Date of filing : 23.08.2017
Judgment : Dt.30.11.2018
Mrs. Sashi Kala Basu, President.
This complaint petition is filed under Section 12 by Shri Aditya Prasad Sahu being represented by his constituted Attorney namely Shri Naresh Kumar Das against the Opposite Party M/s. Desire Agro Resorts Development alleging deficiency in service and unfair trade practice on their part.
The case of the complainant in short is that Opposite Party is a Private Ltd. Company engaged in business of development and promotion of landed property. Complainant booked one piece of plot vide No. 12/M/40/P 154 and 155 measuring about 2888 sq.ft. in the Master Plan Middle Town (BHASA) together with all other easement rights and facilities and accordingly entered into an agreement for sale dated 18.12.2007 and paid the entire consideration price including the development charges amounting to Rs. 5,00,000/- in 48 monthly instalments. The entire payment has been made by or on 11.08.2011 but despite payment of entire money, no development in the project site was started and there was no likelihood of delivery of plot of land. The complainant even paid the additional amount of Rs. 1,00,000/- to the OP on 17.04.2014. Even after taking said additional amount, OP failed to deliver the plot. They even collected the documents from the complainant on 15.01.2016. But as the plot has not been delivered, the present complaint has been filed by the complainant for directing the OP to handover the plot of land along with all the relevant papers and documents and register the same in favour of the complainant, alternatively for a direction upon the OP to refund the sum of Rs. 6,00,000/- to the complainant and further direction to pay the interest @18% per annum and also compensation of Rs. 5,00,000/- .
OP has contested the case by filing the W.V. denying the material allegation made by the complainant and has contended that the complaint petition is hit by the provisions of Section 11 of the Consumer Protection Act, 1986 as this Forum has no jurisdiction to initiate the proceeding. According to the OP, complainant is not a ‘Consumer’ under the provision of the Consumer Protection Act, 1986. It is further contended that the OP several times requested the complainant to deposit the registration fee but the complainant willfully neglected the request. So the OP has prayed for dismissal of the complaint petition.
Complainant has annexed with the petition of complaint, General Power of Attorney executed by the complainant Shri Aditya Prosad Sahu in favour of his Attorney namely Naresh Kumar Das, the letters sent by the OP and the reply by the complainant, copy of the agreement entered into between the parties dated 18.12.2007 and also a statement of the account showing the payment to the OP.
So the following points require determination :
- Whether the complainant is ‘Consumer’ within the meaning of provision under the Consumer Protection Act, 1986 ?
- Whether there has been any unfair trade practice on the part of the OP ?
- Whether the complainant is entitled to relief as prayed for ?
Decision with reasons
Point No.1 : It is a settled principle of law that when a person enters into an agreement for allotment or purchase of plot of land to be developed by a Firm/Body as well as by a person on payment of the consideration as agreed, he is said to have availed or hired the service of the concerned developer and thus is a ‘Consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. It is apparent from the agreement for sale filed by the complainant that there has been an agreement entered between the parties to this case whereby the OP agreed to sell a plot of land to be developed being number 154 and 155 more or less 2888 sq.feet for total consideration of Rs. 5,00,000/-. So there remains no doubt that as per the said agreement dated 18.12.2007, complainant has hired or availed the service of the OP and thus is a ‘Consumer’ within the meaning as provided under the provision of Consumer Protection Act. This point is thus answered accordingly.
Point Nos. 2 & 3 : Both these points are taken up together for discussion for the sake of convenience and also in order to avoid the repetition .
On perusal of materials on record specially the W.V. there is no dispute that an agreement was entered between the parties for sale of plot of land which was earlier numbered as 154 and 155. It also appears from the statement of account filed by the complainant that the total amount of Rs. 6,00,000/- has been paid by the complainant through ICICI Bank in instalments. The amount of Rs. 1,00,000/- out of Rs. 6,00,000/- has been paid lastly on 17.04.2014 which according to the complainant was paid on being asked by the OP towards escalation of development charges and the registration charges by its letter dated 15.09.2010 and letter dated 10.10.2011.
Even though the main contention raised by the OP in the W.V. is that complainant was requested for the registration fee but the complainant willfully neglected the request but in this context, it may be mentioned here that the payment of Rs. 1,00,000/- as highlighted above has been established by the complainant . By the statement of account filed by complainant it is evident that the complainant has paid total sum of Rs.6,00,000/-. Rs. 5,00,000/- has been paid as agreed in the agreement of sale and Rs. 1,00,000/- subsequently indicating that the same is paid in compliance to the letters of the Opposite Party.. It also appears that the said plot Number which was initially 154 and 155 was re-numbered as B-43 and B-44. So from the documents referred to above, It appears that the OP has failed to hand over the plot within the period as agreed in the agreement inspite of entire payment by the complainant. Therefore, there has been deficiency in service or unfair trade practice on the part of OP and thus the complainant is entitled to the relief directing the OP to complete the development work as agreed in respect of the plot in question and register the same, in alternatively to refund the amount of Rs. 6,00,000/- paid by the complainant. Complainant is also entitled to compensation for harassment and mental agony suffered by him but since compensation is allowed we decline to pass any order with regard to interest as prayed.
These points are thus answered accordingly.
Hence,
Ordered
CC/493/2017 is allowed on contest. OP is directed to hand over the plot of land as agreed to the complainant after development work and register the same in favour of the complainant or in alternatively to refund the sum of Rs. 6,00,000/- to the complainant within three months from the date of this order. Opposite Party is further directed to pay Rs. 1,75,000/- as compensation and Rs. 5,000/- as ligation cost to the complainant within the aforesaid period of three months failing which the amount shall carry interest@8% per annum till realisation.
