/- towards litigation cost .
The O.P has contested the case by filing written version denying and disputing the allegations. It is the specific case of the O.P that the complainant is not a consumer since the present dispute relates to a simpliciter sale of plot of land without any direction on the part of the O.Ps to develop the plots or to construct any house thereon. Since the complaint relates to recovery of money, the competent civil court only has the jurisdiction. It is also contended that the O.Ps have always been ready to provide service to the complainant but due to some legal impediment the O.Ps were restrained from doling the needful as per agreement. So, the O.Ps have prayed for dismissal of the case with cost.
During the course of the trial parties have filed their respective evidences followed by filing questionnaire and reply thereto and ultimately both parties have filed BNA. Argument has also been heard.
So, the following points require determination:
- Whether the complainant is a consumer under the C.P Act?
- Whether there has been any deficiency on the part of the O.Ps in rendering service ?
- Whether complainant is entitled to the relief as prayed for?
Decision with reasons
Point no.1:
The specific case of the O.P is that the complainant is not a consumer as the dispute in the present case relates to simpliciter sale of plot of land. But on a careful scrutiny of the agreement entered into between the parties it appears that clause nos. 6 and 13 of the agreement categorically specified the work to be done by the O.P towards the development of the project before delivery of the possession of the plot. It is categorically stated therein that the metalled road, leveling of the plot, drainage system, plot demarcation etc. was to be done. So, service of development of the plot of land was hired by the complainant and as such the contention of the O.P that no service was hired or the transaction relates to simpliciter sale of plot of land cannot be accepted. The point is thus answered accordingly.
Point nos. 2 and 3 :
On perusal of the written version filed by the O.Ps it appears that execution of the agreement between the parties has not been denied and disputed. It is also not disputed that out of the total sum towards the consideration price, complainant has paid Rs. 1,93,750/-. However, according to the O.P due to some legal impediment the project could not be completed and so no development work was carried out. So, from the said statement of the O.P the claim of the complainant that no work towards the development of the project was carried is well established. It is further strengthened from the letter dated 13.5.2016 sent by the Managing Director of the O.P company being O.P no.2 in this case, wherein it has been categorically stated that the registration will start from the month of July, 2016 and it has been admitted therein that management has decided to carry on with the plotting scheme and had no intention to delay the project. The letter dated 15.2.2018 further indicates that the said promise was not kept by the O.P for which the complainant asked for refund of the sum by his letter dated 15.2.2018. It is nowhere stated by the O.P that the project is completed or they are ready with the handing over of the plot.
In such a situation, since admittedly the payment made by the complainant towards the said plot of land of Rs. 1,93,750/- has not been refunded by the O.P, Complainant is entitled to the said sum along with interest therein on the said sum. It may be further mentioned that the complainant has also filed 3 money receipts showing further payment of Rs. 18000/- each and one receipt of Rs. 12,500/- apart from booking sum of Rs. 1,25,000/- as stated in the memo of consideration in the agreement.
Hence,
ORDERED
CC/657/2018 is allowed on contest.
O.Ps are directed to refund sum of Rs. 1,93,750/- along with interest @9% p.a on the said sum from the date of last payment made by the complainant till this date within 2 months from the date of this order.
O.Ps are further directed to pay litigation cost of Rs. 12000/- to the complainant within the aforesaid period of 2 months in default of payment, the entire amounts shall carry further internet @9% p.a till full realization.
