SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.12 of the C.P. Act, 1986.

            Succinctly put, the brief facts which are material to the case are; that the complainants entered into an Allotment Agreement dated 09.05.2011 with the OP Unnayan Builders (P) Ltd. for purchasing a land measuring about 2 Cottah 8 Chittak  0 Sq.ft. comprised in L.R. Dag No. 190, L.R. Khatian No. 153 being plot No.C-137 under Bamangachi Mouza within Sonarpur PS at a total price of Rs.5,00,000/- including basic infrastructure cost. The Complainants pleaded that in terms of clause - 11 of the Allotment Agreement they have already paid Rs.5,00,000/- to the OP and the OP issued money receipts to  that effect. The OP should have developed the said land with metal road to reach the plot in question with side drains and other essential works pertaining to the basic infrastructure  such as water supply, electricity and telephone connections with the period of payment of 48 instalments as per clause-11  of the said Agreement. The OP has failed to fulfil the clause- 11 of the Agreement and also neglected to prepare the draft deed for registration. In spite of several request of the Complainants there was no response. The Complainants further alleged that legal notice dated 11.01.2016 also issued to the OP, in reply the OP furnished a repayment schedule of the consideration amount commencing from 23.11.2017 to 23.09.2018 but the Complainants did not accept the repayment schedule.  OP is deficient in service and the attitude of the OP is tantamount to unfair trade practice. Hence, the complaint.

            The OP has contested the case by filing a Written Version contending inter alia, that the complainants have no cause of action to bring the complaint and they are not consumer as defined in the C.P. Act, 1986. The complaint is filed on the basis of an Agreement which is unstamped and cannot be used as documentary evidence. The specific case of the OP is that the Complainants did not pay EMIs regularly and they are liable to pay interest. As such, the complainants cannot be claim that they have paid full consideration amount. It is also pleaded that due to non payment of EMIs of several customers the project work could not be completed with the specified time. As such clause-11 of the Agreement is not applicable. It is also averred that the Complainants did not agree to execute and register the deed in their favour. The Complainants have cancelled the Agreement through Advocate’s letter dated 11.01.2016, therefore, they are entitled to get 75 percent of the amount in terms of clause 10 of the Allotment Agreement. There was no negligence on the part of the OP and / or any attitude of the OP which tantamount to unfair trade practice. Accordingly, the OP has prayed for dismissal of the complaint with costs.

            In the light of the pleadings of the parties the following points necessarily come up for determination :-

1)         Are the Complainants consumer defined U/s 2(d) (ii) of the C.P. Act, 1986?

2)         Has the OP deficient in rendering service to the Complainants?

3)         Has the OP indulged in unfair trade practice?

4)         Are the Complainants entitled to get the relief as prayed for?

DECISION WITH REASONS

Point No.1

            The Learned Advocate for the OP contended that consumer has been defined in section 2(d) of the C.P. Act,1986. Sub clause (i) of Section 2(d) read with 2 (i) of the said Act that a person who buys any goods can be termed as a Consumer. It is provided in section 2(i) of the C.P. Act that “Goods“ means goods as defined in the Sale of Goods Act, 1930.  He further submitted that Section 2(7) of the Sale of Goods Act provided that only movable properties can be termed as goods. According to him, a person who purchases a plot of land cannot claim himself as a consumer.  Learned Advocate further urged that the complainants cannot claim themselves as Consumer as a hirer of service as defined in Section 2 (d) (ii) of the said Act because there is no contract to make any housing construction. The ownership and possession of the land in question is retained by the OP and at best it can be said that the Agreement is to sale homestead land.

            Learned Advocate appearing for the Complainants on the contrary has argued that the Complainants are the consumer U/s 2(d) (ii) of the Consumer Protection Act, 1986 though it is an Agreement for Sale of a plot of land with infrastructure  is to be developed by the OP. In support of his contention the learned Advocate for the Complainants relied upon the decision of NCDRC (Unnayan Builders Pvt. Ltd. – Vs – Sona Bera) decided on 16,.03.2018 in Revision Petition No.715 of 2018.

            We have considered the contentions and perused the record. In order to properly appreciate the contentions of the parties, it is necessary to have look clause – 11 of the Allotment Agreement dated 09.05.2011 which reads thus :

            “ The Company shall develop the said land on behalf of the Allottee with construction of metal road to reach the plots 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 period of payment of 48 installments,. “

            On reading of the aforesaid clause, the OP is require to provide the requisite basic infrastructure and therefore has to render services within the meaning of Consumer Protection Act, 1986. We agree with the law laid down by the Hon’ble NCDRC in the case of ‘ Unnayan Builders Pvt. Ltd.- VS- Sona Bera decided on 16.03.2018 in Revision Petition No. 715 of 2018 that the complainants are the consumers within the meaning of Consumer Protection Act. As such,  we devoid the submission of the learned Advocate for the OP that complainants are not the Consumers within the meaning of C.P. Act, 1986. The decision relied by the Learned Advocate for the complainants clearly indicate that complainants are the Consumers within the meaning of C.P. Act, 1986. Thus, the point No. 1 is decided in favour of the complainants and against the OP.

