Order No. 16 dt. 27/02/2017
The fact of the case in brief is that the complainant was interested to purchase the plot of land measuring area of 2520 Sq.ft. from o.ps for a total consideration of Rs.2,97,500/-. Accordingly an agreement was duly signed by and between the parties on 11.01.2011. O.p. promised to provide the plot no.115 measuring 2520 sq.ft. lying and situated at Mouza : Raghabpur, Dag No.1102, Khatian No.474, J.L.No.118, P.S. Bishnupur, South 24-Parganas against the total consideration of money of Rs.2,97,750/- out of which the complainant paid Rs.1,80,750/-. Till 30.09.2013 complainant was staying in Sharjah,UAE along her family since her husband was working there. During that tenure complainant contacted with o.ps through email.When complainant’s husband came to Kolkata he did not find any development in the site which was booked by the complainant. Complainant sent a letter through email on 15.07.2013 to o.p. to know the present situation of the development work. Complainant also requested the o.ps to send her the details of remaining balance to be paid along with registration charges so that the complainant could do the needful but there was no response from o.p. When complainant’s husband contacted with the o.ps they promised to hold a board meeting by 27.07.2013 to solve the problem the complainant and assured they would inform the present condition of the plot booked by the complainant.
Suddenly on 25.08.2013 complainant received an email including a lawyer’s notice on behalf of o.ps wherefrom complainant came to know that o.ps are cancelling the contract with the complainant due to default in payment. Complainant tried to contact with o.ps but in vain. Hence the application praying for refund of Rs.1,80,000/- along with compensation of Rs.4,00,000/- and litigation cost of Rs.20,000/-.
O.p appeared before this Forum and contested the case by filing written version. In their w/v o.p denied all material allegation inter alia stated that there is no consumer dispute like deficiency in service or unfair trade practice arose by and between the parties and the allegation made by the complainant are false and frivolous. The complainant does not come within the purview of Consumer Protection Act, 1986 and the remedy lies before the competent Civil Court since the dispute is entirely civil in nature. After the cancellation of agreement there is no jurisdiction of this Forum. Being defaulter complainant is not entitled to get any relief. As per terms of agreement, the complainant started payment of installment but did not pay as per schedule of payment. From the date of booking till 11.01.2013 complainant paid an amount of Rs.1,80,750/- and Rs.1,16,750/- is still due. One cheque of the complainant has been dishonored on 11.02.2013. Hence the o.p. sent a legal notice dated 31.07.2013 whereby cancelled the agreement dated 11.01.2011 as well as booking the plot no.115 and requested to collect the deposited amount after deduction of 30%. Complainant did not come to receive the balance deposited amount. It has been categorically mentioned that after registration of land the plot will be handed over to the purchaser within 6 months from the date of registration and by this time development programmes are aimed to be completed. Therefore inspection of any development work by the husband of the complainant is baseless and a premature one. Until and unless the complainant paid and cleared the consideration amount the plot of land will not be registered and question of any development of plot will arise subsequently. Being defaulter complainant is not entitled to get any refund along with interest and compensation. Hence the case is liable to be dismissed with cost.
Decision with reasons
We have gone through the pleadings of the parties and materials on record. It is admitted fact that complainant booked a plot of land being no.115 measuring 2520 sq.ft. lying and situated at Mouza : Raghabpur, Dag No.1102, Khatian No.474, J.L.No.118, P.S. Bishnupur, South 24-Parganas against total consideration of Rs.2,97,500/-. It is also admitted fact that complainant paid Rs.1,80,750/- till 11.01.2013.
We have observed from the email communicated on 26.01.2013 sent by complainant to o.p. that complainant instructed the employee of the o.p. to deposit 5 cheques in each month. But the o.ps system did not accept the same and o.p. forced the agent of the complainant, who is incidentally employee of the o.p. named Mr. Hari to deposit all 5 cheques together which was not accepted by the complainant. O.p. also deposited 2 cheques in a difference of 9 days only. On July,2013 complainant sent a letter through email to o.ps wherefrom it is revealed that o.ps were supposed to hold a board meeting on 27.07.2013. Complainant was also eager to clear the outstanding balance for final settlement and date of registration. But all on a sudden complainant received an Advocate’s notice on behalf of o.ps wherefrom the complainant came to know that since complainant failed and neglected to pay any amount after 11.01.2013.i the agreement dated 11.01.2011 had been cancelled and complainant was requested to visit the office of the o.p. to get the deposited amount after deduction of 30%. In that advocate’s notice it was mentioned that on several occasions o.ps requested the complainant to pay the balance consideration lying due as on date after 11.01.2013 but it is astonishing that no communication had been sent to complainant to pay the balance amount. No scrap of paper has been annexed by o.ps to that effect. O.ps did not explain why the cheques were not placed at a regular monthly interval. O.p. did not file any scrap of paper which prevented them to place the cheque at a regular interval. Moreover when the complainant enquired about the development work in the project where she booked a plot of land, o.ps did not response. At the time of hearing also ld. Lawyer for o.ps could not submit the present status of the plot in question. Ld. Lawyer for o.p. stressed on clause no. (viii) of Terms and conditions of the agreement where it was stated that in case of cancellation of booking of plot 30% would be deducted from the deposits, so made including the booking money towards processing and incidental charges. Ld lawyer for the complainant stressed on Clause(xi) of the Terms and conditions of the agreement where it was stated that in case the party of the first part fails to deliver the plot/plots then the party of the other part may change his/her plot in the suitable place in the same project or any other project of the first part, otherwise the company party of the first part would be liable for refund or payback the money so deposited plus 15% of the deposited scheme.
In the instant case o.ps did not place the cheque in regular interval. O.p. could not place any cogent document towards development work of the project. Moreover when complainant was eager to pay her balance consideration for the plot in question o.ps sent a legal notice for cancellation of the plot in question. Since o.ps place two cheque in an interval of 9 days only complainant compelled to give the instruction to the banker for stop payment such that the cheque would not be dishonored. The plea taken by the o.ps for 30% deduction of the deposited amount is not at all tenable in eye of loss since o.ps did not perform their dues as per agreement. O.ps did not send any letter to complainant to pay the balance consideration. All on a sudden they cancelled the agreement.
In view of above we find deficiency in service and as such complainant is entitled to get relief.
As a result the complaint petition succeeds.
Hence, ordered
That the case no.103/2014 is allowed on contest with cost.
The o.ps. are directed to refund Rs.1,80,750/- to the complainant along with compensation of Rs.20,000/- and litigation cost of Rs.5,000/-. O.ps. are also directed to pay the aforesaid amount within 30 days from the date of communication of this order i.d., an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
