DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _94 _ OF 2016
DATE OF FILING : 1.9.2016 DATE OF JUDGEMENT:14.3.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Sumbul Yazdani, wife of Ghulam Yazdani, of GC 38, Sector 3, Salt Lake City, P.S Bidhannagar, Kolkata-106.
O.P/O.Ps : The Managing Director, M/s Unnayan Developers(P) Ltd. at 18/44, Ballygunge Place East, Ballygunge, Kolkata-19.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Alleging deficiency in service on the part of the O.P/developer for not completing his project work within the specified time ,the complainant has filed the instant complaint under section 12, C.P Act, 1986 .
The facts leading to the filing of the instant case by the complainant may be reproduced as follows.
The O.P is a developer . He executed a sale agreement dated 19.2.2010 and thereby agreed to sell away a plot of land succinctly described in schedule to the complaint to the complainant for a total consideration price of Rs.12,37,500/-. The complainant paid Rs.10,93,825/- in all to the O.P. The project was to be completed within four years of the sale agreement. But, still now, the project has not been completed by the O.P and, therefore, the complainant has filed the instant case ,praying for refund of the money paid by him to the O.P and also for payment of compensation etc. Hence, this case.
Admitting consideration price and receipt of Rs.10,93,825/- ,the O.P has submitted in the written statement filed by him that it is the complainant who defaulted in payment of installments in terms of the agreement. She paid only 41 installments instead of 48 installments as agreed upon between the parties. She did not pay the full consideration price within the agreed period and, therefore, the work of project has not been completed by him within the time. The complainant is, however, entitled to get refund with 6% interest after having deducted 25% of the amount paid as price of land. There is no deficiency in service whatsoever on his part and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The complainant has led her evidence on affidavit. Similarly evidence on affidavit has been led by the O.P. Questionnaires, replies and BNA filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Save and except some technical objections raised on behalf of the O.P, there is practically nothing to argue on merits of the case. It has been argued on behalf of the O.P that the case is not maintainable, because the land is not goods and the land which is agreed to be sold to the complainant by the O.P cannot be included within “Housing Construction” as provided in the definition of “Service” under section 2(1)(O) , C.P Act, 1986. It has been further argued on behalf of the O.P that the sale agreement is not admissible in evidence, because requisite stamp duty has not been paid by the complainant upon the said agreement. All these points of argument appear to be very trite and ,therefore, we are of the opinion that these points are not at all tenable in law.
It is the allegation of the complainant that the project has not been completed by the O.P within the period prescribed in the agreement and, therefore, the complainant has demanded return of the price paid by him to the O.P. The O.P has filed written statement and also evidence on affidavit. Nowhere it is stated either in his written statement or in his evidence that the project has already been completed by him. On the other hand, it stands established as being undisputed fact that the complainant has paid more than 90% of the consideration price to the O.P. If 90% of the consideration price is paid to the O.P developer, it is incumbent upon the O.P developer to execute the project work in the same proportion. He should have executed the project work at least 80% within the prescribed period or within the extended period ,whatever it may be. The Sale Agreement was effected in the year 2010. Now it is 2019. 9 years have already passed away; the project of the O.P is yet to see the light of the day. Upon all these facts and circumstances, it stands established that the O.P is defaulter in the performance of agreement and he is guilty of deficiency in service for that act. He will have to return the consideration price received by him from the complainant. It has been argued on behalf of the O.P that 25% of the price so paid by the complainant to the O.P will be deducted in this regard. Clause 21 of the sale agreement dated 19.2.2010 comes to our notice . It provides that if the developer fails to execute the project work within the prescribed period, the developer shall return the money received from the complainant with 6% interest. There is no provision for deduction of 25% of the money received by the O.P. Regards being had to the aforesaid provisions of the agreement in particular, we are of the opinion that the O.P/developer will have to return the entire consideration price received by him from the complainant.
Now arises the question of compensation which has been prayed for by the complainant. The complainant has waited and waited for long 9 years for a plot of land for residential purpose. The O.P has not been able to complete the project. Now. If the complainant is to purchase a plot of land of similar kind, he will have to pay through her nose . There has been a steep appreciation of value of land by this time in the market. The complainant will certainly suffer heavy loss for the default of the O.P/developer . Regards being had to all these facts and circumstances of the case, we do hold that the O.P/developer will have to pay compensation by way of interest upon the money received by him from the complainant.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P with a cost of Rs.10,000/-.
The O.P is directed to refund Rs.10,93,825/- to the complainant with compensation to be paid by way of interest @15% p.a from the date of respective payment till full realization thereof ,within a month of this order, failing which the complainant is at liberty to execute this award through the instrumentality of the Forum.
Registrar-In-Charge of this Forum is directed to deliver a copy of the judgment free of cost to the parties concerned.
President
I / We agree
Member
Dictated and corrected by me
President
