Sri Jagadish Chandra Barman,  MEMBER

            The facts leading to the filing of the instant case by the complainants may be epitomized as follows:-

         The complainant Paresh Chandra Das intended to purchase a piece of land for making his dwelling house and after knowing matter of selling land from the O. Ps., he booked a plot of land in the ‘Joka Metro City Project’ and signed an ‘Agreement for Sale’ on 17/4/2016. Agreement was signed between two parties namely O. P. No-1 M/S Dewan Developers Private Limited, Represented by the Managing Director Depak Mondal, and the Complainant Paresh Chandra Das .Total Value of two kothas of land was settled Rs. 3,00,000=00 only at the rate of Rs. 1,50,000=00 only per kotha. The complainant paid Rs. 20,000=00 only by cheque no.-535612 dated 20.6.2015 as booking money. The said piece of land is situated at Mouza- Khanberia, J. L. No-32, Touzi no-347,RS  Dag no- 1020 under RS khatian no- 921/911, Plot no- 76[ B1-A] at present the said piece of land  is in its changed name  at Asuti Gram Panchayet-1, P. S. Maheshtala, ADSR Office Behala-DSR-Alipore, dist. – 24 Parganas South.

The plot of land is butted and bounded as follows:-

On the East-Plot no- 75

On the West- Plot no-77

On the South- 20 feet wide road.

On the North-Plot no-85

       It is required to mention  some paras of the Agreement for Sale like the  para 6 of page 4 of the ‘Agreement for Sale’, in which it is mentioned as,  “ the said property should be developed within 36 months which may extend to 6 months from the date of the Agreement as committed by the Vendor. If the Vendor fails to do or arise any dispute regarding commitment and development of the said project, the purchaser may leave and cancel this agreement and the Vendor agrees to repay entire booking amount along with bank interest from the date of receiving to cancel this Agreement.”

         In the para 7 of page 4 of the Agreement for Sale, it is also clearly stated as, “the said property will be free from all encumbrances and after the agreement the owner/vendor cannot or shall not be entitled to transfer, lay out, mortgage or lease in respect of the scheduled property without prior consent in writing of the purchaser or their nominated person.

        In the para 8 of page 4 of the Agreement for Sale', it is clearly mentioned, “If the owner/vendor, after receiving entire consideration amount of the property within stipulated period, fail or neglect to execute registered Deed of Conveyance  within 36 months, which may extend to 6 months from the date of this agreement in favour of the purchaser, in that events purchaser is entitled to notice the owner/vendor, and the owner / vendor bound to refund the entire amount  within 15 days from the receipt of the notice.”

       The para 10 of ‘Agreement for Sale’ states as, “the owner/vendor undertakes the responsibility to provide the basic  amenities i. e.,  supply of electricity from WBSEDCL/CESC, supply of water, sewage & drainage system along with development of road, highland and other  development etc. in the said project area including in the schedule property within the stipulated time of completion,  subject to all timely payment of balance consideration as mentioned in the schedule of payment and cost of development charges for basic amenities will bear  by the purchaser as per agreement for sale.”

The complainant as per terms and conditions of the Agreement had paid full payment as mentioned below:-

      This memo of consideration was signed between Depak Mondal , Director of the Dewan Developers Pvt. Ltd. and Paresh Chandra Das[Complainant]; and there is no dispute as to the full payment . Yet the Opposite parties neither did registration of ‘Deed of Conveyance’ nor handed over the said plot of land after development. Not only that as per statement of the complainant, the O. Ps. did not start the works of construction till the date of submission of this instant case, but complainant’s aspersion is that this  Project  has been abandoned by the O. Ps. and so, the complainant claimed several times to refund his paid amount from the O. Ps. But the O. Ps. did not refund the paid amount to the complainant.

          In the para 5 of the complaint petition, the complainant has mentioned that the directors of Dewan Developer Pvt. Ltd of the Joka Metro Project has been transferred and assigned on 09.12.2020 by publishing it in a newspaper from Dipak Mondal and Anath Bandhu Mondal of Dewan Developers Pvt. Ltd. to 1] Mintu Mistry, 2] Baban Sheikh, and 3] Dipankar Baidya of Messrs Sonakshi Real Estate Pvt. Ltd. It is mentioned in the notice of a Bengali newspaper as , “ Mintu Mistry, Baban Sheikh, and  Dipankar Baidya of Messrs Sonakshi Real Estate Pvt. Ltd. as its incoming Directors who will nevertheless remain responsible for and so pay up, discharge and satisfy all its debts and liabilities up to and inclusive of the date of such transfer but not for any debts, performance or non-performance of any contract or contracts or other liabilities incurred, made or entered into by the said Mintu Mistry, Baban Sheikh, and  Dipankar Baidya or any other person whatsoever in connection with the said business next after the 9.12.2020.”

