Judgment : Dt.28.4.2017
Mrs. Balaka Chatterjee
This petition of complaint is filed under Section 12 of C.P.Act by Mr. Arup Kumar Ghosh alleging deficiency in service on the part of the OP, The Managing Director, M/s Desire Agro Resorts Development Private Limited.
Case of the Complainant in brief is that he entered into an Agreement on 16.11.2007, with the OP Limited Company in respect of transfer of a plot of land having an area of 1440 sq.ft. more or less situated at Mouza – Kharibari, Dag No.581, Khatian No.758, to be transferred by the OP after developing the same in favour of the Complainant. The agreed consideration of the said plot of land was Rs.1,70,000/- and the Complainant on 23.8.2004, paid Rs.34,000/- towards booking amount and the balance amount has been paid by 36 monthly installments. It is further stated by the Complainant that on 23.11.2004 a certificate was issued by the OP to the Complainant certifying that Plot No.44 was booked by him. The Complainant stated that the entire amount of consideration was paid by August, 2007 and the OP assured him of getting possession of the booked plot shortly after proper development under the project named as “Diamond Gate”. Accordingly, an Agreement for sale was executed by and between the Complainant and the OP on 16.11.2007 in respect of the said plot of land. The Complainant, thereafter, waited for considerable long time but no step on the part of the OP was taken for execution and registration of Deed of Conveyance in favour of him in respect of the said plot of land although the Complainant had been knocking the door of the OP for the same. However, by a letter dt.14.12.2011 the Managing Director of the OP informed the Complainant that they were going to convert the said land project into housing project and gave an opportunity to the plot allottees to opt for a flat in lieu of the plot of land already allotted to him. The Complainant had been requesting the OP to complete the said project expeditiously and, thereafter, to deliver possession of the flat promptly. It is further stated by the Complainant that in November, 2012, the OP sent a letter stating that they were going to enter into an agreement with another renowned developing concern namely, ‘The Heritage Group’ to expedite the development work and, therefore, possession of the proposed flat would be delivered shortly. Since the same has not been done the Complainant by a letter dt.30.10.2014 lodged his grievance to the OP. Subsequently, the Complainant sent another letter dt.28.09.2015 and ultimately, by a letter dt.13.10.2015 lodged a complaint with the Assistant Director, CA & FBP, South 24-Parganas, but, the OP did not respond to the call of the said office. Hence, the Complainant has filed the instant case praying for direction upon the OP to deliver the physical possession of the said developed plot of land in complete habitable condition as per agreement for sale dt.16.11.2007 or residential self contained flat as offered by the OP subsequently, to execute and register Deed of Conveyance in favour of the Complainant in respect of the said property, alternatively, to refund the entire amount of consideration alongwith interest @ 18% p.a. till realization, to pay Rs.2,00,000/- towards compensation for causing harassment and mental agony and Rs.50,000/- towards cost of litigation.
The OP contested the case and filed written objection denying the allegations as made out in the petition of complaint save and except which are on record stating inter alia that this Forum lacks in territorial jurisdiction to entertain the instant case since office of the OP is situated under P.S.-Lake and the said P.S. is not within the territorial jurisdiction of this Forum. It is further stated by the OP that the instant petition is time barred since the Complainant paid the consideration amount to the OP in 2007. It is stated that on 14.12.2011 sent a proposal to the Complainant offering him a flat having area of 650 sq.ft. in lieu of that piece of land for which he paid the consideration amount. It is specific defence of the OP that due to some legal problem for acquisition of land at Baruipur by Govt. of West Bengal, OP company failed to develop the said project and after entire change of land laws in West Bengal the OP Company became slow in the field of Development as that require prior mutation and conversion.
However, it is stated by the OP that they informed the plot holders that interested plot holder will get a flat free of cost in their new projects alternatively, they are agreeable to refund the money. Accordingly, the OP has prayed for a direction upon the Complainant to accept the alternative option or to withdraw the invested amount with 20% appreciation money only.
Points for determination
Is Complainant is a consumer?
Is this case maintainable under this Forum?
Is there any deficiency on the part of the OP?
Is Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 – The Complainant entered into an agreement with the OP in respect of hiring service in relation to development of land and paid consideration amount towards that service and thus has become a consumer under the OP.
Point No.2 – The case is well within pecuniary jurisdiction of this Forum since value of the case has not exceeded Rs.20,00,000/-. Further, office of the OP is also within the territorial jurisdiction of this Forum. Moreover, the OP inspite of receiving consideration amount did not deliver the plot of land in respect of which an agreement was executed by and between the parties and even did not execute a deed of cancellation in respect of the said agreement. Thus, the cause of action is continuing one of this complaint is not barred by limitation. Therefore, this complaint is maintainable before this Forum.
Point No.3 – Parties executed an agreement for sale in respect of a plot of land. Terms of the said agreement is binding upon the parties. Subsequently, the OP offered flat in lieu of the said plot of land and the Complainant accepted the same and, therefore, parties cannot resile therefrom. It is observed that a considerable spell of time has been lapsed but no initiative has been taken by the OP towards delivery of the flat which they themselves offered to the Complainant.
The OP in written version has stated that due to legal problem in acquisition of land the OP could not complete the project so far and thus could not deliver the flat to the Complainant. It is hold that internal problem of OP Company cannot be hold as a valid reason to deprive the Complainant to exercise his right., i.e. to have possession and ownership of the said flat. In fact this inordinate delay on the part of the OP in respect of hand over the flat to the Complainant is a flaring example of deficiency in service on the part of the OP.
Point No.4 – Considering the submissions made by both sides we are inclined to allow the alternative prayer of the Complainant that is to refund the deposited amount with interest since the OP has admitted that the proposed project of housing construction has not been completed so far.
Accordingly, we are inclined to allow refund of the amount with interest @ 18% p.a. since interest is a form of compensation we are not inclined to pass any orders towards compensation.
As the OP has compelled the Complainant to file the instant case, the OP is liable to pay costs of litigation which as per our assessment is Rs.20,000/-.
In the result, the petition of complaint succeeds.
Hence,
ordered
CC/307/2016 is allowed in part on contest. The OP is directed to refund the deposited amount of Rs.1,70,000/- along with interest @ 18% p.a. since deposition of the amount till realization thereof within one month from the date of this order.
The OP is further directed to pay Rs.20,000/- within aforesaid period.
In the event of non-compliance within the stipulated period a further interest of @10% p.a. will be accrued on the unpaid amount for defaulted period.
