DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _60 _ OF ___2017
DATE OF FILING :4.5.2017 DATE OF PASSING JUDGEMENT: _16.7.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Smt. Jharnashree Das, 68, Turf Road, P.S Bhowanipur, Kolkata – 25, represented by Sri Probal Kumar Das, Husband of the complainant.
O.P/O.Ps : Suchana Developers Pvt. Ltd. Nu-Mans Park, P.O Pailan, P.S Bishnupur ( South 24-Parganas ), Kolkata – 104, represented by
1. Sri Pradip Das Managing Director,
2. Rajib Gazi ( Director) and
3. Sri Ankan Ray Saphai ( Director)
All of Vill. Daulatpur, Pailan, P.S Bishnupur, South 24-Parganas.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Briefly stated, the facts leading to the filing of the instant case by the complainant may be reproduced as follows.
A Housing Project called “Ashirbad” was launched by the O.Ps , the Promoters/Developers on Amtala-Baruipur Highway. Complainant decided to purchase a land admeasuring 6 cattahs in the said project from the O.Ps and also paid an amount of Rs.20,000/- on 16.11.2013 as booking money. A Sale Agreement dated 12.12.2013 was also effected between the O.Ps and the complainant and thereby the O.Ps agreed to sell the land as succinctly described in the schedule to the sale agreement for a consideration price of Rs.8,10,000/- . It was further agreed between the parties that the land would be developed within 18 months from the date of execution of sale agreement and the deed of conveyance was to be executed by the O.Ps within 36 months of the date of the sale agreement and the balance amount of consideration price was to be paid by the complainant to the O.Ps in 36 EMIs. It was further also agreed by the parties that if any default took place on the part of the developers, they would return the entire consideration price received from the complainant with interest @18% p.a. The complainant paid Rs.5,40,000/- in all to the O.Ps. But no development has yet been made by the O.Ps on the land. Therefore, the complainant prays for issuing a direction to the O.Ps for development of the land purchased by her or, in the alternative, for refund of money still lying at the disposal of the O.Ps with interest. Hence, this case.
The O.Ps have been contesting the case by filing written statement ,wherein it is contended inter alia that the complainant did not deposit the amount in terms of the agreement and thereby committed default in payment of the money to the developers. It is further averred in the written statement that the developers have repaid Rs.2,70,000/- to the complainant and that the complainant is only entitled to get refund of Rs.1,89,000/- only from them, after having deducted 10% therefrom in accordance with the provisions of clause 7 of the agreement. It is the further case of the developers that they are still willing to execute and register the sale deed in favour of the complainant having received the payment of the balance consideration money from her. According to them, the complainant has filed the instant case for no reasons whatsoever and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Do the O.Ps suffer from deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Both the parties have led their Evidence on affidavit. Questionnaires, replies, BNAs filed by the complainant and O.Ps are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers, appearing for both the parties . perused the petition of complaint, written statement and the materials on record. Considered all these.
It has been argued on behalf of the complainant that the O.Ps have not been able to cause development of the land within the time agreed between the parties and, therefore, the complainant is entitled to get the refund of consideration price paid to the O.Ps with interest @18% p.a.
It is contended on behalf of the O.Ps that the complainant failed to make payment of the consideration price in terms of the agreement and, therefore, the O.Ps i.e the developers are entitled to refund the consideration price after having deducted 10% therefrom. A copy of sale agreement dated 12.12.2013 has been placed on record. The clause 3 of the said agreement lays down that the property should be developed within 18 months from the date of agreement and if the vendor i.e the developers fail to do so, the purchaser i.e the complainant may cancel the agreement and in that case, the vendor i.e the developers will repay the entire paid amount along with interest @18% p.a from the date of the sale agreement to the date of refund.
Clause 7 thereof lays down that if the purchaser fails or neglects to get the property registered within the stipulated period ,then the first party i.e the developers will be compelled to deduct 10% on the paid amount without any interest on the same. Clause 7 of the agreement will come into play after clause 3 thereof, because question of getting a sale deed registered with respect to the schedule property will arise only when the property would be fully developed by the developers in terms of the agreement. So long as the property is not developed, the question of registration does not arise and consequently clause 7 of the agreement will not come into play. It is the fact that the property is yet to be developed. The O.Ps have filed written version of their statement, wherein it is stated by them that they are ready and willing to execute and register the sale deed in favour of the complainant with respect to the property in question. But, nowhere it is stated by them even for a moment that the subject property has already been developed to its full stature in terms of the agreement reached between the parties. It is the specific version of the complainant that the subject property is yet to be developed by the developers. Sale agreement was executed between the parties on 12.12.2013. The case is filed in the year 2017. So, it is found that the developers have not been able to cause development of the property as agreed upon between the parties within four years of the sale agreement. This being so, the complainant is entitled to get a refund of the consideration price paid by her to the developers in accordance with the provisions of clause 3 of the agreement. Failure to cause development of the subject property within the term as agreed upon between the parties by the developers is a clear instance of deficiency in service on their part and the complainant is entitled to get refund of the consideration price. The complainant has prayed for refund of entire consideration price without any kind of deduction made by the O.Ps. By virtue of provision of clause 3 ,the complainant is entitled to 18% interest upon the consideration price paid by her to the developers and keeping in mind this provision of the sale agreement, we are inclined to direct refund of the entire consideration price received by the developers to the complainant with interest as laid down below.
It is also admitted case that the complainant has already received Rs.2,70,000/- from the O.Ps and now, she is entitled to get back Rs.2,70,000/- ( Rs.5,40,000/- - Rs.2,70,000/-) from the developers i.e the O.Ps.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs.10,000/-.
All the O.Ps who will remain jointly and severally liable to make payment to the complainant, are directed to refund Rs.2,70,000/- to the complainant with interest @12% p.a from the date of each payment to the O.Ps till the date of full realization thereof.
If the O.Ps fail to make the payment as aforesaid within the prescribed time mentioned above, the complainant is at liberty to recover the said sum by execution of this decree through this Forum.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