                In these circumstances, the complainant has been suffering from mental agony, pain, physical harassment due to the unfair trade practice and deficiency in service occurred on the part of all O. Ps. Therefore, finding no other alternative, the Complainant filed this instant case before this Ld. Commission on 16/9/2021 for proper adjudication.        The    complainant has sought in this instant case the following relieves:-  

1] To issue an order to the O. Ps. to refund to the complainant the paid amount of Rs. 3, 00,000.00 only with 18% p.a. simple interest.

2] To issue an order to the O. Ps. to pay Rs. 1, 00,000.00 only to the complainant as compensation amount for their unfair trade practice and deficiency in service.

3] To issue an order to the O. Ps. to pay Rs. 50,000.00 only as litigation cost.

4] To issue any other order to the O. Ps. as the Ld. Commission may think fit and proper.

          Accordingly, the Ld Commission   issued show cause notices and those were served to the O. Ps. Thereafter, the O. P.no  2, 5, 6, 7 have filed their written version and contended the case but O. P. No-1,  3 and 4 have not appeared and filed W. V.  Therefore, O. Ps. 1, 3, 4 were declared ‘Ex-parte’ on 15/2/2021. In the reply, the Opposite Parties, except 1, 3, & 4,  have stated that this instant case is not maintainable as well as they have denied each and every allegation mentioned in the complaint petition.   The Contested opposite parties have also stated that there is no cause of action to file this complaint petition against the contested O. Ps.  Hence, it is liable to be dismissed.

            In the written version, it is clearly stated by O.P.no-2 in his W. V. that the dispute is between the Dewan Developers Pvt. Ltd. O. P. no-1 and the complainant. As such, the O. P. No-2 has no responsibility and liability in relation to any acts done by the O. P. No-1 means the Dewan Developers Pvt. Ltd. Hence, there is no deficiency in service and unfair trade practice on the part of O.P.No-2 as alleged by the complainant against the O. P. No-2. So there is no question to pay litigation cost, compensation amount to pay to the complainant. The O. P. 2 has also denied refunding the paid amount Rs. 3,00,000.00 only with interest to the petitioner.

      The O. P. No 5, 6, 7 have filed their written version separately. In their w. v., they mention that the disputes are between the O. P.No-1 and the complainant, they are not in any way liable and responsible as the statements made therein. As per statement, O. P. No-1 M/S.  Dewan  Developers Pvt. Ltd. and its directors  namely Dipak Mondal and Anath Bandhu Mondal had approached to the O. P. Nos. 5,6,7. O. P. No-1 was consented by the O. Ps. 2, 5, 6, 7 by an unregistered ‘Agreement for Sale’ dated 9.12.2020 in respect of the incomplete project for a consideration amount Rs. 1,35,00,000.00 only . But payment was not completed fully;  Rs. 15,000,00.00 only was paid by the O. P. 2,5,6,7. It was assured by the O. P.No-1 that Registration of the said piece of land of Joka Metro Project under Dewan Developers Pvt. Ltd. would be done in time and O. P. No 1 would hand over all copies of agreements signed between purchasers and O. P. No-1 in time. But the O.P.no-1 failed to satisfy the transferrable title of the land in favour of the purchasers’ agreement in respect of the plot in the project and as a result, the encashment of the post dated cheques handed over by the O.Ps. were stopped and registration of the Agreement  dated  9/12/2020  was not given effect.

     As per statement of O. P.No-5,6,7, the O.P.No-1 through Dipak Mondal in connivance with the police officer lodged a complaint in Sonarpur P. S. vide case  No- 673 dated 14.8.2021 under sections 406,420,467, 468,471,506, and 120B IPC; and the O.Ps. were  arrested and during in custody, one memorandum of settlement  was achieved on 13.9.2021 whereby the opposite parties  agreed to pay  Rs. 1,18,00,000.00 only  to Messrs. Dewan Development Pvt. Ltd. . Thereafter, Dipak Mondal of O. P. No-1 received Rs. 70,000,00.00 only through Bank draft. As a result, the Agreement dated 9.12.2020 became non est and void. Hence, the O. P. Nos. 5, 6, 7 do not have any legal authority to share the liabilities and responsibilities of Messrs Dewan Development Pvt. Ltd. ,the O. P. NO-1.It s not known to the O. P. No-5,6,7 as to whether any legal  Agreement  between M/S. Sonakshi  Real Estate Private Ltd. and Messrs. Dewan Developers Pvt. Ltd has been executed. As such, complainant is put to strict legal proof thereof.

