Dt. of filing : 30/06/2017
Dt. of Judgement : 07/06/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Sanjoy Jana under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party namely Tapan Ghosh, Managing Director, ABS Land Development & Construction Pvt. Ltd.
Case of the Complainant in short is that an agreement for sale was executed on 13/11/2012 by and between the Opposite Party and the Complainant to allot/purchase the land measuring about 1440 sq ft in Dag No.75, Khatian No.405 Julpia Gram Panchayat demarcated in the map of master plan as Plot No.B115 (Block-B) on payment of consideration price of Rs.3,40,000/- . It was stated by the Opposite Party that the project would be completed in all respect by December, 2013. Complainant at the time of booking a plot of land paid an amount of Rs.1,32,000/- and the residual amount of Rs.2,08,000/- was to be paid by 26 monthly installments. According to Complainant he has paid entire amount. But inspite of payment of the amount the Opposite Party did not complete the project and the plot of land was not delivered within time. So Complainant wrote a letter dated 20/1/2014 to the Opposite Party to refund the amount paid by him of Rs.3,40,000/-. In response to the verbal request a meeting was held on 25/04/2014 and it was amicably settled between the parties that the Opposite Party will start to pay the Complainant’s deposited amount from the month of October, 2014. But inspite of the said amicable settlement Opposite Party did not returned the amount even though some cheques were given by the Opposite Party but they were dishonoured. So Complainant also sent a lawyer’s notice requesting the Opposite Party to return the money but of no use. So present complaint has been filed praying for directing Opposite Party for payment of Rs.3,40,000/-, pay interest @ 18% p.a on the said amount, to pay compensation of Rs.60,000/- and litigation cost of Rs.20,000/-.
Complainant has annexed with the complaint petition, copy of agreement for sale dated 13/11/2011, copy of letter dated 20/1/2014 sent by the Complainant to the Opposite Party, letter dated 25/4/2014 sent by the Opposite Party to the Complainant and the demand notice sent by the Complainant to the Opposite Party dated 9/6/2017.
Opposite Party has contested the case by filing written version denying and disputing the allegations made in the complaint petition. It is the specific case of the Opposite Party that they have already demarcated and physically handed over the plot to the Complainant. Plot have been developed according to agreement long before but the Complainant himself did not take any step to register the deed of sale in his favour inspite of several request made by the Opposite Party. So Opposite Party has prayed for dismissal of the case with exemplary cost of Rs.5,00,000/-.
During the course of evidence, parties have filed their respective evidence followed by filing questionnaire and reply thereto.
On the back drop of the case as made out by both the parties
following points require determination:-
- Whether there has been any deficiency in service on the part of the Opposite Party?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 & 2
Both these points are taken up for a comprehensive discussion in order to avoid repetition.
It may be pointed out that it is an admitted fact that an agreement to sale a plot of land as described in the Schedule “B” of the agreement was entered into on 13th November, 2011 by the Opposite Party in favour of the Complainant. It has been argued by the Ld. Advocate appearing on behalf of Opposite Party that it is fault on the part of the Complainant himself and the entire payment was not made by the Complainant. However, according to Complainant he has paid the entire amount of consideration price of Rs.3,40,000/.
On perusal of letter dated 20/1/2014 which is admittedly received by the Opposite Party, it has been categorically stated by the Complainant that as the Opposite Party was unable to develop the land and no step was taken towards the development by them, he be returned Rs.3,40,000/- paid by him. Against the said letter the Opposite Party has not sent any reply. There is absolutely no denial that no such payment as claimed in the letter was paid by the Complainant. On the contrary in the letter dated 25/4/2014 sent by the Opposite Party to the Complainant, it has been stated that the negotiation was settled that they will start to pay the deposited amount of the Complainant from the month of October, 2014 to February, 2015. It is already stated that the letter claiming the amount of Rs.3,40,000/- by Complainant, was received by the Opposite Party on 20/1/2014. So, if the entire amount was not paid by the Complainant then in the letter dated 25/4/2014 sent by the Opposite Party, there should have been some reflection. There is no mention about the exact amount to be returned to the Complainant. So, in the absence of any specific document, the claim of the Opposite Party that the entire amount has not been paid, cannot be accepted. It may also be mentioned here that in the written version, Opposite Party has not denied anywhere that the Complainant did not pay the entire amount as claimed by him. It is the specific case of the Opposite Party that they already handed over the plot to the Complainant. If that be so, then alleged handing over of the plot also suggests complete payment of consideration price by the Complainant.
Now, coming to the claim of the Opposite Party that they had already demarcated and physically handed over the said plot to the Complainant, no document has been filed in support of the said claim. Moreover, Opposite Party has not stated any specific date as to when exactly alleged possession was delivered. As per agreement, the entire land was to be developed and handed over within three years. According to Complainant and also it is evident from the letter dated 20/1/2014 that the Opposite Party had not taken any step towards development of the land. It also appears that to a specific questions put by the Opposite Party, Complainant has replied in his affidavit-in-reply that he did not get possession of the plot. If there was delivery of possession by the Opposite Party, there cannot be any denial or dispute that the same would have been done by granting possession letter or by a similar document to this effect. So as the Opposite Party neither refunded the amount nor handed over the plot, within time, there has been deficiency in service on the part of the Opposite Party. In such a situation Complainant is entitled to refund of amount of Rs.3,40,000/- as prayed together with interest on the said amount @ 12% p.a. Since interest is allowed there is no justification to grant compensation. However, he is entitled to the litigation cost as he was compelled to file this case.
Thus these points are answered accordingly.
Hence,
O R D E R E D
CC/356/2017 is allowed on contest. Opposite Party is directed to pay Rs.3,40,000/- to the Complainant along with interest on the said amount @ 12% p.a. from 25/04/2014 to till this date within 2(two) months from the date of this order. Opposite Party is further directed to pay Rs.10,000/- as litigation cost within the aforesaid period of 2(two) months, in default the entire sum shall carry interest @ 12% p.a. till realization.
