Orissa

Cuttak

cc/217/2013

Dr Braja Kishore Das - Complainant(s)

Versus

Raghupati Estate & Builders (P) Ltd - Opp.Party(s)

N K Sahu & associates

14 Aug 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.217/2013

 

Dr. Braja Kishore Das,

S/o:Late Bata Krushna Das,

Village:Dharmagatpur,P.O:Mirzapur,

P.S:Salepur,Dist:Cuttack.                                               ... Complainant.

 

                                                Vrs.

      Raghupati Estate & Builders (P) Ltd.,

      Represented through its Managing Director

      Sri Pravat Kumar Nanda,

      S/o:Late Purna Chandra Nanda,

      At:Samantasahi,P.O:Buxibazar,

      P.S:Purighat,Town/Dist:Cuttack,

      Office at Plot No.3,Shakti Nagar,

      Link Road,Cuttack,Orissa.                                                ... Opp. Party.

 

 

 

Present:           Sri Debasish Nayak,President.

                                    Sri Sibananda Mohanty,Member.

 

               Date of filing:     31.10.2013

Date of Order:    14.08.2023

 

For the complainant:            Mr. N.K.Sahu,Adv. & Associates.

For the O.P.                :            Mr. B.N.Mohapatra,Adv. & Associates.                                              

Sri Sibananda Mohanty,Member.                                                               

            Case of the complainant in short is that in pursuant to the advertisement of the O.P, the complainant applied for a plot measuring 10,000 sft.  by depositing membership fee of Rs.800/- towards the identified plot no.1947 with a total estimated cost of Rs.9,50,000/- on 15.12.2006 under “Jyotsna Bihar” Plotted scheme.  On the same day he entered into an agreement with the O.P and paid advance of Rs.1,00,000/- and as per the agreement he was required to deposit Rs.8,50,000/- to be paid in equal monthly instalments. It is further case of the complainant that after execution of the agreement he had paid Rs.2,50,000/- on 9.1.2007 and Rs.5,00,000/- on 10.1.2007 by way of cheque as well as paid Rs.50,000/- on 10.1.2007 in cash and in total he had paid Rs.9,00,000/- out of the agreed consideration amount of Rs.9,50,000/-.  It is stated by the complainant that although he had paid almost all the consideration amount but the O.P by taking some plea or other did not execute the sale deed.  It is further stated by the complainant that after lapse of 1 & ½ years, the O.P. without executing the sale deed in terms of the agreement dated 15.1.2006 forced the complainant to purchase another plot measuring an area of Ac.0.13 dec. of land which is equal to an area of 6000 sft.  The O.P while giving such offer had enhanced the consideration amount of the aforesaid plot to another Rs.7,50,000/- in addition to the amount already paid by him.  It is alleged by the complainant that the O.P had assured him that there would be approach road to the said plot.  The complainant stated that on the basis of demand made by the O.P, he had paid another sum of Rs.7,50,000/- to the O.P on 26.7.2008.  It is alleged by the complainant that although he had paid Rs.16,50,000/- to the O.P towards the consideration amount but the sale deed executed on 26.7.2008 reveals that the cost of the plot is Rs.1,03,500/- for the said land measuring 6000 sft.  It is further alleged by the complainant that   after execution of the sale deed, he had gone to the site of the plot and ascertained that there was no approach road to his plot.  Hence, he protested before the O.P about such fact. Thereafter the O.P gave assurance to him for construction of the approach road to his plot very shortly and advised him to mutate the land in his favour.  In the meantime, the complainant had mutated the land in his favour.  The complainant had approached the O.P many times for development of the approach road to his plot but the O.P did not take any step although in the sale deed it has been ear-marked as common passage for the allottees.  As there was no approach road to his plot, the complainant demanded refund of total money by cancelling the sale deed.  It is the further case of the complainant is that after much persuasions the O.P had only refunded Rs.1,50,000/- and Rs.15,00,000/- is outstanding against the O.Ps.  Lastly the complainant on 7.1.2013 served a legal notice to the O.P demanding therein to refund the rest amount of Rs.15,00,000/- with 13% interest but the O.P did not take any step. Hence, the complainant has filed the present case with a prayer for a direction to the O.P to refund a sum of Rs.15,00,000/- with 13% interest per annum and to pass any other order as deemed fit and proper.

