Dt. of filing – 09/03/2018

Dt. of Judgement – 11/01/2019

Mrs. Sashi Kala Basu, President.

        This consumer  complaint is filed by the  complainant namely Nandita Sarkar under Section  12 of the Consumer Protection Act, 1986 alleging deficiency in rendering services by the Opposite Parties namely M/s. Broadways Realtors Pvt. Ltd. represented by its Managing Director Sri Arun Kumar Sarkar.

          Complainant’s case in brief is that  complainant  entered into an agreement dated 31.05.2010  with the O. P. to purchase Plot of land mentioned in schedule of the  complain petition at a total  consideration of Rs. 3,40,000/-as per   terms and conditions mentioned in the agreement. Complainant paid  Rs.68,000/-  only at the time of execution  of agreement  and the rest of the amount  has been paid by   60 EMI amounting to Rs. 4,533/- only. Complainant has paid the entire amount but O.P has neither delivered the possession  of the plot nor has  refunded the amount paid by the  complainant. Since inspite of sending  legal notice, O.P. failed  and neglected to refund the money, present case  is filed by the complainant  praying  for directing the O.P to refund the  total consideration of Rs. 3,40,000/- along with interest @15% p.a. from the date of last payment to till realisation, to pay litigation cost of Rs.30,000/- and to pay compensation of Rs. 1,00,000/-.

          Opposite Party has contested the  case by filing the written version denying the allegations made  in the complain petition stating  inter-alia that  due to some acquisition  and requisition problem, project is required  to be modified. Opposite Party offered  alternative plot to the complainant but the  complainant  did not accept it. There has not been any intentional and wilful latches on the part of the O.P and thus  O.P has prayed for dismissal of the case.

          With the petition of  complaint,  complainant has annexed copy of agreement,   copy of deposit slips showing payment  of EMI,  letters  and notice sent to the O.P and replies by the  O.P.

          In course of  evidence parties filed  their respective affidavit –in-chiefs,  questionnaires  and reply thereto.

          Both the parties have filed  brief Notes of Argument. Ld. Advocate for O.P  has also argued that the  complainant   cannot be ‘Consumer’  under the Consumer Protection Act, 1986 as mere purchase of a Plot  of  land cannot be termed as dispute regarding housing  construction . In support of his argument, he  has  cited the  case  laws reported in  2015 92) CPR 195 (NC) and  2017 (2)  CPR 477 (NC).

          Thus the point for consideration  is whether the complainant is entitled to the reliefs as prayed ?

Decision with reason

        At the very outset it may be pointed out that execution of agreement for sale for schedule property and that the entire consideration  as agreed, has been paid by the  complainant has not been disputed by the Opposite  Party. Only contention  which is raised by the O.P  is that due to some acquisition  and requisition problem in land,  said  project as agreed  is required to be modified, altered  and so O.P. offered land in some other project but complainant did not  accept it. In this contest  it may be mentioned  that  there remains no doubt that the O.P has violated the  terms and condition of the agreement as agreed by and between the partiess O.P cannot  escape  from the liability by saying that  it  offered alternative plot. It  cannot  force the complainant  to accept the plot in some  other  project in place of the plot as agreed. So by  not  delivering the possession  of the plot  as agreed  within the stipulated  period or even thereafter for  several years,  O.P has rendered  deficiency in  providing  services. Admittedly,  money paid by the  complainant has  not been refunded by the  Opposite Party.

          Regarding the argument that  the dispute in this case cannot be  termed  as dispute relating  to housing construction and so it will not  fall within the ambit of Consumer Protection Act, it appears that the O.P  has not agitated this point in the written version.  However, even accepting  that the same is a law point, the agreement clearly indicates that  the land was to be developed by the  O.P.  It is  specifically stated in the agreement  that FIRST PARTY   ( The O.P. herein ) shall  have the right to develop the  land mentioned in the first schedule. So the status of the O.P  as a developer cannot be denied and as such  the argument of the O.P in the B.N.A. that  O.P is a mere seller of plot  of land and  not  a contractor or  developer, cannot be accepted.

          In the case law relied upon by the O.P reported in  2015(2) CPR  195 (NC), there was no contract  specifically about the plot  claimed by the  complainant  in that  case and  no document to show that the Colony claimed  actually  was in existence. Facts and  circumstances of each case  differs  and so  the application of the case  laws  depends  on how far  it applies   to the  facts in the given case. In this  case in hand, the recital in the agreement  is very  categorical about the project and  to  develop the same ‘which is  already  highlighted above.

          Thus in these view of the matter, complainant  is entitled to refund of the  money paid by  her along with  interest and the litigation cost. But as the interest is allowed  further direction to pay  compensation will not be justified.

Hence,

                                                             Ordered

          CC/115/2018 is allowed on  contest.  Opposite Party is  directed to  refund Rs. 3,40,000/- only  along with interest @10% from the  last date of payment by   the  complainant to till this date, within two months  from the date of this order. O.P is also directed  to pay the litigation cost of Rs. 12,000/- within the aforesaid period of two months  in default the  entire amount shall carry  the interest @ 10% p.a. till  realisation.