Hon’ble Dipa Sen (Maity), Presiding Member
Brief facts of the complaint case is that being convinced with their advertisement the Complainant accepted the offer of the Opposite Party for purchasing a plot of land and had entered into an agreement for sale dated 13-06-2011 with the Opposite Party for purchasing a plot of land lying and situated within their upcoming Project Unnayan Garden at Plot No.B, 243, measuring about 3 Cottaha, corresponding to Dag No.683, Khatian No.1436, Mouza-Kuluberia, Sub-Registry Office at ADSR, Bhangar, P.S-Bhangar, Dist- 24 Pgs(S). The Opposite Party has agreed to sell the above mentioned plot of land to the Complainant after providing basic infrastructural Development Work like connection of Electricity, Metal Road, Drainage System etc. of the said plot of land at a total consideration amount of sum of Rs.19,50,000/-(Rupees Nineteen lakh fifty thousand) only. The Complainant has paid Rs.13,65,000/- (Rupees Thirteen lakh sixty five thousand) only as part consideration amount. It was also agreed between the parties that the necessary work pertaining to the basic infrastructure such as water supply connection, electric connection and telephone connection which shall be constructed within the stipulated period of 48 months from the date of execution of the Agreement. It was also agreed and assured by the Opposite Party that they will hand over the draft deed of conveyance of the said land within 15 days from the date of receipt of last payment of installment. But in spite of receiving a considerable amount of Rs.13,65,000/- (Rupees Thirteen lakh sixty five thousand) only the Opposite Party did nothing in regard to the infrastructural development work of the said project to convert it into habitable condition. As per the said agreement dt.13-06-2021 it was also agreed that in the event of failing to complete the project the allotte may take refund of the full amount paid by him with interest. But in spite of receiving the considerable amount Rs.13,65,000/- (Rupees Thirteen lakh sixty five thousand) only the Opposite Party did nothing for development of infrastructural work and did not refund the said amount of Rs.13,65,000/- (Rupees Thirteen lakh sixty five thousand) only to the Complainant and the Complainant was compelled to appear before this Commission for Redressal of his grievances with the prayer for a direction upon the Opposite Party to refund back the entire amount paid towards the price of the allotted plot of land along with interest at the @12 % p.a. and compensation of Rs.3,00,000/-(Three lakh) only along with cost of Rs.50,000/-(Rupees Fifty thousand) only .
By filing W/O the Opposite Party, M/s. Unnayan Builders (P) Ltd. has denied and disputed all allegations made against them. They have categorically stated that the present Opposite Party being the developer agreed to sale the said plot of land after basic infrastructural development work at a total price of Rs.19,50,000/-(Rupees Nineteen lakh fifty thousand) only. The Complainant on 11-01-2011 made an application for allotment before this Opposite Party and the Party entered into an Agreement for allotment on 13-06-2021. As per condition of Agreement Complainant has paid 20% of the consideration price i.e. Rs.3,90,000/-(Rupees Three lakh ninety thousand) only and the remaining consideration price of Rs.15,60,000/-(Rupees Fifteen lakh sixty thousand) only was decided to be paid by 48 equal monthly installments. But the Complainant measurably failed to make payment of the monthly installments and the 30th installment was paid on 01-02-20216 i.e. after more than five years from the starting of payment. However, on the request of the Complainant the agreement was not cancelled. There was no deficiency in service on the part of them. But due to non-payment of monthly installment the progress work was severely affected.
Both parties have filed evidence on affidavit, questionnaire and replies and exchanged their BNAs.
Ld. Counsel for the Complainant submits that as per the agreement the Opposite Party assured the Complainant that they will hand over the draft deed of conveyance of the land within 15 days from the last payment of the installment. It was also agreed between the parties that the Opposite Party Company shall developed the said plot of land and will construct metal road to reach the plot of land along with side drains and other necessary works pertaining to the basic infrastructure such as Water Supply connection, Electricity connection and Telephone connection which shall be completed within the stipulated period of time of 48 months from the date of Agreement i.e. 13-06-2011. But in spite of receiving the considerable amount of Rs.13,65,000/-(Rupees Thirteen lakh sixty five thousand) only the Opposite Party did nothing in regard to infrastructural development work of the said project to convert to the said land habitable.
Ld. Counsel for the Opposite Party vehemently argued that the present agreement is not relating to housing construction. He has further argued that providing some basic infrastructural development were specified in said agreement including construction of metal road with side drain to reach to subject plot which does not come within purview of housing construction. Admittedly, the ownership of the land was not conveyed to the Complainant and as such, there was no scope for the Complainant to enter into any contract of service relating to the land with the Opposite Party and it can be said that the said contract is related for purchasing land and the same cannot come within the purview of C.P Act and the Complainant cannot claimed themselves as a Consumer.
