Date of Filing : 14/02/2019
Date of Judgement : 02/08/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by Sri Gopal Chandra Samanta u/s 12 of the C.P. Act 1986 alleging deficiency in service and unfair trade practice on the part of the Opposite Parties (referred as OPs hereinafter) namely 1) M/s Sonakshi Real Estate Developers Pvt. Ltd., 2) Mintu Mistry & 3) Babon Shekh.
Case of the complainant in short is that OP 1 is a Company carrying on trade of Builder and Developer and OP 2 & 3 are the partners of the said Company. They had entered into an agreement for sale with the complainant to sell a plot in a new township project lying and situated at Keyat Khanda, J.L. No. 84, Dag No. 1331 in Khatian No. 253 at a total consideration price of Rs.2 lakh. Complainant paid a sum of Rs.60,000/- towards the said plot being No. 474, as advance. The agreement for sale was executed on 23/5/2017. As per the terms of the agreement, OP 1 & 2 agreed to complete the said development of the plot and to deliver the same by executing and registering the sale deed in favour of the complainant within 12 months from the date of execution of the agreement. But OPs have till date not developed the plot of land and no work has been done in the project towards the development. So complainant sent a legal notice through his Ld. Advocate requesting them to return the earnest money as no development had been done, along with interest @ 12%, but the OPs paid no heed. Thus the present complaint has been filed praying to direct the OPs to refund the earnest money of Rs.60,000/- paid by the complainant, to pay compensation of Rs.50,000/- and litigation cost of Rs.40,000/-.
OPs have contested the case by filing the written version denying and disputing the allegations contending inter alia that the complainant booked the plot on EMI basis for 12 months. He has only paid Rs.60,000/- i.e. 30% of the entire consideration amount. As per the terms and conditions of the agreement, if the complainant had defaulted in payment of the installments of three consecutive months, the same would lead to cancellation of the booking. So, in case of defaulter, the complainant was entitled to refund of the sum after deducting 30% as cancellation charges as per the terms and conditions of the agreement. Only to avoid the legal deduction of 30% from his paid amount, the complainant has filed this case. So, the OPs have prayed for dismissal of the complaint.
During the course of the evidence, both parties filed their respective examination-in-chief on affidavit followed by filing of questionnaire and reply thereto. Ultimately both parties have filed the Brief Notes of Argument. The argument of both side has also been heard.
So the following points require determination :
- Whether there has been any deficiency in service on the part of the OPs
- Whether the complainant is entitled to the relief as prayed for.
Decision with reason
In support of his claim, complainant has filed the photocopy of the agreement entered into between the parties, the money receipts and also the notice sent to the OP and a copy of the deed of partition.
On perusal of the written version, it is evident that there is no dispute with regard to the execution of the agreement to sell the plot being plot No. 474 in the project to be developed by the OPs on payment of total consideration money of Rs.2 lakh. It is also not disputed that complainant has paid Rs.60,000/- as advance. However, the dispute has been raised by the OP that since the complainant defaulted in making payment as per agreement, the agreement automatically led to the cancellation. It is the specific contention of the OP that as per the terms of the agreement, the complainant had to pay the entire consideration amount before the execution and registration of the deed of conveyance. However, it may be pointed out that it is true that there is specific recital in the agreement, to make the payment of entire consideration and if there was a default of payment of installment of three consecutive months there will be cancellation of booking. But in this context it may be mentioned that the terms and conditions of the allotment also categorically specifies that plots are expected to be handed over in a phased manner over the next two years and the process may start within one year of the issue of the allotment letter. So, the OPs were to complete the project and to hand over the possession within two years.
It is the specific claim of the complainant that no development work was done by the OPs in respect of the project leave aside delivering the possession of the plot after its development to the complainant. Certain photographs have been filed by the OPs in order to show that the project has been completed. But by those photographs, it cannot be ascertained that the project has been completed and the plot was ready to be handed over. No intimation was sent by the OPs to the complainant regarding the completion of the project or that he was a defaulter, so he was not entitled to the plot. So, the contention of the OPs that the project was completed cannot be accepted and the same appears to be an afterthought and subsequent development for the purpose of this case. In such a situation, complainant is entitled to the refund of sum paid by him of Rs.60,000/-. However, in the given situation of this case, we found no justification to pass an order of compensation.
Hence,
Ordered
CC/89/2019 is allowed on contest. OPs are directed to refund sum of Rs.60,000/- to the complainant within 60 days from this date. They are further directed to pay litigation cost of Rs.8,000/- within the aforesaid period of 60 days. In default of payment, the entire sum shall carry interest @ 7% per annum till realization.