Point No. 2 to 4 :

These three points are taken up together for discussion for the sake of convenience and brevity.

In course of hearing the Learned Advocate for the OP submitted that the case  of the complainant is based on a document which is unstamped and in the Allotment Agreement dated 09.05.2011 was typed on non-judicial stamp paper of Rs.10/- though the value of the land in question is Rs.5,00,000/-. He further contended that U/section 2 (14) of the Indian Stamp Act, “ Instrument “ includes every document including the Agreement of Allotment of a immovable property and due to explanation added to Item No. 5 of schedule “1A” even in case of more agreement to transfer or delivery of possession of immovable property with an intention to transfer  right, title and interest of such property at any future date by executing  separate conveyance, such agreement is to be stamped as if it is  a conveyance as mentioned in Item No. 23 of the said schedule. Therefore, the Allotment Agreement dated 09.05.11 should be stamped according to item No. 23 of the schedule “1A”, Section 35 of the Indian Stamp Act. According to him, the unstamped agreement dated 09.05.2011 cannot be taken into evidence. In support of his s¿¶…uch contention, the learned Advocate for the OP cited two decisions reported in 2009 (1) Supreme 58 (Avinash Kumar Chauhan -Vs- Vijay Krishna Mishra) and 2001 (2) Supreme 365 (Chilakuri Gangulappa -Vs- Revenue Disposal Officer, Madanpalle & Another). The Ld. Advocate for the OP further submitted that there is disruption of development work as many customers who booked the plots did not pay the remaining consideration price in terms of Clause-12 of the Agreement of Allotment and the OP is ready and willing to refund the admitted amount to the complainant by instalments as at present they are suffering from financial crisis.

Pre-contra, the Learned Advocate for the complainant submitted that the OP prepared the Allotment Agreement on the non-judicial stamp paper of Rs.10/- and the instant complaint has been filed for deficiency in service for non handover the possession of the land in question in the project  “Bashundhara “ by the OP after developing the basic, construction. According to him, the complainant entered into a transaction with the OP for possession, the plot after completion of infrastructure against consideration of Rs.5,00,000/-. Complainant has already paid the entire consideration amount but the OP has not yet completed the infrastructure on receiving entire payment. In support of his contention, the Ld. Advocate for the complainant referred two Judgments of Hon’ble NCDRC passed in First Appeal No.670 of 2018 dated 27.04.2018 and Hon’ble SCDRC West Bengal passed on 8.08.2018 in connection with C. Case No.402/2014 (Pijush Chakraborty  - Vs - Unnayan Builders Pvt. Ltd.).

We have heard the submissions made by the Learned Advocate for the parties and also considered the evidence as well as documents on record.

It is true that the complainants entered in to an Allotment Agreement with the OP on a non-judicial stamp paper of Rs.10/- for purchasing a plot of land measuring about 1800 Sq. ft. situated at Bamangachi Mouza comprised in L.R.Dag No. 190,. L.R. Khatian No. 153 under Sonarpur P.S. at a consideration of Rs. 5,00,000/-. On bare perusal of the Clause 12 of the of the Allotment Agreement dated 09.05.11 we find that the total price of the land including basic infrastructure cost is Rs.5,00,000/- and the complainant has paid Rs.1,00,000/- at the time of signing the agreement and balance amount of Rs.4,00,000/- will be paid by 48 equal monthly instalments.

On reading of the clause-11 of the Allotment Agreement it is clear that the OP shall develop the said land on behalf of the Allotee with construction of metal road to reach the plots of land along with side drains and other necessary works pertaining to the basic infrastructure such as water supply, electric and telephone connection, which shall be completed within the period of payment of 48 instalments,. The plea of the OP is that the complainants did not pay the EMIs regularly as such, they are liable to pay interest. OP failed to produce any document to show that they claim interest for non payment of EMIs from the complainants. The OP in their written version has admitted that they could not completed the project work within the specified time as many customers did not pay their EMIs in due time though the complainants paid the entire consideration amount. In terms of clause-10 of the Allotment Agreement the complainants are entitled to get  75 percent of the amount paid as they cancelled the Agreement vide Advocate’s letter dated 11.01.2016.

