18….31.05.2022…..
Today is fixed for delivery of judgment/final order.
Final order is ready. It is sealed, signed and delivered in open Forum/Commission.
It is ordered that,
That the complaint case be and the same is allowed exparte
against the OPs with cost of Rs.25,000/-.
The OPs jointly or severally are directed to hand over the vacant physical possession of the developed plot being No.BH/20 in favour of complainant and to execute and register the deed of conveyance of the subject land after taking the balance consideration amount of Rs.30,000/- only within 60 days from the date of this order. The OPs jointly or severally are directed to pay compensation to the tune of Rs.1,00,000/- only for mental pain and agony suffered by complainant within 60 days from the date of this order.
Alternatively, that the OPs jointly or severally are directed to refund the entire advance amount of Rs.1,50,000/- only along with 10% interest per annum w.e.f. 07.01.2015 till the date of realization within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay litigation cost of Rs.25,000/-.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 60 days from the date of this order.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO._80_ OF 2020
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
24.11.2020 10.12.2020 31.05.2022
Present : President : Ashoke Kumar Pal
Member : Jagadish Chandra Barman
Member : Sangita Paul
COMPLAINANT : Sri Subhash Chandra Sheet, Son of Late
Mahadev Chandra Sheet,
residing at 1, Sarada Park, P.S. – Regent Park, Garia, Kolkata-700 084 but at present residing at Nath Musalman Para, Manikpur, P.O.- Harinavi, P.S.-Sonarpur, Pin-700 148.
Versus
O.P/O.Ps : 1. The Managing Director,
Broadway Realtors Pvt. Ltd.,
Registered Office at P-593, Purna Das Road, P.S.-Lake, Kolkata-700 029.
2. The Executive Director,
One of the Directors of Broadway Realtors
Pvt. Ltd., Registered Office at P-593, Purna
Das Road, P.S.-Lake, Kolkata-700 029.
Smt. Sangita Paul, Member
This is a case filed by Shri Subhash Chandra Sheet, S/o. Late Mahadev Chandra Sheet of Nath Musalman Para, Manikpur, P.O. Harinavi, P.S.-Sonarpur, Pin 700 148 with a prayer for handing over the vacant physical possession of the developed land under project viz “Ujjaini” (Jayanpur), for executing and registering the deed of conveyance of the subject land, in favour of complainant, after laking the balance consideration amount of Rs.30,000/- handing over the possession letter, paying compensation to the tune of Rs.1,50,000/- only to the complainant for deficiency in service, paying Rs. 50,000/- only towards legal expenses, paying Rs.50,000/- only towards compensation for mental agony or alternatively refunding the entire advance amount of Rs.1,50,000/- only together with interest @10% p.a. and for paying Rs.50,000/- only towards legal expenses.
OP No.1 is the Managing Director, Mr. Arun Kr. Sarkar of Broadway Realtors Pvt. Ltd. The address of OP No.1 is P-593 of Purna Das Road, P.S. – Lake, Kolkata-700 029.
OP No.2 is Anwar Ali Molla, director Broadway Realtors Pvt. Ltd.
Broadway Realtors is a company registered under Companies Act, 1956. The company is represented by Board of Directors, the opposite party is a developer in respect of the developed land. The project is situated at Mouza-Jayenpur, P.S. – Sonarpur, J.L.No.66, Dist.-24 Parganas (South).
The OP entered into an agreement with complainant. The OPs made a scheme to cheat the complainant. Complainant, who is a genuine purchaser was finding a land for making permanent residence. He wanted to purchase a developed plot of land. As a result, he booked a plot under project Ujjaini, being plot No.BH/20 measuring 2 cottahs. Under J.L. No.66, Mouza-Jayenpur under Police Station Sonarpur. Complainant booked the said plot, the length of which 288 ft. and width is 50ft. Complainant paid total Rs.1,50,000/- only. Complainant paid Rs.30,000/- only for booking the said plot of land. The total money has been deposited by cheque. Complainant paid Rs.1,50,000/- on different dates and the OP issued receipts after payment of installment. Thus complainant paid the total amount of consideration.
