Briefly stated, the facts of the case are that the complainant had entered into an Allotment Agreement  dated 21.07.2010 with the OP M/s. Unnayan Developers (P) Ltd. for purchase of  two plots measuring about 6 Cottahs 0 Chittak 0 Sq. ft. comprised in  Dag No.402, under Khatian  No.380, Mouza- Balakhali, being Plot Nos. B-106 & B-107 at a total consideration of Rs. 5,40,000/-.  Complainant further alleges that in terms of  the Allotment Agreement , she has paid the entire consideration amount to the OP against proper receipts.   The OP should have developed the said Project Site within the stipulated period as specified in the agreement. The OP has failed  and neglected to fulfill the terms of the Allotment Agreement . As a result, complainant loss her hope and did not pay development cost of Rs. 1,20,000/-. No positive assurance was offered on the part of the OP when the project would be completed in habitable condition. Having no other alternative, the complainant claim refund of money paid to the OP and/or alternatively to complete the infrastructure  of the subject plots and she is ready  to pay additional charges of Rs.  1,20,000/- towards development cost. OP is deficient in rendering service and attitude of the OP is tantamount to unfair trade practice. Hence, the complainant has filed the instant Consumer Complaint seeking reliefs as per prayer of the complaint petition.

          The complaint is resisted by the OP by filing a written version in which they have stated that the complainant is not “consumer” as define under the Consumer Protection Act. It is specifically mentioned in clause 12 of the Allotment Agreement  that Rs.  20,000/- per cottahs will have to be paid in addition to the price mentioned in the clause of the said agreement. Thus, total price of the land is Rs.  6,60,000/-. Consideration amount is  to be paid in 48 equal monthly installments. Timely payment of monthly installments was condition precedent for availing the said benefits. Complainant did not pay development cost with in due time. As such, the complainant is liable to pay interest  of Rs. 20,130/-. Complainant did not come forward for execution and registration of Deed of Conveyance.  There is no negligence on the part of the OP and / or any attitude of the OP which tantamount to unfair trade practice. Accordingly, the OP has prayed for dismissal of the complaint.

            To prove their case both parties have adduced evidence on affidavit. They have also filed questionnaires and replies vis-à-vis relevant documents in support of their respective cases. We have also examined the entire material on record and given a thoughtful consideration to the arguments advance before us.

            Fact remains that there was an Allotment Agreement  dated 21.07.2010 between the parties to the complaint petition in respect of the subject plots and the OP is liable to develop with infrastructure of the plot. The Ld. Advocate for the OP has contended that the complainant is not consumer and there is no negligence on the part of the OP which tantamount to unfair trade practice.  In a decision reported in 04 SCC 407 (U.T. Chandigarh Administration and Anr. Vs. Amarjeet Singh and Anr.)  the Hon’ble Apex Court duly discussed the vide connotation of the terms “consumer ” and “service ” under the Consumer Protection Laws and reiterated the observations of the Hon’ble Supreme Court in Lucknow Development Authority   vs. M K Gupta. In such scenario the OP as service provider is obligated to fascilate the utilization and enjoyment of plot as intended by allottees and set out in the Allotment Agreement  .

            We have considered the contentions and perused the record. In order to properly appreciate the contentions of the parties, it is necessary to have look clause – 11 of the Allotment Agreement dated 24.09.2011 which reads thus :

            “ The Company shall develop the said land on behalf of the Allottee with construction of metal road to reach the plots of land along with side drains and other necessary works pertaining  to the basic infrastructure such as water supply, electricity connection and telephone connection, which shall be completed within the period of payment of 48 installments.’’

            On reading of the aforesaid clause, the OP is required to provide the requisite basic infrastructure and therefore has to render services within the meaning of Consumer Protection Act. We agree with the law laid down by the Hon’ble NCDRC in the case of ‘ Unnayan Builders Pvt. Ltd.- VS- Sona Bera decided on 16.03.2018 in Revision Petition No. 715 of 2018 that the complainant is  consumer within the meaning of Consumer Protection Act. As such, we devoid the submission of the learned Advocate for the OP that complainant  is not Consumer within the meaning of C.P. Act. The decision relied by the Learned Advocate for the complainant clearly indicate that complainant is “Consumer” within the meaning of C.P. Act. Thus,   we are of the opinion that complainant is the “consumer” according to the Consumer Protection Act.