            The complainant has filed rejoinder affidavit wherein it is stated by him that although the O.P had refunded the amount of Rs.9,00,000/- which he had received towards the plot no.1947, measuring 10,000 sft. by way of 16 number of cheques but he had encashed only three nos. of cheque amounting to Rs.1,50,000/- and returned the rest 13 number of cheques to the O.P as the bank was charging Rs.415/- in each of the cheque for clearance of the same.  It is stated by the complainant that the O.P had assured the complainant to refund rest of the amount i.e. Rs.7,50,000/- by way of Demand Draft but he did not give the same. The complainant disputed the allegation of the O.P as regards to receipt of Rs.9,00,000/- from the O.P.

            The complainant has filed some documents alongwith his complaint petition in order to establish his case.

2.         The O.P filed his written version admitting to have executed an agreement on dt.15.12.2006 with the complainant in respect of plot measuring 10,000 Sft.  in his “Jyotsna Vihar” project area. It is stated by the O.P that out of the total agreed amount of Rs.9,50,000/- towards the cost of plot, the complainant had paid only Rs.9,00,000/-.  It is stated by the O.P that after payment of the said amount, the complainant had approached him for preparation of the sale deed and had assured him to contact him within two days to pay the balance cost of the plot and for registration of the sale deed but he did not turn up   though the O.P had approached the complainant several times demanding the balance amount for settling the matter.    It is further stated by him that the complainant on 9.4.2008 sent a legal notice to him for refund of the total money and the O.P also replied to the said legal notice on 19.4.2008 and informed the complainant about settling the matter.  It is stated by the O.P that thereafter, the complainant authorized his brother-in-law Gagan Kumar Das to settle the matter on his behalf with him.  It is further stated by the O.P that as per demand of the complainant, the total deposited amount of Rs.9,00,000/- was refunded to the said authorised person of the complainant by way of 16 number of cheques of Kalinga Gramya Bank, Balikuda Branch.  It is also stated by the O.P that thereafter the complainant had purchased another plot Measuring 6000 Sft. from the O.P and the said land has been recorded in his name.  It is alleged by the O.P that as per the request of the complainant, the cost of the land was mentioned in the sale deed as Rs.1,03,500/- as the stamp duty would be at a lower side for registering the said plot.  It is stated by the O.P that the complainant has filed the case taking false plea against him. Hence, he has prayed for dismissal of the case with cost.

            The O.P has filed copies of several documents alongwith his written version in order to prove his stand

4.         This Hon’ble Commission vide its order dt.17.9.2014 disposed of the complaint on consent of both the parties with an understanding that the O.P would pay Rs.7,50,000/- to the complainant within two months towards settlement of dispute.  Surprisingly, the O.P preferred First Appeal No.677 of 2014 before the Hon’ble State C.D.R.Commission,Cuttack challenging the said order dt.17.9.2014, passed by this Commission.  The Hon’ble State Commission vide its order dt.3.4.2023 disposed of the case by remanding the same to this Commission for denovo hearing by giving liberty to both the parties to produce their evidence if any.  After remand of the case by the Hon’ble State Commission, both the parties have filed their respective evidence affidavit.

5.         Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.P, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.P and if he had practised any unfair trade?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.I.

