Date of filing: 11.04.2016                                                                                  Date of disposal: 31.08.2018

Complainant:              Sri Sajal Kanti Mazumdar, S/o. Sri Ranjan Mazumdar, resident of Tejganj, PO: Natunganj, PS. & District: Burdwan, PIN – 713 102.

                                                                         - V E R S U S -

Opposite Party:   1.     M/s. K. S. Property Services, having its office at Nandur, Joteram, PS. & Dist: Burdwan, PIN – 713 104, represented by one of its Partner.

                            2.     Mr. Mritynjoy Sarkar, S/o. Late Brojendranath Sarkar, partner of K. S. Property Services, resident of Nandur, Joteram, PS. & Dist: Burdwan, PIN – 713 104,

                            3.     Mr. Ashok Dutta, S/o. Sri Ranjit Dutta,  partner of K. S. Property Services, resident of Nandur, Joteram, PS. & Dist: Burdwan, PIN – 713 104,

Proforma Opposite Party: 4. Smt. Smita Dey, W/o. Late Sristidhar Dey, resident of Tejganj, PO: Natunganj, PS. & District: Burdwan, PIN – 713 102.

                                              5. Sri Srijan Dey, S/o. Late Sristidhar Dey, resident of Tejganj, PO: Natunganj, PS. & District: Burdwan, PIN – 713 102.

                                               6. Mr. Sudipta Dey, S/o. Sristidhar Dey, resident of Tejganj, PO: Natunganj, PS. & District: Burdwan, PIN – 713 102.

Present:

                                    Hon’ble President: Smt. Jayanti Maitra (Ray).

 Hon’ble Member: Smt. Nivedita Ghosh.

 Hon’ble Member: Dr. Tapan Kumar Tripathy.

Appeared for the Complainant:                      Ld. Advocate, Debdas Rudra & Subrata Ghosh.

Appeared for the Opposite Party No.1,2& 3:  Ld. Advocate, Sumit Roy.

Appeared for the Proforma Opposite Party No.4&5:       Ld. Advocate, Babulal Turi..

J U D G E M E N T

This is an application under Section 12 of Consumer Protection Act, 1986.

Complainant’s short case is that the Op-2 & 3 as partner of Op. No.1 planned to develop the land mentioned in the Schedule A for constructing Multi-storied building consisting of several self contained flats by name `Sesher Kabita`. The Proforma OP Nos. 4, 5 &6 are the land owners of the property. That the complainant by utilizing retirement benefit of his father decided to purchase one plot of land for a residential house from Principal OP (i.e. op nos. 1,2,&3).  The Op- 2 & 3 accepted the proposal and made an agreement with the complainant on 21.11.2013. The Op - 2&3 are on obligation to deliver and transfer the title of 4.5 kathas of land to complainant and complainant to pay of Rs. 18 lakhs i.e. @ Rs. 4 lakhs per katha.

The complainant has already paid 15,21,000/- including registration cost in different installments i.e. Rs. 6 lakhs on 21.11.2013, Rs. 2,50,000/- on 10.12.13 Rs. 1 lakh on 19.12.13, Rs. 4 lakhs on 02.01.14 and also Rs. 1,71,000/- including registration cost . The Ops have already received the Rs. of 15, 21,000/-. Xerox copy of agreement dt. 21.11.13 along with money receipts are annexed with the petition u/S. 12. After receiving Rs. 15,21,000/- from the complainant the Op nos. 2&3 have given a draft copy of the sale deed and told the complainant to pay the balance amount of Rs. 2,79,000/- at the time of delivering of possession. Inspite of receiving the said amount of Rs. 15, 21,000/- from the complainant the Op-2 &3 have not made any agreement for execution and registration of the said plot to the complainant.

Time and again the Op-2 &3 have been told but they did not pay any heed to the request to the complainant. When the Op-2 &3 failed to deliver the possession of the said plot the complainant requested the Op-2 &3 to refund the said amount of Rs. 15, 21,000/- as early as possible. The Op- 2 &3 told that they would refund the said amount. It is clear from the conduct of Op-2 &3 and also it is indicating the deficiency in service and unfair trade practice. The complainant then sent a legal notice to Op. nos. 1, 2 &3 through his Ld. Advocate on 08.03.2016 asking for refunding Rs. 15, 21,000/- along with interest within10 days. Inspite of receiving the said legal notice on 08.03.2016 the Ops neither refunded the said amount nor made any response against the said legal notice which also indicate the deficiency in service. The Xerox copy of the said legal notice dt. 08.03. 2016 are annexed   and marked as Annexure D series.

As a result, the complainant has been suffering great mental pain, agony and harassment. So, the complainant prays that he is entitled to take delivery of possession of the plot of land or get refund of Rs. 15, 21,000=00 along with interest.   In the aforementioned facts and circumstances complainant prayed for direction upon Ops  either to deliver the possession of the plot of land or to refund of Rs. 15,21,000=00. Complainant also prays that Ops be directed to pay Rs. 1, 00,000=00 as compensation of mental pain and agony and Rs. 25,000=00 for litigation cost.

