ISHAN CHANDRA DAS, HON’BLE PRESIDENT

         This appeal has been directed against the judgment and order dated 27.08.15 passed by Ld. DCDRF, Unit –I Kolkata, in CDF Unit-I Case No. 446/2013, wherein Ld. Forum concerned while disposing of the said complaint case allowed the same on contest against the OP and directed him to refund the amount of Rs. 1,40,000/- and a sum of Rs. 30,000/- for harassment, mental agony and Rs. 10,000/- towards litigation costs  payable within 30 days from the date of the order with  a default clause.

        The fact of the case, in brief, was that the Complainant/ Respondent (herein-after referred to as Respondent) offered to sell out a plot of land measuring 1440 sft . at the Eastern Medo Project at Bantala under Khodati Mouza, for a consideration of Rs. 1,40,000/- on condition that they would develop the plot of land for residential purpose and develop the Roads demarcation and hand over possession of the plot of land after such development. The price of land included development charges too. The Respondent on good faith and on believing on such promises of OP,  paid a sum of Rs. 14,000/- as initial deposit on 22.12.2004 and the residual amount of Rs. 1,26,000/- was to be paid in 36 installments,  first one of which was paid on 31.12.2004 and the last one on 14.09.2007, for the plot of land demarcated as plot No. C46/22/12/2004, the Appellant issued a certificate on 04.01.2005 to the effect that they agreed to provide service for development of roads demarcation and development of individual plot of land and on payment of full consideration i.e., Rs. 1,40,000/- the Appellant agreed to execute the deed of conveyance in favour of the Respondent but ultimately the failure on the part of the Respondent to get the property in her title and possession , she filed the complaint case before the Forum concerned and prayed for compensation as well as refund of  consideration from the Appellant, who in the written version denied all the allegations but ultimately admitted that the party to the agreement i.e. the purchaser would be free to withdraw their invested amount.

        Ld. Forum concerned upon taking into consideration the rival claims of the parties and on careful consideration of the materials on record, including the copy of the first receipt  showing payment to the Appellant herein, held that the Appellant being the service provider to the Complainant failed to provide service in terms of the agreement between themselves, allowed the complaint case and directed the Appellant to refund the consideration collected from the Respondent and to pay compensation for harassment , mental agony as well as litigation costs to the tune of Rs. 40,000/- in total within 30 days from the date of the order. (27.08.2015).

        Being aggrieved by and dis-satisfied with the said direction the present Appeal has been preferred . Now the point for consideration is whether Ld. Trial Forum was justified in directing the Appellant to refund a sum  of Rs. 1,40,000/- as well as compensation to the tune of Rs. 40,000/- in aggregate.

        Frankly speaking, the Respondent produced series of documents showing payment of installments as per agreed terms and conditions entered into between the parties on 17.01.2008. Ld. Counsel for the Appellant could not come out successful in establishing that there was no such valid agreement between the parties rather from the averments of the said agreement (annexure -3; particularly the paragraph -6 of the said agreement) it is revealed that  if the purchaser pays an amount of Rs. 1,40,000/- to the party for the first part , the said land would be developed and be handed over to the purchaser on execution of  proper deed of conveyance which thereafter be prepared  by the purchaser , subject to the approval by the party of the first part.

        Ld. Counsel appearing for the Respondent in course of argument tried to establish that non-delivery of possession or non execution of the deed in terms of agreement amounts to deficiency in service within the meaning Section 2 (g) of the Consumer Protection Act, 1986 . To fortify his argument he relied on a decision of the Hon’ble National Commission in Ankur Jain and Anr.-vs- Wadhwa Residency Pvt. Ltd., reported in III (2) 16 CPJ 548 (NC), where it was held by the Hon’ble Commission that nondelivery of possession amounts to deficiency in service. Hence, taking into consideration the fact that the Appellant herein who realized consideration from the Respondent should have to refund the same to the Complainant/ Respondent as directed by the District Consumer Disputes Redressal Forum, Unit-I , Kolkata in the judgment impugned and we are unable to take a different view . Hence, the Appeal is dismissed . The judgment and order passed by the Forum concerned stand affirmed . The  Parties do bear their respective costs  of appeal.