            The complainant in the year,2006 had applied to the O.P for allotment of a developed plot, measuring 10,000 Sft. in “Jyotsna Vihar” scheme, launched by the O.P at Mouza:Pratap Nagari/Bhanpur/Urali, under Cuttack District.  Both the parties had entered with an agreement on 15.12.2006.  As per the Agreement, sub-plot no.1947 was earmarked for allotment in favour of the complainant and the O.P had agreed to provide infrastructural facilities to the said plot, such as road, space for drainage facilities, open space, common utility area, commercial complex, educational institution, health home, levelling of plot, plantation and etc.  The O.P in his written version has admitted about the execution of the agreement but in evidence affidavit which is filed after remand of the case denied to have executed the said agreement.  It is well settled law that evidence affidavit contrary or beyond the pleadings in version is not to acceptable.  Hence, it is held that the agreement was executed between the parties.  The said plot could not be allotted to the complainant and the O.P alleged to have refunded the consideration amount without any interest.  Thereafter, the O.P allotted and executed sale deed of another plot measuring 6000 sft. on 26.7.2008 in another scheme namely, “Jyostna Vihar Phase-II plotted scheme”.  It is the obligation of the builder, while offering allotment of plots in a plotted development scheme to general public to provide minimum infrastructural facilities to the allottees as the builder is realising substantial amount for that purpose.  It is alleged by the complainant that there is no approach road to his plot, whereas the O.P had promised to provide the same. During hearing of the case, the question arose whether the promise to allot a developed plots by builder to the allottees comes under “service” as defined under the C.P.Act,1986. In this regard the learned counsel for the complainant relied upon two decisions of Hon’ble Supreme Court such as in the case of M/s. Narne Construction Pvt. Ltd. etc. Vs. Union of India & Ors, reported in AIR 2012 Supreme Court, page-2369 and another decision in the case of Haryana State Agricultural Marketing Board Vs. Bishamber Dayal Goyal & Ors reported in AIR 2014 Supreme Court, Page-1766.  In both the cases, the Hon’ble Supreme Court has held that selling of plot by builder assuring the infrastructural facilities comes under the definition of “service” under the C.P.Act and are amenable to the jurisdiction of Consumer Forum.  In view of the above decisions, the case of the complainant is maintainable before this Commission.  On contrary. The learned counsel for the O.P relied upon order dt.26.9.2013, passed by the Hon’ble Supreme Court in case of Ganesh Lal Vs. Shyam in Civil Appeal No.331/2007, wherein Hon’ble Supreme Court has held that if the sale of a plot of land simpliciter, having no assurance for infrastructural facilities, then the consumer complaint would not lie.  But here in the present case, the O.P had assured for providing infrastructural facilities in the scheme plot.  As such, the decision cited by the O.P is not applicable in the present case.  Hence, this issue is answered in favour of the complainant.

Issue no.II.

            On perusal of the case record, it reveals that the O.P had allotted two nos. of plots in two different plotting scheme launched by him to the complainant but he had executed sale deed in favour of the complainant in respect of one plot.  At the first instance the complainant had applied for a plot measuring 10,000 sft. in the “Jyotsna Vihar” scheme launched by the O.P.  Both the parties entered into an agreement for allotment of that plot on 15.12.2006.  As per the agreement, the cost of the earmarked plot was fixed at Rs.9,50,000/-.  The O.P also had undertaken in that agreement to provide infrastructural facilities to that plot.  The O.P has not admitted about agreement in his written version, but has disputed the same in his evidence affidavit, which is not tenable in the eye of law as it is beyond his own pleadings.  The complainant had paid Rs.9,00,000/- by 10.1.2007 towards the consideration money of the said plot out of the total consideration money of Rs.9,50,000/-.  The complainant being an outright purchaser, the O.P was required to execute sale deed within one month i.e. by 9.2.2007 as per the agreement.  As the O.P did not intimate the complainant as regards to completion of infrastructural work or registration of sale deed, the complainant approached the O.P for execution of sale deed in his favour.  But the O.P did not respond.  The allegation of the O.P that due to non-payment of balance dues of Rs.50,000/-, the Sale deed could not be executed is not believable as he has not produced any evidence to that effect.  The O.P had also not intimated the complainant about cancellation or down-gradation of his allotment of plot due to non-payment of balance consideration amount of Rs.50,000/-.  Hence, it is presumed that the plot earmarked for the complainant was not ready for allotment or was not available for allotment in favour of the complainant.  The complainant on 9.4.2008 sent a legal notice to the O.P for registration of sale deed, alternatively had noticed by demanding refund of Rs.9,00,000/- with interest.  The O.P thereafter only responded and asked the complainant for negotiation with him.  As the complainant was residing outside the state, he authorised one Sri Gagan Kumar Das to negotiate with the O.P.  Thereafter both the parties entered into a “Memorandum of Understanding” in short “MOU”.  As per the said MOU, the O.P was required to refund total consideration money of Rs.9,00,000/- by way of 16 nos. of cheques besides interest component of Rs.80,000/-.  It is also agreed in that MOU that the cheque clearance would be made from 12.6.2008 till 28.9.2008.  After execution of the said MOU, the O.P refunded to the complainant the said consideration money of Rs.9,00,000/- by way of 16 nos. of cheques on 3.6.2008 through his authorised agent.  It is contended by the complainant that he only had encashed 3 nos. of cheques amounting to Rs.1,50,000/- and refunded the rest of cheques amounting to Rs.7,50,000/- after getting assurance from the O.P that he would give him Demand Draft of the likely amount.  But the O.P did not give the said Demand Draft.  This contention of the complainant seems to be true as the O.P in his evidence affidavit admitted that the complainant had encashed cheques amounting to Rs.1,50,000/- only out of cheques amount of Rs.9,00,000/-.  As such, the O.P violated the terms of negotiation by not refunding the balance consideration money as well as by not giving Rs.80,000/- towards the interest component to the complainant.  As the O.P violated the conditions of the said MOU, the said MOU is not in existence.  In view of the above, it is held that the O.P has committed deficiency in service as well as practised unfair trade at the First instance, when the complainant had applied to him for allotment of plot, and the O.P failed to allot the plot to the complainant measuring 10,000 sft. in “Jyotsna Vihar” plotted scheme as well as failed to perform his obligation as per the “MOU”.