That these Ops contested the case by filing written versions and submit that although the complainant agreed with this Ops for purchasing the B Schedule plot of land in the name of the complainant but they requested the complainant that he shall be purchasing 2 katha and 14 chatak of land in his own name and will purchase 1 katha and 10 chatak of land in the name of his father and for this Ops handed over the complainant   2  stamps paper of Rs. 5000/- one in the name of the complainant and another in the name of the father of the complainant. Taking 2nos. of stamp papers the complainant went to their Advocate for the purpose of getting the deeds drafted.

                        At that time, suddenly, the proforma Ops found that set fourth value of 2 kathas and 14 chatak of land have been mentioned as Rs. 5, 75,052/- in the said drafted deed as per contents of the Bayna and the said value should have been Rs. 11, 50,000/- taking into account that the value per kathas of land was fixed Rs. 4, 00,000=00. Seeing it the proforma Ops said that the actual value is to be reflected on the deed, otherwise the rest amount will turn to be black money of the proforma Ops. The complainant has been asked to rectify the said defect and prepare a fresh deed but the complainant neither prepare fresh deed nor had paid the proforma Ops the rest of the amount as agreed by the complainant in the ‘Binapatra’.

That, the Ops are neither deficient in service nor done any unfair trade practice against the complainant. That the case is liable to be dismissed with cost to these Ops.   

Decision with reasons:

To prove the case complainant has filed his evidence-on-affidavit where he has stated all the facts which he has stated in his petition of complaint. He filed documents showing the papers of the project “Sesher Kabita” where OP-1 Company, M/s. K.s. Property Services and OP-2&3 are partners of the project ‘Sesher Kabita’ and developed the land mentioned in the schedule A for constructing building. Complainant also stated the fact that he decided to purchase one plot of the land from the said project and OP-2&3 after receiving payment of Rs. 15, 21,000=00 entered into an agreement with the complainant on 21.11.2013 to deliver and transfer the title of 4 ½ kathas land mentioned in the B schedule of the petition and the total cost of the plot was Rs. 18, 00,000=00 i.e. @4 lacs per katha. Complainant also filed documents showing receipts of payment on different dates to the Ops i.e. Rs. 6 lacs on 21.11.2013, Rs. 2, 50,000=00 on 10.12.2013, Rs. 1 lac on 19.12.2013, Rs. 4 lacs on 02.01.2014 and lastly Rs. 1,71,000=00 towards registration cost. Thereby, the Ops had already received Rs. 15, 21,000=00 and the receipts showing such payment with their signatures are filed. The complainant also filed a draft copy of the deed of purchase. In the agreement dated 21.11.2013, OP-1, 2 & 3 were under an obligation to deliver the possession for the plot of land mentioned in the B schedule and registering the deed of sale within five months from 21.11.2013. Complainant filed receipt showing that Rs. 15, 21,000=00 was received by the OP-2&3 and the draft copy of sale deed was prepared. Accordingly, wherein it was settled that Rs. 2, 89,000=00, the remaining balance amount will be paid at the time of delivery of possession and registration will be effected on the sale deed in favour of the complainant. Complainant alleges that inspite of receiving Rs. 15, 21,000=00 out of total consideration money of Rs. 18, 00,000=00 and inspite of preparation of the draft deed, the Ops did not making any delivery of possession nor they registered the deed. Complainant therefore filed this case after giving legal notice to the Ops. the copy of the Advocate’s letter dated 08.03.2016 is also filed wherein the complainant asked for refund of Rs. 15,21,000=00 along with interest as the Ops failed to give possession of the land and registration of the deed making arrangement for execution and registration.

OP in their written statement as well as in the evidence simply denied all those facts. They did not making any specific denial whether they received Rs. 15,21,000=00 but alleges that amount of relief claimed before this Forum is more than Rs. 20 lacs and this Forum has no pecuniary jurisdiction to adjudicate he same. Ops also states that on reading of the said draft deed of sale of B schedule plot of land which was prepared in the name of the complainant and another in the name of the father of the complainant on stamp paper of Rs. 5,000=00 and that proforma Ops who are the owner of the plot of land put their signatures in the said draft sale deed. OP- 1, 2 & 3 stated that the proforma OP-3 raised objection to the fact that the value of 2 kathas 14 chatak land as mentioned in the said deed costing Rs. 5, 75,052=00 in the draft deed whereas actually in terms of ‘Binaparta’ the value should have been Rs. 11, 50,000=00 taking into account the value of per katha land was fixed Rs. 4, 00,000=00. Therefore, OP asked the complainant to rectify the defect and prepare a fresh deed. OP further claimed that the complainant did not pay the rest of the amount as agreed by the complainant in the ‘Binapatra’ nor did they rectify the deed for effecting registration. Therefore OP claimed that there is no deficiency in service or unfair trade practice on their part.

From the evidence of both sides and questionnaires put to the parties, the complainant put questionnaires and OP gave answers to those questions. There is no specific denial of receiving Rs. 15, 21,000=00 by the OP Nos. 1, 2 & 3. Therefore, complainant has been able to prove that for purchasing the plot he has already paid RS> 15,21,000=00 to the complainant and a drat deed was prepared for effecting deed of sale of the said plot of Schedule B of property. Complainant has also sent legal notice asking either to effect registration or to refund the said amount of Rs. 15, 21,000=00 with interest. OP did not give any reply to the said legal notice.

