Sri Ashoke Kumar Pal, President
The crux of the instant complaint case in short is that the complainant booked a plot of land being Plot No : 62 (Bl-A) at Joka Metro City Project more fully described in the schedule of the petition of complaint and agreement for sale dated 22.05.2016 (Annexure - A) at a valuable consideration of Rs.3,00,000/- (Rupees three lakhs) only. The complainant paid the entire consideration amount of Rs.3,00,000/-(Rupees three lakhs) only on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts (Annexure-B). It was agreed upon that the delivery of possession of the scheduled land with all facilities and amenities will be handed over to the complainant within 36 months. But ultimately, the O.Ps. violated the terms and conditions of the agreement for sale dated 22.05.2016 and failed to deliver possession of the schedule plot of land to the complainant despite payment of the entire consideration amount and despite repeated requests by the complainant. The complainant approached the O.Ps. several times to deliver the peaceful possession of the schedule plot of land in favour of the complainant. The complainant observed that the construction work of the proposed project has not been started and the same has been left abandoned for which the complainant asked the O.Ps. for refund of the money with interest several times from the O.Ps.. But the O.Ps. on all occasions gave assurances to the complainant but ultimately failed to deliver the possession of the schedule plot of land or to return the money paid by the complainant to the O.Ps. which prompted the complainant to file the instant complaint case on the relief as sought for in the petition of complaint.
O.P. No. 1 did not come forward to contest this case by filing W/V. As such, by order No.4 dated 15.12.2021 the instant case was declared to be proceeded ex-parte against O.P. No. 1.
O.P. No. 2 contested the case by filing W.V. on 15.12.2021 contending inter-alia that the claims of the complainant are all false. The specific case of the O.P. No. 2 is that the instant complaint case is of a civil nature and as such, is to be tried by the Ld. Civil Court. O.P. No. 2 also denied the other material averments of the petition of complaint para wise and prayed for dismissal of the complaint case.
The O.P. Nos. 3 and 4 also contested the case by filing W.V. on 25.04.2022 contending inter-alia that the claims of the complainant are all false. The specific case of the O.P. Nos. 3 and 4 is that on 19.12.2020 the O.P. Nos. 3 and 4 handed over the director-ship of the company to the O.P. Nos. 5, 6 and 7 by way of MOU and accordingly, the names of the O.P. Nos. 5, 6 and 7 were incorporated in the register of the company. The previous company was taken over by a new one namely “Sonakshi Real Estate Company” and the names of the O.P. Nos. 5, 6 and 7 were substituted by the new directors. The O.P. Nos. 3 and 4 also denied the other material averments of the petition of complaint para wise and prayed for dismissal of the complaint case as against the O.P. Nos. 3 and 4.
The O.P. Nos. 5, 6 and 7 also contested the case by filing W.V. which has been subsequently amended and the amended W.V. has been filed on 01.06.2023. It has been contended by the O.P. Nos. 5, 6 and 7 that the claims of the complainant are all false. The specific case of the O.P. Nos. 5, 6 and 7 is that the agreement for sale dated 22.05.2016 was executed between the complainant and O.P. No. 1 M/S Dewan Developers Pvt. Ltd. represented by its directors O.P. Nos. 2 and 3. O.P. Nos. 3 and 4, the directors of O.P. No. 1 M/S Dewan Developers Pvt. Ltd. with malafide intention recorded the names of the O.P. Nos. 5, 6 and 7 as directors of O.P. No. 1 M/S Dewan Developers Pvt. Ltd. in the record of ROC since 11.12.2020. Ultimately, the O.P. Nos. 5, 6 and 7 lodged the complaint to the O/C, Thakurpukur PS on 02.08.2021 against the O.P. Nos. 3 and 4 with the allegations of false personification and using forged signature of the O.P. Nos. 5, 6 and 7. The said complaint has been registered as Thakurpukur PS case No. 167 dated 09.09.2021. The names of the O.P. Nos. 5, 6 and 7 have been deleted from the cause title of the directors of O.P. No. 1 M/S Dewan Developers Pvt. Ltd. and in their place 1) Tatsat Roychowdhuri and 2) Sk. Idrish have been incorporated as their directors of O.P. No. 1 M/S Dewan Developers Pvt. Ltd. The O.P. Nos. 5, 6 and 7 also denied the other material averments of the petition of complaint para wise and prayed for dismissal of the complaint case as against the O.P. Nos. 5, 6 and 7.
