Date of filing: 09.03.2018
Date of Judgment: 15.02.2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Sri Dipesh Basak under section 12 of the Consumer Protection Act, 1986 against the Opposite Party (referred as OP hereinafter) namely M/s. Janapriya Real Estate Pvt. Ltd. being represented by its managing director Sri Bharat Naskar, alleging deficiency in rendering of service on the part of the O.P.
Case of the complainant in short is that he entered into an agreement with the O.P. developer to purchase the plot of land being no. 707 in the project namely Metro City Park and paid advance of Rs. 1,39,500/-. Subsequently he has paid the balance amount of the consideration price of Rs. 3,25,500/- of the settled price for the said plot of land. Complainant has also paid further sum and in a fact has paid the O.P. total sum of Rs. 5,46,162/- but in spite of receiving the entire sum O.P. did not hand over the possession of the plot neither refunded the sum paid by the complainant. Only a sum of Rs. 1,81,150/- has been refunded by the O.P. out of the total sum of Rs. 5,46,162/- paid by the complainant. Complainant through his Ld. Advocate sent a notice to refund the amount paid by him but all in vain. Thus the present complaint has been filed praying for directing the opposite party to refund the balance amount of Rs. 3,65,012 along with interest @ 12% p.a. and to pay Rs. 1,00,000/- as compensation and Rs. 30,000/- as litigation cost.
The opposite party is contesting the case by filing the written version contending inter-alia that the complainant unilaterally cancelled the agreement out of his own accord. O.P. has already refunded sum of Rs. 1,81,150/-. Towards cancellation, O.P. is entitled to deduct the sum to an extent of 30% and thus complainant is entitled to refund of Rs. 2,25,500/- only. Thus O.P. has prayed for the dismissal of the case.
During the course of the trial both parties filed their respective affidavit in chief followed by filing of questionnaire and reply thereto. Ultimately arguments have also been heard of both sides. BNA has also been filed by both the parties.
So the following points require determination:-
- Whether there has been any deficiency in rendering of service by the O.P.?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASONS
On perusal of the written version filed by the O.P. it’s apparent that the claim of the complainant that by an agreement for sale dated 20/07/2011, O.P. agreed to sell a plot of land at a total consideration price of Rs. 4,65,000/- has not been denied and disputed. The only contention raised by the O.P. is that it is entitled to deduction of the amount paid by the complainant to the extent of 30% towards the cancellation charges of the agreement. In this context it may be pertinent to point out that on perusal of the agreement entered into between the parties, it appears that development of the plot and handing over of its possession, was to be completed within three years from the date of booking and after payment of entire consideration money. The money receipt filed by the complainant shows that the payment of the consideration price was completed from the side of the complainant in the year 2014 but there is absolutely no document filed by the O.P. intimating at any time to the complainant that the plot of land was ready for its delivery. According to the claim of the complainant, since the project was not completed, he asked for the refund of sum. So question of unilaterally cancelling the agreement of sale by the complainant does not arises as there is no material before this commission that the OP had completed the project but the step was not taken by the complainant to take delivery of its possession. In such a situation contention of O.P that they are entitled to deduct 30% of the sum, cannot be accepted.
At the time of argument it is also argued on behalf of the O.P. that the case relates to simpliciter sale of a plot of land but from the agreement it is evident that the OP had agreed to develop plot of land by making roads, lake, park, boundary wall etc. So the complainant hired the services of the OP for the development of the said plot of land before handing over of its possession.
Now coming to the claim of the complainant that he had also made further payment apart from the settled consideration price, he has filed the two receipts showing payment of Rs. 15,000/- towards conversion charges and Rs. 42,900/- for registration and mutation charges. So complainant has been able to establish that he paid the total sum of Rs. 5,46,162/-. Payment of the said amount of Rs. 5,46,162/- has also been admitted by the OP in its reply to the questionnaire filed by the complainant. Question No. 8 put by the complainant is in the following manner:-
“Kindly state whether complainant paid Rs. 5,46,162/-?” The reply of the OP to the said question is “Yes”. So the OP has admitted that complainant paid Rs. 5,46,162/- in total, If that be so than as admittedly, only Rs. 1,81,150/- has been refunded to the complainant, complainant is entitled to the balance sum along with compensation in the form of interest. Complainant is entitled to the interest from 03/11/2017 (the date of sending of the demand letter by the complainant to the OP).
Hence
ORDERED
CC/120/2018 is allowed on contest. O.P. is directed to pay Rs. 3,65,012/- along with interest on the said sum @ 8% p.a. from 03/11/2017 to till this date, within two months from the date of passing of this order. In default of payment, entire sum shall carry further interest @ 8% p.a. till realisation.
O.P. is further directed to pay Rs. 10,000/- to the complainant as litigation cost within the aforesaid period of two months.