After taking the purchase money the OP did not complete the project and did not hand over the said plot of land to the complainant. Complainant demanded to demarcate the p[lot, but the OP did not. After 09.05.2009, complainant requested to refund the amount of Rs.1,50,000/- or to register the developed land in the name of complainant. The OP did not show any interest, to handover the developed project to complainant. The matter has been delayed due to willful neglect of the OPs. The OPs violated the terms and conditions of the agreement. Complainant visited the OPs office several times. The OPs were unwilling to handover the plot of land after taking the balance amount of Rs.30,000/- only, for the reasons best known to them. Complainant sent legal notice to the OPs on 21.09.2020, which was refused by the OPs. They did not take any effective steps regarding the said agreement.
On 15.08.2019, complainant visited the office of the OPs but the office was under lock and key. The Managing Director of Broadway Realtors demanded another Rs.80,000/- which the complainant refused to give. Complainant waited for a decade hoping to get the subject land, but the failed to get that.
The cause of action arose on 28.10.2005 when complainant entered into an agreement after visiting the land and paid Rs.1,50,000/- only in different installments. Complainant sent legal notice on 21.09.2020.
That the Honorable Commission has ample jurisdiction both pecuniary and territorial to admit and adjudicate the complainant.
Hence complainant prays for handing over the vacant physical possession of the developed land under project Ujjaini (Jayenpur) Plot No.BH/20, measuring 2 cottachs under J.L. No.66, Mouza-Jayenpur under P.S.-Sonarpur, 24 Parganas (South), executing and registering the deed of conveyance of the land in favour of complainant, handing over the possession letter in favour of complainant paying compensation to the tune of Rs.1,50,000/- to complainant for deficiency in service, paying Rs.50,000/- only towards legal expenses, paying Rs.50,000/- towards compensation for mental agony. Alternatively, complainant prays for directing the OPs to refund the entire advance amount of Rs.1,50,000/- only @ 10% p.a. and paying Rs.50,000/- only towards legal expenses.
Notices were sent to the OPs on 15.02.2021 but the notices were returned unserved. Complainant was told to take fresh steps on 16.09.2021. On 03.12.2021 complainant filed postal receipts showing service of notice upon the OPs on 18.11.2021. On 22.12.2021 no W/V was filed by the OPs. The case was declared to be proceeded exparte against the OPs. On 15.02.2022, complainant files evidence on affidavit. Complainant files BNA on 24.03.2022. Argument was heard on 10.05.2022. And we proceeded for giving judgement.
Points of consideration :-
- Is the complainant a consumer ?
- Are the OPs guilty of deficiency in service and unfair trade practice ?
- 03. Is the complainant entitled to get relief as prayed for ?
Decision with reasons :-
01. On perusal of existing records and documents, it is evident that complainant was willing to purchase a plot of land under progress. The name of the project was Ujjaini situated at Jayenpur, the Plot No.BH/20 measuring 2 cottachs under J. L. No.66, Mouza-Jayenpur, under P.S. – Sonarpur, 24 Parganas (South). The plot was agreed to be sold by Broadway Realtors Pvt. Ltd., the length of the plot was 288 ft., the width of the plot is 50 ft. BH 19 is situated to the South of the scheduled plot BH 20, to the North of the Complainant’s plots there was 20 ft.-wide road, to the West of the Plot there was 20 ft. wide road, BH/1, is situated to the East of the scheduled plot BH/20. The scheduled plot was booked from Broadway Realtors Pvt. Ltd. The Office is situated at P-593, Purna Das Road, P.S.-Lake, Kolkata-700 029. The OPs have entered into agreement with complainant to sell a plot measuring 2 cottahs. Complainant booked the plot by making an initial payment of Rs.30,000/- only. Complainant paid total Rs.1,50,000/- only through several cheques and also by cash. Complainant files money receipt in support of his statement. Even the OPs did not appear to contradict the statement made by complainant. As the complainant paid the consideration amount, the complainant is a consumer as defined in Section 2(7) of the Consumer Protection Act, 2019. So the 1st Point is settled in favour of the complainant.
