Judgment : Dt.19.2.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Arati Saha alleging deficiency in service and unfair trade practice on the part of the opposite parties namely (1) The Director, Alchemist Township India Ltd., (2) The Director, Alchemist Infra Realty Ltd. and (3) The Branch Manager, Alchemist Infra Realty Ltd., Golpark.
Case of the Complainant in brief is that having been satisfied with the goodwill of the opposite party No.2 (referred hereinafter as OP No.2) the Complainant deposited Rs.30,000/- only with the OP No.2 by cash as fixed deposit on 2.2.2011 for a period of 72 months for assured maturity amount of Rs.60,000/- on the date of maturity 2.2.2017 and accordingly the OP No.2 handed over a certified property No.AIRL/RD00161588 dt.23.2.2011 to the Complainant. It is further stated by the Complainant that on 8.7.2013 the opposite party No.3 (referred OP No.3 hereinafter) collected the original certificate issued by Alchemist Infra Realty Ltd. from the Complainant for further processing the documents and in and around last week of July handed over a certificate being no.TA00617988 customer ID TC00174563 dt.22.7.2013 issued by OP No.1 with the maturity date as 2.8.2016. The Complainant enquired about such alteration to the OP No.3 but did not receive any satisfactory reply and, therefore, lodged a complaint with the AD, CCGRC, CAD Kolkata-700 087 on 29.9.216 and also wrote letter dt.5.5.2017 to the OP Nos.1 & 2 to their New Delhi address but the letter was returned with postal remark ‘left’ and thereafter sent another letter to the OPs at their Chandigarh address, which was received by them. The Complainant has stated that the OPs failed, omitted and neglected to release the maturity value of certificate which resulted in suffering monetary loss, harassment and mental agony by the Complainant and accordingly she has prayed for direction upon the OPs to return the maturity value amounting to Rs.60,000/- to pay Rs.20,000/- towards compensation for harassment and Rs.10,000/- towards cost of litigation.
The OPs contested the case by filing written version separately although containing the same version denying and disputing all the material allegation as made out against them stating inter alia, that the instant case I s not maintainable before this Forum and further stating that the relevant documents of the Complainants claim is being examined by them for disbursement of the matured amount and as such they have no intention to deprive the Complainant from her legitimate right.
The OPs have also filed a petition challenging maintainability of the instant consumer complaint which has been registered as MA/12/2018. The maintainability has been challenged o n the ground that since the instant complaint is related to a plot of land will not come within the domain of C.P.Act.
The Complainant has filed written objection to the petition of challenging maintainability.
The Complainant has adduced evidence on affidavit and the OPs cross examined her by filing questionnaire and the Complainant replied to that.
In course of argument Ld. Advocate for the Complainant narrated the facts which are stated in the petition of complaint.
Points for determination
- Whether the complaint is maintainable under the C.P.Act, 1986?
- Whether there is deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to get relief as prayed for?
Decision with reasons
Point No.1
The Complainant has stated that she deposited a sum of Rs.30,000/- with the OP No.2 for a period of 72 months under terms of getting the matured amount of Rs.60,000/- as on 2.2.2017. The Complainant has annexed copy of the said certificate wherefrom it is evident that the Alchemist Infra Realty Ltd. issued a certificate of property in favour of the Complainant conveying vide indenture dt.2.2.2011 executed between the company and the certificate holder a proportionate and undivided share in land admeasuring an area of 1762.2 Canal, at BEHANTA and TILA, Tehsil-Kolaras, Dist.-Shibpur, Madhya Pradesh. The original whereof has been deposited with the company in terms of Development Agreement dt.2.2.2011 executed between the certificate holder and company whereunder the certificate holder has prayed Rs.30,000/- (inclusive of development charges). The estimated value of said undivided share after development is expected not less than Rs.60,000/- on expiry of tenure 2.2.2017 under the said agreement.
Section 2(1)(d) of the C.P.Act, 1986 provides as "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.
In support of their contention the OPs relied upon the decision reported in (2014) 14 Supreme Court cases 773 [Ganesh Lal Vs Shyam] wherein the Hon’ble Supreme Court pleased to hold that sale of a plot of land the selling acts as a sale simplicitor and does not involve in a consumer transaction and thus such a sale simplicot cannot come under the jurisdiction of Consumer Forum.
In the instant case, service of development in respect of the land is involved and the Complainant agreed to avail the service of development to be provided by the OPs in respect of a plot of land thus by making payment of consideration and thus has become consumer under the OPs.
It is, therefore, evident that though the instant case is related to a plot of land still it is maintainable under the C.P.Act, 1986.
Point No.1 is decided accordingly. Thus MA 12 of 2018 is disposed of.
Point Nos.2 & 3
Both points are taken up together for comprehensive discussion and decision.
Admittedly, the Complainant on 2.2.2011 deposited an amount of Rs.30,000/- with the OPs for a period of 72 months and after completion of the said period of time the matured amount would be Rs.60,000/- as on date of maturity on 2.2.2017.
The Complainant has alleged that the OPs have failed to disburse the said matured amount in spite of sending intimation to them vide letter dt.5.5.2017. The OPs denied to have received or refused such letter. In this regard, in reply to the question No.14 of the questionnaire put by the OPs the Complainant has stated that from postal track consignment it appears that on 17.07.2017 an item delivered to the Branch Manager – Alchemist Infra Realty Ltd. The Complainant has filed the instant case on 29.06.2017. However, as regards the letter dt.5.5.2017 the Complainant herself has stated in her petition of complaint that the said letter had been returned to the Complainant with postal remark ‘left’. “Left” does not amount to good service. Hence, it is evident that the intimation regarding disbursement of maturity amount was served after filing the instant case. The OP No.1 in paragraph No.8 of their written version has stated that the papers relating to the deposit of the Complainant is being examined and they will disburse the amount if the same is payable. However, considering the evidence adduced by the Complainant and copies of documents annexed thereto, it is clear that the OPs certified regarding to that effect that the Complainant has deposited a sum of Rs.30,000/- in respect of a plot of land which to be developed by the OPs and after development of the said plot the value of the land would not be less than Rs.60,000/- as on 2.2.2017. Therefore, as per their certification, the OPs are bound to settle the claim in favour of the Complainant.
Under the state of affairs as mentioned hereinabove the OPs are to disburse an amount of Rs.60,000/- in favour of the Complainant.
Considering the circumstances, we are not inclined to pass any order as to compensation and costs.
Point Nos.2 & 3 decided accordingly.
In the result, the Consumer Complaint succeeds.
Hence,
Ordered
that CC/351/2017 is allowed on contest but without any order as to cost.
The OPs are directed to pay Rs.60,000/- to the Complainant within one month from the date of this order failing which the entire mount will carry interest @ 9% p.a. for the default period.