          In course of hearing, the Learned Advocate for the OP has submitted that the case  of the complainant is based on a document which is unstamped and the allotment letter  dated 21.07.2010 was typed on  non-judicial stamp paper of Rs.10/- though the value of the land in question is Rs.5,40,000/-. He has further contended that U/section 2 (14) of the Indian Stamp Act, “ Instrument “ includes every document including the Agreement of Allotment of a immovable property and due to explanation added to Item No. 5 of schedule “1A” even in case of more agreement to transfer or delivery of possession of a immovable property with an intention to transfer  right, title and interest of such property at any future date by executing  separate conveyance, such agreement is to be stamped as if it is  a conveyance as mentioned in Item No. 23 of the said schedule. Therefore, the Allotment Agreement dated 21.07.2010  should be stamped according to item No. 23 of the schedule “1A”, Section 35 of the Indian Stamp Act. According to him, the unstamped agreement dated 21.07.2010 cannot be taken into evidence. He has further urged that vide Indian Stamp (West Bengal Amendment) Act, 1990 (W/V, Act XVII) Section 6 (a) (w.e.f. 31.01.1994) authorize the collector to impugned any instrument which has not been executed but is brought to him under section 31 for determination the duty with which the instrument is chargeable or any instrument which he is authorized to endorse U/s 32. In support of such contention, the Ld. Advocate for the OP has cited four decisions reported in 2009 (1) Supreme 58 (Avinash Kumar Chauhan -Vs- Vijay Krishna Mishra),  2001 (2) Supreme 365 (Chilakuri Gangulappa -Vs- Revenue Disposal Officer, Madanpalle & Another), 1999 (2) CHN 369 (Dr. Swapnadin Lahiri vs. Tridib Das Rai with Chittarnjan Jaan Vs. Arun Kumar Jana and  M/s Magma Fincorp Ltd. Vs Rajesh Kumar Tiwari  (Civil Appeal No. 5622/2019).

         The Ld. Advocate for the OP has further submitted that there is disruption of development work as many customers who booked the plots did not pay the balance consideration price in terms of Clause-12 of the Allotment Agreement and the OP is ready and willing to refund the advance amount after deducting interest  at the rate of 10  percent P.A. from the date of installments became due. Admitted fact that the OP accepted the EMIs without raising any objection from the complainant. Thus, they are not entitled to claim any interest.

           Per-contra, the Learned Advocate for the complainant has submitted that the OP prepared the Allotment Agreement on a non-judicial stamp paper of Rs.10/- and the instant complaint has been filed for deficiency in service for non handover the possession of the land in question in the project  “Madhuban” by the OP after developing the basic infrastructure. According to him, the complainant has entered an agreement with the OP for possession of the plots after completion of infrastructure against consideration of Rs.5,40,000/-. Complainant has paid entire consideration amount but the OP has not yet completed the infrastructure  within the stipulated period on receiving entire  payment. In support of his contention, the Ld. Advocate for the complainant referred two Judgments of Hon’ble NCDRC passed in First Appeal No.670 of 2018 dated 27.04.2018 and Hon’ble SCDRC West Bengal passed on 8.08.2018 in connection with C. Case No.402/2014 (Pijush Chakraborty  - Vs - Unnayan Builders Pvt. Ltd.).

           We have perused the above cited decisions of the Ld. Advocates of the parties and also considered the evidence as well as documents on record.

           It is true that the complainants had entered in to an Allotment Agreement with the OP on a non-judicial stamp paper of Rs.10/- for purchasing two  plots of land measuring about 6 Cottahs 0 Chitak 0 sq. ft. situated at Dag No. 402, under Khatian  No.380, Mouza- Balakhali, being Plot Nos. B-106 & B-107 at a total consideration of Rs. 5,40,000/- excluding development charges. Complainant has paid entire consideration amount to the OP on different dates.

          On reading of the clause-11 of the Allotment Agreement it is clear that the OP shall develop the said plot of land on behalf of the Allottee with construction of metal road to reach the plot of land along with side drains and other necessary works pertaining to the basic infrastructure which shall completed within the period of payment of 48 installments. The plea of the OP is that the complainants did not pay the EMIs regularly, as such, they are  liable to pay interest.  OP in its written version has admitted that they could not completed the development work within the specified time as many customers did not pay their EMIs in due time though the complainant has entire consideration amount.