        Hence, there is no deficiency in service and unfair trade practice on the part of O.P.No-2, 5,6,and 7 as alleged by the complainant against these  O. Ps. So there is no question to pay litigation cost, compensation amount and refund of the paid amount Rs. 3,00,000.00 only to the complainant.         

     Upon the averments of the complaint petition, the following points are formulated:-

POINTS FOR DETERMINATION

1].    Is the complainant a ‘Consumer ’?

2]    Are the O. Ps.  guilty of deficiency of services and unfair trade practice as alleged by the complainant?

3]      Is the complainant entitled to get relief /relieves as prayed for?

EVIDENCE/BNA OF THE COMPLAINANT/O. Ps.

              The complainant filed his evidence on affidavit on 28.01.2022, and the O. Ps. no- 2, 5, 6, 7 filed their evidences on 18.05.2022. The complainant and O. P. No- 2,5,6,7 also filed questionnaires, reply, and BNAs separately.

DECISIONS WITH REASONS.

       The complainant Paresh Chandra Das intended to purchase a piece of land for making his dwelling house and communicated with the O. Ps.  Thereafter, he booked a plot of land in the ‘Joka Metro City Project’ and signed an ‘Agreement for Sale’ on 17/4/2016. Agreement was signed between two parties namely O. P. No-1 Dewan Developers Private Limited, represented by the Managing Director Depak Mondal,  and the Complainant Paresh Chandra Das. Total Value of two kothas of land was settled Rs. 3,00,000=00 only at the rate of Rs. 1,50,000=00 only per kotha. The complainant paid Rs. 20,000=00 only by cheque no.-535612 dated 20.6.2015 as booking money. Thereafter, the Complainant had paid full amount Rs. 3,00,000.00 only in several installments  to the O P. 1 Dewan Developers Private Limited, represented by the Managing Director Depak Mondal. The O. P. 1 had also issued money receipts in favour of the complainant for payments. There is no dispute of payments.

        Therefore, there is no doubt that the complainant is a `CONSUMER` under Section 2[7] of the Consumer Protection Act 2019.

       In relation to point for determination no. 2- ‘’Are the O. Ps.  guilty of deficiency of services and unfair trade practice as alleged by the complainant?” and for the point no-3  “Is the complainant entitled to get relief /relieves as prayed for?”- it is relevant to opine that in this instant case, the complainant paid Rs.3,00,000.00 only  to the opposite party no 1 in order to get a plot of land in the ‘Joka Metro City Project’ and signed an ‘Agreement for Sale’ on 17/4/2016. Agreement was signed between two parties namely O. P. No-1 M/S Dewan Developers Private Limited, represented by the Managing Director Depak Mondal and the Complainant Paresh Chandra Das. Thereafter, the Complainant had paid full consideration amount Rs. 3, 00,000.00 only in several installments to the O P. 1 within 7.3.2018. The O. P. 1 had also issued money receipts for payments. There is no dispute of full payments to the O. P. No-1. But till today the complainant did not get the booked plot of land after development. The O. P. No-1, 3, 4  neither developed the plot of land as per terms and conditions of the Agreement for Sale  dated   17/4/2016  nor handed over  the plot of land after registration of the ‘Deed of Conveyance’ within stipulated period  of 36 months which may extend to 6 months from the date of the Agreement as committed by the Vendor. It was ought  by the O. P. No-1, 3, 4 to develop the said plot of land and register the ‘Deed of Conveyance’ within 36 months which may extend to 6 months from the date of the Agreement   dated   17/4/2016  i.e., within 16.10.2019.But the Developer  O. P. 1, 3,4 did not  perform the same and they also did not refund the paid amount Rs. 3,00,000.00 only to the complainant as per para 8 of page  4 of the ‘Agreement for Sale'. They also did not pay any heed to the claim of the complainant to refund his paid money.

       Hence, it is clear to us that the O. P. 1, 3 & 4  altogether have violated their duties, responsibilities and liabilities mentioned under para 6 and   8 of page 4 of  the ‘Agreement for Sale’ dated   17/4/2016. Ergo, unfair trade practice and deficiency in service both have been occurred on behalf of the O.Ps. 1, 3  &  4.