02. Complainant booked the plot for constructing his own house. The OPs wanted to make complainant understand that the scheduled plot was free from any encumbrances. Complainant believing the OPs on good faith booked the plot of BH/20, measuring 2 cottahs. Complainant made an initial payment of Rs.30,000/- only for booking the scheduled plot. Complainant paid Rs.1,50,000/- only on several dates from 03.09.2005 to October, 2009. Complainant made payment in cash and cheque. All the payments were made properly. Complainant files money receipt in support of his statement. In return, the OPS failed to hand over the subject plot to complainant. The OP did not demarcate the plot of complainant specifically showing some false pretext. The market-price is escalating, the price of constructing house is becoming higher etc. but the OPs are ultimately reluctant to handover the subject plot to the complainant. The OPs hardly realized these facts. The opposite parties are negligent and deficient in providing service to complainant. The OPs violated the clauses of the agreement. No plot was transferred in the name of complainant, but they took Rs.1,50,000/- only from complainant. The Opposite Parties adopted unfair trade practice. They tried to escape from the liabilities as stated in Clause No.19 of the agreement dated 28.10.2005. It was stated that in case of any dispute it would be settled mutually. But nothing was settled mutually. The OPs failed to hand over the plot as stated in Clause 9. It was written that the OPs would develop the land on behalf of complainant. Metal roads would be constructed, there would be drains and necessary work which are essential for making a plot habitable. These are only described in the agreement, but it was far from reality. Complainant performed his part but the OPs did not. As per Clause 12 the second party will not execute the deed of conveyance unless additional cost is paid. Additional cost includes cost of electricity and water. No development was made in this respect. The last payment was made by complainant in the year 2009 (October). Till today complainant is deprived of getting the said property. No work of development was completed. The OPs did not hand over the subject property after the work of development. No electric connection and water line have been sought. It is clear from the above statement that the OPs are guilty of deficiency in service and unfair trade practice. Hence, the second point is settled in favour of the complainant.
03. Complainant booked the plot namely BH/20 under Broadway Realtors Pvt. Ltd. Complainant made the full payment. Complainant followed the Clauses of Agreement. But the OPs violated the terms and conditions of agreement. Agreement was signed on 28.10.2005. Payment was completed in the month of October, 2009. According to the agreement, complainant was supposed to get the plot within 4 years. Neither the OPs handed over the subject plot to complainant nor they returned the money with interest. As the plot was not handed over to complainant, no question of registration of land arises. Decades passed, complainant failed to get the land. No communication was made by the OPs in this respect. The cost of registering the land is becoming higher and higher. It is almost impossible for the complainant to buy a plot and construct a house. Complainant sent legal notice to the OPs on 21.09.2022 which was not received by the OPs and it was returned to the addressee. Complainant did not get any positive response from the OPs. The physical possession of the developed land was not handed over to complainant. No deed of conveyance has been executed in favour of the complainant. Complainant failed to get the service from the OPs. The OPs did not care to answer complainant’s letter. It appears from the behaviors of the OPs that the OPs were not ready to return the amount of Rs.1,50,000/- only to the complainant. Complainant is harassed by the OPs repeatedly. Hence, complainant is entitled to get the reliefs as prayed for. Thus the 3rd point is also settled in favour of complainant.
In the result, complainant succeeds.
Court Fees paid are correct.
Hence, it is,
ORDERED
That the complaint case be and the same is allowed exparte against the OPs with cost of Rs.25,000/-.
The OPs jointly or severally are directed to hand over the vacant physical possession of the developed plot being No.BH/20 in favour of complainant and to execute and register the deed of conveyance of the subject land after taking the balance consideration amount of Rs.30,000/- only within 60 days from the date of this order. The OPs jointly or severally are directed to pay compensation to the tune of Rs.1,00,000/- only for mental pain and agony suffered by complainant within 60 days from the date of this order.
Alternatively, that the OPs jointly or severally are directed to refund the entire advance amount of Rs.1,50,000/- only along with 10% interest per annum w.e.f. 07.01.2015 till the date of realization within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay litigation cost of Rs.25,000/-.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 60 days from the date of this order.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
Sangita Paul
Member