           In the first cited decision it was held that if a document is not properly stamped the same cannot be admitted into evidence even for collateral purpose because the bar provided in Section 35 of the Indian Stamp Act. In the second cited decision it was held that the party produces a document which is not properly stamped and if the Court chooses to admit the document, the Court will ask the party to pay the stamp duty together with penalty amount to ten times the deficiency of stamp duty. If party concerned refused to pay the said amount, the Court has no option except to impound the document and forward the same to the Collector. After receipt of the opinion of the collector, the court will collect the amount from the party who produced the said document. All the three decisions cited by the Learned Advocate for the OP are in respect of matters related to non-payment of stamp duty in a matter arising out of Civil Suits. The judgment passed in Civil Appeal  5622/2019 2019 (M/s Magma FinCorp Ltd. Vs. Rajesh Kumar Tiwari) as has been relied upon by the Ld. Advocate for the OP is distinguishable on facts, in as much as such judgment is related to Hire  Purchase  Agreement. Thus, the above cited decision is not help to the OP.

          We have gone through the decisions cited by the Ld. Advocate for the complainant. The Hon’ble NCDRC in First Appeal No. 617 of 2018 (Unnayan Builders Pvt. Ltd. –Vs- Nabhanil Mondal) has been pleased to observe that in the pleadings of the parties that the Developer had entered into a transaction with the complainant for developing plot and making the development plot available to him for a consideration within a period of four years from the date of agreement on which the agreement was executed between the parties. The onus, therefore, is upon the OP to prove either that it had developed the plot and offered its possession to the complainant within the stipulated period or that the development could not completed on account of reasons beyond its control.

          On perusal of the written version we find that the OP has taken a plea that several plot buyers have failed to make payment to them in time. In our opinion, if other plot buyers failed to honour their commitment, in that event, the OP, could not have a ground for not completing the development of the plot, which is the subject matter of the Agreement. The OP ought to have arrange financers from the alternative sources and complete the development work. As such, the complainant cannot be made any suffer without there being any default on her part. Therefore, the submission made by the Ld. Advocate for the OP that the allotment agreement between the parties about sale of plot of land was not come under the purview of the Act has no force at all.

            The intent and object behind the legislation of the Act to adopt a constructive approach and not to bagged down by hyper technicalities of procedure. A Consumer commission is primarily meant to protect to the consumers and their claims cannot be defeated on technical grounds. In fact, the alleged non-payment of stamp duty and non payment of installment is not at all material for the purpose of determining the question whether  there is any deficiency in service U/s 2 (11)  of the Act. Since the agreement has been signed by the parties with their open eyes, it indicates that they have accepted the terms and conditions of the said agreement. Therefore, after accepting fulfill consideration amount, the OP has no locus standi to raise any objection that the agreement is not properly valued or stamped as per provision of Section 35 of the Indian Stamp Act.

            Clause-22 of the Agreement between the parties provides –

“22. In the event of the Company failing to complete the project within the stipulated time, the allottee may take refund of the full money paid him / her towards price of the land with interest   at the rate of 10 percent P.A.”

             Needless to say, the parties are bound by the Agreement. Both the parties have signed the Agreement of Allotment with full knowledge and understanding about its contents and as such, the terms of the agreement towards above the rest. Complainant cannot be made to wait indefinite for delivery of possession of the plots.    Therefore, the OPs is liable to refund Rs. 5,40,000/- only to the complainant along with interest  at the rate of 10  percent per annum.

                Based on foregoing  discussion, in the given facts and relying upon the cited decisions of the Hon’ble Supreme Court and the entire evidence adduced before us,  we  are of the considered opinion that the complainant is consumer  under section 2 (7 ) CP Act.  There is deficient in rendering service and indulged in unfair trade practice by the OP. As such, the complainant is entitled to refund an amount of Rs. 5,40,000/- along with compensation in the form of interest thereon  at the rate of 10  percent P.A. from the date of payment till its realization.

          In view of the discussion above, the complaint is allowed on contest with following directions:-

            1. OP is directed to refund Rs. 5,40,000/- only together with interest  at the rate of 10   percent  P.A. from  the date of payment till its realization to the complainant within 60 days from the date of order.

             2. OP is also directed to  pay litigation cost of Rs. 10,000/- to the complainant within the stipulated period as mentioned. 

          A copy of judgment be provided to the parties as mandated by the Consumer Protection Act. The judgment be uploaded forthwith on the website of this commission for perusal of the parties.