We have perused both the decisions cited by the Learned Advocate appearing for the OP. In the first cited decision it was held that if a document is not properly stamped the same cannot be admitted into evidence even for collateral purpose because of the bar provided in Section 35 of the Indian Stamp Act. In the second cited decision it was held that the party produces a documents which is not properly stamped and if the court chooses to admit the documents, the Court will ask the party to pay the stamp duty together with penalty amount to the ten times the deficiency of stamp duty. If party concerned refused to pay the said amount, the court has no option except to impound the document and forward the same to the collector,. After receipt of the opinion of the collector, the court will collect the amount from the party who produced the said document. Both the decisions cited by the Learned Advocate for the OP are in respect of matters related to non-payment of stamp duty in a matter arising out of Civil Suits. So the aforesaid decisions would not apply to the facts prevailing in the instant case before us and, therefore, are of no help to the OP.

We have gone through the decisions cited by the Ld. Advocate for the complainants. The Hon’ble NCDRC in First Appeal No. 617 of 218 (Unnayan Builders Pvt. Ltd. –Vs-  Nabhanil Mondal) has been pleased to observe that in the pleadings of the parties that the Developer had entered into a transaction with the complainants for developing plot and making the development plot available to him for a consideration within a period of four years from the date of agreement on which the agreement was  executed between the parties. The onus therefore is upon the OP to prove either that it had .developed the plot and offered its possession to the complainant within the stipulated period or that the development could not completed on account of reasons beyond its control.

On perusal of the written version we find that the OP has taken a plea that several plot buyers has failed to make payment to them in time. In our opinion, if other plot buyers failed to honour their commitment that the OP, that could not have been a ground for not completing the development of the plot, subject matter of the Agreement with the complainants. The OP ought to have arrange financers from the alternative sources and completed the development work. As such, the complainants cannot be made any suffer without there being any default on their part.

The Hon’ble Apex Court in a decision reported in 2014 (4) SCC 773 (Ganeshlal -Vs- Shyam ) has been pleased to observe that  if the Agreement for Sale is not a mere sale simpliciter and the same is attached with a condition of development of the Project, Certainly  it cannot be termed as a Sale of Plot of land simipliciter. In other words, sale of plot of simpliciter is different from plot sold by the builders or promoters. In the instant case, it is quite apparent that the OP being the Developer entered into an agreement with the Complainants to sell the plot with other necessary works, pertaining to the basic infrastructure. Therefore, the submission made by the Ld. Advocate for the OP that the agreement between the parties about sale of plot of land was not come under the purview of the Act has no force at all.

The intent and object behind the legislation of the Act to adopt a constructive approach and not to bagged 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 is any deficiency in service U/s 2(1) (g) read with section 2(i) (o) of the Act. Since the agreement has been signed by the parties with their open eyes, it indicates that they have accepted the terms and conditions of the said agreement. Therefore, after accepting the entire consideration amount, the OP has no locus standi to raise any objection that the agreement is not properly valued or stamped as per provision of Section 35 of the Indian Stamp Act.

 The Clause-21 of the Agreement between the parties provides –

“21. In the event of the Company failing to complete the project within the stipulated time, the allottee may take refund of the full money paid him / her towards price of the land with interest  at the rate of 10 percent p.a.”

 Needless to say, the parties are bound by the Agreement. Both the parties have signed the Agreement of Allotment with full knowledge and understanding about its contents and as such the terms of the agreement towards above the rest. The record reveals that on 11.01.2016 the complainant has claimed refund of full money along with interest  at the rate of 10 percent p.a. as per terms of the Agreement. Therefore, in accordance with Clause -21, the OP should have made payment of the amount of Rs.5,00,000/- (Rupees Five lacs) only along with interest   at the rate of 10 percent thereon.

Regard being had to the entire fact and circumstances of the case and having heard the Ld. Advocate appearing for the parties we are of the considered opinion that the complainants are to Consumers under C. P. Act, 1986. There is deficient in rendering service and indulged in unfair trade practice by the OP. As such, the complainants are entitled to refund of amount along with compensation in the form of interest thereon  at the rate of 10 percent per annum from the date of payment till its recovery.

In the result, the complaint succeeds in part.

Hence,

ORDERED

That the complaint case being no. CC-155 of 2017 be and the same is allowed on contest in part against the OP with litigation cost of Rs.10,000/- (Rupees ten thousand) only,

 The OP is directed to refund Rs.5,00,000/- (Rupees five lacs) only  together with interest  at the rate of 10 percent per annum from the date of payments till its realisation within 60 days from the date of the order.

The OP is further directed to pay the litigation cost to the Complainant  within 45 days from the date of the order otherwise the said litigation amount shall carry interest  at the rate of 9 percent per annum from the date till its recovery. 

OP is also further directed to deposit Rs. 25,000/- (Rupees twenty five thousand) only to this Forum as punitive damage for practicing unfair trade within the stipulated period of 45 days.

Liberty be given to the Complainants to put the order in execution, if the OP transgress to comply the order.