  After failure of allotting the plot at the first instance, the O.P again offered allotment of another plot to the complainant measuring 6000 Sft as reveals from sale deed, in another scheme namely “Jyotsna Vihar Phase-II”. The complainant agreed to such proposal and the O.P instantly on 26.7.2008 on receipt of Rs.7,50,000/- towards outright purchase cost of the said plot registered the sale deed on the same day in favour of the complainant.  The O.P in his written version admitted the cost of said plot as Rs.7,50,000/-.  But the O.P, while filing evidence affidavit after remand of the case has stated that the cost of said plot was Rs.18,00,000/- which plea is not acceptable as it is beyond the pleadings of written version filed by him.

  On a careful scrutiny of the documents as filed by the O.P and observation made herein below to that effect, it is found that the O.P, after remand of the case, by manufacturing the documents and forging the signature of the authorised agent of the complainant has prepared some documents and has filed the xerox copies of the same before this Commission with an ill intention.  It has already been observed earlier while answering Issue no.I that in the evidence affidavit the O.P has alleged that he had not executed the “Agreement” at the first instance of allotment of plot whereas in the written version, he has admitted to have executed the agreement.   Hence, by manufacturing the document, the O.P has filed the agreement by annexing it as Annexure-A.  The O.P has filed xerox copy of letter dt.26.7.2008 of the authorised agent of the complainant by annexing it as “Annexure-G” and has alleged that the cost of plot the measuring 6000 sft. was finalised with him by the said authorised agent at Rs.15,00,000/- in respect of which the sale deed was registered in the name of the complainant.  But it seems on a naked eye that the signature of the said authorised agent has been forged in the said letter dt.26.7.2008 on comparison to the signature of said authorised agent with the other documents as filed by the O.P.  The authorised agent has not written such letter to the O.P.  Hence, the O.P by forging the signature of the authorised agent of the complainant has prepared “Annexure-G”.  Similarly, the O.P has manufactured the “Annexure-H”.  The complainant has paid ORP cost of the plot amounting to Rs.7,50,000/- at the second instance on 26.7.2008 by cash (receipt filed by the complainant) but it reveals from the Annexure-H that ORP cost has been paid by cheque, so also it further reveals that the A.G.M of O.P checked and verified the said payment on 18.7.2008 i.e. before payment received from the complainant.  Hence, it is held that the O.P has not come to this Commission with clean hand.