Another contention of the Opposite Party is that the Complainant was based upon a document which was unstamped and thus, inadmissible as evidence. In support of his contention the Ld. Counsel for the Opposite Party has relied upon the decision of Hon’ble Supreme Court, 2008 O Supreme (SC)1881 in Avinash Kumar Chauhan Vs. Vijay Krishna Mishra reported in Volume-I, Supreme at Page 58 under Paragrapah 22 and another decision of Hon’ble Supreme Court of India between Chilakuri Gangulappa Vs. Revenue Divisional Officer, Madanapalle reported in 2001 Volume-II Supreme at Pg. 365 under Paragraph 2, 12 & 13 and another decision of Megma Fincrop Ltd. Vs. Rajesh Kumar Tiwari.
Opposite Party has further submit as the consideration was not paid by various purchasers they could not complete the development work in time and at present they are suffering from financial crisis. Opposite Party never denied the fact that the project as undertaken by them being failed for their negligence. The present Opposite Party never refused to pay the admitted amount to the Complainant but it is the Complainant who refused to accept the said amount and claimed much more amount which he is not entitled to and the present Opposite Party is praying for granting some installment to pay to the Complainant.
Heard both sides at length.
Perused the materials on record including the Agreement of allotment dated 13-06-2021. Undisputedly the Complainant entered into an Agreement with the O.P/Unnayan Builders (P) Ltd. and out of total consideration Rs.19,50,000/- (Rupees Nineteen lakh fifty thousand) only the Complainant has already made payment of Rs.15,60,000/-(Rupees Fifteen lakh sixty thousand) only to the O.Ps.
On careful perusal of the terms and conditions of the Agreement dated 13-06-2011 it clearly appears to us that in spite of Clause No.12 of the said agreement the Opposite Party failed to complete the infrastructural development work even after completion of 48 months from the date of Agreement and did not refund of amount to the Complainant with interest. Such act of the Opposite Party compelled the Complainant to appear before this Commission.
It also appear from the scrutiny of materials on record that said Agreement was not merely for purchasing a plot of land as sale simplicitor rather the Opposite Party has made several promises in that Agreement whereby under developed land was promised to develop by the builder after construction of metal road to reach the plots along with side drainage and other necessary infrastructural development work pertaining to the rendering basic infrastructural services to make the land habitable. Therefore, submission made by the Ld. Counsel for the Opposite Party as the Complainant is not a consumer U/s. 2(1)(d) cannot be accepted.
Ld. Advocate for the Opposite Party has also taken another plea that the said Agreement cannot acted upon as it was not properly stamped and draws our attention to the decisions of Hon’ble Supreme Court, 2008 O Supreme (SC)1881 in Avinash Kumar Chauhan Vs. Vijay Krishna Mishra reported in Volume-I, Supreme at Page 58 under Paragrapah 22 and in a case Chilakuri Gangulappa Vs. Revenue Divisional Officer, Madanapalle reported in 2001 Volume-II Supreme at Pg. 365 under Paragraph 2, 12 & 13. Both the matters are related to non-payment of stamp duty arising out of Civil Suit. The intent and object behind the legislation of Consumer Protection Act is to adopt a constructive approach and not to bogged down by hyper technicalities of procedure. A Consumer Forum is primarily meant to protect to the consumers and their claims cannot be defeated on technical grounds. In fact, the alleged non-payment of sufficient stamp duty is not at all material for the purpose of determining the question whether there was any deficiency in service U/s. 2(1)(g) read with Section 2(1) (o) of the C.P Act, 1986. One agreement was signed in between the parties.
Therefore, it can be said that after accepting a huge amount as part consideration the Opposite Party has no locus standi to raise any objection that the Agreement is not properly valued and stamped as per Provisions of Section 35 of the Indian Stamp Act.
Furthermore, the Opposite Party has taken the plea that the Complainant has failed to pay the balance installments and therefore the Agreement itself was liable to be cancelled on this ground. However, the fact remains that the Opposite Party himself condoned the alleged default of the Complainant by not terminating the Agreement on account of the alleged default in payment of the installments. After having condoned the said default, the Opposite Party cannot seek any benefit on account of the foresaid alleged default on the part of the Complainant.
Considering the facts and circumstances, we are of the considered view that the Complainant is entitled to get refund along with compensation in the form of interest and litigation cost.
Consequently, the complaint case is allowed on contest with the following direction:-
- The Opposite Party Unnayan Builders (P) Ltd is directed to refund Rs.13,65,000/- (Rupees thirteen lakh sixty five thousand) only together with interest @ 9% p.a in favour of the Complainant from the date of payments till its realization within 60 days from the date of communication of this order.
- The Opposite Party is further directed to pay Rs.20,000/- (Rupees Twenty thousand) only as litigation cost.
Let a copy of the Judgment be handed over the parties free of cost.