       It is very much worthy to mention that a ‘Notice of Transfer of Business ` was published on 9.12.2020 for all concern. It was clearly mentioned in the notice as , “ Mintu Mistry, Baban Sheikh, and  Dipankar Baidya of Messrs Sonakshi Real Estate Pvt. Ltd as its incoming Directors who will nevertheless remain responsible for and so pay up, discharge and satisfy all its debts and liabilities up to and inclusive of the date of such transfer but not for any debts, performance or non-performance of any contract or contracts or other liabilities incurred, made or entered into by the said Mintu Mistry, Baban Sheikh, and  Dipankar Baidya or any other person whatsoever in connection with the said business next after the 9.12.2020.” The same was also published in a Bengali News Paper.

       A Memorandum of Agreement was also signed on 9th day of December 2020 between O.Ps.  the  Dewan Developers Pvt. Ltd. and  Messrs Sonakshi Real Estate Pvt. Ltd. According to the Unregistered Agreement for Sale, dated 9.12.2020 in respect of the incomplete project for a consideration amount Rs. 1,35,00,000.00 only . But full payment was not completed;  Rs. 15,000,00.00 only was paid by the O. P. 2,5,6,7. It was assured by the O. P.No-1 that Registration of the said piece of land of ‘Joka Metro Project’ under Dewan Developers Pvt. Ltd. would be done in time and O. P. No 1 would hand over all copies of agreement signed between purchasers and O.P. No-1.  But the O.P.no-1 failed to satisfy the transferrable title of the land in favour of the purchaser’s agreement in respect of the plot in the project and as a result, the encashment of the post dated cheques handed over by the O.Ps. were stopped and registration of the Agreement  dated  9/12/2020  was not given effect.

        But as per para [c] of this ‘Agreement for Sale’ , the Dewan Developers Pvt. Ltd. had  delivered the books of account and other books relating to the said business containing full particulars of the debts, respective due  and also the particulars of the contract and engagement to which the O. P. No-1 is liable in respect of the said business to the Sonakshi Real Estate Pvt. Ltd. But the O. P. 1 did not get full consideration amount of Rs. 1,35,00,000.00 only, received only Rs. 70,00000.00 only from the O. P. No-2.

          Hence,  the all O. Ps. means 1,  2, 3, 4, 5, 6 & 7  are   liable to refund the paid amount Rs. 3,00,000.00 only to the complainant with10% p. a. simple interest from the date of signing the  ‘Agreement for Sale’ dated   17/4/2016 till realization  but within 45 days from the date of issuing this order.

        The O. P. No-1, 3, 4 or O. P. No 2, 5, 6, 7 both are liable to pay cost of litigation Rs. 25,000=00 only to the complainant within 45 days from the date of issuing this Order.

        The O. P. No-1, 3, 4 or  O. P. No 2, 5, 6, 7 both are liable to pay compensation amount to the tune of Rs. 1,00,000=00 only for their deficiency in service and unfair trade practice. This compensation amount should be paid to the complainant either jointly or severally within 45 days from the date of issuing this order.

        All payments of litigation cost, compensation amount should be paid within 45 from the date of issuing this order, failing which the O. Ps.  should bear 9% p. a. simple interest from the date of issuing this order till realization.

          As a result, the complaint case is succeeded.

Hence, it is

ORDERED

            That the complaint case be and the same is hereby allowed on contest against  all the O. P. no  2,  5, 6, 7 and ex-parte against O. P. No-1, 3, 4 with a cost of litigation Rs.25,000=00 (twenty five thousand) only.

         All the O. Ps. either jointly or severally are   liable to refund the paid amount Rs. 3,00,000.00  [Rs. Three lac] only to the complainant  within 45 days from the date of issuing this order with10% p. a. simple interest from the date of signing the  ‘Agreement for Sale’ dated   17/4/2016 till realization.

        The O. P. No-1, 3, 4 or O. P. No 2, 5, 6, 7 both are liable to pay cost of litigation Rs. 25,000=00 [ Rs. Twenty five] only to the complainant within 45 days from the date of issuing this Order.

          The O. P. No-1, 3, 4 or O. P. No 2, 5, 6, 7 both are liable to pay compensation amount to the tune of Rs. 1,00,000=00 [ Rs. One lac] only for their deficiency in service occurred under section 2[11] and unfair trade practice occurred under section 2[47] of the Consumer Protection Act 2019. This compensation amount should be paid to the complainant either jointly or severally within 45 days from the date of issuing this order.

        All payments of litigation cost, compensation amount should be paid within 45 from the date of issuing this order, failing which the O. Ps.  should bear 9% p. a. simple interest from the date of issuing this order till realization.

        The Complainant is at liberty to put the order into execution after expiry of 45 days in case the orders are not complied with by the O. Ps. within 45 days from the date of issuing this order.

             Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.

            The final order be also available in www.confonet.nic.in

Prepared and Corrected by me.

  ( Jagadish Chandra Barman)                             

            (Member)