Points for Decision :-
- Is the complainant, a consumer?
- Are the O.Ps. guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with Reasons :-
Point No. 1:-
On perusal of the case record along with copies of documents, it appears that the complainant is willing to purchase a plot of land more fully described in the schedule of the petition of complaint and the agreement for sale dated 22.05.2016 (Annexure - A). The complainant paid the entire consideration amount of Rs.3,00,000/- (Rupees three lakhs) only on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts. Therefore, the complainant is a consumer as defined U/S 2(7) of Consumer Protection Act, 2019.
As such, Point No.1 is decided in favour of the complainant and against the O.Ps.
Point No: 2:-
The complainant booked the schedule plot of land and accordingly a deed of agreement for sale dated 22.05.2016 (Annexure - A) has been executed and registered. The complainant also made payment of the entire consideration amount of Rs.3,00,000/- (Rupees three lakhs) on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts from which it appears that all the payments have been properly made. On the other hand despite payment of the entire consideration amount, the O.Ps. failed and neglected to hand over the possession of the schedule plot of land to the complainant. The complainant finding no other alternative requested the O.Ps. to deliver the possession of the schedule plot of land as promised by them. But the O.Ps. were very much reluctant and paid no heed thereof. Therefore, it is clear from the averments of the complainant that the O.Ps. are guilty of deficiency in service and unfair trade practice.
As such, Point No.2 is also decided in favour of the complainant and against the O.Ps.
Point No. 3:-
The complainant booked the scheduled plot of land more fully described in the schedule of the petition of complaint and the agreement for sale dated 22.05.2016 (Annexure - A) from the O.Ps. and made payment of the full consideration amount of Rs.3,00,000/-(Rupees three lakhs) only. But the O.Ps. violated the terms and conditions of the agreement for sale. Neither the O.PS. handed over possession of the schedule plot of land as described in the schedule of the petition of complaint and the agreement for sale dated 22.05.2016 (Annexure - A) nor they returned back the amount of Rs.3,00,000/- (Rupees three lakhs) only with interest which they received from the complainant as per terms of the agreement for sale. Therefore, as the complainant did not get any positive response from the O.Ps. he was compelled to file the instant complaint case against the O.Ps. on the relief as sought for in the petition of complaint and as such, there is no hesitation to hold that the complainant is entitled to get the reliefs as prayed for as the O.Ps. did not hand over the physical possession of the scheduled plot of land to the complainant nor returned back the entire amount of Rs.3,00,000/-(Rupees three lakhs) only along with interest to the complainant. The complainant failed to get service from the O.Ps. On the other hand, the complainant was harassed by the O.Ps. by various ways. Therefore, the complainant is entitled to get the reliefs as prayed for.
Thus, the Point No. 3 is also decided in favour of the complainant and against the O.Ps.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby allowed ex-parte against the O.P. No. 1 only and on contest against the O.P. Nos. 2 to 7 with cost of Rs. 25,000/- (Rupees twenty five thousand) only.
The O.Ps. are jointly and severally liable and are directed to deliver vacant and peaceful possession of the scheduled plot of land as described in the petition of complaint as well as the agreement for sale dated 22.05.2016 to the complainant within 30 days from the date of passing this order.
Alternatively, the O.Ps. are jointly and severally liable and are directed to refund the entire consideration amount of Rs.3,00,000/- (Rupees three lakhs) only along with simple interest in the form of compensation @12% p.a. w.e.f. 26.06.2015 (date of payment of the first installment) to the complainant till the date of final realization thereof, within 30 days from the date of passing this order.
That the O.Ps. are jointly and severally liable and are also directed to pay litigation cost of Rs.25,000/- (Rupees twenty five thousand) only within 30 days from the date of passing this order.
That the complainant is at liberty to put the order into execution after the expiry of 30 days in case the orders are not complied with by the O.Ps. within 30 days from the date of passing this order.
Ld. Member Sri Partha Kumar Basu was on leave then. So, he did not take part in hearing the argument of the case. As such he did not sign the Judgement and Order passed on this day.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
President