 The O.P is quoting different price on different dates.  The O.P while filing the written version admitted the ORP cost of plot is Rs.7,50,000/-, which has been paid by the complainant.  Later on, after remand of the case, filed the “Annexure-G” by forging signature of the authorised agent of the complainant and alleged to have settled the cost of said plot at Rs.15,00,000/- and he has filed evidence affidavit claiming the cost of said plot is Rs.18,00,000/-.  It reveals from the conduct of the O.P that his sole intention is to defraud the complainant and confuse this Commission on the issue.  It is well settled law that evidence affidavit beyond or contrary to the pleadings is not acceptable. The O.P has also on earlier occasion on 17.9.014, before approaching the Hon’ble State Commission had agreed to refund the balance amount of Rs.7,50,000/- to the complainant in respect of plot which was not allotted by him.  After remand of the case, the O.P in order to grab hard earned money of the complainant has developed his case by manufacturing the documents as well as by forging the signature.  It reveals from the documents filed on behalf of the parties and written version of the O.P as well as evidence affidavit filed by the complainant that the cost of the plot was Rs.7,50,000/- which was sold by the O.P to the complainant in the second instance.  The allegation of the complainant to the effect that the O.P had realised Rs.16,50,000/- towards the cost of second plot has no basis.  In fact, the O.P had realised Rs.16,50,000/- towards the cost of two plots and he had refunded only Rs.1,50,000/- in respect of first plot, which has already been discussed above.  The complainant has alleged that there was no approach road to his plot which was registered in his name, although the O.P had promised to provide the same.  It is the obligation of the O.P to provide minimum infrastructure besides the road while offering allotment of plot in a plotted development scheme to the general public as the O.P is charging substantial amount for that purpose.  The O.P registered the sale deed in respect of 6000 sft. of land in favour of the complainant. In the sale deed the bench mark value of the said plot/land has been shown as Rs.1,03,500/-.  The O.P has not produced any evidence or quoted the market value of that area.  The O.P also has not produced any evidence before this Commission that he had undertaken any infrastructural activities of the concerned scheme area including the approach road to the plot of the complainant.  Hence, it is held that there was no approach road to the plot of the complainant during the period when the sale deed was executed.  But the O.P had realised a substantial amount of Rs.7,50,000/- as compared to the bench mark value of the land/plot from the complainant. So he was required to develop the plot allotted in favour of the complainant by undertaking the infrastructural works besides the road.

            Thus, in view of the observation and findings as made above, it is held by this Commission that the O.P has committed deficiency of service as well as has practised unfair trade while providing service to the complainant on both the occasion by not allotting plot on first occasion as well as by allotting and executing the sale deed on second occasion but without executing any infrastructural development of plot, besides the approach road to the plot.

Issue No.iii.

            It is already held in answering issue no.ii that the O.P has committed deficiency of service and has adopted unfair trade practice at the first instance in not allotting the plot measuring 10,000 sft. to the complainant in his “Jyotsnavihar” plotted development scheme.  The O.P also has not refunded the balance consideration money amounting to Rs.7,50,000/- to the complainant till date.  So he is required to refund the said money with interest to the complainant.  The O.P is also required to give compensation amount to the complainant.  In the mean time 15 years and 6 months has elapsed by taking into consideration the date of deposit of consideration money by the complainant to the O.P for allotment of plot.  In the meantime, cost of the land as well as construction cost of the building has been escalated. The complainant would bear such escalated cost, due to deficiency of service by the O.P.  Hence, the O.P is required to compensate the complainant for that purpose, besides mental agony and harassment caused to the complainant by the O.P.

            As regards to allotment and execution of sale deed at the second instance in respect of plot measuring 6000 sft. of land in “Jyotsna Vihar Phase-II”, the O.P is required to refund the entire consideration amount of Rs.7,50,000/- along with interest as well as  compensation by cancelling registered sale deed which was executed in favour of the complainant, in the event if the O.P in the meantime would not have completed infrastructural works including approach road to the plot of the complainant.  Hence, it is so ordered;

                                                ORDER

 Case is allowed on contest against the O.P.  The O.P is thus directed to refund the balance cost of the plot measuring 10,000 sft. in “Jyotsna Vihar” plotted scheme i.e. Rs.7,50,000/- with interest thereon @ 8% per annum from the date of deposit of the said amount till the amount is quantified.  The O.P is further directed to refund the total cost of the Plot in “Jyotsna Vihar Phase-II” plotted scheme i.e. Rs.7,50,000/- with interest thereon @ 8% per annum from the date of deposit of the said amount by cancelling the sale deed executed in favour of the complainant till the amount is quantified in the event if the O.P in the meantime would not have completed the infrastructural work including the approach road to the plot of the complainant.  The complainant is also directed to co-operate with the O.P as required under the law, if the O.P would cancel the sale deed as per our direction.  The O.P is also directed to pay a sum of Rs.10,00,000/- to the complainant towards compensation for escalation cost towards the construction of house, mental agony and harassment as well as a sum of Rs.20,000/- towards cost of his litigation.  This order is to be carried out within a period of 30 days from the date of receipt of this order.

Order pronounced in the open court on the 14^th day of   August,2023 under the seal and signature of this Commission.   

 

                                                                                  Sri Sibananda Mohanty

                                                                                                        Member

 

                                                                                       Sri Debasish Nayak

                                                                                              President