FINAL ORDER / JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The instant application is filed by the complainant U/s 35 of the CP Act, 2019 submitting inter alia that he is a consumer Under Section 2 (7) of the CP Act, 2019.
The complainant further stated that he approached the OP for purchasing a plot of land measuring about 3 cottahs more or less for residential purpose comprised with Mouza Daribagpota, Ashuti Gram Panchayat, P.S.-Mahestala together with right to use and enjoy the common area and common facilities/amenities apartment thereto, proposed to be developed by the OP as described in the schedule of the petition of complaint.
The OP being a company within the meaning of Companies Act, 2013 and it is presently carrying on business of Land Development and Building Promotion from its office. The copy of Master Data of the OPs as obtained from the website of the Ministry of Corporate Affairs is annexed and marked as P-1.
The complainant as per advertisement published by the OP approached the OP company for purchasing a residential plot within the project area of the OP and entered into agreement for sale dated 18.09.2013 on payment of the consideration amount of a sum of Rs.7,50,000/-. The residential plot of land is under the cover of said agreement for sale. The complainant further stated it was not mere agreement for sale rather the agreement for devolvement of the plot as described in the petition of complaint and also the development of infrastructure, so question of the providing service to the complainant by the OP is involved. The OP promised to develop a township or plan village for residential purpose of the lower income and middle income group. So, ingredient of service are involved. Thereafter, the complainant on several occasion requested the OP company for execution and registration of the deed of conveyance towards the same transfer in favour of the complainant but it is alleged by the complainant that the OP did not pay any heed to his request, in spite of payment of the entire consideration amount by the complainant to the OP within 30.10.2016 . The details of payment is marked as annexure P-3.
The complainant further alleged that as per agreement for sale the OP agreed to register the deed of conveyance and deliver the possession of developed plot of land in the proposed project within the prescribed period as mentioned in the Agreement for Sale dated 18.09.2013 on payment of entire consideration. But in spite of payment of total consideration money, the OP did not take any steps to start the proposed development work even after lapse of 8 years from the date of receipt of entire consideration money. The complainant then approached the matter before the Central Consumer Grievance Cell, Consumer Affairs Department, Government of West Bengal, Khadya Bhavan Complex and made compliant against the OP dated 12.02.2020. The Grievance Cell served a notice dated 18.06.2020 to the OP to file reply. The OP filed the reply on 18.7.2020. But finally the OP did not appear before the Grievance Cell then the complainant was advised by the Grievance Cell to file a consumer complaint case before the appropriate DCDRC. Thereafter the complainant served a demand notice upon the OP on 30.10.2021 claiming the refund of the consideration money paid in advance by the complainant to the OP amounting to Rs,750,000/- together with interest thereof. The demand notice is annexed as annexure E6. Thereafter without having any alternative the complainant has filed this case with a prayer to give direction to the OP to refund the entire amount of Rs.7,50,000/- paid by the complainant towards the consideration money of the proposed sale transfer of the schedule mentioned land after its development as per terms and condition of the Agreement for Sale dated 18.09.2013 and also prayed for giving a direction upon the OP and its men to paid interest @ 10% on the amount of Rs.7,50,000/- from the date of payment till realization. The complainant further prayed for compensation of Rs.2,00,000/- from the OP for harassment mental pain and agony along with litigation cost of Rs.50,000/-
The OP has contested the claim application by filing WV denying all the material allegations leveled against it. It is alleged by the OP that the complainant has filed this case suppressing the material facts with ulterior motive to harass the OP. The OP further stated that the petition of complaint is frivolous, vexatious containing false allegation upon the OP.
The OP further stated that the complainant is not a consumer within the meaning of section 2 (7) of the CP Act, 2019. It is denied by the OP that the complainant requested the OP on several occasions approached the OP for registration of the deed of conveyance but unfortunately the OP did not pay any heed to the several requests of the complainant and avoided development of the proposed plot of land and to register the deed of conveyance in favour of the complainant. The OP further stated that the OP is always ready and willing to handover and registration any one plots of land available in this project as and when called for by registration at the cost of the complainant as the complainant has already been verbally refused to purchase and or deny to take possession of plot no. 839. The OP further stated that the complainant did not suffer by any act of the OP, so there was no deficiency of service on the part of the OP and complainant did not get any compensation for this cause rather the complainant has no cause of action to file this case and the case is liable to the dismissed.
In view of the above stated facts and circumstances, the following points of consideration are as follows:-
- Is the case maintainable in its present form?
- Has the complainant any cause of action to file the case?
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OP?
- Is the complainant entitled to get any relief as prayed for?
- To what other relief or reliefs is the complainant entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On a close scrutiny of the materials available evidence on record and position of law it is found that the case is well maintainable in the eye of law and the complainant has filed this case within the period of limitation.