Ld. Lawyer for the complainant’s submission by citing decision of Hon’ble NCDRC in revision petition No. 306/2013, dated 05.03.2014 argued that the complainant is a consumer as he agreed to purchase the plot of land belonging to Proforma OP-1, 2 & 3 by making payment and agreed to be paid Rs. 18 lacs but only paid Rs. 15, 21,000=00 to OP-1, 2 & 3 who are developer of the said plot. OP-1, 2 & 3 has also admitted the fact of preparation of the draft deed of sale signed by the owner of the plot Proforma OP- 4, 5 & 6. There is no specific denial of receiving Rs. 15, 21,000=00 but the receipts filed by the complainant showing said payment to OP-2&3 is filed and proved the same.

Ld. Lawyer for the complainant cited judgement of Hon’ble NCDRC in Cc/1279/2015, dated 09.06.2016 that complainant is suffering a loss as he has handed over a huge amount in the hope of getting a plot of land to construct his house and therefore as he had made an alternative prayer for refund of the said money, the compensation in this case should be higher as per decision of the Hon’ble NCDRC which was allowed @18% simple interest from the date of deposit of the said amount till its realization. Complainant also cited the order of Hon’ble NCDRC in CC/687/2017 wherein Hon’ble NCDRC with reference to pecuniary jurisdiction decided in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 wherein the Hon’ble NCDRC was silent on the issue of value of goods and services in cases where refund has been requested by the complainant. Obviously, there is difference in the cases where parties want to go ahead and conclude the sale of goods and availment of services and where one party is only seeking the refund and thereby clearly deciding for non-execution of the agreement. In this case the complainant made an alternative prayer of refund of money and clearly decides non-execution of the deed of sale. Hon’ble NCDRC held that in the case of refund the value of goods and services has to be the value of the amount actually paid because the “payment promised” will never materialize. Complainant in his case made a payment of Rs. 15, 21,000=00 whereas the payment promised was Rs. 18, 00,000=00 and therefore actual payment is made Rs. 15, 21,000=00. Therefore, we consider that the said amount actually paid, the case is well within the pecuniary jurisdiction in this Forum.

After haring argument advanced by the parties in this case and on perusal of the evidence on record, as well as, documents filed by the parties, it is clear that admittedly an agreement was prepared to develop a plot of total 4.5 kathas for Rs. 18, 00,000=00 and actual payment of Rs. 15, 21,000=00 was made by the complainant on different dates and complainant filed receipts thereby showing payment to the OP-1, 2& 3. Admittedly, the complainant was never given possession by executing deed of sale. Therefore, complainant filed this case praying for either giving delivery of its possession of plot of land by executing the registering deed of sale in connection with the plot after receiving the remaining dues or to refund Rs. 15, 21,000=00, actually paid by the complainant along with interest. As the complainant has been able to prove his case and the deed has not been accordingly prepared and/or executed, the complainant is at liberty to receive the refund of Rs. 15, 21,000=00 from the Ops. Therefore, the complainant is entitled to receive the plot of land by executing deed and after making payment of residue amount as agreed upon. Complainant is also entitled to receive in alternate the money actually he paid Rs. 15, 21,000=00 along with interest. The Ops are very much deficient in their service by not acting as per agreement by not making delivery of possession by executing deed and therefore complainant is entitled to get compensation for mental pain, agony and harassment by said act of the Ops.  

In the result, the case succeeds. CF paid is correct.

Hence, it is

O r d e r e d

that the Consumer Complaint being No. 66/2017 be and the same is allowed on contest against the OP Nos. 1, 2 & 3 with cost directing to the OP Nos. 1,2 & 3 to make delivery of possession of the plot of land mentioned in the “B” schedule of the complaint by effecting execution and registering deed of sale in favourt of the complainant after receiving the residue amount of Rs. 2,79,000=00 from the complainant within 60 days of passing of this award, in default, Ops are directed to refund the entire amount Rs. 15,21,000=00 to the complainant within 60 days from the date of passing of this award along with interest @18% per annum from the date of filing of this case till realization. OP Nos. 1, 2 & 3 is further directed to pay compensation of Rs. 5,000=00 for mental pain, agony and harassment and litigation cost of Rs. 2,000=00 to the complainant within 60 days from the date of passing of this award, failing which, the complainant is at liberty to put the entire award in execution as per provisions of law.

Let plain copies of this order be supplied to the parties free of cost as per provisions of law.

                         Jayanti Maitra (Ray)

       Dictated and corrected by me.                                                     President       

                                                                                                         D.C.D.R.F., Burdwan

           Jayanti Maitra (Ray)                     

                   President

         D.C.D.R.F., Burdwan

                                          (Nivedita Ghosh)                               (Dr. Tapan Kr. Tripathy)

                                                Member                                                           Member    

                                         D.C.D.R.F., Burdwan                              D.C.D.R.F., Burdwan