During the course of argument and also in the WV filed by the OP it is found that the OP has challenged the jurisdiction of this Commission stating interalia that the complainant is not a consumer within the ambit of law. In this respect Ld. Advocate for the complainant has cited a case law (2012) 4 S.C.R. 574 wherein the Hon’ble Apex Court in Civil Appeal being No. 4432-4450 of 2012 dated 10.05.2012 in a case of M/S Narne Construction Pvt. Ltd. ETC. ETC. Vs. Union of India & Ors. ETC. It is observed that “the question which arose for consideration in the instant appeal was whether the High Court was justified in holding that the appellant-company was a service provider within the meaning of Consumer Protection Act, and thus amenable to the jurisdiction of the fora under the said Act. It was also held by the Hon’ble Apex Court that High Court was perfectly justified in holding that the activities of the appellant-company involving the offer of plots for sale to its customers / members with assurance of development of infrastructure / amenities, lay-out approvals etc. was a ‘service’ within the meaning of Clause (O) of Section 2 (1) of the CP Act. and would, therefore, be amenable to the jurisdiction of this fora established under this statute. Having regard to the nature of transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property, it is clear that the same constituted ‘service’ within the meantime of the Act. It was not a case where the appellant-company was selling the given property with all advantages and / or disadvantages on ‘as is where is’ basis. It was a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant-company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchaser for valuable consideration. Thus the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like to respondents”.
Relying upon the view of Hon’ble Apex Court, this Commission is also opined that in the instant case also the complainant entered into an agreement for sale dated 18.09.2013 on the basis of an application for plot booking dated 09.04.2013 with the OP Co. with an intention to purchase a plot of land measuring 3 cottah more or less at a total price of Rs.7,50,000/- within mouza Dari Bag Pota, Ashuti Gram Panchayat, PS-Mahestala. It is also admitted fact that the complainant paid the entire consideration money by installments within 30.10.2016 as per Agreement for sale but the OP failed to develop the plot and registered the same in terms of agreement in favour of the complainant even after lapse of 8 years which is the cause of action to file this case by the complainant before this Commission. Hence keeping in mind the view of the Hon’ble Apex Court discussed above in detail it is held by this Commission that the said principle is also applicable in the case of Consumer Protection Act, 2019 that is in the instant case which is filed by the complainant U/S 35 of the CP Act, 2019 and this Commission is of view that the complainant is a consumer within the meaning of Section 2(7) of the CP
Act, 2019 and it is held by this Commission that the Commission has ample jurisdiction both pecuniary and territorial to try this case and the complainant has sufficient cause of action to file this case.
It is alleged by the complainant in petition of complaint and BNA as well as in evidence that even after received of the entire consideration money of the subject plot the OP co. failed to make any development work in the said project including the plot in question and also failed to hand over the same to the complainant after registration even after lapse of 8 years and on repeated requests made by the complainant to the OP, which caused harassment, mental pain and agony to the complainant and also compelled him to file the instant case before this Commission for relief.
The OP in his WV and written argument stated that the complainant booked more flats only for business purpose but not residential purpose, hence the case is liable to be dismissed and the complainant’s intention to earn more money by selling the plot in commercial way and as such he did not agree to take available plot in the said project. This allegation made by the OP that the complainant purchased the plot in question for commercial purpose (business) is a allegation for allegation sake because the OP failed to prove the same by adducing cogent documents and other evidence so the allegation as raised by the OP that complainant purchased the plot for commercial or business purpose but this Commission is not in a position to accept that argument of the OP in this respect rather the complainant could be able to prove that the OP failed to handover the developed subject plot to the complainant which is also admitted fact that the OP failed to handover the developed plot in question to the complainant within the prescribed period as mentioned in the agreement for sale, even after received of entire consideration money of Rs.7,50,000/-. So, the complainant rightly knocked the door of this Commission for getting relief because the negligence and conduct of the OP cause harassment to the complainant which is clearly a deficiency in service on the part of the OP and the OP is liable to give compensation to the complainant to that effect.
In view of the discussion made above, it is held by this Commission that the complainant being a consumer is could be able to prove his case beyond all reasonable doubt and is entitled to get the relief as prayed for.
All the points of considerations are considered and decided in favour of the complainant.
The case is properly stamped.
Hence,
Order
that the case be and the same is decreed on contest against the OP with cost of Rs. 5,000/-.
The complainant do get the decree as prayed for.
The OP is directed to refund the entire consideration money of Rs.7,50,000/- to complainant in terms of Agreement for Sale dated 18.09.2013 along with interest @ 9% p.a. on the amount stated above from the date of filing of this case till realization within 45 days from this date of order.
The OP is further directed to give compensation to the complainant to the tune of Rs. 30,000/- for harassment, mental pain and agony along with litigation cost of Rs 15,000/- within 45 days from this date of order i/d the complainant will be liberty to execute the decree as per law.
Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.
